MZYFP v Minister for Immigration
[2010] FMCA 210
•6 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYFP v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 210 |
| MIGRATION – Section 424AA – whether a failure to comply with a section in every respect will amount to jurisdictional error. SECTION 424A(1) – whether breach. PERSECUTION – whether the applicant would face a real chance of persecution for reason of religion, political belief, attendance at the World Youth Day, or as a person of his caste or class. INFORMATION – whether lack of information is covered by s.424A(1) – whether evidence given by the applicant is “information” covered by s.424A(1). CREDIBILTY – adverse finding on. |
| Migration Act 1958 (Cth), ss.91R, 353(2), 359AA, 420, 424A, 424AA, 424B, 474, 477 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 |
| Applicant: | MZYFP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG946 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 11 February 2010 |
| Date of Last Submission: | 11 February 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 6 April 2010 |
REPRESENTATION
| The Applicant appeared In Person with the assistance of a Punjabi interpreter |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application filed 27 July 2009 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG946 of 2009
| MZYFP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia first on 9 July 2008 to attend the World Youth Day (“WYD”). He departed from Australia on
23 July 2008 and returned on 5 September 2008 (Court Book 28). He applied for a Protection (Class XA) visa on 29 September 2008
(Court Book 25). A Delegate of the Minister refused to grant a visa by decision dated 26 November 2008 (Court Book 49). The applicant sought a review of that decision by the Refugee Review Tribunal
(the “RRT”). By decision dated 1 July 2009 the RRT affirmed the decision of the Delegate not to grant the applicant a visa. The applicant now seeks judicial review of the decision of the RRT.
The main issues relevant to the review are:
·Whether there was a breach of s.424A of the Migration Act 1958 (the “Act”)
·Whether the RRT denied procedural fairness
·Whether the RRT denied natural justice by failing to provide the applicant with a further opportunity to present his case
These issues are extracted from the grounds in the application, which are as follows:
Grounds of Application
(1)That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).
Particulars: (a) There was certain adverse information used by the Tribunal to affirm the decision under review.
(b)The Tribunal did not disclose the information in accordance with s.424A(1).
(2)That the tribunal made error of law and lack of procedural fairness and therefore committed jurisdictional error.
(3)That the Tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.
Extension of time
The applicant seeks an extension of time for the making of his application. The decision of the RRT sought to be reviewed is dated
1 July 2009 (Court Book 107). The applicant filed his application on
27 July 2009, which was 26 days after the date of the decision. Section 477 of the Act provides that the application “must be made within 35 days of the date of the migration decision.” The application was made in time and an extension of time is not necessary
Alleged breaches of the Migration Act 1958 (the “Act”)
Ground one alleges a breach of s.424A of the Act.
Ground two is that the Tribunal made an error of law and lack procedural fairness (sic) and therefore committed jurisdictional error.
Ground three is that the Tribunal made “denial of natural justice” (sic). “Because it failed to provide further opportunity before the Tribunal.”
The RRT conducted an initial hearing on 18 February 2009. The applicant attended to give evidence and present arguments. The hearing was conducted with the assistance of a Punjabi interpreter
(Court Book 112.10). A second hearing was conducted on
20 April 2009, which the applicant attended. The hearing was conducted with the assistance of a Punjabi interpreter
(Court Book 119.3).
The RRT sent a letter to the applicant on 22 April 2009, pursuant to s.424A(1) of the Act (Court Book 101). The letter gave clear particulars of the information that the RRT considered would be the reason, or part of the reason for affirming the decision under review: It gave detail of why the information was relevant and explained the consequences of the RRT relying on the information. The letter invited the applicant to comment (Court Book 103). The applicant sent his comments by letter dated 13 May 2009 (Court Book 105). That letter was considered by the RRT (Court Book 123.6). The RRT handed down its decision on 1 July 2009 (Court Book 107).
Religion and World Youth Day
The RRT accepted that the applicant is a Catholic, but for the reasons given by it, did not accept that the applicant had experienced persecution in the past because he is a Catholic or because he may have converted from the Hindu religion (Court Book 126.8). Those findings of fact were open to the RRT on the material before it and are not amendable to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”
The Court refers to following the decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).”
