MZYNE v Minister for Immigration
[2011] FMCA 761
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYNE v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 761 |
| MIGRATION – Refugee Review Tribunal – inconsistent findings – whether Tribunal unreasonably refused adjournment. |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263 Craig v South Australia (1995) 184 CLR 163; (1995) 69 ALJR 873; (1995) 131 ALR 595; [1995] HCA 58 |
| Applicant: | MZYNE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 751 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 4 October 2011 |
| Date of last submission: | 11 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Advocate for the Applicant: | Patrick Sabelberg |
| Solicitors for the Applicant: | Sabelberg Morcos Lawyers |
| Counsel for the First Respondent: | Catherine Symons |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The decision of the Refugee Review Tribunal handed down on 27 April 2011 is set aside.
The matter is remitted to the Refugee Review Tribunal for determination according to law.
The first respondent pay the applicant’s costs fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 751 of 2011
| MZYNE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is Egyptian. He entered Australia on
27 December 2007 on a student visa. He returned to Egypt from 4 July 2009 until 7 August 2009 to get married. He applied for a protection visa on 27 May 2010.
Although he was represented by solicitors, the applicant did not file and serve any written submissions in this proceeding. However, the applicant’s solicitor made oral submissions at the hearing before this court.
Claims
The applicant claimed in his protection visa application that he was a Coptic Christian. However, in his interview with the delegate, he said that was a mistake made by his agent. He said that, in fact, he was an evangelical Christian.
The applicant told the delegate (CB69 and CB70) that he worked as a tour guide for a company. He said that, additionally, he drove people who had converted from Islam to Christianity from one place to a building where services were held by his cousin, Mr MZYNF[1].
[1] The applicant’s cousin is the applicant in a related proceeding, MZYNF v Minister for Immigration & Anor [2011] FMCA 762
The applicant said that in February 2007, the authorities broke into the building, searching for Ms Mohammad. She had previously converted to Christianity. Her family complained to the authorities that the applicant and Mr MZYNF had abducted her and she was in hiding with them. The applicant said that he and Mr MZYNF were arrested and held for four days. They were charged but released with a warning.
The applicant told the delegate that when he returned to Egypt in July 2009, he noticed that people were talking to his father but his father would not let them approach him. The applicant said that he discovered that these people were the family of Ms Mohammad.
He said that she had previously been found by the security service but she had fled again.
The applicant told the delegate that he had applied for protection in May 2010 because he believed that the police were cooperating with Ms Mohammad’s family and her family would seek revenge against him.
The applicant did not elaborate on his claims in his written application to the Tribunal. However, at the hearing before the Tribunal, the applicant provided some documents. They included, at CB159 and CB161, reports that a Muslim had changed the flow of water in an irrigation canal and thus deprived a Christian of water. The report said that the Christian had complained to the police, the police had questioned the Muslim, the Muslim had murdered the Christian in September 2006, and the police were siding with the Muslim.
The applicant told the Tribunal that, after he was released from detention, in February 2007, he received threats from Ms Mohammad’s family. He said he had had no problems between February 2007 and December 2007 when he left for Australia. He said that Ms Mohammad’s family were responsible for the death of the Christian in September 2006, and her family thought that the applicant had retaliated by converting Ms Mohammad to Christianity.
The Tribunal’s reasons for decision
The Tribunal accepted that the applicant was an Egyptian evangelical Christian who assisted his church by driving converts to a meeting place owned by his cousin, Mr MZYNF. The Tribunal accepted that Ms Mohammad was a recent convert who had attended the meeting place. The Tribunal accepted that the meeting place was raided by the authorities, at the behest of Ms Mohammad’s family. The Tribunal accepted that the applicant and Mr MZYNF were detained for four days. However, the Tribunal noted that the authorities had shown no further interest in the applicant. The Tribunal considered that there was not a real chance that the applicant would be mistreated by the authorities in connection with the events of February 2007.
The Tribunal did not accept that the applicant was pursued by Ms Mohammad’s family. The Tribunal did not accept that there was any connection between Ms Mohammad and the murder of a Christian by a Muslim in September 2006. The Tribunal accepted that the murdered Christian was the applicant’s cousin. However, the Tribunal considered that the murder was the result of a land dispute and it would have no further repercussions for the applicant.
Ground 1
The first ground of review in the application filed on 30 May 2011 is:
That the member of the Tribunal … made a decision against the weight of evidence which was unreasonable and in denial of natural justice.
The applicant’s solicitor initially conceded that the complaint that the decision was against the weight of the evidence was essentially seeking merits review. He also said that he was unable to point to any particular aspect of the decision that supported the claim that it was so unreasonable that no reasonable decision maker could have made it. The applicant’s solicitor was unable to elaborate on the denial of natural justice ground.
