MZYXT v Minister for Immigration
[2012] FMCA 923
•19 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYXT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 923 |
| MIGRATION – Review of decision by the Refugee Review Tribunal – application of s.424A(1) and s.424A(3)(a) of the Migration Act 1958 – no obligation to make further enquiries – application dismissed. |
| Migration Act 1958 (Cth), ss.65(1), 422B, 424A(1), 424A(3)(a) |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Citizenship v SZMDS and Anor (2010) 240 CLR 611 |
| Applicant: | MZYXT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 527 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 19 September 2012 |
| Date of Last Submission: | 19 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 19 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr Petrie |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed 4 May 2012 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 527 of 2012
| MZYXT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 April 2012. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection (Class XA) visa. The Applicant seeks orders quashing the decision of the Tribunal and a writ of mandamus directing the Tribunal to determine the application according to law.
Background
The Applicant is a citizen of China who arrived in Australia on 27 September 2007. On 19 August 2011, he applied to the Department of Immigration and Citizenship (“the Department”) for a protection visa. In a written statement annexed to his visa application, the Applicant claimed to have a well-founded fear of being persecuted in China by reason of his religion as a Christian. On 17 October 2011, the Applicant attended a telephone interview with a delegate of the Minister, and a summary of the evidence given and arguments presented by the Applicant at that interview are contained in the Court Book at pages 88 and 89.
By a decision dated 25 October 2011, the delegate refused to grant the visa. On 21 November 2011, the Applicant applied to the Tribunal for a review of the delegate’s decision. The Tribunal invited the Applicant to appear before it on 6 February 2012 to give evidence and present arguments. In a letter to the Applicant, the Tribunal informed him that it had considered the material before it, but that it was unable to make a favourable decision on that information alone.
The Applicant appeared before the Tribunal on 6 February, but the hearing was adjourned to allow him to attend a further hearing with his representative in attendance. The Applicant appeared before the Tribunal on 27 February 2012, although that hearing was not completed, and the matter was again adjourned. The Applicant subsequently appeared before the Tribunal on 5 March 2012. At the hearing, the Applicant gave evidence and presented arguments regarding his beliefs in the ‘local church’, amongst other things.
Following that hearing, on 6 March 2012, the Tribunal invited the Applicant to comment on or respond to country information regarding the ‘local church’ and prayer reading which the Tribunal considered would, subject to the Applicant’s comments or response, be the reason or part of the reason for affirming the decision. In addition, the Tribunal invited the Applicant to provide the Tribunal with further information in support of his claims regarding the intention of his partner and child to accompany him back to China if he were to be returned, and also his attendance at the ‘local church’.
By a further letter dated 13 March 2012, the Tribunal invited the Applicant to make written submissions with respect to the complementary protection criteria contained in the Migration Act 1958 (Cth) (“the Act”), which was to commence operation on 24 March 2012. The Applicant did not respond to the Tribunal’s letter of 13 March. In response to the Tribunal’s letter of 6 March 2012, the Applicant provided the Tribunal with a written statement dated 18 March, a written statement by the Applicant’s de facto wife, and a statement from the ‘Church in Melbourne’.
On 19 April 2012, the Tribunal made a decision affirming the delegate’s decision, and on 4 May, the Applicant lodged this application for judicial review.
The Tribunal’s decision
The Tribunal found that the Applicant was a citizen of China. Given inconsistencies in the Applicant’s evidence, the Tribunal was not satisfied that the Applicant’s father had been of interest to the Chinese authorities in the past.
The Tribunal accepted that the Applicant had been involved in ‘local church’ activities in Melbourne since June or July 2011, although the Tribunal noted that the Applicant’s evidence about his involvement indicated that his involvement was of a low level. The Tribunal did not find the evidence of the Applicant to be credible that he would face persecution if he returned to China. The Tribunal did not accept as credible the Applicant’s claim that his room was searched when he returned to China in November 2008, and that he was questioned as to the whereabouts of his father.
