MZYWO v Minister for Immigration - [2012] FMCA 1258

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYWO & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1258

MIGRATION – Judicial review – applicant must establish their case – evidence not accepted – finding of fact not amenable to review – natural justice not denied – application dismissed.

Migration Act 1958, ss.55, 422B, 424A(1), 474.

Abebe v Commonwealth (1999) 197 CLR 510
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 Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW [2004] 140 FCR 572
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
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 & Anor v the Minister for Immigration & Anor(2007) 235 ALR 609
SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC)

First Applicant:

MZYWO

Second Applicant:

MZYWP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 319 of 2012

Judgment of:

Turner FM

Hearing date:

10 December 2012

Date of Last Submission:

10 December 2012

Delivered at:

Melbourne

Delivered on:

10 December 2012

REPRESENTATION

The Applicant appeared In Person with the assistance of a Gujarati Interpreter

Counsel for the First Respondent:

Mr Brown

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application for judicial review filed on 22 March 2012 is dismissed.
The first applicant pay the first respondent’s costs fixed in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 319 of 2012

MZYWO

First Applicant

MZYWP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 29 February 2012. The decision affirmed the decision of a delegate to the Minister not to grant the applicants protection visas. The applicants are husband and wife (Court Book “CB” p.16). The first named applicant came to Australia on a student visa (CB p.17). The second applicant applies as a student visa dependant (CB p.17) and as a member of the family unit (CB p.27).
The grounds of the application to the Court are as follows:
(1)That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth)
Particulars
(a)There was certain adverse information used by the Tribunal to affirm the decision Under review.
(b)The Tribunal did not disclose the information in accordance with s 424A(1).
(2)That the tribunal made error of law and lack procedural fairness and therefore committed juridictional error.
(3)That the tribunal made denial of natural justice. Because it failed to provide further opportunity before tribunal.
Ground 1 alleges a breach of s.424A(1) of the Migration Act 1958 (the “Act”) which provides:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
The Court finds that the applicant has not established that the Tribunal relied on any information that would be the reason or part of the reason for affirming the decision of a delegate. The decision of the Tribunal shows that no such information exists.
The decision of the Tribunal was based on a subjective appraisal of the first applicant’s evidence and a rejection of that evidence. The Tribunal’s appraisal of an applicant’s evidence is not information for the purposes of paragraph (a) of s.424A(1).
The Court refers to the decision of the High Court in SZBYR & Anor v the Minister for Immigration & Anor(2007) 235 ALR 609 where in para.18 the High Court referred to inconsistencies in the appellant’s evidence and stated:
“it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1).”
The Tribunal’s assessment of the applicant’s claims is set out in the CB commencing at p.147 [50]. The Tribunal did not accept that the applicant was an active supporter of the Congress Party (CB p.148 [51]). The Tribunal is entitled to accept or reject evidence proffered as it thinks appropriate in all the circumstances.
The Court refers to the decisions in NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10:
“By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”. NAHI at [11].
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 found that the applicant’s evidence regarding his support of the Congress Party was vague and confusing and lacking in detail (CB p.148 [51]).
The Tribunal found that the applicant’s evidence as to why he was not a member of the Congress Party to be implausible (CB p.148 [52]).
In Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, the Court found:
“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”.
The Tribunal did not accept that it is a requirement for one of the largest leading political parties in the country – that in order to be a member, a person must have many followers (CB p148 [52]).
The Tribunal did not accept that the applicant assisted party members or their helpers or assistants during elections (CB p.148 [53]).
The Tribunal found it “implausible” that the applicant was tasked with gathering people and making them understand the workings of the party (CB p.148 [53]). The Tribunal found other aspects of the applicant’s evidence to be implausible (CB p.148 [53]).
The Tribunal did not accept that the applicant engaged in any activities in support of the party other than transporting aged or elderly villagers to vote on election day (CB p.148 [53]).
The Tribunal did not accept that the applicant was a person that everyone in his village followed and that he encouraged people to support the party (CB p.148 [53]).
The Tribunal did not accept that the applicant experienced any problems from opposition party members, including the BJP, as his evidence on the issue was “entirely inconsistent and contradictory” (CB p.148 [54]). The Tribunal then set out its reasons for that finding of fact.
The Tribunal then found the applicant’s evidence about being beaten and pushed to be “implausible” (CB p.149 [55]).
