MZYSU v Minister for Immigration
[2012] FMCA 449
•31 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYSU v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 449 |
| MIGRATION – Judicial review – applicant lied to the authorities – visa sought for business reasons, not because of fear of persecution – independent unimpeachable ground for decision – discretion to withhold relief – application dismissed. |
Migration Act 1958 (Cth), s.101
| NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 |
| Applicant: | MZYSU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | GRAHAM MCDONALD IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1718 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing date: | 15 May 2012 |
| Date of Last Submission: | 15 May 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 31 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burt |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Burchell |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The Amended Application for judicial review filed on 26 April 2012 is dismissed.
All extant applications are dismissed and the matter is removed from the list of pending cases.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1718 of 2011
| MZYSU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| GRAHAM MCDONALD IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the recommendation of the Independent Merits Reviewer (“IMR”) dated 7 October 2011, which affirmed the Refugee Status Assessment (“RSA”) that the applicant not be recognised as a person to whom Australia has protection obligations under the 1947 Convention relating to the Status of Refugees (“the Convention”) as amended by the 1967 Protocol relating to the Status of Refugees.
The applicant arrived in Australia on 8 April 2012. He applied for an RSA on 4 May 2012 and Independent Merits Review on 12 November 2010.
The grounds on which the applicant seeks judicial review of the Independent Merits Review Assessment (“IMRA”) are set out in the Amended Application filed on 26 April 2012 as follows:
A.The Second Respondent failed to accord the applicant procedural fairness
Particulars
(1)The Second Respondent failed to consider one of the claimed bases for the applicant’s fear of persecution, that being that the state of Afghanistan is unwilling or unable to protect the applicant from harm, and the state’s failure to protect is for a Convention reason.
(2)The Second Respondent failed to consider one of the claimed bases for the applicant’s fear of persecution, he was a member of a social group of wealthy Hazaras who are likely to be targeted for ransom payments.
(3)The Second Respondent failed to consider one of the claimed bases for the applicant’s fear of persecution, namely that he is returning from a Western country.
(4)Second Respondent failed to properly consider one of the claimed bases for the applicant’s fear of persecution, namely that as a Hazara person he may be subject to persecution by way of discrimination.
B.Alternatively to (A), the Second Respondent IMR acted without or in excess of jurisdiction in that it failed to deal with the integers of the Applicant’s claim listed above at (1)-(4).
C.The Second Respondent failed to put adverse information to the applicant, denying the applicant procedural fairness.
Particulars
The Second Respondent’s decision contains country information, which was adverse to the applicant, which was not put to him namely country information that supports the proposition that middle and rich Afghans can live in Kabul free of persecution because of their ethnicity.
D.The Second Respondent engaged in illogical reasoning to such an extent that the IMR acted without or in excess of jurisdiction.
In the applicant’s arrival interview he stated:
·That his name is Ali Jan Afzali (Court Book (“CB”) p.3)
·That he was living in Mazar Sharif (CB p.3)
·That two of his brothers had been killed (CB p.7)
·That he was kidnapped by the Taliban with extensive detail of negotiations for his release (CB p.11).
In the applicant’s first interview with the Refugee Status Assessor, the applicant stated:
·“The thing I mentioned about living in Mazar Sharrif is incorrect, I was living in Dubai in Sharja”. (CB p.23)
·Q. Brother’s killed/missing?
A. “No, that’s wrong – They are alive”. (CB p.23)
·Q. Kidnapped by Taliban?
A. “No, that is not right. I was never kidnapped by the Taliban”. (CB p.23)
·A. “My name is not ALI JAN AFZALI – My name is ABDUL MAJID ABDUL MANONN AFZALI”. (CB p.23 – 24)
·“I own… one company in Melbourne”. (CB p.25)
·“I applied 3 times to get a visa to Melb (sic “Melbourne”) but its been refused”. (CB p.26)
·Q. What sort of visa?
A. “First time visit visa, then a business visa and the third one was another business visa…”. (CB p.26)
·Q. Why did you give incorrect info?
A. “… in 3 month while I was away from Dubai… people told me… to say your life is in danger…”. (CB p.29 – 30)
·Q. What’s you reason for coming (to Australia)?
A. “Because I have a company and business partner in Aust (sic “Australia”). I applied 3 times, Aust (sic “Australian” government did not give me a visa. That why I had to come this way”. (CB p.30)
·Q. Confirm reason to Aust (Australia)?
