MZYIZ v Minister for Immigration & Anor (No.2)
[2010] FMCA 755
•12 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYIZ v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2010] FMCA 755 |
| MIGRATION – Application for judicial review – principles for extension of time – application to minister under s.477 – no satisfactory explanation for delay – whether extension of time in the interests of administration of justice – affidavits not certified by translator – application dismissed. CREDIBILTY – Adverse finding – whether irrational or illogical findings show error of law. MERITS – Not amenable to review. |
| Migration Act 1958 (Cth), ss.417, 424, 477 Acts Interpretations Act 1901, s.36(1) Federal Magistrates Court Rules 2001, r.15.27(2)(b) |
| Abebe v Commonwealth (1999) 197 CLR 510 Rhandawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Wong v Minister For Immigration & Anor [2009] FMCA 747 |
| Applicant: | MZYIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG795 of 2010 |
| Judgment of: | Turner FM |
| Hearing date: | 13 September 2010 |
| Date of Last Submission: | 13 September 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Deckker |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Ms Latif |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application to extend time for lodging the application for judicial review is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG795 of 2010
| MZYIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to extend the time for lodging an application for judicial review of a decision of the Refugee Review Tribunal on
4 January 2010. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant filed an application in a case on 16 June 2010 seeking constitutional writs preventing the first respondent or his Department, from removing the applicant from Australia before the Court has determined the principal application filed on 1 June 2010.
The application in a case was heard on 16 June 2010 and dismissed by judgment and orders delivered and made on 28 June 2010.
Extension of time
The application for judicial review filed on 1 June 2010 includes an application for extension of time. The decision under review is dated
4 January 2010.
Section 477 of the Migration Act 1958 (the “Act”) provides as follows:
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
The last date for filing the application within time was 8 February 2010 (s.36(1) Acts Interpretation Act 1901). The application was filed on
1 June 2010 and is therefore 15 weeks out of time.
In exercising its discretion to extend the time for making an application, the Court must consider whether it is in the interests of the administration of justice to make the order (s.477(2)(b) of the Act).
For the Court to be satisfied that an extension of time should be granted, the applicant must provide a satisfactory reason for the delay and the Court must take into account the prospects of success of the application if leave is granted (Deighton v Telstra Corp Ltd , [1997] FCA 1568; Lazar Kalaba v the Queen [1996] FCA 908; Jess v Scott (1986) 12 FCR 187).
Section 477(2)(a) of the Act requires that an application for extension of time be made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make the order.
The first respondent objects to the use of the affidavits filed by the applicant on 1 June 2010, 16 June 2010 and 16 August 2010 pursuant to r.15.27(2)(b) of the Federal Magistrates Court Rules 2001 (the “Rules”), as a translator has not certified in or below the jurats that they have translated the affidavits to the applicant.
The first respondent objected to the use of those affidavits, filed to set out why the applicant failed to comply with the 35 day time limit for filing the application for judicial review. Rule 15.27 of the Rules provides as follows:
(1)If the person making an affidavit is illiterate, blind, or physically incapable of signing it, the person before whom the affidavit is made must certify in or below the jurat that:
(a)the affidavit was read to the person making it; and
(b)the person seemed to understand the affidavit; and
(c)in the case of a person physically incapable of signing, the person indicated that the contents were true.
(2)If the person making an affidavit does not have an adequate command of English:
(a)a translation of the affidavit and oath or affirmation must be read or given in writing to the person in a language that the person understands; and
(b)the translator must certify in or below the jurat that he or she has done so.
(3)If an affidavit is made by a person who is incapable of reading it or incapable of signing it and a certificate under subrule (1) or (2) does not appear on the affidavit, it may not be used in a proceeding unless the Court or a Registrar is satisfied that:
(a)the affidavit was read, or if appropriate a translation read or given in writing, to the person; and
(b)the person seemed to understand the affidavit; and
(c)in the case of a person physically incapable of signing — the person indicated that the contents were true.
