MZYGC v Minister for Immigration
[2010] FMCA 230
•9 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYGC & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 230 |
| MIGRATION – Alleged jurisdictional error by RRT in dealing with evidence of Applicant’s wife – consideration of Tribunal’s lengthy reasons for decision – jurisdictional error not disclosed. |
| Migration Act 1958 |
| Craig v State of South Australia (1995) 184 CLR 163 Martinez v Minister for Immigration and Citizenship [2009] FCA 528 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | MZYGC |
| Second Applicant: | MZYGD |
| Third Applicant: | MZYGE |
| Fourth Applicant: | MZYGF |
| Fifth Applicant: | MZYGG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1083 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 24 February 2010 |
| Date of Last Submission: | 24 February 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 9 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gibson |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Ms S. Burchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application be dismissed.
The Applicants’ pay the First Respondent’s costs fixed at $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1083 of 2009
| MZYGC |
First Applicant
| MZYGD |
Second Applicant
| MZYGE |
Third Applicant
| MZYGF |
Fourth Applicant
| MZYGG |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek review of a decision of the Refugee Review Tribunal (“Tribunal”) made on 30 July 2009. It is common cause that only the application of MZYGC is relevant because the others are all applicants as family members and it is conceded they stand or fall on the outcome of the primary applicant. I shall refer to MZYGC as the applicant.
There is only one ground of review. Although it involved a very detailed consideration of the evidence, it can be stated shortly.
The applicant submits that the Tribunal failed to take account of the corroborative evidence of the applicant’s wife and that in so doing, the Tribunal fell into jurisdictional error.
For the reasons that follow, I do not accept that this is the case and the application must be dismissed.
The applicant is a male citizen of Sri Lanka of Sinhalese ethnicity. Prior to coming to Australia in 2008, he had for some years been the owner of a tyre wholesale business in Sri Lanka.
It was the applicant’s case, admittedly putting the matter in broad outline, that:
a)he had been an active supporter of the SPLF, and later the JA, parties;
b)he had been an office holder in one of these parties and had been extremely active on behalf of a local candidate;
c)he had prospered to an extent because of this interrelationship; and
d)following the loss of power by the JA in 2001, he had been the subject of retaliatory conduct by supporters of the other parties. This conduct included:
i)he had been attacked at work by opposition UNP supporters in January 2002 during which he received a severe injury to his hand;
ii)in 2005, he had been assaulted while on his motor bike by opposition thugs and severely injured, including suffering the loss of a toe;
iii)his rented house was set on fire in January 2006;
iv)he had to go into hiding for a number of years and had not been able to be directly involved in running his business, which had continued under first, his wife and later his father-in-law;
v)his business had been disrupted by attacks (including fire) attributed to support of other parties;
vi)his vehicle was blocked and he was attacked one day at Kalahidi Junction; and
vii)he had gone to Singapore in 2008 but while there with his wife, his children were the subject of a failed abduction attempt and he had, therefore, returned and decided to leave Sri Lanka.
It is common cause that following the events in 2008, the applicant left Sri Lanka and came to Australia on a valid tourist visa, subsequently claiming to be a refugee.
The applicant’s evidence is set out and recorded in great detail by the Tribunal from CB336 to 356, which passages also include, at CB350 to 352, a detailed account of the evidence given by the applicant’s wife.
Although criticism is made of some of the findings made by the Tribunal arising from the facts, as I understand it there is no criticism of the way in which the Tribunal recorded the evidence itself.
Indeed, counsel for the applicant expressly disavowed any criticism of the Tribunal’s reasoning in dealing with the evidence of the applicant husband.
Rather, what was criticised was said to be the failure by the Tribunal to deal with the corroborative evidence of the wife in circumstances where it was put that that evidence was sufficiently significant to require detailed consideration.
The applicant’s contentions of fact and law at paragraph 16 (where first stated, see page 6) set out a comprehensive recitation of the findings and reasons of the Tribunal traversing each of the discrete claims made by the applicant.
At paragraph 15 (see page 9) the applicant’s contentions refer to paragraph 111 of the Tribunal’s reasoning (CB363) where the Tribunal said:
“The Tribunal has taken into consideration the corroborating evidence provided by the applicant wife in the hearing regarding the threatening information she and the applicant’s father received when they had run the applicant’s shop, the disruption and rearrangement of the rack outside the shop when they came to open up in the morning and the threats she received asking the applicant to stop getting involved in politics. For the reasons provided above, the Tribunal does not accept that the applicant wife received such threats or threatening information or that the disruption to the racks outside the shop was related to the applicant.”
