MZYUV v Minister for Immigration
[2012] FMCA 906
•4 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYUV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 906 |
| MIGRATION – Alleged failure by Independent Merits Reviewer to properly consider the applicant’s documents – whether such failure established – whether failure gives rise to error – whether Reviewer’s findings illogical or otherwise open to challenge. |
| Migration Act 1958 |
| Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | MZYUV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | MLG 331 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 5 September 2012 |
| Date of Last Submission: | 19 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 4 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burt |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 331 of 2012
| MZYUV |
Applicant
And
| MINISTER OF IMMIGRATION & CITIZENSHIP |
First Respondent
| DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks judicial review of an Independent Merits Review decision dated 16 January 2012.
Although the grounds of review in the amended application filed on
4 July 2012 specify three matters, the applicant’s submission primarily advanced was that the Reviewer fell into jurisdictional error in failing to take into account a relevant consideration by failing to pay proper regard to three letters provided by the applicant in support of his claims.
There are two other grounds, conceded to be interrelated by counsel for the applicant, in relation to what is submitted to be illogical findings made by the Reviewer in relation to travel to Kabul.
For the reasons which follow, I do not think that the Reviewer fell into error and the application must be dismissed.
Relevant Background
Although this matter involves a number of disputed facts and assertions, the following, which is largely a paraphrase of the first respondent’s written submissions, is not controversial. The applicant is a 42 year old man who is of Hazara ethnicity and a Shia Muslim. He has lived for most of his life in Jaghori in Ghazni Province in Afghanistan, but has spent a certain amount of time in both Pakistan and Iran.
On 1 February 2010, the applicant arrived in Australia and was the subject on 2 March of 2010 of an entry interview.
Following a request for a Refugee Status Assessment (“RSA”), the applicant was the subject of a decision by the Refugee Status Assessor on 23 July 2010 that the applicant was not someone to whom Australia owed Convention obligations. He then lodged a request for an Independent Merits Review.
The first Merits Review decision was the subject of orders by Driver FM which declared that the first Reviewer failed to observe the requirements of procedural fairness.
On 11 December 2011, the Reviewer conducted an interview with the applicant which has given rise to these proceedings.
It should be noted that in paragraph 8 of the first respondent’s written submissions it is asserted that:
“… The issue for the Court is whether the applicant has identified a jurisdictional error on the part of the Reviewer.”
The Applicant’s Claims
The applicant claimed to be a Hazara Shia man, a matter not in dispute. He also claimed to be from Jaghori in Ghazni Province, likewise a matter not in dispute. The applicant claimed to have assisted his father to sell books, although the period of time during which this took place was the subject of dispute. He claimed to have transported religious books from Kabul to Jaghori a matter, once again not the subject of agreement.
The applicant claimed that on at least three occasions he was stopped by the Taliban and that on one occasion he was physically harmed when books were found after his vehicle was searched.
The applicant claimed that his photograph had been circulated within the Taliban and that he had been told recently that the Taliban had attended looking for him.
It is clear on any view that the applicant has had a number of professions, including farming and labouring. (The above is a paraphrase of paragraph 4 of the applicant’s written submissions filed 19 July 2012).
The Applicant’s Submissions
Having referred to the facts as set out in the written submissions, the applicant’s counsel submitted that the chronology of events put forward by the applicant was not easy to follow. It was submitted that the applicant’s account of events was incomplete, albeit that he had been through the RSA and IMR hearings. It was submitted that the applicant lost before the Reviewer because he had failed to disclose aspects of his case at the earliest opportunity and because of a focus on the part of the second Review hearing on inconsistencies between what was said at the first and the second hearings.
In this regard, the applicant’s counsel submitted that the matters recorded during the entry interview (CB 11) were, in general, fleeting only and that substantial regard should not be had to them. I accept the force of that submission.
Counsel noted that at CB 51, the applicant’s statement of his circumstances made no mention of book-selling, but pointed out that once again this was a relatively brief recitation of his circumstances.
In respect of the timing of the important incident where he was assaulted by the Taliban, counsel submitted that at the first interview the applicant had asserted that he was unable to remember and that there was never any clear chronology provided by the applicant. It was submitted that the “gross inconsistencies” referred to by the Reviewer were, in fact, minor.
Ground 1 of the Application
This was the primary matter pressed by the applicant. It was put that despite the reference to the three documents concerned (CB 206, paragraph 47), they were given no weight at all (see CB 215, paragraph 72 of the decision) because “the well was poisoned.” This was of course a reference to the observations of McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49].
The major point of challenge made to the Reviewer’s decision was this one. What was submitted was that although the Reviewer said these matters were taken into account, there was no analysis whatever of the documents, and it was not proper to reject these out of hand. In this regard, counsel referred to SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 where at [27] Finkelstein J said:
“This is not a rational approach. Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S 20/2002 category. It plainly did not fall into that category.”
The reference to S20/2002 is a reference to a part of the joint Judgment of McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] where (already referred to above) McHugh and Gummow JJ said:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.”
Essentially what was put by the applicant was that, notwithstanding the brief reference in the Reviewer’s decision, the reasoning process, or more accurately lack thereof, evidenced by the Reviewer in the passage the subject of criticism showed that far from giving the consideration that was required to be given to the materials put by the applicant, the second respondent had simply not turned his mind properly to the matters asserted. As the Full Court of the Federal Court said in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [36] in a Judgment of North and Lander JJ:
“When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand.”