The Court heard the applicant read passages from the first respondent’s Contentions of Fact and Law and from his affidavit filed on 16 August 2010. The Court found that the applicant was unable to read the material. In that circumstance a certification was required in the jurat that the affidavit was read to the person making it and that he seemed to understand the affidavit. The certification was not included in any of the affidavits sought to be relied on by the applicant. They were therefore held to be inadmissible under sub-rr.(1) and (3). Having decided that the applicant could not read from the documents, the Court decided that the applicant does not have an adequate command of English. As the requirements of sub-r.(2) were not met, the affidavits were not admissible under that sub-rule.
A short time later in the hearing, Ms Latif for the first respondent conceded that if the interpreter interpreted the affidavits to the applicant in Court and he gave sworn evidence that they were true and correct, the material in them could be relied on.
The applicant was then called, the affidavit filed on 16 August 2010 was interpreted to him into Tamil, and he stated that it was true and correct.
It was claimed for the applicant that, based on that evidence, the applicant had explained the reason for delay. Mr Deckker submitted that it is not necessary for an applicant to put his reasons in writing. The Court accepts that submission.
On 1 February 2010 the applicant’s migration agents applied to the Minister pursuant to s.417 of the Act for the Minister to substitute for the decision of the Tribunal, a decision more favourable to the applicant. That application was rejected by notification dated
11 May 2010 (CB 202).
The Court notes the decision in Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 per Jessup J at [29] that:
I do not think that the applicant’s approach to the Minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time.
The Court applies that reasoning to s.417.
The delay between the applicant receiving notification from the Minister and applying to the Court was 18 days. The Court accepts that during that time the appellant sought advice from the Department and was told that he had no option but to leave Australia immediately (affidavit filed 16 June 2010); he then sought advice from a friend who advised him that he could apply to the Court. The Court accepts the reasons for delay given by the applicant for the period after notification of rejection by the Minister on 11 May 2010 until his application in a case filed on 16 June 2010; However a satisfactory explanation for the delay from 8 February 2010 to until 11 May 2010 has not been provided.
The matters referred to by Federal Magistrate Scarlett in Wong v Minister For Immigration & Anor [2009] FMCA 747 in relation to an application for an extension of time to file an application for judicial review, are:
a)The explanation for delay;
b)The extent of the delay;
c)The effect on the applicant if the extension of time is not granted;
d)The detriment or prejudice to the respondent if the extension is granted; and
e)The nature of the substantive application.
Those matters are appropriate in this matter.
The effect on the applicant on denying an extension will be that he may have to return to the country from where his fears have arisen. He deposes that he will suffer costs and distress.
There is no determinant on prejudice alleged by the respondent if an extension of time is granted.
The Court will now examine the substantive application.
An amended application for judicial review was filed on 16 August 2010. The grounds in that application are:
(1)The decision was made in breach of an essential pre-condition to the exercise of the power conferred by sections 414 and 415 of the Migration Act 1958 (Cth) (as amended) (the “Act”) because the Tribunal failed to determine whether the Applicant had a well-founded fear of persecution as required by sections 36(2), 91R(1) and 65(1)(a)(ii) of the Act and sub-clause 866.211 of part 866 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”).
(a)The Tribunal made adverse credibility findings against the Applicant such findings being based on the erroneous assumptions that:
(i)The fact that the applicant had been granted a visa to travel to Australia before the claimed persecution took place was inconsistent with having a genuine and well-founded fear of persecution.
(ii)The Applicant had failed to disclose the fact that he had made arrangements to depart Sri Lanka two months before the claimed persecutory incidents took place when this information was in the possession of the First Respondent and the fact of the visa was noted in the decision of the First Respondent’s delegate.
(iii)The Applicant had entered Australia on 24 April 2008 on a subclass 421 Sports visa that was issued on 28 August 2008 which was an impossibility with such an error demonstrating the Tribunal’s distraction from its statutory task to review the Applicant’s claims based on the applicable law and objectively known facts about Sri Lanka.
(iv)As the Applicant’s agent in Sri Lanka had embellished the Applicant’s work history in order to enhance the prospects of the Applicant’s sports visa application being approved, the Applicant was to be disbelieved in relation to his protection visa claims”
Ground 1(a) complains that the Tribunal made an adverse credibility finding against the applicant.
