MZYUM v Minister for Immigration - [2012] FMCA 710

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYUM & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 710

MIGRATION – Review of Refugee Review Tribunal’s decision – ground for review alleges a jurisdictional error because the Tribunal sent a notice pursuant to s.424A(1) when the information in the notice qualified as an exception under s.424A(3) – application dismissed.

Migration Act 1958, ss.414, 414A, 420, 422B, 424A(1), 424A(3), 474

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167
NAIS v Minister for Immigration and Multicultural Affairs (2005) 223 ALR 171
Prasad v MIEA (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407

Applicants:

MZYUM and MZYUN

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 106 of 2012

Judgment of:

O’Dwyer FM

Hearing date:

3 July 2012

Date of Last Submission:

3 July 2012

Delivered at:

Melbourne

Delivered on:

21 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

Mano Associates

Counsel for the Respondent:

Ms Holt

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 6 February 2012, as amended on 15 May 2012, is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 106 of 2012

MZYUM AND MZYUN

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application filed on 15 May 2012, the Applicants seek a review of the Second Respondent’s (the Tribunal) decision to affirm an earlier decision by the First Respondent’s delegate to refuse a protection visa that was sought by the Applicants.
Of the two Applicants, it is the first that makes the claims supportive of an application for a protection visa. The Second Applicant is his wife and relies upon his application and claims made. Accordingly, hereafter the First Applicant will be referred to as the Applicant, which description is inclusive of the Second Applicant.

Background

Both Applicants are citizens of Sri Lanka and are of Tamil ethnicity. They entered Australia lawfully on 9 December 2009, travelling on

Sri Lankan passports.
The Applicant is 73 years old and fluent in the Tamil and Sinhalese languages. Because of these skills he provided interpreter services in

Sri Lankan. On 18 January 2010, the Applicant filed an application for a Protection (Class XA) Visa and appointed a migration agent to act on his behalf. After an interview with the First Respondent’s delegate, the delegate refused to grant a Protection Visa. That decision was made on the basis that the delegate was not satisfied that the Applicant was a non-citizen in Australia to whom Australia has protection obligations under the United Nations Refugees Convention of 1951, as amended by the Refugees Protocol of 1967.
On 3 May 2010, the Applicant applied to the Tribunal for a merits review of the delegate’s decision, which resulted in a hearing before the Tribunal on 18 June 2010. The Applicant, his daughter and his migration agent attended. Subsequent to the hearing, a letter was sent by the Tribunal on 21 June 2010 inviting the Applicant to comment on or respond to information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
Thereafter followed a lengthy delay until 9 January 2012 when the Tribunal made its decision affirming the delegate’s decision. Part of the delay can be attributed to the late filing of responses and further information by the Applicant in support of his application. Even so, there was nonetheless a delay since the filing of the Applicant’s last material until the decision was made of approximately 12 months.

Grounds for Review

In his amended application, the Applicant sets out three grounds for review, namely:
a)the Tribunal has breached s.424A of the Migration Act 1958 (the Act), in that the exception created by s.424A(3) prevents the issue of the notice under s.424A(1), thereby leading to jurisdictional error when such was issued, and there being no probative evidence on the issues in relation to credibility;
b)the Tribunal has breached s.414 and s.414A of the Act by its failure to review the decision in respect of a valid application that was before it, and further its failure to make a decision within the time prescribed by s.414A of the Act;
c)the Tribunal breached s.420 and s.422B of the Act by its failure to accord to the Applicant substantial justice in the merits of the case, and further its failure to act in a way that is fair and just, thereby denying the Applicant natural justice.
The Applicant provided contentions of fact and law and spoke to those contentions at the hearing before me. The First Respondent also provided written contentions and addressed the Court in verbal submissions at the hearing.

The Contentions

The Applicant contended at the hearing that his principal ground for review related to what the Applicant argued was the production and forwarding to the Applicant of an invalid notice pursuant to s.424A of the Act. The rationale supporting this ground was that the Tribunal,

in forwarding a letter setting out the information and the concerns of the Tribunal for comment and response, set out information and referred to issues that were considered in the hearing and, as such, they qualified for exception under s.424A(3). It was further contended that because an unnecessary notice was sent purportedly pursuant to s.424A(1) of the Act, which should not have been sent, the Tribunal had committed a jurisdictional error.
I find this ground and the contentions proffered in support of it brave, but misconceived. It is particularly brave because it is clear from a reading of the transcript of the hearing that at the end of the hearing after the Tribunal member expressed his concerns about the evidence, which mirror the concerns articulated in the s.424A letter sent,

he invited the Applicant and his representative to take time and have a break from the hearing to consider the Applicant’s response or, alternatively, that they could respond in writing.
It was negotiated that they would prefer to respond in writing and as a result of that election the letter was sent. It is to be noted that in the letter itself, the Tribunal highlights that it was not a requirement that the letter be sent but, in effect, the Applicant has been afforded further opportunity to respond. The letter does not identify itself as written pursuant to S.424A, but in the Tribunal’s written reasons for decision, it does describe it as such.
The Applicant, in effect, argued on this point that there was no need for the letter, that s. 424A(1) should not have been enlivened and, because it was, a jurisdictional error had been committed by the Tribunal.
I note that the authorities that centre around the issues that arise under s.424A address concerns of a failure by a tribunal to enliven the section, or whether s.424A(3) exempts information from the requirement specified in s.424A(1). The Applicant simply relies upon the heat generated in those authorities as supportive of a general contention that strict compliance is required and where a tribunal has given more information than was necessary (that was exempt under s.424(3)) then a vital duty and function of the Tribunal has been abrogated, which amounts to jurisdictional error, requiring the matter to be remitted to the Tribunal for further determination.
In my view, this contention at best is described as naive.

