MZYGZ v Minister for Immigration
[2010] FMCA 428
•2 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYGZ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 428 |
| MIGRATION – Appeal – Decision of Refugee Review Tribunal – Procedural Fairness. |
| Migration Act 1958 (Cth) |
| First Applicant: | MZYGZ |
| Second Applicant: | MZYHA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1423 of 2009 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 2 June 2010 |
| Date of Last Submission: | 2 June 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 2 June 2010 |
REPRESENTATION
| Counsel for the First Applicant: | Applicant in person by videolink. |
| Counsel for the Second Applicant: | There being no appearance by or on behalf of the Second Applicant |
| Counsel for the Respondents: | Mr Knowles of Counsel |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Applicants’ application be dismissed.
The Applicants pay the First Respondent’s costs fixed at $5865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1423 of 2009
| MZYGZ |
First Applicant
| MZYHA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Revised from Transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal. The applicants are citizens of India who entered Australia on 14 July 2008. On 26 August 2008 they applied for protection visas. The protection visas were based upon a fear of persecution largely as a result of the first applicant claiming to be a member of the Taluka Congress Party and being targeted by members of the BJP.
The full details of his claim are set out in the tribunal decision. On 6 March 2009 a delegate of the Minister refused to grant protection visas. In June 2009 the tribunal held a hearing with the first applicant and on 17 July 2009 accepted further material from him. On 19 October 2009 the tribunal rejected the applicants’ application.
In short form, the decision of the tribunal was one rejecting the first applicant’s evidence on the basis of credibility. The tribunal spoke of the nature of the evidence being internally inconsistent, some parts being implausible, delays in giving answers and lack of precision by the first applicant. I am mindful of the fact that the tribunal had the opportunity of observing the first applicant give evidence in person before making its findings. The function of this court in judicial review is not to review findings of fact made by the tribunal, but to consider whether the tribunal committed a legal error. The applicants provide three grounds of application in their application document.
The first ground provides as follows:
1. The Tribunal failed to accord “Procedural Fairness” to the Applicant because of:
1.1. its failure to carry out its role in an Inquisitorial Manner when it made a contrary finding that:-
“In regard to the documents submitted to it, the Tribunal notes that with the exception of the statement from the Raj Nursing Home regarding his wife’s miscarriage (although not certified, it is on letterhead), none of these documents are certified. Given the delay in the applicant submitting these documents which are purportedly important to his central claims and his lack of knowledge of their contents or their significance as claimed at the hearing, the Tribunal places no weight on the documentation provided post hearing.” (RRT decision, paragraph 96)
………on the basis of the applicant’s lack of credibility, ……the Tribunal does not accept that the applicant ever held the position of Vice-president as claimed or held any leadership role in the Congress Party, such that he has acquired a political profile…” (RRT decision paragraph 97)
1.1.1 the weight it gave to the claims of the Applicant because of the Applicant’s lack of knowledge and hesitation in responding to enquiries of the Tribunal when it said:
“……The applicant’s inability…… to provide the name of the President of his local Congress group……
……The applicant’s inability to provide credible, plausible explanation of the arrangements in place for the financial arrangements of ……his hardware business in his absence from India; … ……leads the Tribunal to doubt the genuine nature of his claims overall.” (RRT decision paragraph 95)
………the Tribunal does not consider that each of the factors mentioned above,……would necessary be fatal to the applicant’s claims. However, ……the Tribunal finds that the imprecision of evidence, ……advanced by the applicant undermines his claims overall.” (RRT decision paragraph 100)
The applicant submits that the Tribunal erred in not assessing the Applicant’s claims in a manner that was required as mandatory under sec.414 of the Migration Act 1958, thus giving rise to a breach of a statutory provision in the Act which amounts to jurisdictional error made by the Tribunal.
In response, counsel for the Minister says:
4.6 There is no indication that the Tribunal failed to comply with any procedural requirements imposed by the Act. In particular, there is no apparent basis for any argument that the Tribunal contravened section 424A or 425 of the Act.
4.7 The Tribunal’s decision rested on its assessment of the applicant’s own claims, submissions and evidence. This did not attract the operation of section 424A of the Act.