In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone”.
The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
The Court refers to the following decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event then reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.
It is claimed that the adverse credibility findings are “based on erroneous assumptions”.
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”.
In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J 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”.
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”.
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.
“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.
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
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].
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”.
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”.
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”.
The conclusion reached in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265, per Allsop J was:
“11 The notice of contention, in ground 1, sought to place another characterisation upon this part of the reasoning of the Tribunal. It sought to charaterise it as displaying sufficient irrationality for the decision to be set aside by reference to what was said in Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. …What is plain, though, is that the demonstrating of one illogical aspect of fact finding in a wider scheme of factual analysis will rarely betray such a failure to attend to the jurisdictional task as to call in aid, for instance, at best, what Gleeson CJ said in Applicant S20. In such cases, all one has really done, at best, is demonstrate how an error of fact came to me be made. Generally, such errors will be within jurisdiction. All that the Tribunal was doing at this point in its reasons was explaining why it found the respondent’s version of what happened unpersuasive”.
In WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66, Nicholson J said:
“37 The appellant also relied on the contention that the Tribunal’s finding in the core paragraph was ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’…I accept the submission of the respondents that a body of the Federal Court authority has made it clear that, notwithstanding the decision of the High Court in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S 20/2002 (2003) 198 ALR 59, want of logic, or rationality, does not of itself suffice to constitute error of law, still less error of law which is jurisdictional: NBIO v Minister for Immigration and Multicultural Affairs [2006] FCA 1300 and VWFP and VWFO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA at [76]-[79].”
In MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123, the Full Court decided at [42] – [43] that:
42 It is not in doubt that a decision made by the Tribunal may be affected by jurisdictional error where it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 67 [36]- [37]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at 20 [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [130]- [139].
43 This basis for the finding of jurisdictional error was most recently considered by the High Court in SZMDS. In that case, the High Court (Heydon, Crennan and Bell JJ, Gummow ACJ and Kiefel J dissenting) allowed an appeal from this Court which had set aside a decision of the Tribunal on the basis that it was illogical or irrational. Heydon J concluded that the Tribunal’s reasoning was not illogical. Crennan and Bell JJ, in a joint judgment, held (at [135]) that, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal. On that basis their Honours held that the appeal should be allowed, although accepting (at [132]) that illogically or irrationality may constitute a basis for judicial review in the context of jurisdictional fact-finding. The essence of their Honours’ reasoning was that a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker. In this discourse the differences between the separate notions of "logical" reasoning and "rational" reasoning, and the constraints that each separately might impose on jurisdictional fact-finding, were not discussed by their Honours.
The Court notes the decisions of the High Court that a Tribunal such as the Refugee Review Tribunal (“RRT”) does not commit an error of law merely because it adopts unsound or questionable reasoning Eshetu, Bond (supra). The Court is bound to apply those decisions
As it is material to consider whether there has been an error of law, it will not suffice to establish some faulty inference of fact. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356: 94 ALR 11 at 38 per Mason CJ.
Even if the Tribunal made “erroneous assumptions” of fact, that does not establish an error of law, much less a jurisdictional error if there is some evidence upon which the finding of fact could be made SZINP (supra), a faulty inference of fact does not show an error of law Ex Parte Applicant S20/2002 (supra).
“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”.
Zuway (supra)The Court finds that there was evidence to support the adverse finding on credibility (post) (Court Book “CB” 175 [89] and 180 [108]).
Particular 1(a)(i) claims that the Tribunal was wrong to conclude that the fact that the applicant had been granted a visa to Australia before the claimed persecution took place was inconsistent with him having a well founded fear of persecution.
The Tribunal set out why it found the failure of the applicant to state that he had been granted a Sport visa before the claimed persecution took place, to be unsatisfactory (CB 177.4).
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”.
The Court refers to following the decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.
In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J 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”.
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.”
The Tribunal found that the “arrangements suggest that his departure from Sri Lanka was solely for the purpose of allowing him to play cricket for an Australian club” (CB 177.7). That finding of fact is not amenable to review.
