MZYJC v Minister for Immigration
[2011] FMCA 158
•15 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYJC v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 158 |
| MIGRATION – Review of RRT decision – Wednesbury unreasonableness – application for review dismissed. |
| Migration Act 1958, ss.91R(2), 424A and 425 |
| Dhevendran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447 SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] SCAFC 297 |
| Applicant: | MZYJC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 897 of 2010 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 22 October 2010 |
| Date of Last Submission: | 22 October 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.S. Rattray |
| Solicitors for the Applicant: | Asylum Seekers Resource Centre |
| Counsel for the First Respondent: | Mr W.S. Mosley |
| Solicitors for the First Respondent: | DLA Phillips Fox Lawyers |
ORDERS
The application filed on 22 June 2010, as amended on 24 September 2010, is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 897 of 2010
| MZYJC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 24 September 2010, the Applicant seeks a review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 26 May 2010. That decision affirmed an earlier decision of a delegate of the First Respondent to refuse a Protection (Class XA) visa.
Background
The Applicant is a 21-year-old citizen of Ethiopia who arrived in Australia on a second occasion on 6 October 2009 on a Business (Short Stay) visa, subclass 456.
On 12 October 2009, the Applicant applied for the Protection visa. That application was refused by the First Respondent’s delegate on 6 January 2010 on the basis that the Applicant was not a person to whom Australia had protection obligations.
On 15 January 2010, the Applicant had applied for a review of that decision to the Tribunal, which review was conducted in hearings on 16 March 2010 and 1 April 2010. As stated, the Tribunal affirmed the delegate’s decision.
Applicant’s claims
The Applicant claimed to have a well-founded fear of persecution in Ethiopia for reasons of her Oromo ethnicity; her political opinion or imputed political opinion because of her alleged political activities and those of her father; and membership of a particular social group being “failed asylum seekers”. She further claimed that the authorities could not protect her as they were the perpetuators of the harm that she claimed to have suffered and to fear.
She claimed that her father supported the Oromo Liberation Front (the OLF) and was involved in its meetings.
The Applicant is a professional runner who has travelled the world to compete. In August 2009, she came to Australia for the first time to compete in the Perth City to Surf Marathon.
The Applicant claimed that when she returned to Ethiopia after the first visit here, she was arrested at the airport and detained in the Kaliti prison for four weeks where she was regularly beaten and psychologically tortured. She claimed that the prison guards told her they had killed her father because of his involvement in the OLF; accused her of being an OLF spy; accused her of taking documents out of Ethiopia to OLF supporters; and also threatened her with death.
She claimed her fiancé secured her release from prison through bribery and arranged for her to come to Australia again.
The Applicant also claimed discrimination based upon her Oromo ethnicity and gave examples of such that she experienced at her athletics club.
The Tribunal’s findings
The Tribunal found that the Applicant was of Oromo ethnicity, was a recognised athlete who had travelled and competed internationally, but did not find she had suffered racial discrimination as claimed.
The Tribunal also found, using country information, that people of Oromo ethnicity had been arbitrarily detained for suspicion of links with the OLF, but did not find the Applicant had been so detained.
The Tribunal did not accept the Applicant’s claim that she had been detained at the Kaliti prison. The Tribunal also found that the Applicant’s father was not an OLF member, or killed, as claimed.
The Tribunal considered the Applicant had embellished her claims to be a refugee and that she was not a reliable witness. She was found to be vague and in respect of some aspects of her claims, her evidence being characterized as being generalised and lacking in detail.
However in respect of other evidence where she gave particular detail, namely her experience in Kaliti prison, however, the Tribunal found that “the evidence appeared to be rehearsed”.
The Tribunal did not accept the Applicant had ever been arrested, or detained and found that the Applicant’s accounts of events in relation to her passport were embellished and an invention.
The Tribunal also rejected the claim that the Applicant would be at risk because of her membership of a particular social group, being failed asylum seekers. Indeed, the Tribunal found that “failed asylum seekers” could not be said to constitute a particular social group.
Grounds for review
In her amended application, the Applicant set out four grounds for review.
First ground
The first alleged that the Tribunal made adverse credibility findings which were not open to it on the evidence and were not based on probative material or logical grounds.
Second ground
The second ground, associated with the first in respect to the adverse findings, alleged the Tribunal took into account irrelevant considerations and made that adverse finding in circumstances where it was so unreasonable that no reasonable tribunal could have made such a finding.
Third ground
The third ground alleged the Applicant was denied procedural fairness through a failure to comply with S.425 of the Migration Act 1958 (the Act) and/or a failure to comply with S.424A(1) of the Act.
Fourth ground
The final ground alleged the Tribunal failed to consider the Applicant’s claims and/or failed to take into account relevant considerations.