Section 424A(1) imposes upon a Tribunal a positive obligation to put information to an Applicant, whereas s.424A(3) provides exemptions to that positive obligation. In itself, s.424A(3) does not impose upon a Tribunal an obligation not to give information that is described in that section, but merely acts to describe the information for which no positive obligation is imposed upon the Tribunal under s.424A(1).
The action of the Tribunal in this instance, both in the way it approached the issue of allowing further comment after the hearing, even though not required to do so, amounts to a very generous and

fair-minded approach being extended by the Tribunal to the Applicant.

In those circumstances, it ill-behoves the Applicant to complain.
In respect of the second aspect (and added in the amended application) to ground 1, which asserts that there was no probative evidence on which an assessment of the Applicant’s credibility could be made in the way it was, I say that credibility findings are findings of fact. It was a matter for the Tribunal par excellence[1]. Credibility findings are uniquely vested in the jurisdiction of the Tribunal and not within the jurisdiction of this Court.[2]
[1] See Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407 at [64-67])
[2] See NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291
The Applicant complains that no evidence was put by the Tribunal to challenge the Applicant’s case. In response to that, the First Respondent rightfully contends that it is well established that the Tribunal is not required to make the Applicant’s case for him, nor was it required to accept any or all of the claims made by the Applicant.[3]
[3] See Prasad v MIEA (1985) 6 FCR 155 at 169-170
In any event, in my view, a fair reading of the Tribunal’s decision clearly shows that the Tribunal went to some trouble to detail the claims made by the Applicant and also to highlight the inconsistencies in the evidence which formed the basis of the finding concerning the Applicant’s credibility. That finding, in my view, was open to the Tribunal on the evidence before it and the reasons given for such a finding by the Tribunal are cogent and probative.
Whilst Mr Fernandez for the Applicant was studious in avoiding any concession that he was inviting this Court to entertain a merits review, it is clear that the purport and thrust of his contentions invited such a process. It is trite to say that this Court does not have jurisdiction to entertain a merits review.
In respect of the second ground that alleges breaches of s.414 and s.414A of the Act, it is clear, in my view, that there was certainly no failure on the part of the Tribunal to review the application (s.414).

A reading of the Tribunal’s decision leaves no doubt that the Tribunal articulated and considered the claims made by the Applicant, assessed the evidence of the Applicant and formed an opinion after giving such weight as the Tribunal thought appropriate and reached the conclusion it did. There is no basis for a finding that there has been a failure to review and that there was a breach of s.414.
In respect of s.414A, it is true that the decision was not provided within 90 days as required by that section. However, s.414A(2) provides that a failure to comply with the section does not affect the validity of a decision. I am satisfied that, on that basis, the validity of the decision is not affected.
In light of the decision in NAIS v Minister for Immigration and Multicultural Affairs[4], the Tribunal’s decision should be examined in the context of the significant delay between the hearing and the final hand-down of decision. Mr Fernandez for the Applicant did not press this matter at all in oral submissions, or indeed written submissions,

but having regard to the delay, it warrants further investigation.
[4] (2005) 223 ALR 171
I am satisfied that the circumstances of this proceeding are different from that examined by the High Court in NAIS, and can be distinguished to some significant degree by the fact that that case focussed on credibility findings arising out of the independent witnesses. In this case, however, the Tribunal made its credibility findings, not on the basis of an adverse assessment of the Applicant as a witness or the Applicant’s demeanour, sincerity or reliability, but upon the conflicts in the evidence given after an examination of those conflicts.
The finding in respect of the Applicant’s credibility was not based solely or significantly on his demeanour and, in my view,

the jurisdictional error identified in NAIS is not applicable to the circumstance of this case.
On that basis, the second ground is not made out.
In respect of ground 3, where it alleges there was a breach of s.420 and s.422B of the Act, that ground was not supported by particulars and was not addressed in written, and only in limited oral submissions by a reference to page 7 of the transcript of the hearing. Mr Fernandez was unclear in his submissions in these regards, as limited as they were,

but I understood him to be saying that the Tribunal referred to the evidence surrounding the Applicant’s involvement in the Civil Monitoring Committee in a way that was not supported by the transcript. He suggested that the Tribunal went off on a “frolic of its own under the Protection Act and on a tangent,” when it made reference to the Committee being defunct in asking questions why the Applicant did not thereafter partake in similar organisations.
A full and fair reading of the transcript, however, clearly shows that the language used by the Tribunal in its decision was an adoption of the language actually used by the Applicant and there is no basis for the allegation that the Tribunal occupied itself with tangential issues.
More generally, in addressing the alleged breach of s.420 of the Act, the Applicant has failed to establish that the Tribunal “failed to act in a way that was fair and just.” In my view, the reasons for decision provided by the Tribunal demonstrate that the Tribunal has discharged fully its statutory obligation and arrived at a decision that was open to it on the evidence and it exhibited cogent and probative logic.
In any event, s.422B of the Act is relied on by the First Respondent as an answer to this general, unparticularised, vague ground in that it provides an “exhaustive statement of the requirements of natural justice in relation to the matters it deals with.” I am in agreement with the First Respondent’s submission in this regard and cannot see where the Tribunal failed to comply with its statutory obligations under Division 4 Part 7 of the Act. Accordingly, there has not been a breach of natural justice or procedural fairness.

Conclusion

For the above reasons the Applicant has failed to demonstrate that the Tribunal had made a jurisdictional error and accordingly, as the decision under review is a privative clause decision under s.474 of the Act, the application, as amended, must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Date: 21 August 2012