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
The RRT did not accept the applicant’s assertion that he would face a real chance of persecution for reason of his religion if he was to return to India now or in the reasonably foreseeable future (Court Book 126.9). The RRT set out its reasons for reaching that conclusion (Court Book 126.10). The conclusion was open to the RRT on the material before it and is not amenable to review. The Court refers to the authorities, supra.
The RRT rejected the applicant’s claim that he would face harm on return to India because he had travelled to attend the WYD in Australia (Court Book 127.2). The RRT was free to accept or reject the evidence. The finding was open to the RRT. It is not amenable to review. The Court refers to the authorities, supra.
The RRT found that the applicant decided to attend WYD well prior to March 2008, and his decision to do so was unrelated to fear of harm in India (Court Book 127.7). The RRT set out its reasons for reaching that decision (Court Book 127.4 – 127.7) which was open to it on the material before it, and is not amenable to review.
The RRT rejected the applicant’s claim that he had to “pay a bribe” to get a visa to come to Australia as the applicant had given evidence at the first hearing specifically denying that (Court Book 127.8).
As a result of the above findings the Tribunal made a finding of fact that the applicant does not have a well founded fear of persecution now or in the reasonably foreseeable future if returned to India, for reason of his religion or because of his attendance in Australia at WYD
(Court Book 127.9). Those findings of fact were open to the RRT on the material before it and are not amenable to review. The RRT set out the material it relied on in making those findings.The RRT considered next the applicant’s claimed fear of harm from persons (“high people”) because he is part of the “backward class of society” (Court Book 127.10). For the reasons it set out, the RRT did not accept that the applicant has experienced persecution as a result of his membership of his class or caste (Court Book 128.2). The RRT was not satisfied that the applicant has a well founded fear of persecution because of his class or caste if returned to India now or in the reasonably foreseeable future (Court Book 128.3). Those findings of fact were open to the RRT on the material before it and are not amenable to review.
In making those findings the RRT relied on the failure of the applicant to make those claims including during a hearing (Court Book 128.2), and the evidence he gave about his education and employment. It was not “information” that was required to be covered in the s.424A letter.
The first issue is “lack of information.” As stated by Bennett J in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 at [33]:
“The lack of information does not amount to information for the purposes of s.424A(1).”
The second issue is that it was “evidence the applicant gave” to the RRT. That is covered by the exception in s.424A(3)(ba).
The RRT considered next the claim of “political opinion and claimed association with the Congress party”
The RRT found that, based on the applicant’s involvement with the Congress Party “as described by…himself”, he was never a high profile member of that party or held any senior or leadership position
(Court Book 128.5). The RRT set out its reasons for those finding of fact (Court Book 128.6).The RRT did not accept the applicant’s assertion that around the time of the 2002 state election he was attacked and injured because of his involvement with the Congress Party, as the applicant had given evidence that “he and his party members had run away, and he did not sustain any injury” (Court Book 128.6).
That finding of fact was open to the RRT on the material before it and is not amenable to review. In making that finding the RRT relied on evidence given by the applicant, which is covered by the exception in s.424A(3)(ba).
The RRT considered next the claim that following the 2007 election the applicant was subject to adverse attention from members of other parties, or experienced harm as a result of his membership of the Congress Party (Court Book 128.7). The RRT rejected that claim and relied on the failure of the applicant to give evidence about the claim. It was open to the RRT to accept or reject the evidence as it thinks appropriate in all the circumstances. (Lee supra)
The RRT found that intimidation as a consequence of the applicant’s support for the Congress Party would have been “undoubtedly distressing”, but it did “not accept that it was of sufficient significance to amount to serious harm of the type contemplated by s.91R(1), and did not constitute persecution.” (Court Book 128.10)
It has not been established that the RRT made an error of law in reaching that conclusion.
Again the RRT relied on the applicants own evidence that the instances did not result in any actual harm (Court Book 128.9). That information was not required to be given in the s.424A(1) letter as it is covered by s.424A(3)(ba). The country information relied on is covered by s.424A(3)(a).