The contentions
Both the Applicant and the First Respondent provided written contentions of fact and law which were supplemented by further oral submissions made before me. In addition to the contentions set out in the Applicant’s written contentions of fact and law, counsel for the Applicant, in his oral submissions, put considerable focus on those grounds relating to the alleged illogicality of the Tribunal’s findings based upon alleged failures to take into account relevant considerations, which approach, in essence, it was submitted, was unreasonable in a Wednesbury sense[1]. With particular emphasis, the Applicant challenged the Tribunal’s individual findings which touched upon, and led to, an adverse finding about the Applicant’s credibility. The Applicant contends that they were not open on the evidence, or not based on probative material or logical grounds. As stated, the Applicant’s general conclusion arising from the complaints made in these regards amount to Wednesbury unreasonableness on the part of the Tribunal.
[1] Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
In respect to the Applicant’s contentions, I make the following observations. The authorities support the view that the task of fact-finding is peculiarly that of the Tribunal; that the Tribunal is best placed to assess the credit of an Applicant, or witnesses, having the advantage of hearing evidence being given in the first instance and the advantage of observation as to how it was given; that the Tribunal is peculiarly placed to evaluate and give weight to evidence and that this Court does not have jurisdiction to embark upon a merits review of the Applicant’s claims.[2]
[2] SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
A reading of the Tribunal’s decision, including a transcript of the hearing before the Tribunal, leads me to the view that the manner in which the Applicant has presented her case, in effect, amounts to a request that this Court embark upon a merits review of the Tribunal’s decision. It is trite law that such is impermissible.
Be that as it may, I shall address each of the grounds as articulated. The first ground asserts that there is no evidence for some of the challenged findings. The authorities state that in order for that ground to be successful, it is necessary to show that there is no evidence at all upon which such a finding could be made.[3] In respect to the challenged findings being “illogical”, logicality and irrationality in the reasoning of a Tribunal may constitute a basis for jurisdictional error.[4] However, for a decision to be illogical, it must be irrational and not based on findings or inferences supported by logic.[5] What must be shown is that the conclusion is one that no reasonable person could have arrived at.[6] This test has been held to be akin to the Wednesbury unreasonableness test.[7]
[3] VWBF v The Minister for Immigration and Multicultural and Indigenous affairs [2006] FCA 851 at [17] per Heerey J.)
[4] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
[5] Re Minister for Immigration and Multicultural Affairs;ex parte Applicant S20/2002 [2006] 228 ALR 59 per McHugh and Gummow JJ at [34] and [37]
[6] Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611
[7] See SZMDS
In furtherance of the Applicant’s first ground, the Applicant challenges the Tribunal’s finding that her evidence was “extremely vague, generalised and lacking in detail”. The Applicant contends that the evidence was not capable of being described in that manner, and that there was no basis to find a lack of specificity and detail. On my reading of the Tribunal’s decision and the transcript of the hearing before the Tribunal, I find no basis for this assertion. It is clear that the evidence of the Applicant was indeed vague and generalised and lacking in detail and it was certainly open to the Tribunal to so find. That particular finding related to the alleged discrimination that the Applicant suffered and also related to the alleged involvement of the Applicant’s father in the OLF.
The Tribunal found in any event, that the claimed discrimination did not amount to serious harm required by the Convention and S.91R(2) of the Act. The finding by the Tribunal that the discrimination, so described, did not amount to “serious harm” was one certainly open to it and was an issue of fact peculiarly within the domain of the Tribunal’s task. In coming to her conclusions on the issue of discrimination as alleged by the Applicant, the Tribunal member, in my view, gave full consideration to the claim, and any integer of it, and the finding that she reached was open to her. It cannot be said that there was no evidence at all to support the Tribunal’s finding.
The Applicant’s claim of persecution because of her imputed political opinion arising from her father’s alleged involvement in the OLF was considered by the Tribunal and its finding that the evidence of his involvement was vague, and the non-acceptance of the Applicant’s explanation for such vagueness, was open to it. Again, a reading of the Tribunal’s decision and the transcript of the hearing is supportive of the Tribunal’s finding in this regard. It was open to the Tribunal to make such a finding of fact, particularly having regard to the underpinning assessment the Tribunal made about the credit of the Applicant.
What drew the greatest criticism from the Applicant of the Tribunal’s findings were those associated with the alleged imprisonment of the Applicant. Issue was taken with the Tribunal’s assessment of the evidence by the Applicant that it was “too rehearsed” where, earlier, exception was taken about the evidence of her father’s involvement with the OLF as being too vague. The illogicality said to exist is that the Tribunal, when faced with vague evidence, as assessed by it, rejected the factual proposition being advanced by the Applicant, but when the evidence was precise, as it was in regards to the treatment the Applicant received in prison, the Tribunal took a different stance and rejected it for the opposite reason. This illogicality was said to be Wednesbury unreasonable. This argument was further buttressed, the Applicant contended, by the fact that a document evidencing the imprisonment was given little weight. In essence, the Applicant said that it was unreasonable for the Tribunal to give such little weight to a document that evidenced imprisonment and then find that the Applicant was not imprisoned as claimed. Further to that, an email from the Applicant’s fiancé explaining the nature of the document evidencing the imprisonment, was dismissed as “self-serving”.