The Tribunal found that the applicant had a “tendency to conceal information” from it (CB 177.8), and noted how the applicant had changed his evidence. The Tribunal did not accept that the applicant departed Sri Lanka for the reason he had provided (CB 181.4). The Tribunal was entitled to reject that evidence Lee (supra).
The Tribunal did not find the applicant to be a credible, truthful and reliable witness (CB 180.6) for the reasons it set out.
Particular 1(a)(ii) claims that the Tribunal was wrong to conclude that the applicant failed to disclose that he had made arrangements to depart Sri Lanka two months before the claimed persecutory incidents took place as this information was in the possession of the respondent, and was noted in the decision of the delegate.
The Tribunal noted that it had the Department’s file in connection with the Sport visa (CB 176.7). The Tribunal stated that it was only after such information was put to the applicant at the hearing that the applicant “stated for the first time that as a cricketer he made ‘applications’ to play overseas”, but he still made no reference to having made application to play in Australia (CB 177.2). It will be seen that the “applicant offered an apology for ‘the error in not stating that he had made some arrangements’ to leave Sri Lanka and his failure to ‘realise that at that ‘material time’ this information was relevant to his case” (CB 177.4). The Tribunal went on to find that the applicant’s conduct “indicates a deliberate concealment of evidence to serve his purposes” (CB 177.6).
The reasons of the Tribunal show that up until questioned in detail, the applicant failed to disclose his arrangements to the Tribunal. It matters not if the applicant mentioned it to the delegate, as it was open to the Tribunal to find that the applicant was not forthcoming with the material before the Tribunal.
In particular 1(a)(iii) the applicant claims that the Tribunal erroneously assumed that the applicant entered Australia on 24 April 2008 which was impossible as the visa was issued on 28 August 2008, and that this distracted the Tribunal.
It can be seen that immediately after stating that the applicant entered Australia on 24 April 2008, the Tribunal stated that the visa was issued on 28 August 2008 (CB 176.7).
The date of entry of 24 April 2008 was put to the applicant for comment by the s.424A letter dated 27 November 2009 (CB 144). The Tribunal continued by referring to the Northern Socials Cricket Club (NSCC) lodging an application in Australia to sponsor the applicant for a sports visa on 17 June 2008, and the applicant lodging his application for a Sports visa on 8 August 2008 (CB 145.1).
The Tribunal stated that “the above information is relevant because it may the lead the Tribunal to conclude contrary to your protection claims you had made arrangements to leave Sri Lanka well before the events in July 2008 that you claimed had led to your departure”
(CB 145.3). The details referred to by the Tribunal included that the applicant “signed a declaration agreeing to the requirements set out in the contract”.It appears from the Tribunals reasons that apart from stating the date of 24 April 2008 at (CB 176.7) the date played no other part in the Tribunal reaching its decision.
It has not been established that recording that the applicant entered Australia on 24 April 2008 “distracted the Tribunal from its statutory task to review the applicant’s claims,” as alleged. The mistake of fact had no obvious effect on the outcome. It does not demonstrate jurisdictional error Quin and NAAP (supra).
In particular 1(a)(iv) it is complained that the fact that the applicant’s agent embellished the applicant’s work records to enhance his prospects for a visa led the Tribunal to doubt the credibility of the applicant (CB 179.1). The Tribunal did not accept the applicant’s evidence in this regard (CB 179.1); it was entitled to accept or reject the applicant’s evidence Lee (supra).
Findings on credibility are a matter for the Tribunal W148/00A, Durairajasingham, Kopalapillai, Wu Shan Liang (supra).
The Tribunal was entitled to find that the inconsistencies in the information provided by the applicant in relation to his employment history cast serious doubt on his credibility and the truth of his evidence (CB 179.2).
As can be seen from the Tribunal’s decision, it did not accept much of the applicant’s evidence (CB 181.1 – 181.9). It was open to it to that Lee (supra).
The above findings address the particulars in the amended application.
The Court will now address additional relevant issues.
