MZYIX v Minister for Immigration

[2010] FMCA 753

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYIX v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 753

MIGRATION – Fear of personally motivated violence – particular social group – if state unwilling to afford protection – may be within Convention – independent basis for decision – application without merit – application for reinstatement dismissed.

Migration Act 1958 (Cth), s.474
Federal Magistrates Court Rules2001, r.13.03C

Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported)
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Multicultural Affairs v Khawar [2002] 210 CLR 1
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Nottinghamshire County Council v Secretary of State for Environment [1986] AC 240
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43
SZBCE v Minister for Immigration & Multicultural  & Indigenous Affairs [2005] FCA 697
SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965

Applicant: MZYIX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG772 of 2010

Judgment of: Turner FM

Hearing date: 13 September 2010

Date of Last Submission: 16 September 2010

Delivered at: Melbourne

Delivered on: 11 October 2010

REPRESENTATION

Counsel for the Applicant: Ms Karapanagiotidis

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application and amended application, would, if reinstated be dismissed.

2. The application for reinstatement is dismissed as the substantive application and amended application do not raise an arguable case for the relief claimed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG772 of 2010

MZYIX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 29 April 2010. That decision affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.

2. The applicant comes from Mauritius. The applicant’s husband came to Australia to study. The applicant followed him with their two children in February 2007. The family returned to Mauritius in January 2009. In March 2009 the applicant and her husband returned to Australia without their children. The applicant left her husband in June 2009, and the applicant’s husband returned to Mauritius.

3. The applicant is afraid to return to Mauritius, as she is in fear of her husband, and believes that the authorities will not protect her. The applicant’s husband has threatened to harm her and their children if she returns to Mauritius.

4. The applicant failed to appear before Registrar Allaway on 7 July 2010 and the application was dismissed for that reason, pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules2001

   
   

   (the “Rules”).

5. By Application in a Case filed on 16 July 2010, the applicant sought that her application be reinstated.

6. By orders in chambers on 2 August 2010 the matter was listed for final hearing, subject to it being reinstated.

7. At the final hearing that commenced on 13 September 2010 Ms Karapanagiotidis appeared for the applicant and Ms Symons for the first respondent.

8. The first respondent conceded that there was a valid reason for the non-attendance on 7 July 2010, but submitted that the application for reinstatement should be dismissed on the ground that the substantive application dated 6 September 2010 does not raise an arguable case for the relief claimed (para.7, first respondents submissions).

9. Justice Ryan set out the principles governing an application for reinstatement in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 as follows:

“Principles governing an application for reinstatement

(1)In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

(a)  whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

(b)  the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

(c)   whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

1.   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement

(emphasis added)

(2)In this connection, a party’s absence is analogous to a party’s failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party’s favour where there is little or no prospect of that party’s succeeding on the substantive claim: see Gallo v Dawson (No 2) [1992] HCA 44; (1992) 109 ALR 319 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 319- 320”.

1. The Court therefore needs to assess the merits of the application for judicial review in order to decide whether it should be reinstated.

2. The amended application filed on 6 September 2010 sets out the grounds as follows:

   (4)The Tribunal failed to properly consider whether the serious harm inflicted by the applicant’s husband was Convention based

   (a)The reasons of the Tribunal demonstrate that it fell into error in its consideration of the husbands’ motivation towards the applicant.

   (b)The factors in relied upon in reaching its decision were not capable of rationally supporting the findings it made.

   (c)In considering the husbands motivation the Tribunal did not engage in a proper or considered evaluation or assessment.

   (4)(repeated) The Tribunal failed to properly consider whether the police were unwilling or unable to afford the applicant State protection

   (a)In finding that the State would not withhold or withdraw protection from the applicant for a Convention reason, the Tribunal failed to properly consider whether the police were unwilling or unable to afford State protection to the applicant.

   (b)The Tribunal accepted the overall claims made by the applicant.

   (c)The Tribunal accepted that there were deficiencies in the implementation of the mechanisms designed to protect women in Mauritius.

   (d)In reaching its decision, the Tribunal failed to appreciate the significance of its own findings and/or failed to assess or evaluate the identified deficiencies in the implementation of the mechanism designed to protect women.

   (5)The Tribunal made a finding as to the availability of family protection and support that was not open on the evidence and/or that was unreasonable

   (a)The applicant contended that if she were to return to Mauritius as a single women she would face social discrimination and stigma.

   (b)The Tribunal found that there was not a real chance the applicant would suffer societal discrimination or stigma amounting to persecution if she returned to Mauritius.

   (c)The Tribunals decision was principally based on a finding that the applicants’ family would support her financially.

   (d)The finding was not open on the evidence before the Tribunal and was in conflict with the evidence that it had accepted.

3. The Tribunal made a finding of fact that the violence that the applicant endured during the marriage was motivated by personal reasons (Court Book (“CB”) 216.9), not Convention reasons and that any future harm she fears from her husband, and possibly his family and friends, is not Convention related (CB 218.2), but because of the circumstances of her relationship with her husband and his apparent propensity for violence generally, and because of his desire to control his children and maintain face (CB 218.3). Those findings of fact were open to the Tribunal and are not amenable to review.

4. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.

5. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.

6. Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]:

   “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 a 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”.

7. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

8. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

   “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.

9. A wrong finding of fact is not jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.

10. “Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”: Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.

11. The Court refers to the following passages in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:

    “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

    There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.

    The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.

12. A faulty inference of fact does not show an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9].

13. As stated by Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [29]:

    “if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.

14. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal.  The challenge is no more than an invitation to review the merits.  The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court (at [12] quoted a passage from the decision of Selway J at first instance, where his honour had said:

    “16 I have considered all of the matters put to me.  The relevant principle is clear.  Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court.  The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal.  The Court has no jurisdiction to do so.  As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:

    “A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning.  See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.

15. Bennett J summarised a number of relevant authorities in SZBCE v Minister for Immigration & Multicultural  & Indigenous Affairs [2005] FCA 697:

    “31 This ground appears to amount to no more than disagreement with the outcome of the review by the Tribunal.  The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 596).  The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J).  The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural [2000] FCA 1536 at [13]).  Further, as was held by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14] ‘the want of logic does not, of itself, suffice to constitute an error of law’.  No error is established”.

16. Ms Karapanagiotidis referred to the decision of then Chief Justice Gleeson in Minister for Immigration and Multicultural Affairs v Khawar [2002] 210 CLR 1 at [26] as follows:

    “As her case is argued, and as a matter of principle, it would not be sufficient for Ms Khawar to show maladministration, incompetence, or ineptitude, by the local police. That would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2). But if she could show state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then it would not be an answer to her case to say that such a state of affairs resulted from entrenched cultural attitudes. An Australian court or tribunal would need to be well-informed about the relevant facts and circumstances, including cultural conditions, before reaching a conclusion that what occurs in another country amounts to persecution by reason of the attitude of the authorities to the behaviour of private individuals; but if, after due care, such a conclusion is reached, then there is no reason for hesitating to give effect to it”.

    The Court refers to the reasons in para.31 as follows:

    Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state. In relation to the case which Ms Khawar seeks to make out, the decision in Ex parte Shah in this respect is directly in point [41] . If her contentions, as to which no findings have yet been made, are correct, then Ms Khawar was being abused by her husband and his relatives for personal reasons, but her likely subjection to further abuse without state protection is by reason of her membership of a particular social group, if it be the case that women in Pakistan may be so described.

1. It follows that where there is personally motivated violence but no withholding of protection which the victims are entitled to expect, the requirement that the persecution be for one of the Convention reasons is not satisfied.

2. Ms Karapanagiotidis submits that the Tribunal failed to consider properly whether the police were unwilling or unable to afford State protection.

3. Ms Karapanagiotidis submits (applicants contentions [44]) that the Tribunal accepted some evidence, but did not accept that on the evidence before it, that there was a selective and discriminatory withholding of State protection from:

   “‘women in Mauritius’, ‘Mauritius women victims of domestic violence’, ‘married women in Mauritius’, married women with children’, ‘single women’, and ‘Mauritian women who are separated’”.

4. It is for the Tribunal to accept or reject evidence…proffered as it thinks appropriate in all the circumstances Lee (supra).

5. Judicial review is “not calculated to secure judicial scrutiny of the merits of a particular case”. There is one limitation Wednesbury unreasonableness “…which leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power”. Nottinghamshire County Council v Secretary of State for the Environment (supra) and Attorney General for the State of New South Wales v Quin (supra) at [35]…

   “the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.

6. Ms Karapanagiotidis then refers to the evidence that she says the Tribunal accepted (Ibid [45-49]) and complains that the Tribunal found that the evidence did not establish that such norms had a bearing on the police willingness or ability to protect victims of domestic violence.

7. It is complained next (Ibid [51]) that the Tribunal failed to carry out an evaluation of the evidence in the way that the applicant would have it do so, and effectively that it failed to reach conclusions on the evidence favourable to the applicant.

8. The Tribunal conducted a review of the evidence (from CB 219.2 to 220.4) and concluded that:

   “On the basis of all the evidence, the Tribunal does not accept that the country information before it is capable of supporting a conclusion that there is a lack of willingness on the part of the Mauritian authorities to protect women”. (CB 220.3)

9. The Tribunal did not accept that there was withholding of State protection from women in Mauritius (CB 219.6 and .9, CB 220.3,

   
   

   CB 221.3 and CB 222.5). Those finding of facts were open to the Tribunal. Wednesbury unreasonableness has not been established. Those findings are not amendable to review.

10. The Tribunal found also that the country information does not suggest that the State condones or tolerates such domestic violence (CB 219.4). That finding of fact was open to the Tribunal and is not amendable to review.

11. Persecution for private reasons can have the required “official quality” if it is officially tolerated or uncontrollable, or the State is unwilling to provide protection against it. The decision in Khawar (supra) cannot be relied on to convert the personally motivated violence here into persecution within the Convention definition.

12. The court rejects the argument that the persecution here comes within the Convention.

13. As the persecution that an applicant fears must be for one or more of the reasons set out in the Convention and have an official quality, the above finding of the Court is an independent basis for the decision of the Tribunal that effectively disposes of the application for judicial review.

14. Where there is an independent and unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 at [33]

15. The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]

    “The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”. [21]

    “[21] Re Refugee Revue Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].”

16. As stated by Kirby J in SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [88]:

    In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case

    When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.

17. The Court is not required to “analyse other suggested technical infractions”, as even if established they would not influence the outcome (SZBYR (supra) at [88]).

18. The Tribunal found that based on the evidence before it “in all cases the police were reported as having investigated those serious crimes” (CB 219.5).

19. 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.

20. The application and amended application, would, if reinstated be dismissed.

21. The application for reinstatement is dismissed as the substantive application and amended application do not raise an arguable case for the relief claimed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:

Date:  11 October 2010