The Tribunal did not accept that “the applicant received either one or two visits to his farm by BJP or other opposition party workers and was threatened, beaten and pushed” (CB p.149 [56]).
The Tribunal did not accept that the applicant experienced any difficulties either before or after any elections held in his area (CB p.149 [56]).
The Tribunal did not accept that the applicant made a complaint to the police which was then ignored (CB p.149 [56].
The Tribunal did not accept for the reasons it gave, that “if the applicant returns to India, he will face a real chance of persecution from BJP, other opposition party members or workers or the authorities because of his minimal support of Congress in the past, now or in the reasonably foreseeable future” (CB p.149 [57]).
The Tribunal found that the applicant would have no profile as a Congress supporter (CB p.149.57).
The Tribunal did not accept that if the applicant returns to India, he would resume his support for the Congress other than by voting for the party (CB p.149 [57]). The Tribunal did not accept that the applicant’s fear of persecution because of his political opinion is well founded (CB p.149 [57]).
Insofar as the above findings are findings of fact, they are not amenable to review.
In NAHI (supra), 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”.
“By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”. NAHI (supra) at [11].
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”. 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”.
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.
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”.
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.
Bennett J summarised a number of relevant authorities in SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697 at [31]:
“This ground appears to amount to no more than disagreement with the outcome of the review by the Tribunal. The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 596). The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J). The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural [2000] FCA 1536 at [13]). Further, as was held by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14] ‘the want of logic does not, of itself, suffice to constitute an error of law’. No error is established”.
The applicant claimed that he fears returning to India because of possible harm he may suffer from money lenders. His father borrowed money from money lenders (CB p.149 [58]). For the reasons given by the Tribunal, it did not accept that the applicant’s father borrowed money from money lenders as he claimed. Those reasons are set out at CB p.150 [58]). The Tribunal did not accept that the money lenders had been coming to the applicant’s father seeking repayment. The Tribunal made a finding of fact that there was never a debt owed and did not accept that the applicant faced a real chance of persecution for this reason, if he returns to India now or in the reasonably foreseeable future (CB p.150 [58).
The Tribunal found that even if the applicant owed money, the harm he faces is for a private reason and not Convention related (CB p150 [59]).
The Tribunal found as a fact that there is state protection available in India and that protection would not be denied to the applicant for a Convention reason. It made that finding based on country information which is referred to at CB p.150 [59].
Country information is excluded from the obligations under s.424A of the Act.
It is settled law that s.424A(3)(a) excludes country information from the requirements of s.424A(1): Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW [2004] 140 FCR 572 at [64]-[74] and at [112]-[138] and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]. Accordingly, the Tribunal was not obliged to provide independent country information to the applicant for comment.
“Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal”. (NAHI [13])
“The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item”. (NAHI [14])
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another”.
NAHI (supra) at [13-14] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26].
It can be seen from the decision of the Tribunal that much of the evidence of the applicant was rejected by it. Those findings were properly open to the Tribunal. The Tribunal did not base its decision on information that should have been disclosed to the applicant under s.424A.

Ground one is dismissed.
The applicant then claimed that the Tribunal breached its obligations to afford the applicant procedural fairness.
Section 422B of the Act provides that the requirements of Division 4, Part 7 of the Act are taken to be an exhaustive statement of the requirements of natural justice for matters falling under that division.
The Tribunal complied with its obligation under s.425 and 425A to invite the applicants to attend a hearing to give evidence and present arguments (CB p.116, 123, 124 and 128). The first named applicant attended the hearing but the second named applicant (being his wife), did not (CB p.8.
The court finds no breach of Division 4 of Part 7 of the Act.
Ground two is dismissed.
The applicant complains that an adjournment was not granted to him by the Tribunal. Section 55 of the Act provides that:
(1)Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2)Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
There was no obligation to grant an adjournment. Ground three is dismissed.
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 by the first named applicant is dismissed. The second named applicant’s application is dependant on the first applicant’s application and is therefore also dismissed.
Both applications for judicial review are dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date: 29 January 2013