MZYHV v Minister for Immigration
[2010] FMCA 761
•8 October 2010
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 or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s.65 to grant or refuse the application and its powers to conduct a review under s.114 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it misunderstood and/or misconstrued a criterion under s.36 of the Act which it had to be satisfied for the purposes of s.65.
PARTICULARS
The Tribunal applied the wrong or incorrect test for it to be satisfied that the Applicant is someone to whom protection obligations are owed pursuant to s.36 and/or imposed a burden of proof on the Applicant that is not mandated by the Act and/or imposed a particular standard of proof on the Applicant not mandated by the Act requiring that the Applicant’s claims and/or evidence be substantiated by documentary or other evidence and/or be corroborated.
In support of that ground, the Applicant highlighted various statements made by the Tribunal Member in her decision. The Applicant noted that the Tribunal stated that:-
“apart from the Applicant’s claims and oral evidence in this regard, he had not provided the Tribunal with any other independent or documentary evidence to indicate he acquired a profile…”
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.
I am of the view that in recognising the difficulty and, having done so, articulating the approach to be taken as one that will be reliant heavily upon assessments of credibility as to whether the claims are accepted, the Tribunal was not in error. The use of the words “substantiate” and “verify” resonates with similar terminology used in earlier decisions that, on review, were found to be indicative of the general contention that the Tribunal was imposing a standard of proof or applying a test incorrectly. Those earlier decisions can readily be distinguished from the present case under review. Each one of them clearly identified the reliance of the Tribunal, in its decision making process, upon the need for corroboration and the imposition of a standard of proof not mandated by the Act. In the case before me I am not satisfied on a fair reading of the decision that the Tribunal had fallen into that same error readily identified in those cases cited by the Applicant in support of his case as set out above.
In this case, a fair reading of the Tribunal’s decision confirms that the articulation complained of is merely the Tribunal setting out its approach to its mandated task of fact finding. In that regard, the considerations by Finkelstein J in Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336 have application, in my view, to how the Tribunal approached the issue of fact finding. In that case his Honour rejected an argument that the Tribunal had failed to properly apply the “real chance” test by requiring the Applicant to provide corroboration or supporting evidence of certain aspects of his case. His Honour said:
The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it. In GUO, in the majority judgment at 570, it was said that, “The Tribunal (is) entitled to weigh the material before it and make findings before it engaged in any consideration of whether or not (the Applicant’s) fear of persecution on a convention ground was well founded.” See also Wu Shan Liang at 293 per Kirby J. This must admit of the possibility that the Tribunal will not accept the accuracy of certain “facts” unless they are corroborated in some way. The acceptance or rejection of “facts” is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some “facts” may be so implausible that they should not be accepted. An Applicant may appear to lack credibility and, in that circumstance, the Tribunal may not be disposed to accept his or her evidence, unless that evidence is corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that the evidence is unreliable and should be rejected unless corroborated, that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it. (emphasis added)
In a comprehensive decision the Tribunal examined all the claims made and made findings of fact, including finding inconsistencies in the evidence which touched upon the Applicant’s credibility. Accordingly, the Tribunal found the Applicant’s credibility wanting and rejected claims made by the Applicant accordingly. In my view, the Tribunal, in setting out how it approached the process of fact finding, did not make an error of law by applying the wrong test or imposing a burden of proof that is not mandated by the Act. It was not requiring substantiation or corroboration of claims with documentary evidence or by any other means.
The Tribunal, in my view, by stating that there was a lack of substantiating evidence or lack of corroboration, through the production of documentary evidence, was merely saying that it could only rely upon issues of credit and, having identified how the fact finding process was to be determined, it then thoroughly examined the evidence as given by the Applicant, and the inconsistencies that arose in that evidence, which led it to form the view that the Applicant was not a witness of truth; which conclusion was open to the Tribunal.
Conclusion
Accordingly, I am not satisfied that the Tribunal had committed an error, let alone an error going to jurisdiction. The application, therefore, must be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Date: 8 October 2010
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