MZYHL v Minister for Immigration
[2010] FMCA 536
•3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYHL v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 536 |
| MIGRATION – Appeal – decision of Refugee Review Tribunal – section 424A – no matter of principle. |
| Migration Act 1958, ss.91S, 424A |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | MZYHL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1697 of 2009 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 3 June 2010 |
| Date of Last Submission: | 3 June 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appearing in person. |
| Counsel for the Respondents: | Ms Latif of Counsel |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant’s application for judicial review be dismissed.
The applicant pay the costs of the First Respondent fixed at $5865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1697 of 2009
| MZYHL |
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 dated 10 December 2009. In that decision the tribunal affirmed a decision of the delegate to refuse a Protection visa. The applicant is a 47 year old man from Sri Lanka who came to Australia on a Business (Short Stay) visa in 1996. Thereafter there is a long and complex history of visa applications and judicial review, culminating in a Protection visa application on 27 February 2001.
The thrust of the applicant's claims relate to persecution on the basis of his actual or imputed political opinion. Long and complex histories of events were given to the tribunal which are recounted in the decision. Significantly, the applicant returned to Sri Lanka on a number of occasions. The tribunal's findings are set out at paragraphs 60 to 94 of the decision. The tribunal identified a very large number of inconsistencies in the applicant's evidence, leading to the tribunal rejecting the applicant's claims, largely on the basis of credit. Importantly, the tribunal identified that at an early hearing the applicant was emotionally upset and confused. A further hearing was scheduled, and the tribunal took into account medical evidence around this difficulty. It cannot be said that the Tribunal simply rejected the applicant’s claims without considering the difficulties that affected the presentation of the evidence.
The tribunal took into account the material provided by the applicant and his agent relating to country information. As a result of the very large number of inconsistencies in the various versions given by the applicant, the tribunal wrote to the applicant on 29 September 2009 identifying this as a reason that the tribunal may affirm the case under review. Whilst this does not appear to be information within the meaning of s.424A (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26) it clearly put the applicant on notice that his credibility was squarely in issue. The applicant's agent responded directly to the tribunal on 9 November 2009 and the tribunal clearly had regard to that response as they recount at paragraph 58 of their decision. A further basis for the decision is set out at paragraph 92 with the finding that the applicant could relocate within Sri Lanka.
In the hearing before me the applicant expressed his case, effectively, as one in which he thought the tribunal ought to have accepted him as a witness of truth. The reasons of the tribunal are set out in considerable detail explaining why they rejected, in most part, his evidence.
The applicant filed an application that contains four grounds of application and written submissions. Whilst the application makes many broad claims of apparent legal error, particulars are not given and the written submissions, effectively, complain about the credibility findings of the tribunal.
Ground 1
Ground 1 of the application is as follows:
1. The decision of the Tribunal was made without jurisdiction or is affected by jurisdictional error in that the Tribunal erred in law and thereby did not act within jurisdiction in making the decision because
a. The Tribunal erred in law in failing to properly interpret or apply the law including section 36(2) section 91(R) and Part 7 of the Migration Act 1958 (Act) in determining whether the applicant had well-founded fear of future persecution and thereby the Tribunal failed to consider and determine relevant material being the substantive issues raised by the evidence presented by the applicant in support of his fear of future persecution or death.
b. The Tribunal erred in interpreting the term for reasons of political opinion in the definition of a refugee under the Refugees Convention incorporated by section 36(2) of the Act and as a consequence by not giving any or any proper consideration to the applicant’s contention that he suffered harm as a result of threats and intimidation which constituted serious harm that amounted to persecution under the Convention.
c. The Tribunal erred in interpreting section 91S of the Act in that it erroneously considered that the applicant was a not a person who had a well founded fear of persecution for reasons stated in the Refugees Convention.
d. The Tribunal failed to put to the applicant country information in its possession and available to it.
e. The Tribunal denied to the applicant procedural fairness in its decision on 10 December, 2009.
I see no error in the tribunal's description of the law as alleged in ground 1(a).
Similarly with respect to ground 1(b), it is difficult to understand what the error is that is alleged. In this case the tribunal clearly considered the various claims that the applicant made.
Ground 1(c) alleges an error in interpreting s.91S, but seems to me to simply challenge the factual finding of the tribunal.
In ground 1(d) it is alleged the tribunal failed to put country information to the applicant. The decision in this case does not appear to turn upon country information.
Ground 1(e) is a general claim of a denial of procedural fairness, but without any particularisation. The fact that the tribunal gave the applicant notice of its concern about his conflicting versions and adjourned the hearing to enable him to be in a better psychological condition to put his case, appears to tell against procedural unfairness. It is difficult to understand what procedural unfairness could have taken place on the day of handing down the decision. I therefore reject this ground.