4.8 The Tribunal invited the applicant to a hearing, which he attended. At the hearing, he gave evidence with the assistance of an interpreter. The duration of the hearing was approximately three hours. There is no suggestion that the applicant was not afforded a real and genuine opportunity “to give evidence and present arguments relating to issues arising in relation to the decision under review”. It cannot be said that the Tribunal failed to comply with section 425 of the Act.
4.9 In its decision, the Tribunal recorded at length the circumstances of the hearing before it. This record clearly demonstrates that, at the hearing, the Tribunal confronted the applicant with its concerns about perceived deficiencies in his evidence. The applicant has not suggested that the Tribunal’s description of the events of the hearing is somehow inaccurate or incomplete. In the circumstances, it cannot be said that, in contravention of any provision of the Act, the Tribunal somehow failed to afford the applicant procedural fairness.
4.10 In particular, the Tribunal’s record of the hearing shows that the Tribunal foreshadowed to the applicant is concerns about the provision of documents after the hearing. It queried why these documents had not been supplied earlier to the Tribunal or the first respondent’s delegate. It sought, unsuccessfully, to ascertain from the applicant what some of the documents would be and how they would be significant to his case.
4.11 The Tribunal’s record of the hearing also indicates that the applicant was aware or could reasonably have been expected to be aware that the Tribunal might not accept his claimed involvement with the Congress Party. For example, the Tribunal informed the applicant that, in its opinion, the applicant should have been able to recall, without hesitation or difficulty, the name of the President of the Congress Party group in which the applicant claimed to have been Vice President.
4.12 In addition to the Tribunal’s comments made to the applicant at the hearing, the applicant had previously received a copy of the decision of the first respondent’s delegate, in which his claims were described as “vague” and “not convincing”.
4.13 In the circumstances, it cannot be said that the Tribunal determined the applicant’s case by reference to some issue which the applicant could not have been reasonably expected to anticipate.
4.14 The Tribunal regarded aspects of the evidence given by the applicant in support of his claims as unsatisfactory. It cannot be said that it was not entitled to do so. The tribunal was mindful of the difficulties faced by people giving evidence before it. The Tribunal was not, however obliged to accept at face value the applicant’s claims.
4.15 On the basis of perceived deficiencies in the applicant’s evidence, the Tribunal reached adverse credibility findings about his claims. Again, it was open to the Tribunal to do so.
4.16 These credibility findings were findings of fact. The Tribunal’s credibility findings were uniquely within its jurisdiction and are not now within the jurisdiction of the Federal Magistrates Court. Credibility was a matter for the Tribunal par excellence.
4.17 The Tribunal is not obliged to give a line-by-line refutation of evidence which is contrary to is material findings of fact. Moreover, there is no jurisdictional error in the Tribunal simply making a wrong finding of fact. Nor does the Tribunal commit reviewable error if it merely finds facts wrongly or upon a doubtful basis or adopts unsound or questionable reasoning. Importantly, it was a matter for the Tribunal to determine what, if any, weight it gave to items of evidence before it.
4.18 Having regard to these principles and the circumstances of the present case, the applicants have failed to set out any proper basis for their claim that the Tribunal somehow failed to comply with its procedural obligations, including those imposed by sections 414, 424A and 425 of the Act.
4.19 The applicant’s first ground of review is not made out.
I accept the submissions of the Minister. Counsel for the Minister has carefully explored various possible errors and carefully referenced his submissions to the relevant cases and parts of the decision. No doubt this was done in order to discharge his obligations as a model litigant. It appears to me that the substantive answer to ground 1 is that the tribunal made a decision based upon credibility in circumstances where that decision was open to them.