Mr Deckker concedes that an application to the Minister pursuant to s.477 of the Act will usually not be sufficient reason for extending the time for lodging an application for judicial review if the applicant has been legally represented and there have been no slips by his solicitors Vu at [29] per Justice Jessup.
Mr Deckker argued that the principle in Vu applied to an appeal against a decision of the Court and not to an application for judicial review, and the decision by His Honour in [12], where he refers to the Federal Magistrate being prepared to accept that an application to the Minister was “an explanation of sorts for 53 weeks delay”. However the content of [12] is subject to the decision in [29] that an application to the Minister does not provide “an acceptable explanation for his failure to lodge an appeal within time”. The appeal in Vu was dismissed.
Mr Deckker argued that the applicant delayed his application for judicial review for only 18 – 19 days after notification of the Ministerial refusal and that if it was a number of months or a year you would have to give some sort of explanation (Transcript “T” p.21, l.3). The Court is not inclined to accept that submission, but it is not necessary to decide this issue as the first respondent conceded that the applicant could confirm his affidavit material on oath in Court, and the Court has accepted the reasons for delay for that period given by the applicant.
Mr Deckker submits that on the country information it would have been plausible to find that persecution occurred and caused the applicant to depart from Sri Lanka. This states what, in the applicant’s view, the Tribunal should have found and seeks a review of the merits that is not available.
Mr Deckker relied on the decision in Naz v Minister for Immigration and Multicultural Affairs [2001] FCA 1591 where at [11] authorities are referred to that counsel against taking too hard a line against applicants because of inconsistencies in their evidence. In that case the Court decided that the Tribunal had concentrated too much on inconsistencies in peripheral issues and in doing so identified the wrong issues. It is obvious that the decision was based on the actual facts in that case, and the decision is not relevant to the facts of the case here.
The Tribunal here was entitled to rely on what it judged to be a withholding, by the applicant, of relevant material from it. It was entitled to make adverse credibility findings, which are a matter for it Devries (supra).
At transcript [p.32, l.9] Mr Deckker submits that the evidence before the Tribunal did not warrant the conclusion that all the applicants claims must be a fabrication. Mr Deckker referred to Djuraj v Minister for Immigration & Multicultural Affairs [2001] FCA 986 at [30] where Justice Drummond found that bogus claims in a particular document did not justify a conclusion that the applicant’s claims based on other material were also bogus. It is said that it is not logical to conclude that because an applicant lacks credibility, the true facts are the opposite of what the applicant asserts.
That is not what has occurred in this case. The Tribunal here examined inconsistencies between the evidence presented to the Department and to the Tribunal (CB 176.10); the applicant’s tendency to conceal information (CB 177.8); him changing his evidence (CB 177.9 – 179.3); his delay in applying for his visa (CB 180.4), and concluded:
“For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness”.
(CB 180.6)The Tribunal did not rely simply on bogus material in a particular document. Djuraj is distinguishable.
Ms Latif submits that the explanation for delay provided by the applicant should not be accepted. She referred to matters to be considered as defined by Justice Wilcox in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and referred to in Wong (supra). The matters in Hunter Valley Developments Pty Ltd v Cohen relate to an extension to file an appeal against a decision of a Federal Magistrate, whereas the matters referred to in Wong (supra) relate specifically to an extension of time to file an application for judicial review. They are the matters that the Court has applied (supra). The Court has considered those matters and the submissions made by Ms Latif and confirms that the applicant has not supplied satisfactory reasons for his delay.
Ms Latif then dealt with the grounds in the application. She submitted, correctly, that one ground only was pressed and it concerned errors in relation to the assessment of the credibility of the applicant. The Court has determined above that it is for the Tribunal to assess credibility and the Court is not required to deal further with that issue.
Ms Latif refers to the second ground in the applicant’s written submissions that there was a failure to consider relevant matters. The Court accepts Ms Latif’s submission that a failure to consider may amount to jurisdictional error where an integer of the claim can be identified as not having been considered. No such integer was identified by the applicant and no attempt has been made to support the claim other than to allege that the Tribunal was diverted from its task.
“Although the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), “the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts”.
The Court refers to the following decisions:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v MILGEA (1992) 38 FCR 191”.
