MZYNB v Minister for Immigration - [2011] FMCA 714

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYNB v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 714

MIGRATION – Independent Merits Reviewer – extension of time – failure to consider a claim of economic discrimination amounting to persecution.

Migration Act 1958 ss.91R, 477

CZAW v Minister for Immigration and Citizenship [2010] FCA 879
Minister for Immigration and Multicultural and Indigenous Affairs & Ors v Rajalingam (1999) 93 FCR 220, (1999) 56 ALD 43; [1999] FCA 719

Minister for Immigration and Multicultural and Indigenous Affairs v VOAO and VOAP [2005] FCAFC 50

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; [1996] HCA 6

Rajakaruna & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Ors [2004] FMCA 1021

Rajakaruna [2002] MRTA 1814
SZCXF v Minister for Immigration and Citizenship (2008) 100 ALD 355; [2008] FCA 123
SZFSX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1362

Applicant:

MZYNB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

C. PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIWER

File number:

MLG 732 of 2011

Judgment of:

Riley FM

Hearing date:

13 September 2011

Date of last submission:

13 September 2011

Delivered at:

Melbourne

Delivered on:

4 October 2011

REPRESENTATION

Counsel for the Applicant:

Richard Knowles

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Mosley

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDER

The time for filing the initiating application be extended to 25 May 2011.

DECLARATION

In recommending to the first respondent that the applicant is not a person to whom Australia owes protection obligations, the second respondent erred by failing to afford the applicant procedural fairness by not considering the claim that the applicant faced a real chance of economic discrimination amounting to persecution.

ORDER

The first respondent pay the applicant’s costs fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 732 of 2011

MZYNB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

C. PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant seeks an extension of time in which to file his application filed on 25 May 2011, and, in the event that that application is successful, to review the recommendation of the Independent Merits Reviewer (IMR) that Australia does not owe protection obligations to the applicant.

The extension of time application

It was common ground that the application was filed out of time, and that the matter could only proceed if an extension of time were granted under s.477 of the Migration Act 1958. The first respondent did not make any written submissions about the extension of time issue, but formally opposed the extension being granted.
The relevant matters to consider in determining an extension of time application are:
a)the extent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 714
Decision Date: 4 October 2011

CaseChat Overview and Summary

This case involved an applicant, MZYNB, appealing against a decision of the Minister for Immigration to refuse their application for a visa. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the Migration Review Tribunal had applied an incorrect standard of proof when considering the applicant's evidence regarding the likelihood of persecution if they were returned to their home country. Specifically, the court had to determine whether the Tribunal's use of the term "compelling evidence" indicated that it had imposed an impermissible high standard of proof on the applicant.

The court examined several precedent cases to understand how the term "compelling evidence" had been interpreted in similar contexts. The first respondent cited cases where the use of the term "compelling evidence" did not invalidate the Tribunal's decision, suggesting that the term could be understood as the Tribunal not being satisfied by the evidence before it to conclude a real chance of persecution. However, the applicant referred to a decision where the court held that the term "compelling evidence" might indicate an incorrect standard of proof had been applied. The court concluded that the statement in the cited case was not obiter and provided several reasons supporting the applicant's argument, indicating that the term could indeed imply an incorrect standard of proof. The court found that it should follow the decision in the cited case, given that it was a decision of another Federal Magistrate and was not clearly wrong.

As a result of the court's reasoning, the appeal was allowed, and the decision of the Minister for Immigration was set aside. The matter was remitted to the Tribunal for rehearing, with directions to consider the evidence in light of the correct standard of proof.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Secondly, the first respondent referred to SZCXF v Minister for Immigration and Citizenship (2008) 100 ALD 355; [2008] FCA 123 at [18] and [19] where Tamberlin J said:18.Accordingly, in my view, the Federal Magistrate was correct to find that the Tribunal had not erred in law when makings (sic) its findings on this point. Having reviewed both the submissions of the appellant, and having referred to the independent country information about the role of women in Iranian law, the Tribunal concluded that:‘…there are a number of reasons why, without more compelling evidence against him, it is highly unlikely that the Iranian authorities would have treated assertions made by [the appellant’s] ex-wife or her relatives as reliable.’19.These grounds of appeal must therefore be rejected. (emphasis added) Thirdly, the first respondent referred to SZFSX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1362 at [13] and [14] where Smith FM said:13.The Tribunal noted that the applicant had had no difficulty obtaining a valid passport, and said that it was satisfied “that the applicant does not have an adverse political profile and (the Tribunal) has no reason to believe that on his return to China he would be likely to initiate action which would change this situation.” The Tribunal said:the Tribunal has no compelling evidence which would lead it to conclude that the Chinese authorities have targeted the applicant, and that there would be a real chance of persecution on his return to China now or in the foreseeable future.14.The Tribunal’s reference to “no compelling evidence” in this sentence may appear unfortunate. However, the end of the sentence shows that it was alive to the real chance test, and I consider that its reference to “no compelling evidence” should be understood as meaning no more than that it was not satisfied by the evidence which was before it to arrive at a favourable conclusion when applying that test. The first respondent argued that the passage the applicant relied upon from Rajakarana was obiter, was said in a different context, was inconsistent with CZAW, SZCXF and SZFSX and should not be followed. The applicant argued that CZAW should not be followed because the applicant in that case was unrepresented, and had not argued that the use of the word “compelling” indicated the Tribunal had imposed an impermissible standard of proof. CZAW and SZCXF are both decisions of the Federal Court on appeal. Consequently, I am bound by them. However, they did not squarely decide the relevant point, following argument about it. Rather, the Federal Court in both cases seems to have accepted in passing that the use of the word “compelling” would not necessarily invalidate a Tribunal decision. I ought to follow a decision of another Federal Magistrate, unless I am satisfied that the decision is clearly wrong. In this case, there are two decisions which appear to say opposite things. I am not satisfied that I should not follow Rajakaruna for the reason that the relevant statement was obiter. It appears to me that her Honour advanced various reasons for allowing the application, any one of which would have led her Honour to the same conclusion. Therefore, the reason relevant to the present case was not obiter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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