The applicant’s ground 2 is as follows:
The Tribunal acted in a ‘manifestly unreasonable” manner towards the Applicant when dealing with the Applicant’s claims because of it’s failure to consider the claims in accordance with the Criteria in Article 1(A)(a) of the 1951 UN Convention relating to Status of Refugee, due to the following conclusions:-
2.1 “Whilst the applicant has maintained consistency in the elements of his claims, he was unable to provide the necessary detail or consistency around key aspects of his circumstances, …… (RRT decision paragraph 91)
2.2. “The Tribunal finds that the harm feared by the applicant could amount to serious harm and systematic and discriminatory conduct as outlined in s.91(R)1.” (RRT decision paragraph 87)
“However, ……the Tribunal finds that the applicant is not a witness of truth and his claims lack credibility.” (RRT decision paragraph 89
2.3 “As a consequence of its assessment of the applicant’s written and oral evidence……the Tribunal does not accept that the applicant was a member of the Congress Party as claimed……Nor does it accept that the applicant’s parents have ever been a target of harassment by BJP…” (RRT decision paragraph 97)
2.4 “………The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm amounting to persecution……, if he were returned to India……(RRT decision paragraph 102)
The applicant submits that the Tribunal acted in a manifestly unreasonable way when dealing with the Applicant’s claims and ignoring the aspect of persecution or serious harm in terms of Sec.91R of the Act in order to be satisfied whether the Applicant has a well founded fear of serious harm or a “real chance”. Hence the Tribunal’s failure to observe this obligation amounted to a breach of a Statutory Obligation, thus amounting to a jurisdictional error committed by the Tribunal.
Similarly, the Minister addressed this although not in such lengthy terms as follows:
4.20 The applicants claim that the Tribunal’s decision was manifestly unreasonable because, in their submission, the Tribunal failed to consider the applicant’s claims in accordance with the requirements of the Convention. On a fair reading of the Tribunal’s decision, there is no basis for such a submission.
4.21. The Tribunal was mindful of the terms of the Convention. In its decision, it correctly set out applicable pasts of the Convention and the Act. It also referred to relevant principles derived from judicial consideration of the Convention and the Act. Consideration of the Tribunal’s reasons for its decision does not disclose that it applied the wrong test.
4.22 Having regard to the matters advanced in the second ground of the application for judicial review, it is apparent that the applicants take issue with the Tribunal’s finding of fact, including its adverse credibility findings. In doing so, the applicants impermissibly invite the Federal Magistrates Court to embark on merits review of the Tribunal’s factual findings. In the circumstances, the applicants’ second ground of review is misconceived. It cannot be said that the Tribunal’s decision was so unreasonable that no reasonable decision-maker could have made it.
Again it seems to me that this is an attack upon the decision maker’s finding of fact and not a matter for judicial review. On a fair reading of the decision, the decision reached by the tribunal was open to it on the evidence before it having regard to its findings.
The third ground is as follows:
3. The Tribunal fell into jurisdictional error in failing to request more information regarding the Applicant’s victimisation for his political affiliations and activities in India from the authorities directly.
It is not for the tribunal to make out the applicant’s case for him. The tribunal gave him an opportunity to provide further information and he did provide further information after the hearing. I am not persuaded that this ground forms a basis for judicial review.
At the hearing today, the applicant submitted that the tribunal had failed to have regard to his arrest and to his wife’s miscarriage. This cannot be accepted as the tribunal refer to each of these things at paragraphs 99 and 98 respectively, where they said:
98. Further the Tribunal does not accept that the applicant was harassed, threatened or assaulted or that his shop was ransacked by BJP or others for the reasons given. It follows that the Tribunal does not accept that the applicant made reports of these events to the police and police protection was withheld from him as claimed. The Tribunal finds it internally inconsistent that the applicant would claim that he attempted to report his assault and the ransacking of his shop to the police with his statement that he did not report to the police the assault of his wife, an assault that it is claimed led to her having a miscarriage. On the evidence before it, the Tribunal accepts that the applicant’s wife has had a miscarriage but the Tribunal does not accept that her miscarriage was the result of an assault by BJP or others as claimed.
99. The alleged complaint filed against the applicant by [R], which it is claimed has been subsequently withdrawn, is supported by uncertified documentation, the latter provided post hearing. Whilst the applicant’s oral evidence to the Tribunal is that his dealings with [R] have a political connotation, the Tribunal finds that, on the basis of the applicant’s uncertain and evasive evidence and doubts regarding the documentary evidence before it, the Tribunal does not accept that the applicant had any difficulties with [R] for the reasons given. It follows that the Tribunal cannot be satisfied that the applicant has been denied the protection of the police for any reason in the past.
In the circumstances I therefore dismiss the applicants’ application.
[further argument ensued]
Application for costs
On the question of costs, I note that the applicants have been unsuccessful. Costs ought to follow the event. The scale fee is sought of $5865. Given the nature of the matter there is no reason to, in my mind, depart from the scale. I therefore order the applicants pay the respondents costs fixed at $5865.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 21 June 2010
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