As a result of the evidence given by the applicant, the RRT made a finding of fact that the applicant does not have a well founded fear of persecution now or in the foreseeable future because of his association with the Congress Party, and therefore does not have a well founded fear of persecution now or in the reasonably foreseeable future if returned to India for reason of his actual or imputed association with that party. Those findings of fact were open to the RRT on the material before it and are not amenable to review (Court Book 129.2).
The RRT considered next the claim of political opinion and claimed association with the DSS (Dera Sacha Sauda). The RRT rejected the claim that the applicant was a member of the DSS sect, because he made specific and direct denials of that on several occasions during the hearing (Court Book 129.3).
As a result, the RRT rejected the claim that the applicant had been harmed or threatened by persons because of his membership or support of the DSS, or any perception that he was a member or supporter of the sect (Court Book 129.3).
Those findings were open to the RRT on the material before it and are not amenable to review.
In reaching those conclusions the RRT relied on information provided by the applicant, which is not required to be covered in a s.424A(1) letter [s.424A(3)(ba)].
The RRT did not accept that the applicant was credible about his claim of being injured and hospitalised as a result of an alleged incident at Rori Village in Sirsa on 21 or 22 March 2008 (Court Book 129.5). The RRT is free to accept or reject evidence as it thinks appropriate in all the circumstances Lee supra.
Further a finding on credibility is a finding of fact par excellence and should not be set aside unless it is shown that the trial judge has failed to use or has palpably misused his advantage, or has acted on evidence which was incontrovertibly established by the evidence on which was glaringly improbable Durairajasingham supra. The Court does not make such a finding here.
The adverse finding on credibility is not amenable to review.
For the reasons set out, the RRT made a finding of fact that it was not satisfied that the applicant faces a real chance of serious harm now or in the foreseeable future if he returned to India because of his membership or association with DSS or any perception that he may be associated with that sect or be a member of that sect.
That finding was based on information given to the RRT by the applicant and is covered by the exception in s.424A(3)(ba).
The RRT rejected next the claim that there was an incident in Rori Village Sirsa on 21 or 22 March 2008 and relies on the lack of reference to it in country information, to reach that conclusion.
It is settled law that 424A(3)(a) excludes country information from the requirements of s424A(1): Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW [2004] 140 FCR 572 at
[64]-[74] and at [112]-[138] and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]. Accordingly, the Tribunal was not obliged to provide independent country information to the applicant for comment.
It is well established that “both the choice and the assessment of the weight of” country information is a matter for the RRT.
“The Court cannot substantiate its own view of the material, even if it had a different view from that reached by the Tribunal.”
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [13] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26]:
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another.”
Country information is covered by the exception in s.424A(3)(a) and is not required to be covered in a s.424A(1) letter.
The RRT referred to evidence from the Kartarpur Hospital, in a letter dated 31 March 2008, that the applicant was a patient from
23 – 31 March 2008. That letter was covered in the s.424A(1) letter (Court Book 102.4).
The RRT placed little weight on the letter for the reasons it sets out (Court Book 130.5). Weight is a matter for the RRT Tefonu, supra.
The RRT found next that the applicant has not in the past experienced serious harm of the type to amount to persecution because of his association with the Congress Party or because of any perception that he may have been associated with the DSS, or would be perceived to be a member or follower of the DSS (Court Book 130.9). Those findings of fact were open to the RRT on the material before it, and are not amenable to review.
The RRT found that the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if returned to India by reason of association with the Congress Party or with the DSS (Court Book 130.10).
The RRT was not satisfied that the applicant has a well founded fear of persecution now or in the reasonably foreseeable future for reason of his actual or imputed political opinion (Court Book 131.1).
That finding of fact was open to the RRT on the material and is not amenable to review.
Next, the RRT did not accept the claim by the applicant that his travel to Australia in July or September 2008 was in any way related to fear of harm in India for reasons of his actual or imputed political opinion, his race, religion or membership of a particular social group
(Court Book 131.2).
The RRT found that the applicant is not a credible witness as to why he decided to leave India, for the reasons given by the RRT
(Court Book 131.3).