However, later in his submissions, the solicitor for the applicant said that the Tribunal had been unreasonable or had misinterpreted the situation and had thus erred by describing the dispute which resulted in the murder of the Christian in September 2006 as a land dispute rather than a religious dispute. It was further submitted that the incident was a case of religious persecution and all of the applicant’s complaints flowed from it.
I do not accept that this amounts to jurisdictional error. The Tribunal, as the arbiter of fact, was entitled to assess the evidence and assess the repercussions of particular events. In this case, the Tribunal was well aware that a Muslim had murdered a Christian. However, the Tribunal considered that the incident was confined to its circumstances, which arose from a land dispute. The Tribunal did not actually say that the dispute was merely a land dispute. The Tribunal seems to have taken the view that the land dispute was the catalyst for the subsequent murder.
More significantly, the Tribunal found, for reasons which it gave, that there was no connection between the murder and Ms Mohammad or her family.
Additionally, in his oral submissions in reply, the applicant noted that the Tribunal had made inconsistent findings. The Tribunal said at paragraph 92 of its reasons for decision that:
The Tribunal accepts that Ms Mohammad’s family had levelled threats against [the applicant]. The Tribunal accepts that out of concern for his safety he left his village in March 2007.
However, at paragraph 98 of its reasons for decision, the Tribunal said:
Even if the Tribunal were to accept that, at some point, [the applicant] was subject to threats by Ms Mohammad’s family, which it does not, the Tribunal is not satisfied that [the applicant] seriously felt threatened and those making the threats seriously intended to act upon them.
As this point was raised for the first time during the applicant’s reply, the first respondent was given an opportunity to file and serve written submissions on the issue. The first respondent said that the apparently inconsistent findings did not amount to jurisdictional error, but were merely indicative of an error of fact. The first respondent referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263 at [53] where the Full Federal Court said:
53It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error. Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen(2001) 177 ALR 473 [75 ALJR 542] at [35] per McHugh J.
However, in Craig v South Australia (1995) 184 CLR 163; (1995) 69 ALJR 873; (1995) 131 ALR 595; [1995] HCA 58, the High Court said at [179]:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. (emphasis added)
Thus, it can be seen that, in some circumstances, an error of fact can amount to jurisdictional error.
In the present case, the first respondent said that, read as a whole and without over-zealous scrutiny, the Tribunal’s reasons show that it had merely expressed a preliminary view in paragraph 92. I do not accept that submission. Paragraph 92 of the Tribunal’s reasons for decision falls under the heading “Findings and Reasons”. The relevant findings in paragraph 92 are expressed categorically, without any equivocation, and without any suggestion that they are subject to the ensuing discussion.
The first respondent said that the finding at paragraph 92 of the Tribunal’s reasons for decision was “effectively overtaken” by the subsequent findings. I do not accept that submission. The Tribunal did not say, for example, “contrary to my earlier finding”. There is nothing in the Tribunal’s reasons for decision that indicates that the Tribunal was conscious of having made inconsistent findings.
The first respondent said that the Tribunal posed and answered the correct question. That question was said to be whether the applicant had a well founded fear of persecution at the hands of Ms Mohammad’s family if he returned to Egypt. The first respondent said that the finding in paragraph 92 of the Tribunal’s reasons for decision was peripheral to that question.
I do not accept that contention. Whether Ms Mohammad’s family had actually threatened the applicant in 2007, and whether he had been so concerned by those threats that he had left his village in 2007, were significant factors in the proper consideration of the question before the Tribunal.
The Tribunal’s positive findings about those matters were relevant material which the Tribunal apparently failed to consider when making its subsequent findings. Consequently, the Tribunal’s decision contains a jurisdictional error. The jurisdictional error can also be characterised in other ways, such as being so unreasonable that no reasonable decision maker could have made it, being profoundly irrational and being indicative of a failure to properly consider the case that was put.
Moreover, it is not clear that, if this error had not been made, the decision would have been the same. Accordingly, this ground is made out.
Ground 2
The second ground of review in the application filed on 30 May 2011 is:
… the Tribunal did not allow reasonable time to obtain information and supporting documents to submit as evidence.
The applicant applied for a protection visa on 27 May 2010.
He applied to the Tribunal on 12 November 2010.
