MZYWN v Minister for Immigration - [2012] FMCA 683

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYWN v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 683

MIGRATION – Evidence of applicant not accepted – findings of fact not amendable to review – independent and unimpeachable bases for decision.

Migration Act 1958, ss.36(2), 474

Abebe v Commonwealth (1999) 197 CLR 510
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
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 and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Revue Tribunal; Ex Parte Aala [2000] HCA 57
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
The King against Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389
VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant:

MZYWN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 311 of 2012

Judgment of:

Turner FM

Hearing date:

23 July 2012

Date of Last Submission:

23 July 2012

Delivered at:

Melbourne

Delivered on:

23 July 2012

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Ms Burchell

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application for judicial review filed on 19 March 2012 is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 311 of 2012

MZYWN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

The applicant in this matter has been refused a protection visa and seeks judicial review of that decision. As stated to the applicant today, it is not for this Court to review findings of fact by the Refugee Review Tribunal (the “Tribunal”).
The main issue relevant to the review before this Court is whether the Tribunal accepted the evidence and contentions of the applicant.
A delegate for the Minister found that the applicant did not satisfy the criterion for a visa set out in s.36(2) of the Migration Act 1958 (the “Act”)(Court Book (“CB”) p.98) That criterion is that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the “Convention”). The Tribunal affirmed that decision on 13 February 2012 (CB p.214).
The application for judicial review set out two grounds for review as follows:
(1)The Tribunal failed to apply the correct legal principles.
(2)The Tribunal failed to observe the requirements of procedural fairness.
The Court has invited the applicant to put submissions as to errors of law made by the Tribunal. The applicant does not have any submissions to put to the Court on that matter, or on the alleged failure to observe the requirements of procedural fairness.
It is clear from the decision of the Tribunal that it did not accept most of the assertions and claims of the applicant.
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”.
The Tribunal did not accept the following contentions by the applicant and set out its reasons for those findings as follows:
·At CB p.230.1:
“The tribunal does not accept that the applicant was required to promote the message and endeavours of the organisation to other students given the applicant demonstrated somewhat basic knowledge of the APMSO” (All Pakistan Mohajir Student Organisation).
·At CB p.230.2:
“The tribunal does not accept that the applicant demonstrated an understanding of the intention of the AMPSO as the student arm of the MQM (Muttahida Quami Movement), commensurate with someone who allegedly was tasked with promoting the party.”
·At CB p.230 [54]:
“The tribunal does not accept the applicant was a special or extraordinary member of the APMSO.”
·And at CB p.230.5:
“The tribunal does not accept that the applicant was responsible for dealing with student complaints and liaising with university management to resolve these issues. The tribunal finds the applicant’s evidence that he received fifty complaints a day implausible. The tribunal finds the applicant has embellished his claims in an effort to bolster his profile and for the reasons provided above, it does not accept that the applicant was a special or extraordinary member of the APMSO.”
The Tribunal rejected much of the applicant’s evidence (CB p.230 – 233). As stated to the applicant at the beginning of this hearing, findings of fact are not amenable to review by this Court.
The Court refers to the following authorities on that proposition.
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”.
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”.
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… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”…
That word “implausible” is actually used by the Tribunal in this case on a number of occasions (CB p.230.4 and .6 and CB p.231.2). Continuing:
… “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 (HCA/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]”.
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”.
The Court will now return to the material that the Tribunal did not accept in this case:
At CB p.233 [67]:
“The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.”
Even if there were errors in the way the Tribunal conducted the review – and the Court does not find any error to be established – rejection of most of the applicant’s claims and adverse findings of fact are independent and unimpeachable bases for the decision of the Tribunal.
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].
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”
And in this case the Tribunal rejected much of the crucial evidence of the applicant. Therefore, any error, if established – and the Court finds it has not been – or any technical error elsewhere could not overcome the basis for the Tribunal’s decision, that the claim lacked the requisite Convention nexus simply because the factual basis of the claim has not been made out.
Continuing the quote from SZBYR:
“…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]”
As the Tribunal found in this matter that the Convention nexus had not been made out, because it rejected most of the assertions by the applicant, the tribunal was bound to refuse the visa.
Continuing from the quotations of the cases in support of the proposition that, as it is an independent basis for decision there is no utility in granting prerogative relief.
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”.
In this case the findings of fact against accepting the applicant’s evidence mean that no useful result could come from any review of what might be considered to be technical infractions.
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…”
And the Court is aware there was delay in this case in making the application for a visa.
“…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….”
Here, the rejection of the evidence proffered by the applicant brings it within the term “bad faith”. To continue the quote:
“… 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).
The circumstances here are that the evidence of the applicant has been rejected by the Tribunal and it is up to the Tribunal to accept or reject evidence. This Court cannot review those findings.
The Court invited the applicant to make submissions to it as to an error of law, but the applicant declined that invitation.
The Court finds that an error of law by the Tribunal has not been established.
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.
The application for judicial review is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 7 August 2012