MZZAS v Minister for Immigration

[2013] FCCA 184

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZAS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 184

Catchwords:
MIGRATION – Judicial review – Tribunal free to accept/reject evidence – merits review not available – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(aa), 474
Federal Circuit Court Rules 2001, sch.1

Cases Cited:
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 the Minister of Immigration and Ethnic Affairs [1995] FCA 1682
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & 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 VSAF of 2003[2005] FCAFC 73
Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant: MZZAS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1158 of 2012

Judgment of: Judge F. Turner

Hearing date: 9 April 2013

Date of Last Submission: 9 April 2013

Delivered at: Melbourne

Delivered on: 9 April 2013

REPRESENTATION

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

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1158 of 2012

MZZAS

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) which confirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Court Book (“CB”) p.98).

2. The grounds in the application for judicial review are as follows:

   (1)The officer of RRT said I had no understanding about the persecution my dad suffered, that was because my family in China didn’t want me to worry about them, they didn’t tell me and wanted me to focus on my study.

   (2)My family was afraid that I might go back to China in a fit of anger, and then got (sic “get”) persecuted.

   (3)I am a Christian, the things I do in the church are mostly to communicate with other members of the church, and get inspired by them.

3. By orders made on 7 November 2012 the applicant was ordered to file and serve Written Submissions by 21 December 2012. Those submissions were not filed and served. The applicant was asked by the Court why they were not served, but he offered no explanation. The first respondent filed and served Contentions of Fact and Law on 4 February 2013.

4. At the hearing before the Court the applicant was self-represented and Mr Brown appeared on behalf of the first respondent. The Court invited the applicant to put submissions in support of his application but he declined to do so.

5. The applicant stated that he had not seen the first respondent’s written Contentions of Fact and Law. The matter was stood down to enable the interpreter to read that document to the applicant. The Court invited the applicant again to make submissions, but he declined to do so.

6. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

   “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 the merits of the case put to the Tribunal.”

7. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:

   “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.”

8. The Court refers to the following decisions:

   ·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and R D Nicholson JJ.

   ·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

   ·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:

   “… there is no error of law… in making a wrong finding of fact…”.

9. In Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 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.”

10. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & 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.”

11. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26]:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (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.”

12. The Court refers to the following passages in Attorney – General for the State of New South Wales v Quin (1990) 170 CLR 1 at pp.35 to 36:

    The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modem development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case

13. The issues the applicant seeks to agitate are 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 enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has 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] FCA 719; (1999) 93 FCR 220 at [146]:

    A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka[1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] 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.”

14. The Court finds that the finding that the applicant was not credible and his claims untrue, are findings of fact par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR at [67]

15. The Tribunal summarised the applicant’s claims at CB p.96 [63] as follows:

    “The bases for the applicant’s claims are two-fold.  Firstly he claims that his father was unfairly charged with a crime he did not commit, that he was arrested, detained, tortured, convicted and imprisoned. He claims his brother has been followed. He claims that the reason for the harm suffered is because of his father’s membership of a social group, or his political opinion. He could not name which social group that might be, or how his father’s persecution could be related to any political opinion. In his application he claimed that his father was falsely accused of a crime because he was owed money by a farmer-neighbour, whose relative was a policeman. Secondly, the applicant claims to be a Christian. He claims that he will suffer harm if he is returned to China.”

16. The Tribunal found the applicant’s case to be vague and lacking in detail (CB p.96.10). An applicant to the Tribunal must prove their case to the satisfaction of the Tribunal – the applicant here did not do that.

17. Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.

18. The Court refers to the following decisions:

    ·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:

    “… 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 persuade the reviewing decision-maker 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: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.

    ·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.

    ·Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

19. The Court applies the decision SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 where the reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application [in SZIGQ (supra)] to be rejected.

20. As to the ground that the Tribunal found, that the applicant had “no understanding about the persecution his dad suffered”, that finding of fact was open to the Tribunal, and is not amenable to review.

21. The Tribunal found that the applicant:

    ·Did not know where his father’s farm was (CB p.96.10);

    ·Did not know where the tractor tracks were (CB p.93.10);

    ·Could not state for how long his father was detained (CB p.97.1);

    ·Could not say how his father was tortured (CB p.97.1);

    ·Could not say in what way his father was injured or whether he required medical treatment (CB p.97.2);

    ·Did not know when his father was charged, when or where the case was heard, the evidence on which he was convicted or when he was convicted (CB p.97.2); and

    ·Did not know where his father was imprisoned (CB p.97.2).

