MZYJA v Minister for Immigration - [2010] FMCA 767

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYJA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 767

MIGRATION – Application for a review of a decision of the Refugee Review Tribunal not to grant a protection visa – application for an extension of time – no reasonable prospect of success in substantive application – application for extension of time dismissed – substantive application dismissed as incompetent.

Migration Act 1958, ss.477, 424AA

Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684
Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485; (2010) 115 ALD 294; [2010] FCAFC 50
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002(2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24(11) Leg Rep 10; [2003] HCA 30

Applicant:

MZYJA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 835 of 2010

Judgment of:

Riley FM

Hearing date:

23 September 2010

Date of Last Submission:

23 September 2010

Delivered at:

Melbourne

Delivered on:

23 September 2010

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

S A Burchell

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application for an extension of time, filed on 8 June 2010, is refused.
The substantive application for review, filed on 8 June 2010, is dismissed as incompetent.
The applicant pay the first respondent’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 835 of 2010

MZYJA

Applicant

And

MINISTER FOR IMMIGRATION &CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time to review a decision of the Refugee Review Tribunal and an application for review of a decision of that Tribunal. Section 477 of the Migration Act 1958 requires an application to this court to be made within 35 days of the Tribunal’s decision. In the present case, the Tribunal’s decision was handed down on 13 January 2010. The time within which the applicant needed to file his application to this court expired on 17 February 2010. The application was lodged on 8 June 2010, some four months out of time.
In his application to this court, the applicant put a cross in the box indicating that he sought an extension of time, but did not state any grounds for the application for the extension of time, nor did the applicant state any grounds for his substantive application.
The applicant filed two affidavits with his application. The first says:
After RRT I went to Minister and did not appeal to the court. Minister has made the following decision on 18-05-2010. Now I want to appeal in court.
The second affidavit simply said that the applicant believed that the Tribunal had incorrectly determined that he was not a refugee.
Subsections 477(1) and (2) of the Act state:
(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 35 days of the date of the migration decision.
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
It may be accepted that the applicant has made an application in writing to this court. However, the application does not specify why the applicant considers that it is necessary in the interests of the administration of justice to grant the extension of time. It is well established that in applications for an extension of time, the relevant factors are as follows:
(1)    the explanation for the delay;
(2)    the length of the delay;
(3)    the merits of the application; and
(4)    any prejudice to the respondents.
In relation to the explanation for the delay, the applicant’s affidavit seems to indicate that he did not file an application to the court because he was seeking ministerial review. Gray J said in Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 at paragraph 9 that the lodging of an application for ministerial intervention:
…would have tended to suggest that the applicant was prepared to accept as correct the decision of the Tribunal, and that she did not intend to avail herself of the machinery that then existed under the Migration Act to seek judicial review, or to seek remedies from the High Court, in relation to it. It seems to me that, to await the decision of the Minister under s351 and then to attempt to seek relief in the High Court in relation to the decision of the Tribunal, was to take inconsistent courses.
In relation to the apparent delay of three weeks between the time of the Minister’s refusal and the lodging of the application, the applicant has provided no explanation. Having said that, the three weeks is a relatively short period of time. The delay between the Tribunal’s decision and the lodging of the application was four months. That can only be regarded as a considerable period of delay.
In relation to the merits of the application, the applicant has not provided any grounds. He simply said in his affidavit in support that the Tribunal had incorrectly determined that he was not a refugee. In his written submissions, the applicant simply restates his claims and attaches some fresh country information. The court is not able to take that material into account. It was not before the Tribunal and some of it postdates the Tribunal’s decision. All in all, the applicant’s written material simply seeks merits review.
Before the court today, the applicant raised two matters. The first was that the Tribunal had found that three letters were not genuine and the second was that the Tribunal had found that the applicant was not a Christian. The applicant did not explain how these matters gave rise to a jurisdictional error.
