MZYYP v Minister for Immigration

Case •

[2012] FMCA 1264

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYYP v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1264
MIGRATION – Judicial review – whether natural justice denied – credibility – adverse finding – not amendable to review – findings of fact not amendable to review – ss.424A and 424AA considered – complementary protection provisions considered – application dismissed.
Migration Act 1958 (Cth), ss.36(2), 422B, 424, 474
Abebe v Commonwealth (1999) 197 CLR 510
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
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)
Kamal v Minister for Immigration 126 FCR 467
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 Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Wu ShanLiang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
MZYFH v Minister for Immigration and Citizenship [2010] FCA 559
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
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
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZBCE v Minister for Immigration & Multicultural  & Indigenous Affairs [2005] FCA 697
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SZMCD v Minister for Immigration and Citizenship (2009]) 174 FCR 415
SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Applicant: MZYYP
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: MLG 724 of 2012
Judgment of: F. Turner FM
Hearing date: 14 December 2012
Date of Last Submission: 14 December 2012
Delivered at: Melbourne
Delivered on: 14 December 2012

REPRESENTATION

The Applicant appeared In Person with the assistance of a Punjabi interpreter
Counsel for the Respondents: Mr Wood
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application for judicial review filed on 18 June 2012 is dismissed

  2. The applicant pay the first respondent’s costs fixed in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 724 of 2012

MZYYP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

  1. This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) that affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) Visa.

  2. The applicant arrived in Australia on 7 August 2009 on a Dependant Visa (Court Book “CB” p.3). He applied for a Protection Visa on 17 August 2011. The delegate refused to grant a visa by a decision dated 26 September 2011 (CB p.97). The applicant applied to the Tribunal to review the decision of the delegate on 24 October 2011 (CB p.117).

  3. The Tribunal wrote to the applicant on 29 March 2012 inviting him to appear before it on 3 May 2012 to give evidence and present argument. That letter advised the applicant that on the material before it, the Tribunal was unable to make a decision in the applicant’s favour (CB p.133). The applicant appeared at that hearing on 3 May, and on 4 May he was advised that the hearing would resume on 10 May 2012. The applicant appeared at that hearing. By a decision dated 22 May 2012 the Tribunal affirmed the decision of the delegate (CB p.154).

  4. The applicant seeks judicial review of that decision. The applicant set out the grounds in his application filed on 18 June 2012 as follows:

    (1)The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity in respect of those matters.

    (3)The Tribunal had no jurisdiction to make the said decision because “its reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

    (4)The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant’s circumstances and the consequence of the claim.

  5. The Tribunal made an adverse assessment of the credibility of the applicant (CB p.170.5 and 170.6). That finding was on the basis that the applicant’s evidence was vague and lacking in detail (CB p.167 [57] and p.169 [64]); that the evidence was simplistic and inconsistent with his alleged profile (CB p.168 [58]), and that the evidence was inconsistent (CB p.168 [58], p.169 [63] and [65] and p.170 [66]). It was also found that the evidence was implausible (CB p.169 [64] and [65]).

  6. An adverse finding of credibility is a finding of fact that is not amenable to review.

  7. In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:

“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:

If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone”.

  1. The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.

  2. 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: If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. 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 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 (supra) 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]”.

  3. The Court adopts the following statement of the law:

    “Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanation for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility finding in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist”.

  4. 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”.

  5. 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”.

  6. 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”.

  7. 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”.

  8. 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.

  9. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said at [16]:

    “I have considered all of the matters put to me.  The relevant principle is clear.  Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court.  The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal.  The Court has no jurisdiction to do so.  As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:

    “A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning.  See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.

  10. 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”.

  11. Inconsistencies in the evidence of the applicant is a relevant matter when making a credibility finding (Taylor and Guo (supra)).

  12. “It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated”. Kamal v Minister for Immigration 126 FCR 467 per Mansfield J at [36].

  13. 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”.

  14. In this matter the Tribunal did not accept the following:

    ·That the applicant was a member of the Congress Party. (CB p.167.9 and p.168.9), and found that he was not a member of that party (CB p.168.5).

