MZYZA v Minister for Immigration - [2013] FMCA 15

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYZA v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 15

MIGRATION – Refugee Review Tribunal – failure to consider significant item of evidence – jurisdictional error.

Migration Act 1958 ss.36(2)(aa), 424AA

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] ALMD 6892; [2010] FCAFC 51
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALRJ 1165; (2003) 73 ALD 1; (2003) 198 ALR 59; [2003] ALMD 5516; [2003] ALMD 5845; [2003] HCA 30
Reece v Webber (2011) 192 FCR 254; (2011) 276 ALR 196; [2011] FCAFC 33
SXRBv Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 14
SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25; [2009] ALMD 1339; [2008] FCA 1638
SZOYH v Minister for Immigration and Citizenship (2012) 128 ALD 554; [2012] FCA 713
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs, (2004) 80 ALD 568; [2005] ALMD 3263; [2004] FCAFC 74

Applicant:

MZYZA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 795 of 2012

Judgment of:

Riley FM

Hearing date:

6 December 2012

Date of last submission:

13 December 2012

Delivered at:

Melbourne

Delivered on:

24 January 2013

REPRESENTATION

Counsel for the Applicant:

The applicant appeared in person

Solicitors for the Applicant:

The applicant was not represented

Advocate for the First Respondent:

Nick Wood, until he was excused, when Ben Petrie appeared.

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The decision of the Refugee Review Tribunal handed down on 1 June 2012 be set aside.
The matter be remitted to the Refugee Review Tribunal for determination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 795 of 2012

MZYZA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal.
The applicant is a citizen of India. He arrived in Australia on

3 October 2008 on a student visa. After that visa expired, the applicant applied for another student visa, which was refused by a delegate of the Minister. The applicant then sought review by the Migration Review Tribunal, which affirmed the decision of the delegate. The applicant then sought ministerial intervention, which was unsuccessful. The applicant then applied on 4 October 2011 for a protection visa.
The applicant claimed that:
a)he was a Catholic;
b)he was a member of the Democratic Youth Federation of India (“DYFI”), which is a subsidiary of the Communist Party of India (Marxist) (“CPI(M)”);
c)when he finished year 12, he was elected as Local Area Secretary of the DYFI;
d)he was threatened with death by members of the Hindu Bharathiya Janthadal Party (“BJP”);
e)the applicant led protests against the BJP’s attempts to convert…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCA 15
Decision Date

CaseChat Overview and Summary

The case of MZYZA v Minister for Immigration involved the applicant, MZYZA, appealing against the decision of the Refugee Review Tribunal (RRT) to reject her application for a protection visa. The dispute centred on the RRT's handling of certain evidence, particularly a letter which the applicant claimed corroborated her assertions regarding her membership in the DYFI (Democratic Youth Federation of India). The matter was heard in the Federal Court of Australia.

The central legal issues in the case were whether the RRT's failure to consider the letter amounted to a jurisdictional error and whether the RRT should have taken into account the letter when assessing the applicant's credibility. The first respondent argued that the RRT's failure to consider the letter did not constitute a jurisdictional error, citing the precedent set in SZOYH v Minister for Immigration and Citizenship. However, the court found that the letter was an overwhelming piece of evidence concerning the applicant's membership in the DYFI and that its consideration might have affected the outcome. Therefore, the court concluded that the RRT's failure to consider the letter did indeed constitute a jurisdictional error.

The court's reasoning was grounded in the principles established in previous cases such as SZOYH and SXRB. It was determined that the RRT should have had regard to the letter when assessing the applicant's credibility. The court emphasized that while the well may not be poisoned in every case, there are rare exceptions where corroborating evidence could be dismissed. In this instance, the circumstances did not fall into such an exception. Consequently, the court found that the first ground of review was made out.

