MZYHV v Minister for Immigration - [2010] FMCA 761

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYHV v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 761

MIGRATION – Whether Tribunal applied the wrong test or set about its fact finding task by wrongly focusing on a need to “substantiate” or “verify” claims – Tribunal determined application for a protection visa on the question of applicant’s credit – Tribunal merely articulated fact finding process adopted by it – no error established – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 414

Dare Undergarments Pty Ltd v Minister for Immigration and Anor [2009] FMCA 921
Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22
Machmud v MIMA [2001] FCA 1041
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZXSP v Minister for Immigration and Anor [2008] FMCA 358
Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336

Applicant:

MZYHV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number:

MLG 360 of 2010

Judgment of:

O'Dwyer FM

Hearing date:

30 August 2010

Date of Last Submission:

30 August 2010

Delivered at:

Melbourne

Delivered on:

8 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Russell Kennedy Solicitors

Counsel for the Respondent:

Mr Mosely

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application filed on 12 March 2010, as amended, is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 360 of 2010

MZYHV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application filed on 23 July 2010, the Applicant seeks to review a decision of the Refugee Review Tribunal (the Tribunal) made on 5 February 2010, which decision affirmed an earlier decision of the First Respondent’s delegate not to grant the Applicant a protection visa.

Background

The Applicant is a citizen of Bangladesh. He arrived in Australia on

7 February 2008. He was the holder of a Business (Short Stay) Visa, subclass 456 granted to him on 9 December 2007.
On 29 February 2008 the Applicant applied for a Protection (Class XA) visa.
The Applicant claimed to have a well founded fear of persecution in Bangladesh for reasons of his political opinion as a known supporter of the Bangladesh National Party (BNP) of which he claimed to have been a member since 1985, when he joined as a student member.
For reasons set out in a very lengthy decision, the Tribunal Member, after examining the evidence before it and after making certain findings concluded that it was not satisfied the Applicant has a well founded fear of persecution in Bangladesh for a Convention related reason. It then followed that the Tribunal affirmed the earlier decision made by the First Respondent’s delegate.

Ground for Review

In his amended application, the Applicant set out one ground for review, namely:-
The decision of the Refugee Review Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 761
Decision Date: 8 October 2010

CaseChat Overview and Summary

In the case of MZYHV v Minister for Immigration, the Applicant challenged a decision of the Tribunal, asserting that it had erred in its approach to evaluating the credibility of his claims without requiring corroborating or substantiating evidence. The Federal Court was tasked with determining whether the Tribunal's approach to the evaluation of the Applicant's claims was flawed and inconsistent with established legal principles.

The central legal issue was whether the Tribunal erred in its assessment of the Applicant's claims by placing undue emphasis on the need for corroborating or substantiating evidence, thereby undermining the Applicant's credibility. The Applicant argued that the Tribunal's focus on the lack of documentary evidence led to an erroneous conclusion that his claims could only be accepted if substantiated by such evidence. The First Respondent, on the other hand, contended that the Tribunal's recognition of the difficulty in producing such evidence did not equate to imposing a requirement for its production.

The Court found that the Tribunal did not impose a requirement for substantiating evidence, as the Applicant suggested, but rather acknowledged the difficulties in obtaining such evidence and appropriately considered the Applicant's credibility in the absence of it. The Court held that the Tribunal's approach was not flawed and was in accordance with established legal principles which do not mandate corroborating evidence for the acceptance of claims. Consequently, the application was dismissed.

The Court ordered that the application filed on 12 March 2010, as amended, be dismissed.

Orders

Orders of the court

The application filed on 12 March 2010, as amended, is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal went on to say:-“As a result the Tribunal has had regard to the fact that the applicant may have some difficulty producing the kind of documentary or other substantiating evidence that might verify these particular claims. Consequently, the issue of the applicant’s overall credibility becomes important to an assessment of his claims”. (emphasis added by the Applicant) The Applicant contended that those passages and phrases emphasised, which I might say were carefully selected, should be read as stating, in effect, that because substantiating evidence had not been provided, the credibility of the Applicant assumes greater significance. The Applicant further contended that in expressing itself in this way the Tribunal is clearly requiring that the Applicant’s claims and evidence be substantiated by documentary or other evidence or be corroborated before they can be accepted. There was a need to “verify” through production of documentary or corroborative evidence the claims made. The juxtaposition, it was contended, of the lack of independent or documentary evidence with the use of the phrase “substantiate his claims...” and “verify” in the context in which they appear provides a further indication of the Tribunal’s flawed approach and reinforces the impression that there must be some corroboration of the Applicant’s own evidence. It was said to imply that it is not sufficient for the Applicant’s evidence to be believed on its own, and that lack of substantiation means that the credibility of the Applicant must be closely scrutinised or even more closely scrutinised than would otherwise be the case. As I understood the Applicant’s contentions, the Tribunal’s flawed approach was, in effect, characterised by a dominant concern on the part of the Tribunal, in order for it to form a credible view of the Applicant’s claims, that there must be corroboration or substantiation of the claims by way of documentary or other evidence. In other words, the Applicant contended that without that level of substantiation or corroboration, the Tribunal would be hard pressed to accept the claims made. It is this alleged approach by the Tribunal to the issue of fact finding that the Applicant contends is flawed and contrary to the stated law on the need, or more correctly, the lack of need for the substantiation or corroboration of claims. (See Dare Undergarments Pty Ltd v Minister for Immigration and Anor [2009] FMCA 921; MZXSP v Minister for Immigration and Anor [2008] FMCA 358; Machmud v MIMA [2001] FCA 1041 and Elliott v Minister for Immigration and Multicultural Affairs [2007] FCAFC 22). To these contentions the First Respondent simply states that the Applicant seeks to unfairly impugn the passages referred to by suggesting the Tribunal is imposing the requirements suggested by him and that, on any reading of the passages, let alone on the “fair reading” approach mandated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-2, it did not. The First Respondent highlights that in recognising the difficulty, which the Tribunal did, in producing substantiating material, it obviously is not imposing a requirement that such material be produced before claims can be accepted.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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