MZYUH v Minister for Immigration

[2012] FMCA 648

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYUH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 648

MIGRATION – Credibility – adverse finding – independent and unimpeachable basis for decision – relief discretionary.

Federal Magistrates Court Rules 2001, r.15.03
Migration Act 1958, ss.424A, 474

Abebe v Commonwealth (1999) 197 CLR 510
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC)
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZYMG v Minister for Immigration and Citizenship [2012] FCA 89
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965
W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: MZYUH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 40 of 2012

Judgment of: Turner FM

Hearing date: 16 July 2012

Date of Last Submission: 16 July 2012

Delivered at: Melbourne

Delivered on: 16 July 2012

REPRESENTATION

Solicitors for the Applicant: Sabelberg Morcos Lawyers

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Pursuant to r.15.03 of the Federal Magistrates Court Rules 2001, the Court proceeds to deal with the matter on the written submissions filed by each party.

2. The application for judicial review filed on 17 January 2012 and amended application filed on 30 May 2012 are dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 40 of 2012

MZYUH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

1. Pursuant to r.15.03 of the Federal Magistrates Court Rules 2001 (“the Rules”), the Court will make a decision in the proceedings without an oral hearing, as the parties consent to such a course.

2. The applicant seeks judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 15 December 2011. That decision affirms the decision by a delegate of the Minister for Immigration & Citizenship (the “Minister”) not to grant the applicant a Protection (Class XA) visa.

3. The applicant filed an amended application on 30 May 2012, which contains the following grounds and particulars:

   “In making the Decision, the Tribunal acted without jurisdiction or in excess of jurisdiction in that it:

   a)failed to take into account relevant considerations; and

   b)took into account irrelevant considerations

   PARTICULARS

   a)The Tribunal failed to take into account relevant considerations, namely the:

   i)risk to the Applicant being persecuted upon his return to Egypt by reason of his religious beliefs and practice of his faith (Coptic Christian);

   ii)risk to the Applicant being persecuted upon his return to Egypt by reason of the open practice of his faith (Coptic Christian);

   iii)risk to the Applicant being persecuted upon his return to Egypt by reason of his membership of a particular social group (returned asylum seekers);

   iv)violence committed against the Applicant by the Egyptian police or by those acting as agents or with the endorsement of the State;

   v)violence threatened to Father Shenouda and his parish should he provide evidence in support of the Applicant’s claims;

   vi)the identification of the Applicant by DFAT Post to the Egyptian authorities has further endangered the Applicant both through identification of him as a Coptic Christian in Egypt, an asylum seeker and one who has undermined Egypt’s stature or prestige;

   vii)that his previous employment and dismissal for publishing an article on the plight of Coptic Christians in Egypt would not mark him for persecution;

   viii)that the authenticity or not of the Court record would not invalidate punishment under Article 80(d) of the Egyptian Penal Code; and

   ix)the medical and psychiatric evidence on the Applicant’s physical abuse and torture and his resultant fear of Muslims and the Egyptian authorities;

   b)The Tribunal took irrelevant considerations into account, namely:

   i)that his religion did not make him a target for persecution in Egypt;

   ii)that the harm done to him in the past because of his religious beliefs and practices did not support a fear of persecution due to those beliefs and practices;

   iii)the significant and increasing risk of harm faced by Coptic Christians in Egypt, regardless of whether they are actively involved in the inter-faith relationships or church building works;

   iv)that his belief in the authenticity of the Court record is a basis for finding the Applicant not to be a credible witness; and

   v)the Applicant’s ability to graduate and obtain employment in Australia is evidence his fear of harm in Egypt is not well founded.”

4. Written submissions were filed by the applicant on 12 July 2012 and by the first respondent on 6 July 2012.

5. The delegate of the Minister accepted that the applicant is a Coptic Christian, but rejected all his key claims to fear harm because of an adverse finding as to credibility. The applicant then applied to the Tribunal for review of the decision of the delegate.

6. The Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (“the Act”) by a letter dated 2 August 2011 (Court Book “CB” p.202). That letter invited the applicant to respond to information that the Court record of proceedings on 30 October 2010 at CB p.177, submitted by the applicant is not genuine (CB p.202.5)

7. The Tribunal wrote to the applicant’s migration agent on 8 September 2011, inviting the applicant to respond to information that the evidence by Father Shenouda contradicts the evidence of the applicant that he had been persecuted for helping a Muslim girl convert to Christianity. By letter dated 7 November 2011, the Tribunal invited the applicant to comment again on adverse information (CB p.288).