22. The Tribunal found that the applicant’s evidence about his brother’s surveillance was extremely sketchy (CB p.97.3).

23. The decision shows that the Tribunal considered the evidence concerning the claim about the persecution of the applicant’s father. It rejected that claim for the reasons stated.

24. 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.”

25. Ground one is dismissed.

26. The Tribunal had serious concerns about the applicant’s credibility as shown at CB p.97.4 and p.97.8. The applicant’s claims to the Tribunal rested on his father being a farmer, but the applicant’s application for a student visa stated that his father was not a farmer and has worked as a General Manager since 2004 (CB p.97.5). The Tribunal did not accept the applicant’s explanation for this. The Tribunal was entitled to reject that explanation: Lee (supra). Given the concerns about credibility and the vagueness and lack of detail of the evidence, the Tribunal did not accept any of the applicant’s claims. That rejection of evidence is not amenable to review. The Court again refers to the decision in Lee (supra).

27. In W148/00A (supra), 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.”

28. The Court does not find here 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.

29. The Court refers to the following decisions:

    ·Durairajasingham (supra) at [67]:

    “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 the 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.”

    The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact par excellence.

    ·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai (supra) at pp.558 to 559 and W148/00A (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.

    ·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Wu Shan Liang (supra) at p.272.

    ·Abebe (supra) at [137]:

    “… there is no error of law… in making a wrong finding of fact…”.

1. In Kopalapillai (supra) at pp.558 to 559 the Full Federal Court said:

   “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 explanations 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 assessment 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.”

2. The Tribunal was not satisfied that the applicant’s father was a farmer (CB p.97.8). It did not accept that the applicant’s father was charged with theft (CB p.97.8). It did not accept that the applicant’s father was targeted by police or public security (CB p.97.8). It did not accept that the applicant’s father was arrested, detained, tortured, charged, tried, convicted or imprisoned (CB p.97.9). It did not accept that the applicant had ever been a Christian, practised the Christian faith in Australia or elsewhere (CB p.97.9)

3. The Tribunal was entitled to accept or reject that evidence: see Lee (supra). Those findings of fact are not amenable to review. The Tribunal was not satisfied that the applicant or any of his family has ever been targeted or experienced difficulties with the Chinese authorities (CB p.98.1). The Tribunal did not accept that any member of the applicant’s family would suffer harm as claimed (CB p.98.2).

4. Ground two has not been established and is dismissed.

5. The Tribunal was not satisfied that the applicant faces a real chance of being persecuted for reasons of his association with his father, reputed political opinion, religion or any other convention reason (CB p.98.2). That finding is not amenable to review. 

6. The Tribunal considered the applicant’s claim arising from membership of a particular social group which it found to be a group of “persons who are owed money by family members of the police” (CB p.98.3). But the Tribunal was not satisfied that the applicant or his family are members of that group or that the applicant would face a real chance of suffering serious harm in China for reason of membership of the group (CB p.98.4). That finding of fact is not amenable to review.

7. The Tribunal also considered the applicant’s claim to be a Christian and rejected it. The Tribunal was free to accept or reject that evidence.

8. Ground three has not been established and is dismissed.

9. The Tribunal then considered whether the applicant might meet the alternative criterion for protection under the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958 (the “Act”).

10. As the Tribunal was not satisfied that the applicant is at real risk of suffering significant harm if he were to return to China, the Tribunal was not satisfied that he met the criterion in s.36(2)(aa) (CB p.98.5).

11. The Court finds no error of law in that conclusion.

12. The Court finds that the applicant was afforded procedural fairness. The Tribunal gave him the opportunity to comment on the significant matters that the Tribunal considered would adversely affect his case. The Court refers to the following passages between pp.91 and 96 of the CB at [34], [35], [38], [39], [41], [52], [53], [54], [56], [57] and [59] The Court finds no error of law by the Tribunal.

13. The Court find’s 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.

14. The application for judicial review is dismissed.

15. The Minister has been successful in this case. Mr Brown seeks that the applicant pay the Minister’s costs of $6,471.00 which is the amount set out in Schedule 1of the Federal Circuit Court Rules 2001.

16. The Court orders the applicant pay the first respondent’s costs of $6,471.00.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Date:  2 May 2013