The Full Court went on at [37]-[39]:
“37. Several further observations should be made concerning the type of situation addressed in Applicant S20/2002(2003) 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
38. The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002(2003) 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002(2003) 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
39. On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.”
Counsel for the applicant referred to various particular cases in which the question of such evidence had been independently weighed and reviewed, and it was submitted that there was no such analysis here. It was submitted that this failure amounted to error of law within the meaning of Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 so as to give rise to appellable error.
Grounds 2 and 3
Counsel for the applicant relied essentially upon the written submissions filed in relation to grounds 2 and 3. The essence of the criticism made in respect of ground 2, namely that “the second respondent erroneously made a finding that there was no indication that the applicant would regularly use the road from Ghazni to Kabul” was that the finding was irrational. It was submitted that (see paragraph 38 applicant’s written submissions) “in fact, the position is a contrary one, that the applicant would need to travel from Kabul to Ghazni to obtain book supplies.
It was submitted that this was illogical in the sense explained in the Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]. The passage referred to in the Judgment of Crennan and Bell JJ reads as follows:
“In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “captious” or “unreasonable” in the sense the state of satisfaction mandated by the statue imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the sense of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
It was submitted by the applicant’s written submissions that “in this case it (the Reviewer’s decision) was supported by inferences, which were not supported by logical grounds. Rather, logical (sic) dictated the opposite – the applicant would regularly travel on those roads. It is submitted that this constitutes a jurisdictional error.”
Ground 3 was submitted as being interrelated with ground 2. It was submitted that “the recommendation of the IMR failed to apply the law correctly in terms of expecting the applicant to take the long and arduous route” (to Kabul). It was submitted that the Reviewer had expected the applicant to modify his behaviour but the Reviewer should have considered that “the second respondent may well have required the applicant to modify his behaviour in an unlawful manner”.
Submissions of the First Respondent
Counsel for the first respondent dealt with grounds 2 and 3 together and first. It was submitted that the Reviewer simply did not believe the applicant’s employment history. It was pointed out that it was not until the first IMR hearing that the applicant asserted that he had been a bookseller and it was noted that this was 10 to 15 years earlier. At the second IMR hearing, the applicant said that he had been selling books in the three years before leaving Afghanistan and it was submitted that it was on this basis that the second IMR hearing did not believe the applicant. It was submitted that the finding that the applicant had not been a bookseller was, in the circumstances, entirely open to the Reviewer.
It was also submitted that the need for the utilisation of the road to Ghazni, albeit by an arduous alternative route, was only necessary upon return to Afghanistan to get to Jaghori, where the applicant would be safe.
Given the relatively limited attention given to grounds 2 and 3 in the applicant’s submissions and the first respondent’s response, in my view, it is sufficient to say that the Reviewer’s decision was sufficiently open to him on the evidence and material before him. It follows that no error is made out.
So far as the primary ground advanced by the applicant is concerned, the first respondent submitted, inter alia, that the scope of the decision of the High Court in M61 was not such to extend to the point where a failure to take a relevant consideration into account constituted an appellable error. This may not sit very easily with the first respondent’s written submissions to the effect that the second respondent did not fall into jurisdictional error. As discussed with counsel during the hearing, the parameters of what is meant by the High Court in M61 is not a matter for this Court, but rather for superior Courts.
The first respondent concentrated on the particular facts of the case. It was noted that three documents to which failure to give proper attention gave rise to the error were only forwarded after the IMR hearing. In other words, these documents were forwarded after the Reviewer had heard and seen the applicant give his evidence. In fact, the documents were before the Reviewer but untranslated and their purport was given (see CB 203 paragraph 38).
It is noteworthy, as the first respondent submits, that the documentation forwarded in this regard mentions for the first time, albeit in the period up to 2001 (there is reference to the Taliban government which, it is uncontested, ceased in 2001) and not prior when the applicant said it was, that the Taliban had attacked the bookshop and stolen the applicant’s belongings. The first respondent is correct to submit that neither of these two elements of the matter was contained in the applicant’s claims, albeit that the applicant did tell the first IMR hearing that he had a bookshop, but he had never said he was attacked or that his belongings were the subject of theft.
In the circumstances, the second respondent’s finding that the applicant was not credible might be thought to be not unreasonable.
The second respondent found that no weight should be given to these documents because of the adverse credibility findings made against the applicant. This is, in substance, a finding that these documents were false in one of two senses. In the hearing before the Court, I perhaps elided or conflated two aspects of what might be meant by “false”. “False” might mean either forged, in the sense that the documents are not what they appear to be, or false in the sense that those who may have genuinely created them are not being truthful.
In circumstances where the documentation was provided, it would appear, in the main by a close relative of the applicant in my view, the Reviewer did not fall into error having once heard the applicant and having heard all his evidence by failing to believe them.
True it is that it would have been preferable if the Reviewer had made some more detailed analysis of the documentation. He might well have said that given his view of the applicant’s claims, documentation of this sort might be thought to be self-serving. He might have said also that it was inconsistent with other materials in the case. He did not do so.
Nonetheless, it is clear from paragraph 72 of the decision that the Reviewer had regard to these materials. He expressly said so. He said (CB 215):
“In making these findings I have taken into account translations of the similar documents provided by the claimant which purport to corroborate the claimants account. However, because of the highly significant issues that I have with the claimant’s credibility as set out above, I have given these documents no weight in making my findings as the well has been so poisoned that the documents are undermined by those findings”
In these circumstances, it cannot be said that the Reviewer failed to consider these documents in such a fashion as to give rise to jurisdictional error.
Conclusion
In the circumstances, it follows that the applicant’s complaints are not made out and I will dismiss the application with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 4 October 2012
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