    ·It did not accept that the applicant interacted with Congress Party members who visited his village (CB p.167.10)

    ·It did not accept that the membership card presented during the hearing evidences the applicant’s membership of the Congress Party (CB p.168.5)

    ·It did not accept that the applicant worked very hard for a known Congress Party representative in any assembly election (CB p.168.7).

    ·It did not accept that the applicant would be unable to recall the year in which he allegedly actively participated in the election (CB p.168.8).

    ·It did not accept that the applicant was threatened by members or workers of the Akali Dal including the Akali Dal leader (CB p.168.9).

    ·It did not accept that Akali Dal members attacked the applicant a few times and threatened his family members (CB p.168.10).

    ·It did not accept that the applicant was asked by the Akali Dal leader to join them (CB p.169.1).

    ·It did not accept that after the applicant allegedly refused to join the Akali Dal that the party accused him of being a terrorist and had a false case made against him (CB p.169.2).

    ·It did not accept that the applicant was ever arrested and beaten by the police (CB p.169.3).

    ·It did not accept that the applicant was ever arrested and detained by the police or Akali Dal (CB p.169.5).

    ·It did not accept that the applicant experienced problems from Hindu extremist groups such as the BJP, BHP or RSS (CB p.169.6).

    ·It did not accept that government agencies followed the applicant everywhere (CB p.169.9).

    ·It did not accept that the applicant was living away from his home with relatives for a year or six or seven months (CB p.170.2).

    ·It did not accept that the applicant’s failure to mention his alleged residence in Madras can be explained by feelings of stress because he was late for the first hearing (CB p.170.4).

    ·It did not accept that the applicant has had any association with the Congress Party whilst living in Australia (CB p.170.6).

    ·It did not accept that the applicant faces a real chance of persecution if he returns to India now or in the reasonably foreseeable future because of his alleged membership of the Congress Party (CB p.170.7).

    ·It did not accept that his ex-wife’s family wished to seriously or significantly harm the applicant because he did not reconcile with his ex-wife prior to their divorce (CB p.170.8).

  1. The Tribunal took into account the applicant’s delay in raising that claim and found that he does not have a genuine fear of persecution from his in-laws (CB p.170.9).

  2. A delay in making a claim is a relevant matter for the Tribunal to take into account. In Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997, the Court held that even a three month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution.

  3. The Court adopts the following statement of law.

    “Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanation for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility finding in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist”.

  4. The Tribunal made the following findings of fact:

    ·That the applicant is not a member of the Congress Party

    ·Has never been politically active and has not experienced any problems because of any political opinion held by him either from opposing political parties, Hindu extremist groups or the authorities (CB p.170.6).

    ·That the applicant’s claims are not credible (CB p170.5 and 170.6).

    ·That the applicant is not a refugee as defined in the Refugee Convention (CB p.171.1).

  5. Those findings of fact are not amenable to review. The court refers to earlier authorities cited for that principle.

  6. The Tribunal then considered whether Australia has protection obligations to the applicant under the complementary protection obligations in s.36(2)(aa) of the Migration Act 1958 (the “Act”).

  7. That subsection provides:

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    “Significant harm” is defined in s.2A as:

    (2A)  A non‑citizen will suffer significant harm if:

    (a)the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)    the non‑citizen will be subjected to torture; or

    (d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)the non‑citizen will be subjected to degrading treatment or punishment.

  8. The Tribunal did not accept that upon return to his home in India there was a real risk of the applicant being arbitrarily deprived of his life, having the death penalty being carried out of him, or being subjected to torture or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal set out the bases for those findings of fact at CB p.171.3. Those findings of fact were reasonably open to it and are not amenable to review (the Court refers to previous authorities).

  9. The Tribunal was not satisfied that the applicant met the complementary protection provisions in s.36(2)(aa) of the Act.

  10. The Tribunal then found that the applicant did not satisfy the family unit provisions in s.36(2) of the Act.

The Applicant’s Grounds

  1. The Court will now consider the applicant’s grounds in his application to the Court.

  2. The applicant claims that he was denied procedural fairness. Section 422B of the Act provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of natural justice in relation to matters within that division. This matter falls within that division. The applicant complains that the Tribunal should not have reached its finding that the claims were implausible, without giving the applicant an opportunity to comment in respect of those matters.