Ground 2
Ground 2 simply says:
2. The decision of the Tribunal is affected with an error of law which affected its authority.
No error of law is apparent on the face of the decision, nor was any error pointed out in the submissions.
Ground 3
Ground 3 alleges:
3. The decision was made without authority.
a. There was no evidence or other material to justify the finding that there is no real chance that the applicant would be persecuted for Convention reason of political opinion if he were to return to Sri Lanka now or in the foreseeable future.
b. There was no evidence upon which the Tribunal could find that the applicant does not [h]ave an on-going well-founded subjective fear of being persecuted for Convention reasons.
c. There was no evidence or other material to justify the finding that the applicant does not have a well founded fear of persecution within the meaning of the Convention.
Ground 3 appears to be drawn on the basis that the tribunal had to have evidence before it on which it could be satisfied that there was not a fear and not any risk. In fact the tribunal had to be satisfied by the applicant that he had made out his case. On the material before it, the tribunal were not satisfied that the applicant satisfied the relevant criteria. Its findings did not need to go further than that.
Ground 4
In ground 4 the applicant alleges:
It was an improper exercise of power conferred by the Act.
a. The decision involved an error of law being involving an incorrect interpretation of the applicable law and/or an incorrect application of the laws to the facts as found by the Tribunal which made the decision.
b. The Tribunal failed to identify the other serious circumstances that gave rise to an on-going well-founded subjective fear which the applicant was subjected to and alleged by the applicant.
c. There had been an error of law on the part of the Tribunal, in that the Tribunal’s reasoning manifested a misunderstanding of the concept of a refugee. The decision of the Tribunal has been affected by an error of law in the approach it took to the concept of a ‘well-founded fear of being persecuted’. The Tribunal ought not to have rejected the applicant’s claim of on-going and genuine fear of having to risk his life if he were to return to Sri Lanka. The failure to do so discloses an error of law of approach due to misunderstanding of the meaning and operation of the term ‘refugee’.
d. The Tribunal has erred in law by dismissing the harm feared by the applicant as not of sufficient gravity as to constitute persecution.
Ground 4(a) is, again, a broad claim with respect to errors without particulars.
With respect to ground 4(b), there were no other serious circumstances that were alleged at the hearing before me that it could be said the tribunal failed to identify.
Ground 4(c) appears to be based on an argument that the tribunal ought to have accepted a subjective fear on the part of the applicant. This is not in accord with the law and, even if it were, it appears to me that the tribunal's findings of credit were so adverse to the applicant that it would not have been so satisfied in any event.
Ground 4(d) is, again, a challenge of the fact finding of the tribunal and does not allege an error of law.
In the written submissions, the applicant challenges various fact finding sections of the tribunal’s decision. The applicant identifies that whilst the tribunal rejected much of his evidence, it did accept that one incident took place involving a white van. It is open to a tribunal to accept parts of a person's evidence and reject other parts. Indeed, it is expected that a tribunal will carefully consider evidence given and discern which parts of a person's evidence it accepts and which it rejects, rather than applying a simplistic test of accepting or rejecting the totality of any witness's evidence. The tribunal were right to consider that there were other explanations for the van incident; they were obvious on the facts of this case, and they were not unrealistic hypotheses. It is part of the fact finding process for a tribunal to consider the practical circumstances of the case being put as part of the process of deciding whether to accept or reject them.
Much of the balance of the written submissions is simply argumentative with respect to the fact finding of the tribunal. Under heading C of the written submissions the applicant claims that the tribunal were obliged to give him an opportunity to deal with assumptions or findings the tribunal made about his credibility. The tribunal is not required to give him notice of their thought processes, but in this case it must have been apparent to him that his credibility was under significant question as a result of the letter the tribunal sent to him before the hearing. Whilst he says that neither the delegate's reasons nor the tribunal's conduct gave him any basis to understand that discrepancies in his evidence were in issue, this simply flies in the face of the fact that his agent wrote to the tribunal in November 2009 in an attempt to explain the discrepancies in various versions that had been given.
In the circumstances of this case, I am not able to identify a ground for judicial review which can be sustained.
I refuse the application and formally dismiss the applicant's application for judicial review.
[further argument ensued]
Application for costs
On the question of whether or not costs should be ordered, the Minister has been entirely successful in the case, and the costs should ordinarily follow the event. There is nothing in the circumstances of this case that would displace the ordinary outcome on costs.
In this case the Minister seeks costs in the sum of $5865 - this is the scale fee under the Federal Magistrates Court's scale. This matter has taken the usual course of events in matters of this type and has had the usual amount of material that one commonly sees in cases of this type. I see nothing in the circumstances of this case to take it outside the range of cases that were intended to be covered by the lump sum amount in the Federal Magistrates Court scale of costs. I therefore find that $5865 is a reasonable amount for costs.
I order that the applicant pay the costs of the Minister fixed at $5865.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 20 July 2010
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