The applicant’s contentions go on at paragraph 19 (page 9) to set out what are said to be the only four aspects of the wife’s evidence which were dealt with in the decision, and at paragraph 20 set out no less than 15 aspects of evidence said to have been ignored.
The first respondent, by way of contrast, points to the fact that the Tribunal’s reasons for decision must be taken as a whole and not read with an eye overly attuned to error.
The first respondent also submitted that, given that it is expressly conceded by the applicant that the Tribunal dealt with each integer of the applicant’s claims, the evidence set forward by the wife, at its highest, is no more than that. It is evidence, not an integer of the applicant’s claim.
This is an unusual case in which the conclusions can be expressed surprisingly shortly, notwithstanding the relevant factual complexity attending the submissions put by the parties.
In my view, the Tribunal paid careful attention and proper attention, as the applicant concedes, to the particular factual assertions that the applicant himself made.
Much of what the wife had to say by way of evidence was not strongly corroborative of what the applicant put. It was, in large part, hearsay and, where it touched directly upon matters in issue, it was in my view in some instances dealt with in terms. The matters with which the Tribunal dealt directly included:
a)the wife’s version of the 2001 assault;
b)the wife’s version of the 2005 assault (although the tribunal arguably misconceived the evidence, such not being an error of law); and
c)the disruption to the tyre business.
Insofar as the Tribunal dealt with the applicant’s claims generally, the common thread running clearly through the decision was that, while the Tribunal accepted the applicant had had some level of political involvement, it was at a low level such that the severe responses asserted by the applicant were unlikely to be true. The Tribunal did not in fact accept them.
All the Tribunal did in respect of the wife’s evidence was not to set it out in detail. In most of the instances complained of by the applicant it involved no more than hearsay support for the applicant’s contentions as to the levels of his political activity.
Where it involved direct evidence e.g. hiding on return from Singapore, the inference is clear that it was rejected.
Both parties to this proceeding concede that it is jurisdictional error to fail to have regard to relevant evidence (Craig v State of South Australia (1995) 184 CLR 163 at [179]).
The Tribunal is not required to make findings on each and every matter of fact objectively material to its decision (see Martinez v Minister for Immigration and Citizenship [2009] FCA 528 at [43] per Rares J, quoting Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [346]).
In Martinez at [46], Rares J stated:
“The Tribunal is not required to address every piece of evidence before it, provided that it considers the integers of the claim: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at 641 [47], “the inference that the tribunal had failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons.” However, they said that where the reasons are otherwise comprehensive and the issue has at least been identified at some point the inference will not be drawn too readily and continued:
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant, and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Here, the Tribunal’s reasons for decision run to over 30 pages. They contain what is considered by the applicant to be a comprehensive analysis of the various matters that the applicant and the wife said by way of evidence.
The Tribunal’s findings necessarily tended to concentrate on the evidence of the applicant himself, as he was the person to whom most of the relevant events had actually happened.
In a case such as this, one has to look at the reasons as a whole and see whether first, the Tribunal failed to have proper regard to the wife’s corroborative evidence. It is clear that this was not what the applicant’s submissions describe (paragraph 21) as “poison well scenario”.
In my view, the Tribunal’s findings as to the applicant’s level of political involvement encompassed both the evidence of the applicant and the wife. There is no logical reason why that should not be so, given that the decision sets out the wife’s evidence in detail and mentions specific aspects of it in its conclusions. While it is true that the Tribunal might have expressed the matter more clearly than it did, I do not think that the Tribunal fell into jurisdictional error in this regard.
I accept the submission from the first respondent that the wife’s evidence was not of that strongly-corroborative character that exists in cases such as Martinez.
It is true that the Tribunal appears to have fallen into error when it said at paragraph 101:
“The Tribunal therefore does not accept the applicant’s wife received a call from an unknown person advising her that the applicant was dead.”
That was the applicant’s evidence, and not that of the wife. It may be, of course, that the Tribunal was seeking to refer only to the applicant’s evidence, but one would tend to suspect not.
Nonetheless, an error of this order of magnitude in the totality of the decision is exactly of the sort, in my view, to give rise to the operation of the words of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where the majority at p272 quoted with approval the Full Court of the Federal Court’s observation that “the reasons for decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.
In my view, taking the decision as a whole, the Tribunal did not fail to have proper regard to the alleged corroborative evidence of the wife. It follows that the Tribunal did not fall into jurisdictional error and that the application must be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 9 April 2010
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