The Tribunal sent the applicant an invitation dated 14 December 2010 to attend a hearing on 10 February 2011. It included the following paragraph:
The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
A Tribunal case note dated 12 January 2011 indicates that the applicant and his cousin, MZYNF, attended the Tribunal’s counter on that date. The case note records the following, among other things:
The applicants expressed concern about the processing of their review applications and said that for a number of months now, they had been trying to contact their appointed representative, Mr Mark Mercurius. They stated that they could not reach him as he would not take their calls and would not see them when they went to his office. They claimed that he had some vital documents which were valuable to their cases and they were unable to get these documents from him. They asked if the Tribunal could contact him and request these documents, I advised that this was not the role of the Tribunal. I advised that they could contact the MARA and lodge a complaint if they were unsatisfied with their migration agent; however, both applicants stated they were too scared to do that as they were afraid of the repercussions.
…
The applicants stated that they needed to see what was on their Tribunal files and DIAC files. They advised that their representative hadn’t provided them with a copy of the DIAC refusal letters, so they did not know the exact reason as to why they were refused. I advised they could access a copy of the Tribunal file and DIAC file under FOI and proceeded to explain the FOI process. The applicants also emphasised that they required a copy of the DIAC interview recording.
A further case note of the same date says:
Further to casenote 4999392, in relation to both RRT 1010157 and 1010158, the RAs were advised that FOI requests can take up to 30 days and their hearing is set for 10/2/11. I told the RA that I am aware that DIAC FOI is experiencing delays at the moment; so their request may not be processed within 30 days, it may take longer. The RAs mentioned making a request for a hearing postponement. I told them if they wished to do so, they can make their request in writing, outlining their reasons, and I can put their request to the Member.
The applicant lodged a freedom of information request on 12 January 2011. On 24 January 2011, the applicant attended the counter again. The case note says:
[The applicant] explained that they have received the hearing invitation but they are concerned that they will not have enough time to receive the CD of information that they are awaiting for from DIAC, before the hearing. He asked that if at all possible, the hearing is postponed until such time that the documents are received. The applicant also said that they need a Christian interpreter at the hearing, as at the last hearing the interpreter was Muslim and they did not feel comfortable saying what they needed to say.
I helped the applicant put this in writing and the letter was signed by [the applicant] and [Mr MZYNF].
The applicant put his request for an adjournment in writing in the following terms:
Please, postpone our hearing until we receive documents we are waiting for (CD).
For the hearing, we would like a Christian interpreter.
The request was received by the Tribunal on 24 January 2011. Later on the same day, a Tribunal officer left a telephone message for the applicant. He returned the call a little later. The relevant case note says:
The applicant returned my call. I advised that the Member had considered his request for postponement but has decided not to postpone the hearing date. I also advised that the Member was aware that the applicant was still awaiting some documents from DIAC but that can be discussed at the hearing on 10/02/2011. The applicant said he understood.
On 27 January 2011, the applicant again attended the counter. A case note says that the applicant explained that he was still awaiting documents requested under freedom of information from the Tribunal and the Department of Immigration and Citizenship and had still been unable to recover from his former agent some documents from Egypt that supported his case. A Tribunal officer assisted the applicant to write a letter to the Tribunal, received on 27 January 2011, in the following terms:
I’m writing to request a posteponement (sic) of our hearing schuled (sic) for 10/02/2011.
We’re still waiting for a copy of our DIAC files and interview CD.
We’re also waiting for A (sic) copy of Tribunal files which we request (sic) on 12/01/2011 which we have not received.
I’m also writing to inform u (sic) that Mr. Mark Makarious (sic) is no longer our immageration (sic) agent. Please, Remove (sic) him from our record.
At The (sic) moment we are having a lot of Troubles (sic) contacting Mr. Mark Makarious and getting all The Documents (sic) we have given him in support of our case, A lot (sic) of these Documents (sic) we’re unable to bring copies from egypt (sic).
Getting copies of Documents (sic) needed to help our case will take some more time.
Please, we urge u (sic) to reconsider our request for A Posteponement (sic) of the hearing date.
On 1 February 2011, the applicant again attended the counter. The case note of that attendance reads as follows:
[The applicant] visited the front counter. He again asked for the hearing to be postponed. He asked that I speak to his friend on his mobile phone, which I did. His friend from church reiterated that the hearing should be postponed due to the fact there are documents outstanding, and that the applicant’s previous representative is not being helpful. Also the situation in Egypt is making it difficult to get further documents. I advised that the Member has considered their request for postponement but has decided to keep the scheduled hearing date.
[The applicant] then asked that he and [Mr MZYNF] (the related applicant) please receive a copy of the Tribunal’s file ASAP. I advised I would finalise his FOI request (for the Tribunal file) this afternoon.
Later on 1 February 2011, the Tribunal provided the applicant with a complete copy of his Tribunal file. On 2 February 2011, the applicant attended the counter and collected a letter dated 2 February 2011 from the Tribunal, which said, in part:
On 24 January 2011 the Tribunal received a request that the hearing be postponed. The Tribunal received further requests for postponement on 27 January 2011 and 1 February 2011.
