MZYGQ v Minister for Immigration
[2010] FMCA 227
•12 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYGQ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 227 |
| MIGRATION – Application for reinstatement after failing to appear – reason for non-attendance rejected – application for judicial review dismissed on the merits. |
| Migration Act 1958 (Cth), ss.424A, 477 |
| Ousmand v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 735 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) Devries v Australian National Railways Commission (1993) 177 CLR 472 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 |
| Applicant: | MZYGQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1216 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 12 March 2010 |
| Date of Last Submission: | 12 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 12 March 2010 |
REPRESENTATION
| The Applicant appeared In Person with the assistance of an Urdu interpreter |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
That the applications filed on 24 September 2009 and
24 February 2010 are dismissed.
That the applicant pay the first respondent’s costs fixed at $880.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1216 of 2009
| MZYGQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex-tempore and Revised)
Application for reinstatement after dismissal upon failure to appear
The application in this matter was dismissed on 11 February 2010, because the applicant failed to appear at the hearing.
As decided in the case of Ousmand v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 735, an applicant for reinstatement must give an explanation for not appearing, and show some prospect of succeeding with his case, should it be reinstated. The Court invited the applicant to make today on both issues.
Here, the applicant failed to attend the court on 11 February 2010 to explain why he would not be able to present his case that day. He could have appeared and sought an adjournment. He made no effort to contact the Court that day. The Court does not accept the applicant’s reason for not attending the Court, being that “the Asylum Seekers Resource Centre asked me not to come.”
In a letter tendered to the court today and marked Exhibit A1, from Asylum Seeker Resource Centre to the applicant, dated
23 February 2010, in the fourth paragraph it stated:
We also confirm that you did not attend your Federal Magistrate Court hearing, despite our advice to do so.
The Court, therefore, does not accept the applicant’s reason for
non-attendance, or explanation for non-attendance.
Also, looking at the grounds relied on by the applicant for judicial review, the Court decides that his application has no reasonable prospects of success.
Application for extension of time
The application to the Court in this matter was filed out of time on
24 September 2009.
Section 477 of the Migration Act 1958 (the “Act”) provides as follows:
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3)In this section:
"date of the migration decision" means:
(a)the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c)in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; or
(d)in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
The decision of the Refugee Review Tribunal, sought to be reviewed, is dated 31 July 2009 (Court Book 181).
Section 477(1) of the Act provides that an application must be made to the court within 35 days of the date of the migration decision. Section 477(2) gives the Court a discretion to extend the 35 day period if:
a)An application for that order has been made in writing to the Court, specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)The Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The applicant seeks an extension of time, but does not specify why the applicant considers it is necessary, in the interests of the administration of justice, to make the order. The affidavit in support, filed by the applicant, does not address the issue. The applicant, therefore, has failed to comply with the mandatory requirement in the Act. The issue of an applicant’s failure to comply with a requirement, or a mandatory requirement, was considered in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46, where it was held at paragraph 78 that:
It depends on the consequence for the parties, of holding every act done in breach of a condition, to be invalid.
Here, there is no major consequence for the applicant in holding that his application for an extension of time is invalid, as the court has considered the merits and finds that the claim has no reasonable prospect of success.
The first respondent opposes an extension of time in its response and outline of submissions. The Court accepts the submission by the first respondent that, for the Court to determine whether it is satisfied that it is necessary, in the interests of the administration of justice, to make an order extending the time for making the application, the Court should consider,
·Firstly, the length and reasons for delay. Here there was a delay of 55 days. And the reason given by the applicant, that the Asylum Seeker Resource Centre asked me not to come, is inconsistent or directly opposed to the advice to him confirmed in the letter dated 23 February 2010;
·And next the prospects of success of the substantive application.
There is nothing in writing by the applicant as to why he considers that it is necessary, in the interests of the administration of justice, for the Court to make the order. The applicant has not filed written submissions, as ordered on 4 November 2009. Also, granting an extension of time would be futile as the claim would be dismissed on the merits. The application for reinstatement fails on all grounds of a failure to provide a reasonable explanation for not appearing on
11 February 2010, and the claim not having a reasonable prospect of succeeding. Also the Court is not satisfied that it is necessary, in the interests of the administration of justice, to make the order extending the time for filing.
The applicant sought an adjournment of proceedings today because he was awaiting notification of whether he would be legally aided. He said also that his papers were with a barrister and that they had not been returned to him. The Court refused to adjourn the matter as the applicant had been aware of the Court date since filing his application in a case on 24 February 2010, and had adequate time to prepare his case.
The applicant was invited by the Court today to make submissions on reinstatement and the merits, but has failed to add anything of significance to that which appears in the papers. The Court will now proceed to consider the merits on the basis of the material on the file.
In his application for a protection visa, the applicant claimed that his wife’s family had threatened to kill his family in Pakistan and had reported him to the authorities. He claims, also, that he “use to be” a member of the Pakistan Muslim League Q Group (“PML-Q”) which does not support the current government, and that will:
Increase the chance for him to be persecuted by the authorities. (Court Book page 19)
The Refugee Review Tribunal (the “RRT”) conducted a hearing on
2 June 2009 at which the applicant appeared to give evidence and present arguments (Court Book 190.2). The Tribunal sent the applicant a letter, pursuant to section 424A of the Act (Court Book page 156), and later granted an extension of time to respond (Court Book 164). The applicant has said today that the Tribunal granted him two extensions to respond, but he wanted more time as his papers had not arrived. There was no obligation on the Tribunal to grant a further extension, and no error of law has been established on that basis.
The s.424A letter raised what appeared to be fake and/or inconsistent information, contained in two letters relied on by the applicant (Court Book 157).