Ms Latif then made submissions as to the adverse credibility finding
(T p.56, l.41) and submitted that the material on the Department’s file relating to the Sport visa was inconsistent with the Protection visa application. For instance as to where the applicant was living at the time of the alleged persecutory incidents?, what the applicant’s employment history in Sri Lanka was?, and what the applicant did while in Australia?
Ms Latif referred to CB 172 at [68] where the applicant is recorded as stating that he “had no intention of leaving the country (Sri Lanka) until he was forced to.”
At CB 171 at [67] the applicant is recorded as having said that “the police and members of the Karuna Group wanted him to leave the country and they told his father that if he paid the money his son could leave.” He said that
“his father met with two or three people and it ‘clicked’ for one of them that the applicant played cricket. He then used this as an opportunity to save his life”.
It was open to the Tribunal to find the material inconsistent and doubt the applicant’s credibility.
At CB 172 in [71] the Tribunal put to the applicant that he arrived in Australia on 24 September 2008 but did not apply for a Protection visa until 15 June 2009. The Court accepts that delay is accepted on a basis for assessing genuineness.
As decided by Justice Heerey in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347:
“The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution…”
At CB 172 in [72] the Tribunal records that it asked the applicant what he did when he came to Australia and “he said he did not have working rights”. At one point the applicant said that the last time he played for the Cricket Club was last year; earlier he said that he has last played for the Club “last week”.
The Tribunal investigated the applicant’s lack of candour from paras.68 to 74 and noted that the applicant was changing his evidence
(CB 173.3) and that his evidence “did not make sense” (CB 173.4). The Tribunal notes that the evidence he gave “contradicted his evidence” (CB 173.6).
At CB 178 in [101] the Tribunal recorded the exchange about exaggerated statements in his Sport visa application and about the applicant’s explanation that the information in his CV provided in support of his Sport visa was inconsistent with his employment history but that “normally these things are exaggerated in order to obtain a visa” (CB 178.9).
At CB 175 [83] the Tribunal records that it put to the applicant that “the information put to him in relation to his Sport visa undermined the credibility of his claims”.
Ms Latif submits correctly that the Tribunal did not make the adverse credibility finding solely on the basis that the applicant entered Australia on a Sport visa and was therefore not a refugee. She referred to the adverse credibility finding CB 175 [89] on the basis of significant inconsistencies, the implausibility of subsequent aspects of his claims, as well as the reasons detailed below. Those reasons included the delay in applying for the protection visa (CB [107]) and extend from CB 176 [90] to [108]). At (CB 177.4) the Tribunal found the explanations by the applicant to be “completely unsatisfactory”. It is for the Tribunal to decide whether to accept or reject evidence. Lee (supra).
The inconsistent evidence about where the applicant lived is referred to in [103] and [105].
At [108] the Tribunal summarised why it made an adverse assessment of the applicant’s credibility.
Ms Latif referred to the decision in Kamal v Minister for Immigration 126 FCR 467 per Mansfield J at [36] as follows:
“It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated”.
Ms Latif referred to the decision in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 per curiam at page 558 point G as follows:
“Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no
possible explanations for the delay or inconsistency (Taylor, "Informational Deficiencies Affecting Refugee Status Determinations"). Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo's case at 191, to a requirement for a "positive state of disbelief" was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist”.Ms Latif referred to the UNHCR (United Nations High Commissioner for Refugees) handbook, and to the passage:
“that if an applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt”.
Here the Tribunal did not find the applicants account to appear credible.
It has not been shown that the adverse finding as to credibility were not open to the Tribunal. The Tribunal found that the applicant engaged in a “deliberate concealment of facts and manipulation of evidence to serve his purposes” (CB 177.6).
Ms Latif submits that the decision in Naz (supra) should be confined to its facts; the Court agrees (supra).
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 would be no jurisdiction for this Court to interfere.
The application and amended application would be dismissed as they lack merit.
As there are no satisfactory reasons for the delay and the substantive application lacks merit the Court dismisses the application to extend time for lodging the application for judicial review.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 12 October 2010
2
46
3