MZYXL v Minister for Immigration - [2012] FMCA 1259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYXL v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1259

MIGRATION – Judicial review – particulars not provided of the grounds for review – applicant must establish their case – alleged harm not Convention related – independent basis for decision – application dismissed.

Migration Act 1958, s. 91R(1)(a).

Abebe v Commonwealth (1999) 197 CLR 510
Attorney-General from 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
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
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
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
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26
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
Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

Applicant:

MZYXL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 471 of 2012

Judgment of:

Turner FM

Hearing date:

8 October 2012

Date of Last Submission:

8 October 2012

Delivered at:

Melbourne

Delivered on:

8 October 2012

REPRESENTATION

The Applicant did not appear at the hearing

Counsel for the First Respondent:

Mr Wood

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application for judicial review filed on 24 April 2012 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 471 of 2012

MZYXL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex-tempore & Revised)

The applicant arrived in Australia by boat on 14 June 2010 (Court Book (“CB” p.115). The applicant requested a Refugee Status Assessment (“RSA”) on 13 August 2010. That assessment was adverse to him. His migration agent applied for an Independent Merits Review (“IMR”) on 31 December 2012 (CB p.85). The Independent Merits Review Assessment (“IMRA”), also was adverse to him (CB p.126).
By application dated 24 April 2012, the applicant seeks judicial review of the IMRA, that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the “Convention”).
The grounds of the application to the Court are set out in the application as follows:
(1)The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicants not be recognised as a person to whom Australia owes protection obligations, the IMR was not procedurally fair.
(2)The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicants not be recognised as a person to whom Australia owes protection obligations, the IMR did not proceed by reference to correct legal principles, correctly applied.
The applicant seeks an extension of time in which to bring his application to the Court. An extension of time is not required.
As a result of the decision in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26, an extension of time is not necessary and no occasion arises for the Court to exercise any power under s.477(2) of the Act. The Court refers to [46] of the decision as follows:
“We conclude that, because the Minister has not yet made any decision and, as Plaintiff M61 decided at 353 [77], need not take account of the assessments and recommendations, the injunctions sought are not in relation to a migration decision in respect of which an extension of time must be granted because any such decision is yet to be made by the Minister and will be in the future. Thus, no occasion arose for the Federal Magistrates Court to exercise any power under s 477(2). No doubt due to the focus of the parties on the issue of an extension of time, that Court was led to misconceive the nature of the applications by dealing with them under s 477(2). The applications require determination on the merits”.
By orders dated 3 August 2012, the applicant was ordered to file and serve written submission and a list of authorities to be relied on by him by 20 August 2012. Those documents were not filed and served.
Ground one alleges that the Independent Merits Review was not procedurally fair. No particulars are given of that ground. The Court finds that the IMR dealt with each of the applicant’s claims including those made by his migration agent. Ground one has not been established, and is dismissed.
Ground two alleges that the assessment of the IMR was:
“affected by legal error in that in recommending that the applicant not be recognised as a person to whom Australia has protection obligations, the IMR did not proceed by reference to correct legal principles, correctly applied”.
Again, no particulars of that allegation have been provided by the applicant.
Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”.
A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.
It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. The Court finds that that principle applies to the IMR. The IMR did not accept much of the applicant’s evidence.
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”.
In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40]:
“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened”.
And at [84]:
“Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant’s case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider”. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40].
The IMR did not accept that:
·Adel Sahab Ali Wahab (“Adel”) (being the person alleged to be behind the killing of the applicant’s father and brother), and his men were motivated by tribal differences (CB p.122.5).
·The applicant fears serious harm on account of his family’s membership of Al Hazoory (and/or Al Ithneim) tribe or as a person subject to tribal law in Iraq (CB p.122.7).
·The applicant would be imputed with having a political opinion that was Ba’athist political opinion or anti-Al Dawa or anti-Adel (CB 123 – 125).
·The police conduct of failing to take action of his father’s death was affected by his father’s membership of the Ba’ath Party (CB p.125.5).
·The applicant would be persecuted if he returned to Iraq on account of his Shi’a faith (CB p.123.8).
·The conjecture by the applicant’s family as to the identity of the person responsible for the applicant’s brother’s death (CB p.123.2).
·The applicant is at any risk from Adel, as he has achieved his goal of having the applicant and his family vacate the disputed land (CB p.123.4).
·There is a real chance that the applicant will be subjected to generalised violence and insecurity if he returns to Iraq, and even if he is, that would not be for a Refugee Convention reason (CB p.125.7).
The IMR found that there is not a real chance that the applicant will be harmed by Adel now, or in the reasonably foreseeable (CB p.123.5).
The IMR found that there is no objective basis for the applicant to fear harm for reason of his actual or imputed political opinion as a Ba’athist (CB p.123.7).
The IMR found that no information has been provided as to why the applicant would be subject to persecution involving systematic and discriminatory conduct because of his Shi’a religion (CB p.123.8).
The IMR found that the sole reason for the harm suffered by the applicant in the past, was because he and his family refused to vacate the disputed land, and thus the essential and significant motivation was criminal self interest in Adel re-acquiring the land and not for any Convention related reason, as required by s.91R(1)(a) of the Migration Act 1958 (the “Act”) (CB p.125.8).
The above findings of fact were open to the IMR and are not amenable to review.
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”. 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 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”.
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 from the State of New South Wales 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 (supra)”.
A wrong finding of fact is not a jurisdictional error Quin (supra) at 35-36 per Brennan J.
The finding that the sole reason for the harm suffered was not Convention related is an independent and unimpeachable basis for the decision.
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. 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].
As stated by Kirby J in SZBYR (supra) 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”.
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].
Even if there was a denial of procedural fairness in this case, and the Court does not find that there was, relief would be denied as a matter of discretion.
Neither ground for judicial review has been established. Both grounds are dismissed.
The application for judicial review is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date: 29 January 2013