The Tribunal did not find the evidence of the Applicant to credible that he feared he would be arrested and detained by authorities if he were to return to China. Accordingly, the Tribunal did not accept that there was a real chance that the Applicant would face persecution if he returned to Fujian Province in China at the time of the Tribunal’s decision or in the reasonably foreseeable future.
Grounds of review
The Applicant relies on the following grounds in the application for review:
(a)The Tribunal did not observe procedural fairness requirements, in that the presiding member did not give the review Applicant an opportunity to consider and comment on adverse information that was relevant and significant to the decision that was made in his protection visa application. The Applicant refers to paragraphs 56 to 59 of the Tribunal’s decision in that respect.
(b)The Tribunal constituted jurisdictional error by reaching incorrect conclusions and reaching a decision without making further inquiries. In particular, in paragraph 67, the Tribunal does not accept the Applicant’s evidence that his father was subject to any persecution on the basis of his Christian activities, and in paragraph 64, the Tribunal finds it implausible that both the Applicant and his partner state that the partner and child will return with the Applicant to China, although that would jeopardise the safety of the partner and child.
The Applicant did not seek to amend the grounds and made no written submissions prior to the hearing. The Applicant was invited by the Court to address the grounds, and provided a written submission. To a significant extent, that submission repeats the grounds as previously provided. In particular, in the written submissions, and in further oral submissions, the Applicant claimed that all the country information that was going to be used by the Tribunal should have been disclosed to him.
In relation to the Tribunal reaching incorrect conclusions, the Applicant appears to submit that the Tribunal’s conclusion that it was not plausible his partner and child would return to China with him despite jeopardy to their own safety failed to take into account what he referred to as Chinese ‘family values’. On the issue of the conclusions reached by the Tribunal concerning the Applicant’s father, the Applicant submitted that the Tribunal made that decision without conducting any investigation.
The First Respondent’s submissions
The First Respondent deals firstly with the question of whether the Tribunal was required to put country information to the Applicant for his comment or response. The First Respondent submits that the rules of procedural fairness depend on Division 4 of Part 7 of the Act. This Division articulates the legislative regime applicable to the conduct of a review by the Tribunal. Section 422B of the Act states that Division 4 of Part 7 is an exhaustive statement of the requirements of natural justice.
Pursuant to s.424A(1) of the Act, the Tribunal must give the Applicant particulars of information that would be the reason, or part of the reason, for affirming the decision under review. However, this section does not apply to information that is not specifically about the Applicant, that the Applicant gave for the purpose of the application, or that is non-disclosable. The Tribunal was not required to put to the Applicant the information contained in paragraphs 56 to 59 of the decision, as country information falls within the exception in s.424A(3)(a) of the Act.[1]
[1] VHAP of 2002 v Minister for Immigration [2004] FCAFC 82.
In relation to the ground concerning the Tribunal’s findings, the First Respondent says to the extent the Applicant alleges that the Tribunal fell into error by making an incorrect finding of fact, the First Respondent submits there is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact.[2]
[2] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137].
To the extent the Applicant alleges that the Tribunal’s conclusions were founded on illogical and/or irrational reasons, then the Applicant must demonstrate that the decision is one which no rational or logical decision-maker could arrive at on the same evidence.[3]
[3] Minister for Immigration and Citizenship v SZMDS and Anor (2010) 240 CLR 611 at [130].
The First Respondent submits that the findings made by the Tribunal were open to it on the evidence that was before it. To the extent the Applicant takes issue with the Tribunal’s credibility findings, the First Respondent submits that such findings are findings of facts on the merits of the case and within the Tribunal’s exclusive jurisdiction.[4] So long as the credibility findings made by the Tribunal are reasonably open to it, no jurisdictional error can be found to exist in relation to them.[5] The First Respondent submits that the Tribunal’s finding with respect to the Applicant’s credibility were clearly open to the Tribunal on the evidence before it.
[4] SZAXF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1464 at [31].
[5] Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547.
In relation to whether the Tribunal was required to make further enquiries, the First Respondent submits that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by a constructive failure to exercise jurisdiction.[6] In the present case, however, there is nothing to suggest that the Tribunal ought to have made an obvious enquiry regarding a critical fact.
[6] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]-[26].