8. The Tribunal found that the applicant was not a credible witness (CB 328.1).

9. In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:

“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:

If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone”.

1. The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.

2. The Court refers to the following decisions:

   “The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.

3. The Court adopts the following statement of the law:

   “Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanation for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility finding in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist”.

4. The Tribunal placed considerable weight on the evidence of Father Shenouda, who denied knowledge of key aspects of the applicant’s claims and as a result, found that the applicant never converted a Muslim girl as claimed (CB p.328.2)

5. As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:

   “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.

   The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

   The Court does not make that finding in this case.

6. As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:

   “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.

7. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

8. And at [29]:

   the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

9. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.

10. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.

11. Here, the Tribunal had evidence or information to rebut the claim by the applicant that he had converted a Muslim girl to Christianity.  That evidence is the evidence of Father Shenouda. The Court cannot review the merits of the tribunal’s decision.

12. The Court repeats the quotation in paragraph [11] (supra).

13. In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:

    “It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.

14. As stated in Tefonu  (supra) per Beazley J at [54]:

    “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.

    The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

    The Court does not make that finding in this case.

15. As stated by the Full Court of the Applicant A125 (supra) at [95]:

    “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.

16. As stated by the Federal Court of Australia in Lee (supra) at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

17. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.

    And at [29]:

    “if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.

18. A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.

19. The Tribunal considered statements by the applicant’s mother and by his uncle, but gave the documents no weight given its concerns about the applicant’s credibility and his preparedness to provide a fake Court document (CB 328.6).

20. The Tribunal did not accept that the applicant had a subjective fear of harm if he returned to Egypt given his return to Egypt in 2009, and a delay of one year in seeking protection when he returned to Australia in 2009 (CB 328-329 at [69]-[70]).

21. In Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997, the Court held that even a three month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution.

22. Here, there is an 11 month delay.  The applicant arrived in Australia on 5 November 2009 and applied for a protection visa on 22 October 2010 (CB p.1).

23. As decided by Heerey J in Selvadurai (supra):

    The applicant complained of the tribunal taking into account the fact that the applicant did not lodge his application for a refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, that was a legitimate factual argument and an obvious one to take into account in assessing the genuineness or, at least, the depth of the applicant’s alleged fear of persecution.

24. The tribunal rejected the applicant’s claim that he and his family would be targeted on his return to Egypt as he had not claimed that any of his family had come to the adverse attention of the authorities (CB p.329.3).

25. The Tribunal rejected the applicant’s claim that his mother fled to the USA after hearing that the Court document was false, and did not accept that she had been targeted by the authorities because her son had provided a false document (CB p.329.4).

26. As stated by the Federal Court of Australia in Lee (supra) at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

27. Because of concerns about the applicant’s credibility, the Tribunal rejected, that the medical and psychological evidence supported the applicant’s claims of persecution in Egypt (CB p.329.7).

1. The Tribunal then made a finding of fact that there was no real chance that the applicant would face persecution for a Convention related reason now or in the reasonably foreseeable future should he return to Egypt (CB p.330.2). Those findings of fact are not amenable to review. The Court refers to NAHI and Wu Shan Liang (supra).

2. The Court finds that the Tribunal took into account the matters in Particulars 4(a)(i) to (ix) of the amended application, and accepts the written submissions of the first respondent in paragraphs [30] to [42]. It is clear that the Tribunal affirmed the decision not to grant the applicant a protection visa because it rejected much of his evidence and found him not to be a credible witness. That is an independent and unimpeachable basis for the decision of the Tribunal.

3. 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].

4. The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:

   The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”. [21] Re Refugee Revue Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].

5. As stated by Justice Kirby in SZBYR 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”.

6. 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].

7. 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 (3^rd ed, 2004).

8. “Even if there was some error in the Tribunal’s application of s 91S, the relocation findings made by the Tribunal provide an alternative and independent basis for affirming the delegate’s decision”: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [122] (Tracey and Foster JJ) applied in MZYMG v Minister for Immigration and Citizenship [2012] FCA 89 at [28].

9. The Court finds that as the applicant was found not to be a credible witness and his claims were untrue, no useful result could ensue from granting discretionary relief.

10. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

11. Even if a relevant matter was not taken into consideration – and the Court rejects that assertion – or an irrelevant matter was considered – and the Court rejects that also – the Court would withhold relief because of the Tribunal findings that the applicant was not a credible witness and that the applicant’s claims are not true.

12. The application for judicial review is dismissed. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Turner FM

Date:  27 July 2012