In summary, the Federal Court found that the RRT erred in not considering the letter when assessing the applicant's credibility. This error was held to be jurisdictional, leading to the conclusion that the RRT's decision was flawed. The court's final orders would likely include a direction for the RRT to reconsider the applicant's case, taking into account the previously overlooked letter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The first respondent then argued that, if the Tribunal did fail to consider the letter that failure did not amount to jurisdictional error. The first respondent relied on SZOYH v Minister for Immigration and Citizenship (2012) 128 ALD 554; [2012] FCA 713 at [36] to [38], which state as follows:[36]Aside from such an essential component or integer of an applicant’s claim, the Tribunal has no obligation “to refer to, or adequately to consider, evidence, whether or not it might be thought probative”: see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24] per Kenny J and the cases referred to there. Accordingly, its failure to do so does not give rise to jurisdictional error.[37] In SXRB, Lander J described the difference between an integer and evidence in these terms (at [32]–[33]) as follows:[32] The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa. Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.[33] Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial. The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself. It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived...(Emphasis added)[38]It follows that whether a piece of evidence is of the kind that has to be considered by the Tribunal, depends on the nature of the evidence concerned, either considered alone, or in combination with other evidence, and its significance in terms of the possible effect it may have on the result of the Tribunal’s deliberations. In my view, the letter, if genuine, was an overwhelming piece of evidence in relation to the applicant’s membership of the DYFI. Even so, the first respondent argued that a consideration of the letter may have led to a conclusion that the applicant was a member of the DYFI, but would not have altered the Tribunal’s ultimate conclusion. However, SXRB speaks of whether the evidence “might have” affected the result and the “possible effect” on the result. It seems to me that, if the Tribunal had considered the letter, it may have decided that it was genuine, and it may then have found that the applicant was a member and spokesperson of the DYFI, and may have then considered that the implausibility’s it identified were not of any great moment. Consequently, the letter “might have” affected the result. Based on SXRB, I consider that the first ground is made out. Additionally, as explained in SZDGC, I consider that the Tribunal should have had regard to the letter when assessing the applicant’s credibility. This does not seem to me to be one of those rare cases in which the well was so poisoned that corroborating evidence could be blandly dismissed or one of those even more rare cases where corroborating evidence could be overlooked entirely.

Decision

Reasons for decision

In any event, S20/2002 was considered in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25; [2009] ALMD 1339; [2008] FCA 1638. In that case, Finkelstein J said at [23] to [27]: [23]It is only necessary to deal briefly with the second ground. The complaint is that the tribunal failed to "consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding". I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49] McHugh and Gummow JJ said "it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.24 For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said at [27]:Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied ... it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 at [82]- [85] per McHugh, Gummow and Hayne JJ. (emphasis added)25 The appellant submitted that the conclusion that she had lied to the tribunal was based on the operation of Chinese law relating to the exit and entry of citizens and the issue of passports in circumstances where she had told to the tribunal that (a) she had only been administratively detained after her request for permission to hold a work related protest; (b) she had given an undertaking to persuade those unemployed workers to not engage in any protests in the future; (c) she had not come under any further adverse notice and was not actively sought until after her departure; (d) her application for the second passport was filed before her detention through a friend and money was involved; (e) her Australian visa was obtained through a secret member in the Tourism Bureau of Qingdao City; (f) Chinese law provides for cancellation of the passports of those who have been involved in activities that are endangering the safely, the honour and the interest of the country; and (g) some of the country information speaks only of the probability that a person who has obtained a Chinese passport and exit permit would not be on wanted lists.26 I am in no doubt that, contrary to the views of the Magistrate, the tribunal should have had regard to the documents put forward by the appellant in order to assess her credibility. In its reasons the tribunal explained how it would have regard to the documents. It said:The applicant has claimed in her most recent submission that: The documentary evidences [sic] that I have previously submitted is true and important evidence in support of my claims. The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic.27 This is not a rational approach. Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S20/2002 category. It plainly did not fall into that category. (emphasis added)

Ratio Decidendi

Legal Principle Established

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