  3. A failure to comply with s.424AA of the Act is not a jurisdictional error as non-compliance with s.424AA will simply return the Tribunal back to s.424A of the Act. The court refers to the decisions in MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 at [31] and SZMCD v Minister for Immigration and Citizenship (2009]) 174 FCR 415 at [74], [75] and [93]-[101], for that proposition.

  4. However, as can be seen from the decision of the Tribunal, the conclusions of the Tribunal were reached after the Tribunal considered the evidence produced by the applicant (which is excluded from s.424A of the Act by subsections 3(b) or (ba)).

  5. The Tribunal was not required to give a running commentary of its deliberations.

  6. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], the joint judgment approved a statement by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 that

    “… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished”.

    Their Honours continued that:

    “Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment”.

    In any event the requirements of natural justice are limited (by s.357A or 422B) and the rules of procedural fairness do not apply to the Tribunal. Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, 225 - 229 [60]-[70].

  7. The Court refers to the decision in SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 per Justice Cowdroy at [16]-[17] as follows:

    “In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant’s evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [86] Kirby J said:

    ‘The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice’”.

    For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and Kioa v West (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11].

    “The Court is satisfied that the Tribunal’s determination of the credibility of the appellant and the truthfulness of his claims comprise obvious and natural appraisals of the material and evidence presented to it. Further the Tribunal’s findings based on country information were open to it and there is no obligation to provide the appellant with such material. Accordingly no error of the Tribunal nor of Turner FM exists, and this ground of appeal is dismissed”.

  8. As decided in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 per curiam at [89]:

    “As SZBEL makes clear (at [48]) the RRT is not obliged to provide ‘a running commentary upon what it thinks about the evidence that is given’”.

    See also SZBEL (supra).

  9. The information that the Tribunal may be required to give an applicant is limited by the Act and it’s interpretation by the Courts.

  10. As stated in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206] per Allsop J:

    “Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s.424A. The thought processes of the Tribunal may reveal the relevance of information for s.424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s.424A(1)(a), (b) or (c)”.

  11. The Court refers to the following passages in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]:

    “Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”

    does not encompass the Tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

    If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself”.

  12. “Information” covered by s.424A and s.424AA must be the same; per Tracey and Foster JJ in SZMCD (supra) at [2] and [91]:

    “… in the present case the contentious information was “country information” comprehended by s 424A(3)(a) of the Act (that is, information that was not specifically about the applicant or another person and was just about a class of persons of which the applicant or other person is a member). Accordingly, there was no duty under s.424A to give particulars of that information… Any non-compliance with s 424AA in circumstances where there was no duty otherwise imposed by s 424A, is, in my opinion, of no legal consequence.”

  13. “A failure to comply with s.424AA merely means that s.424A(2A) is not engaged and the Tribunal is not excused from compliance with s.424A. That then means the Tribunal must comply with s.424A. If the Tribunal is obliged to comply with s.424A it does not have to give the information in s.424A(3). Whichever way the Tribunal proceeds, whether under s.424A or s.424AA, the Tribunal does not have to give the information in s.424A(3). When the sections are understood that way, it can be seen that there was no reason to include the equivalent of s.424A(3) in s.424AA”.SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 per Lander J at [55].

  14. It is apparent that the Tribunal put the applicant on notice of various concerns it had about his evidence; By way of example CB p.160 [31], p.161 [34], p.162 [36], p.163 [39], p.164 [44], p.165 [45] to [47]; p.166 [49], [51] and [53].

  15. The Court finds that the applicant was afforded natural justice by the Tribunal.

  16. Ground 1 of the application for judicial review is dismissed.

  17. Ground 2 of the application (which is actually numbered 3 but will be treated as ground 2) is a general allegation of breach of the Act.

    It is for an applicant to make their case. The court asked the applicant today whether he wished to add anything to the material he had filed but the applicant did not wish to add anything. The applicant has not shown any breach of the Act.

  18. Ground 2 is dismissed.

  19. Ground 3 seeks a review of the merits of the matter. Findings of fact are not amenable to review. The Court refers to the authorities cited above. It refers also to the decision in SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 relied on by the Minister.

  20. Ground 3 is dismissed.

  21. 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.

  22. The application for judicial review is dismissed.

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

Date:  6 February 2013

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0