Moreover, the Applicant has not specified the information for which he alleges the Tribunal ought to have made further enquiries, and accordingly the information could not be said to be easily ascertainable. It was for the Applicant to provide all the relevant information and evidence in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The First Respondent submits the application should be dismissed with costs.
Conclusions
Section 65(1) of the Act provides that a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. In this case, the Tribunal was not satisfied that the Applicant met the visa criteria. It is not the role of this Court to review the merit of that decision.
The Applicant has submitted the following grounds of review:
i)That he was denied procedural fairness because he was not given an opportunity to consider and comment on adverse information, that information being identified as country information contained at paragraphs 56 to 59 of the Reasons for Decision;
ii)That the Tribunal reached incorrect conclusions in relation to paragraphs 64 and 67 of its decision; and
iii)That the Tribunal failed to make further enquiries.
In relation to the first of these matters, it is clear that the Tribunal put the Applicant on notice that his involvement in the ‘local church’ was an issue of relevance to its determination. The Applicant addressed this himself in his own submissions to the Tribunal, and also in terms of what he put to the delegate. The Applicant had a number of opportunities to put before the Tribunal whatever information he wished to about the ‘local church’. Pursuant to s.424A(1), the Tribunal must give the Applicant particulars of information that would be the reason, or part of the reason, for affirming a decision under review.
There are, however, exemptions to the information to which s.424A(1) of the Act applies. Specifically, s.424A(3)(a) of the Act excludes from the operation of s.424A(1) information which is not specifically about the applicant. The country information relied upon by the Tribunal was general in its nature. The Tribunal was therefore not required to put that information to the Applicant and to seek his comment.
The second part of the application asserts that the Tribunal reached incorrect conclusions. It is not the role of the Court to determine the correctness of the Tribunal’s conclusions. The correctness or otherwise of the Tribunal’s conclusions is only an issue for the Court if it can be said that the findings of the Tribunal were based on no evidence or that the Tribunal’s finding is one to which no logical or rational decision-maker could come, based on the same evidence.
The Applicant refers to two specific conclusions reached by the Tribunal in this respect:
·The Tribunal’s conclusion that it was implausible that the Applicant’s partner and child would return to China with him, even though that would jeopardise their safety; and
·The Tribunal’s finding that the evidence of the Applicant that his father faced persecution in China because of his Christian religion was not credible.
Both of these findings are findings of credibility. Such findings are matters within the exclusive jurisdiction of the Tribunal. It appears from the Applicant’s oral submissions today that he contends that the Tribunal did not consider Chinese ‘family values’ in reaching its conclusion that the Applicant’s partner and child would not return to China with him at the cost of their own safety. On the material before the Tribunal, that was a conclusion reasonably open to the Tribunal to make. It is consistent with the evidence before the Tribunal in relation to the Applicant’s own family which was separated for reasons of safety. If the Applicant wished to argue that Chinese ‘family values’ would dictate that his partner and child would submit themselves to danger rather than be separated from him, then this was an argument for him to make.
The last point raised by the Applicant alleges that the Tribunal reached a decision without making further enquiries. The Tribunal is not, as a general rule, required to make further enquiries. It is up to the applicant to put before the Tribunal the matters which he or she considers the Tribunal should take into account. An exception exists where the Tribunal fails to make an obvious enquiry about a critical fact, the existence of which is easy to ascertain. It is not clear what information the Applicant contends was easily ascertainable by the Tribunal; was an obvious enquiry; and which might have been determinative in relation to a critical finding by the Tribunal.
From the Applicant’s oral submission, he appears to suggest that the Tribunal should have investigated his father’s case. First, the Tribunal reached its conclusions about his father based on inconsistencies in the evidence presented by the Applicant himself. Second, the Tribunal had no obligation to investigate his father’s case, particularly as on the material before the Tribunal, the Applicant’s father’s case had already been the subject of a separate claim.
The Tribunal was entitled to rely on the information provided by the Applicant, relevant country information, and its own assessment of the Applicant’s credibility in reaching its conclusions. I am not satisfied that it failed to carry out its statutory functions in reaching the decision it made.
For these reasons the application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 4 October 2012
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