In relation to the three letters, I note that they were provided by the applicant’s legal adviser to the delegate. They appear at CB 89 to 91. In the delegate’s decision, at CB 127, the delegate addressed the three letters and indicated that there were substantial issues about the veracity of the documents. The reasons for that largely concerned the timing of the various matters claimed by the applicant in relation to the letters.
The applicant sought review by the Tribunal. In a pre-hearing statutory declaration made on 5 October 2009, at CB 158, the applicant sought to explain the perceived inconsistencies and deficiencies with the three letters. At the hearing before the Tribunal, the Tribunal raised the concerns that it had with the applicant pursuant to s.424AA of the Act. The applicant’s adviser asked the Tribunal to be permitted to respond to the Tribunal’s queries by written submission. The Tribunal accepted that request and a post-hearing submission, dealing with the veracity of the three letters, was provided to the Tribunal on 30 November 2009.
In its findings and reasons the Tribunal set out, at some length, primarily in paragraph 62, a number of inconsistencies and inadequacies in the applicant’s evidence. Based on those concerns, the Tribunal found the applicant to be implausible and found that his claims lacked credibility. At paragraph 65 of the Tribunal’s reasons for decision, the Tribunal explained why the letter, purportedly from the Human Rights International Alliance, lacked credibility. At paragraphs 66 and 67 of its reasons for decision the Tribunal addressed a letter from Noor Naz Agha and another from Saleem Khokhar. The Tribunal considered that neither letter was genuine. At paragraph 67 of its reasons for decision, the Tribunal said:
The reason for the Tribunal’s view that the letter and the letter from the parish priest of St John’s Church are not genuine is because it has made conclusive findings that the applicant lacks credibility in a number of significant aspects of his claims and evidence including other correspondence. Accordingly, the Tribunal gives no weight to the letters.
The Tribunal concluded that the applicant and his family were not Christians and did not face any persecution in Pakistan for that reason. The Tribunal considered that the applicant’s claim to be a Christian was not plausible.
In relation to the Tribunal’s handling of the three letters, the first respondent referred to the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002(2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24(11) Leg Rep 10; [2003] HCA 30. In that case Gleeson CJ said the following at paragraph 12:
[12]It was contended that this passage shows that the tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
Similarly, McHugh and Gummow JJ said at paragraph 49 of the decision:
[49]In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
I also note the case of Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16, where it was said at paragraph 89:
[89]In its treatment of the process of review the Tribunal failed to accord the appellant the fair procedure required by the Act. There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be so characterised. This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]-[85]).
In addition, in the decision of the Full Federal Court in Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485; (2010) 115 ALD 294; [2010] FCAFC 50 it was said at paragraphs 36 to 38:
[36]When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained.
[37]Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
[38]The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 77 ALJR 1165; 198 ALR 59 made in SZDGC 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
The net effect of those decisions is, in my view, that the Tribunal adequately handled the question of the three letters. That is, the Tribunal was so persuaded of the applicant’s lack of credibility that the three letters could not remedy the situation. That is particularly so as the letter from Mr Saleem Khokhar and the letter from the parish priest of St John’s Church were, essentially, hearsay accounts of the applicant’s own claims. The Tribunal’s decision shows that it looked in considerable detail at the three letters in issue and concluded that they were not genuine for reasons which it gave. Those reasons were open on the evidence. Similarly, the Tribunal’s conclusion that it was not plausible that the applicant was a Christian was open on the evidence. Consequently, I conclude that the applicant’s prospects of success on the substantive application are negligible.
Regarding the fourth matter, being the prejudice to the respondents, the first respondent did not suggest that there was any such prejudice.
Taking into account all of the relevant matters, it seems to me that it would not be proper in the circumstances of this case to grant an extension of time. There is no reasonable prospect of success in the substantive application and the applicant’s explanation of his delay in lodging the application is inadequate. The substantive application for review is dismissed as incompetent.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:

Date: 7 October 2010