The RRT did not accept the applicant’s claims that after returning to India in August 2008 persons came to his home and sought to attack him, or that he was in hiding after returning from Australia, from political opponents or other persons seeking to harm him. The RRT rejected those claims because they were inconsistent with the applicant’s evidence (Court Book 131.6). That evidence was given by the applicant and was not required to be covered in the s.424A(1) letter [s.424A(3)(ba)]. The RRT was free to accept or reject it; Lee (supra).
The RRT was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future for reasons of his religion, political opinion or membership of a particular social group or for any other Convention reason (Court Book 131.10).
“Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.”
A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451. MIEA v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v MILGEA (1992) 38 FCR 191.
Findings on the grounds in the application
Ground one. A breach of s.424A has not been established. Ground one is dismissed.
Ground two. No error of law or denial or procedural fairness has been established. Ground two is dismissed.
Ground three.
The Court refers to the following statements of the law:
“The effect of s357A is that the common law rules of procedural fairness have been largely excluded. In the Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, 225-229 [60] –[70], a Full Federal Court held that s 422B (which is relevantly identical to s 357A) operates to exclude the ‘hearing rule’ aspect of procedural fairness in relation to decisions of the Tribunal. The Court said at [66]-[67]:
‘What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
Other aspects of the common law of natural justice, such as the bias rule are not excluded…’
Lay Lat has been followed by subsequent Full Federal Courts SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1. Thus, in NBKT v Minister for Immigration and Multicultural Affairs, Young J (with Gyles and Stone JJ in agreement) said that:
‘[T]here is no scope for the operation of general requirements of procedural fairness outside the specific provisions of Division 4 of Part 7 of the Act: see s 422B(1); Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 212 at 225 [66]; and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8].’
The judgments of the Full Federal Court concerning the meaning of s 357A and s 422B have settled the operation of those sections, unless or until the High Court says otherwise SZHOA v Minister for Immigration and Multicultural Affairs [2007] FCA 501,[17] per Allsop J. Accordingly, the applicant’s contention that the Tribunal erred by denying him procedural fairness cannot succeed, because the rules of procedural fairness do not apply to decisions of the Tribunal.”
Section 424B states that Division 4 of Part 7 is an exhaustive statement of the natural justice hearing rule before the RRT in matters under that Division. A breach of Division 4 has not been established.
The Tribunal held hearings on 18 February 2009 and 20 April 2009 at which the applicant had full opportunity to present his case. It then wrote a s.424A letter to him (Court Book 101) and considered his response (Court Book 123.6 – 126.7, 127.4, 127.5, 127.7 and 130.5).
The RRT was not obliged to provide “a further opportunity” to the applicant.
Further, the applicant did not request time to comment, or to provide any other information, pursuant to s.424AA(b) (Court Book 81).
Section 359AA does not of itself impose a separate obligation on the Tribunal with which a failure to comply results in jurisdictional error. SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578
at [19].Section 359AA is in the same terms as s.424AA.
Ibid at [74]. “The first question in this appeal is whether non-compliance by the Tribunal with the provisions of s.424AA (in the present case by allegedly failing to do that which was required by s.424AA having chosen to go down the path of engaging s.424AA) also constitutes jurisdictional error.”
Ibid at [75] “We think not.”
Ibid at [79] “a failure on the part of the Tribunal to comply with s 424AA in every respect will not amount to jurisdictional error.” Per Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46;
Also Moore J Ibid at [2]:
“Section 424AA is, in my opinion, clearly not intended to create a duty to take particular steps independently of the existence of a duty under s.424A.”
The Court holds that as all information required to be covered by a s.424A letter was covered, there was no duty under s.424AA to give details under s.424AA and follow the steps in s.424AA(b).
In any event, the applicant has not established that the RRT failed to take the steps in s.424AA(b)(ii) or (iii). (A transcript of the hearings was not provided).
An applicant must establish their case. (supra)
The Court refers to the decision in Prasad supra
The RRT complied with s.424A. If there was a failure to comply with s.424AA(b) there was no jurisdictional error. SZMCD supra.
Ground three is dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere
The application is dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Erin Firns
Date: 6 April 2010
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