The Presiding Member has considered all the requests carefully but has decided not to postpone the hearing.
The case note of the attendance on 2 February 2011 states that the applicant confirmed that he would attend the hearing on 10 February 2011.
A further case note indicates that on 8 February 2011, at 4.13 pm, the applicant telephoned the Tribunal. The note records the following:
The RAs called and gave permissions for their friend, [JM], to speak on their behalf. They told me that they are very stressed, they’ve had lots of problems with their solicitor, they cannot get the paperwork from their solicitor, and wished to have the hearing postponed. They will go and get a psychologist’s report to support their stress. I confirmed with them they have already made a few requests for a hearing postponement and the Member has considered their requests and declined to postpone the hearing.
They asked if they submitted a psychologist report with their hearing postponement request, would the Member postpone the hearing? I told them that the Member would consider their request but I did not know if the Member will grant the hearing postponement or not. The friend said that they will try and see a psychologist this afternoon but a psychologist is very expensive and they did not want to waste their time if the Member will not be granting the hearing postponement. He also asked when would the Member advise them if a postponement is granted. I told him that if he did make a submission today/tomorrow, given that the hearing is on 10 Feb 2011, the Tribunal will contact them with a response tomorrow. I told them I would speak to the Member.
I told him, given the short time frame, any submission should be provided by fax.
I called [JM] back. As requested by the Member, I told him that the Tribunal will consider any request for postponement, but this does not necessarily mean that a postponement will be granted. I also informed him that the Member is aware of their concerns and circumstances. All reasonable effort will be made to put them at ease at the hearing and make the process stress-free. At the hearing they will have the opportunity to discuss the nature of the documents they wish to provide and the Member may allow them further time to provide any addition documents, information and/or comments. (emphasis added)
[JM] told me that he feels better after the comments above and the RAs will not be requesting a hearing postponement and they will no longer be seeing a psychologist. They are fine to proceed with the scheduled hearing. He will take them to a counsellor friend instead of a psychologist to calm the RAs down. He also told me that the RAs have lodged a complaint against their solicitor with the Office of the MARA and DIAC and this solicitor has complaints from 52 people. (emphasis added)
The RAs also requested their friend, [JM], be present at their hearing as an observer (not a witness). I confirmed with [JM] that he may be present but will not be able to speak as he is not a witness. I told him the hearing for both RAs start at the same time at 9am with the same Member, and an Egyptian Christian interpreter has been booked for the hearing.
A case note dated 8 February 2011 indicates that the freedom of information request sent to the Department of Immigration and Citizenship on 12 January 2011 had not been complied with as at
8 February 2011.
The hearing proceeded before the Tribunal on 10 February 2011.
At the conclusion of the hearing, the Tribunal told the applicant that the Tribunal would send him a letter, inviting him to comment on certain information. The Tribunal said that the invitation to comment would be an opportunity for the applicant to provide any further documents he wished.
Following the hearing, by letter dated 15 February 2011, the Tribunal invited the applicant to comment by 10 March 2011 on certain information. In response, the applicant sent the Tribunal a letter dated
7 March 2011. The letter enclosed various documents, including some apparently from Egypt.
The Tribunal handed down its reasons for decision on 28 April 2011. That was approximately 11 months after the application for a protection visa was lodged, about five months after the application to the Tribunal was lodged, about two months after the Tribunal hearing and about seven weeks after the applicant’s response to the Tribunal’s post-hearing invitation to comment letter.
The applicant was legally represented at the hearing before this court. The applicant did not nominate any particular document that he would have liked to put before the Tribunal, but which he was unable to put because of lack of time. The applicant did not say how the documents that he would have liked to have put before the Tribunal could have altered the decision that was made.
In the circumstances, I am not satisfied that the failure to give the applicant more time could have made a difference to the outcome. Moreover, I do not consider that the Tribunal, in the circumstances of this case, was unreasonable in refusing an adjournment. The applicant was vague about the documents that he wished to provide. There is no obligation on the Tribunal to defer a hearing to allow an applicant to provide vaguely described material. The processes of the Tribunal were not conducted with undue haste. Ultimately, on 8 February 2011, the applicant told the Tribunal officer that he would not be seeking a hearing postponement. This ground is not made out.
Ground 3
The third ground of review in the application filed on 30 May 2011 is:
That the Tribunal did not adequately consider evidence presented and was biased against the applicant.
This ground was not pressed.
Conclusion
As ground 1 was made out, the application will be allowed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 25 November 2011