Tribunal findings as to Political Opinion
The Tribunal did not accept as reliable documents submitted by the applicant in support of his claim, for the reasons given by the Tribunal (Court Book page 199 at point 8).
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464:
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 RRT found the information to be false and misleading (Court Book 200.1). The Tribunal found the applicant’s oral evidence to lack credibility (Court Book 199.9). In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC), Tamberlin and Nicholson JJs stated at paragraph 64:
The tribunal’s decision turned on the question of credibility. A finding as to credibility is a finding of fact, and as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.
The decision then referred to the High Court decision in Devries v Australian National Railways Commission (1993) 177 CLR 472 as follows:
If a trial judge’s finding depends, to any substantial degree, on the credibility of the witness, the finding must stand unless it can be shown that the trial judge has failed to use, or has palpably misused, his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.
Here, the Court does not find that the Tribunal has failed to use, or has palpably misused its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
The Court refers to the following decision:
The tribunal’s conclusion that the applicant was not credible, and his claims untrue, are findings of fact par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision not the sub-set of reasons why it accepted or rejected individual pieces of evidence. Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
“so long as the tribunal’s findings were open to it, no error is demonstrated.” Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC)
“The court cannot review the merits of the tribunal’s decision.” Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 “There is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact.” Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The Tribunal placed little weight on the documents presented by the applicant (Court Book 200.5). As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at 54:
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.
The decision must be so unreasonable “that no reasonable body could have come to it.” (Ibid. at paragraph 41.)
The Court does not make that finding here.
As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162, at paragraph 95:
Plainly, the weight to be accorded to the applicant’s evidence was a matter for the tribunal. It is not a matter for this Court.
The Court refers also to the decision of Lee, which has been referred to previously.
The Tribunal here, found that the applicant has fabricated his claim for the purpose of his visa application (Court Book 200.7). The Court refers to the decisions on credibility above. The findings of credibility, or adverse findings of credibility, are findings of fact which are not amenable to review.
The Tribunal did not accept that the applicant has suffered any harm in the past for reasons of political opinion and/or activities (Court Book 200.8). That finding of fact was open on the evidence before the Tribunal, and is not amenable to review.
The Court refers, again, to the decision in Durairajasingham (supra) that:
The tribunal’s conclusion that the applicant was not credible, and is claims are untrue, are findings of fact par excellence.
In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682, Nicholson J decided:
It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the tribunal unless specifically disproved by the objective evidence before the tribunal. Rather, it was for the tribunal to decide what facts it found on the consideration of all the evidence, subjective and objective. This required the tribunal not only to consider inconsistencies, but also to determine what evidence it found credible.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 as follows:
Decisions of the tribunal are privative clause decisions, and, as such, are not open to review on the facts. As is clear from such cases as the Attorney-General v Quin, errors of fact do not give rise to jurisdictional errors.
The applicant has raised with the Court two letters that he said were before the Tribunal, and says there was some misunderstanding as to which Muslim group the letters referred to. An applicant must establish their case. If there was an error of fact by the Tribunal, which has not been established as no transcript was tendered, it did not give rise to a jurisdictional error Quin (supra).
The Tribunal then considered the claim that, being a former member of the PMLQ, the applicant would suffer serious harm or persecution if he was to return to Pakistan (Court Book 200.9).
The Tribunal considered country information, and concluded that:
I am satisfied that the applicant does not face a real chance of persecution in the reasonable foreseeable future for political reasons or for membership with the PMLQ if he were to return to Pakistan (Court Book page 201 at point 1)
That finding of fact was open on the evidence, and is not amenable to review.
Particular Social Group
As to the claim of belonging to a particular social group, the Tribunal considered whether the applicant is a member of a particular social group being:
Persons at risk of being victims of the practice of honour killing. (Court Book 201.5)
The Tribunal reviewed the claim and evidence, and concluded that it was satisfied that the applicant does not face a real chance of persecution or harm from his wife’s family because of the honour killing system, and, therefore, found that he is not a member of the particular social group described above, and does not face a real chance of persecution in the reasonably foreseeable future for reason of being a member of a particular social group (Court Book 203.10). Those findings of fact were open on the evidence, and are not amenable to review.
The Tribunal found that it was “satisfied that the applicant does not face a real chance of persecution for convention-related reasons, in the reasonably-foreseeable future, if he were to return to Pakistan.” Court Book page 204.1.
The applicant’s application for judicial review states the sole ground as “jurisdictional error.” That ground has not been particularised. The applicant was invited by the Court to make submissions today on his grounds, but has failed to expand on the ground. The applicant merely stated that the Tribunal has mixed up documents presented by him. Transcript of the hearing has not been presented by the applicant, and it has not been proven that the tribunal mixed up documents as alleged. In any event, as decided above, such a finding of fact would not amount to a jurisdictional error.
The applicant also said that the Tribunal extended time twice, but he wanted a further extension as his papers had not arrived. That does not establish a jurisdictional error by the Tribunal. The Tribunal was not required to grant a further extension.
Section 422B of the Act states that the division is taken to be an exhaustive statement as to the requirements of the natural justice hearing rule, in relation to matters under that division. It has not been established that there was any breach of any provision in division 4. There was no requirement in that division to grant a further extension of time to the applicant. A jurisdictional error has not been established.
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 Court does not find that it is necessary, in the interests of the administration of justice, to make an order extending the time for lodging the application. Therefore, there is no valid application before the Court. Even if an extension or reinstatement were granted, the application has no merit and would be dismissed. Therefore, the applications for extension of time, reinstatement, and for judicial review are 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: 30 March 2010
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