In respect of the document said to be evidencing the Applicant’s imprisonment, the Tribunal gave reasons as to why it was given little weight and further gave reasons as to why the email supportive of that document from the Applicant’s fiancé was dismissed for being “self-serving”. There was evidence open to the Tribunal to give support to the Tribunal’s evaluation of their probative value, and it cannot be said there was “no evidence at all”. As stated, it is for the Tribunal to ascribe weight to evidence and, in my view, no jurisdictional error is disclosed by the Tribunal’s fact-finding and evaluative task undertaken.
The second ground, as already stated, touched upon the issue of Wednesbury unreasonableness and it has been covered largely in the above paragraphs. However, in addition to the general understanding of the test in Wednesbury, his Honour Finkelstein J in Dhevendran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447 put it in more stark terms. He said:
17 … I can say that the Tribunal’s demonstrative findings are not so unreasonable as to be described as findings that could only be made by a person who has taken leave of his sense, and, after all, that is what is at the heart of a challenge based upon Wednesbury unreasonableness.
In the same fashion, my reading of the Tribunal Member’s decision does not lead me to the conclusion that the Tribunal’s decision and findings were those made by a person who has taken leave of her senses. Insofar as the challenge to the Tribunal’s decision is founded on Wednesbury unreasonableness, it must fail.
The third ground contended that the Applicant was denied a fair hearing and the Tribunal failed to comply with S.424A(1). The contention in respect of S.424A(1) related to the doubts the Tribunal had about the document that was said to support the Applicant’s claim of imprisonment and the fiancé’s email in support of that document. It was said that the Tribunal should have afforded the Applicant an opportunity to respond to that doubt when it would be the reason, or part of the reason, for rejecting this information. This contention, however, is readily dealt with. The documents, and the information constituted by them, fall within the exemption provided under s.424A(3)(a) of the Act as the information was provided to the Tribunal by the Applicant.
In respect of another aspect said to establish a failure of the Tribunal to comply with S.424A(1), namely the failure of the Tribunal to inform of its intention to find that there was no imprisonment, it was not a requirement imposed upon the Tribunal. It has been long held that the Tribunal does not have to disclose its subjective thinking and thought processes when determining a factual finding. It is enough in order to comply with the imperative duty imposed on the Tribunal under s.425 of the Act that the Tribunal afford the Applicant a fair opportunity to give evidence and present arguments. Again, I am satisfied, on a fair reading of the Tribunal’s decision, and indeed a reading of the transcript of the hearing, that the Tribunal certainly afforded a fair opportunity to the Applicant to give evidence and present her arguments. The Tribunal’s subjective approach to the applicant’s evidence, leading it to conclude as noted above, was not information as that term is meant in S.424A.[8]
[8] See SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 for discussion of the operation of s.424A
The final ground related to the contention by the Applicant that the Tribunal failed to consider her claims or take into account relevant considerations; specifically her claimed fear of persecution if returned to Ethiopia because she will return as a failed asylum seeker with a high profile; that she had not competed in the event that she came to Australia for; that she overstayed her visa; and her ethnicity. I am satisfied that the Tribunal did give full consideration to these matters. To the extent the Applicant relies upon the failure of the Tribunal to refer specifically to each of the matters allegedly not given consideration to when the Tribunal made its findings, I note that it is long established that a failure by a Tribunal to refer specifically to a piece of evidence regarding a claim does not give rise to jurisdictional error. The Tribunal is not required, in order to complete its jurisdictional task, to record comment upon each particular piece of informational material before it.[9] It is, of course, current law to say that a failure to have regard to relevant material which is so fundamental that it goes to jurisdiction may in some circumstances constitute jurisdictional error.[10] I am satisfied, however, that the Tribunal did not fail to take into account all materially relevant matters.
[9] See Re Ruddock and Anor; ex parte S154/2002 (2003) 201 ALR 437
[10] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]; Vargas v Minister for Immigration and Multicultural Affairs [2001] FCA 1025; Rezaei v Minister for Immigration and Multicultural Affairs Immigration and Multicultural Affairs [2001] FCA 1025; [2001] FCA 1294; and Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] SCAFC 297.
Conclusion
For the above reasons, the Applicant has failed to disclose jurisdictional error on the part of the Tribunal. As stated, in my view, this Court was invited to embark upon an impermissible merits review.
Accordingly, the amended application filed on 24 September 2010 is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date:
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167
SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697
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