A. “I had to be here because I have business and I have a business partner here. If they wouldn’t have given me a visa, I would have come this way. I have no life threatening problems/persecution. I just came here to continue with my business”. (CB p.30)
In his second interview with the RSA the applicant stated:
·That his brother’s were not killed/missing (CB p.35);
·He had never been kidnapped by the Taliban;
·“People told me to say your life is in danger. I applied for an Australian visa three times and I got rejected. That’s why I came this way… If they would have given me a visa, I would not have come this way”. (CB p.37)
The applicant stated that from 1997 to 2010 he was:
“Self employed family business, Ind. Area No. 8 Sharjah UAE” (CB p.61)
Page 4 of the RSA records that the applicant’s:
“… wife, mother, father, three sisters and two brothers presently live in the United Arab Emirates (UAE)”. (CB p.130)
It is further stated on page 5 at para.1 that:
“… he and his family has been living and running their family business in the UAE for the past 13 years”. (CB p.131)
Page 9, para.3 records that the applicant stated:
“… neither he nor any member of his family have been harmed or mistreated while living in Afghanistan”. (CB p.135)
The IMRA found that the applicant reported that “… neither he, nor any family member of his, had ever applied for a visa to enter Australia” (CB p.169). That statement to the IMR is untruthful – the applicant has applied to Australia for one visitor visa and two business visas for Australia (CB p.30 and 170).
The applicant told the IMR that “prior to him coming to Australia he had never travelled or lived outside his country of residence (Afghanistan)” (CB p.169). That statement is untrue also, as the applicant gave details of travel to Pakistan, Indonesia, Thailand, Malaysia, Iran, Japan and China (CB p.59 and 170), and of having lived in the UAE for the past 13 years (CB p.61 and 131).
The applicant told the IMR that had he been granted a visa to enter Australia, he would not have come this way ie. claiming to be a refugee (CB p.170 [21]).
“When specifically asked to confirm why he had come to Australia, the claimant is reported as saying:
‘I had to be here because I have a company and business partner here. If they [the Australian Government] would have given me a visa, I would (sic) have come this way. I have no life threatening problems/persecution. I just came here to continue with my business’”. (Ibid [21])
It is clear from the above that the applicant has come to Australia for business reasons, and that “he has no life threatening problems/persecution” in Afghanistan. He claims to be a refugee because people told him to “say your life is in danger” (CB p.30).
As the applicant came to Australia in 2010 without any fear of persecution, there is a proper basis for the Tribunal finding that the applicant will not incur persecution on return to Afghanistan (CB p.181 [78]. That finding of fact is not amendable to review. Further, an error of law has not been established in the Tribunal reaching that conclusion.
Even if one or all of the grounds in the application for judicial review were made out and it was established that the applicant was denied natural justice, the Court would withhold relief as a matter of discretion.
Quoting from NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199 at [11]:
“Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [90]”.
And at [12]:
“As was said of the writ of mandamus in The King against Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at [400]:
‘the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld’”.
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
The Court finds that there has been “bad faith” by the applicant.
Where there is an independent and unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
As stated by Justice Kirby in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [88]:
“In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case”.
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
The independent and unimpeachable basis for the decision here that the applicant does not have a well founded fear of persecution for a Convention reason (CB p.181 [76]), is that he came to Australia for business reasons, and has no life threatening problems/persecution in Afghanistan (CB p.37). The Court finds no error of law in the IMRA that the applicant not be recognised as a refugee in circumstances where he came to Australia for business reasons without any fear of persecution in Afghanistan.
The existence of that independent ground for the decision makes it unnecessary for the Court to analyse “suggested technical infractions” as set out in the grounds in the Amended Application.
There is another independent ground to withhold relief. That is that the applicant lied in his arrival interview, and to the IMR. Obviously he did that to obtain a visa by deception. Providing false implementation is a breach of s.101 of the Migration Act 1958.
Quoting from NAWZ (supra) at [10]:
“The appellant, in our view, has so conducted himself both in relation to the Minister and to the Court as to disentitle himself to the award of discretionary relief even if it be assumed that his fresh ground of appeal has technical merit”.
And at [11]:
“Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [90]”.
And at [12]:
“As was said of the writ of mandamus in The King against Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at [400]:
‘… the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld’”.
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
And at [13]:
“The appellant has twice attempted to practise deception upon the Minister, first by making a bogus claim for refugee status and then, by denying that he was personally implicated in the making of that claim. His same lack of candour infected his approach to proceedings in this Court”.
And at [14]:
“…We would deny him the relief sought even if he could make out the ground relied upon. It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant”.
The Court therefore withholds relief as a matter of discretion because of the independent unimpeachable ground for the decision, and because the applicant lied in an attempt to obtain a visa by deception. Whatever be the grounds for challenging the IMRA, it cannot be held that the IMR erred in law in not finding the applicant to be a refugee where he stated that he is in Australia for business reasons and not because he fears persecution in Afghanistan.
Counsel for the applicant submitted that relief should not be withheld on the ground that the applicant has lied to the authorities, as the Minister has not sought that result. However the grant of constitutional relief is a matter for the discretion of this Court. The Court exercises its discretion to withhold relief.
The application for judicial review is dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 31 May 2012
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