MZZET v Minister for Immigration

[2014] FCCA 915

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZET v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 915

Catchwords:
MIGRATION – Judicial review dismissed for failure to attend – reinstated – whether breach of s.424A – merits review not available – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 422B, 424A

Federal Circuit Court Rules 2001, rr.13.03C, 44.12

Abebe v Commonwealth (1999) 197 CLR 510
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
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: MZZET

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1682 of 2012

Judgment of: Judge F. Turner

Hearing date: 9 April 2014

Date of Last Submission: 9 April 2014

Delivered at: Melbourne

Delivered on: 9 April 2014

REPRESENTATION

The Applicant appearing 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 31 December 2012 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,313.00.

3. All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1682 of 2012

MZZET

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 30 November 2012. That decision affirmed the decision of the delegate to the Minister not to grant the applicant a Protection (Class XA) visa.

2. The hearing of the matter was listed previously before Judge Burchardt. As a result of confusion by the applicant as to the correct hearing date, he did not appear before Judge Burchardt, who dismissed the application by reason of the applicant’s non-attendance on 18 October 2013. That was done pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (the “Rules”).

3. The applicant lodged an Application in a Case on 15 November 2013 seeking to set aside the orders of 18 October 2013. Judge Burchardt heard that application on 6 December 2013 and ordered that the orders of 18 October 2013 be set aside, and that the application for judicial review be heard by another Judge.

4. Pursuant to the orders of Registrar Caporale on 20 February 2013, a hearing under r.44.12 was dispensed with. The application for judicial review, therefore, comes before the Court today as a final hearing.

5. The applicant is self-represented and the first respondent is represented by Mr Wood of Counsel.

6. The grounds for the application for judicial review are set out in the application as follows:

   (1)The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in India. The Tribunal used this information (RRT decision record pages 9 to 18). This was against section 424A of the Migration Act 1958.

   (2)The Tribunal had no jurisdiction to make the said decision because its unreasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

   (3)The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidation pressure from Akali Dal members.

   (4)The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claim were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

7. The applicant has not filed and served written submissions as ordered by Registrar Caporale, although he says that he has. They are not on the Court file and Mr Wood says his client has not received such submissions.

8. The Court invited the applicant to put oral submissions to it in support of his application. The applicant seeks to put what appear to be extracts from newspaper articles to the Court today. The applicant states that those newspaper articles were not put before the Tribunal.  The Court has refused to accept that material and refers to the decision in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145, that an applicant for judicial review is confined to material put before the Tribunal.

9. The first respondent filed and served written submissions on

   
   

   11 October 2013.  Mr Wood has stated that he is content for the Court to deal with the matter on the basis of the documents on file without hearing oral submissions.

Ground One

1. Ground 1of the application alleges that the Tribunal breached s.424A of the Migration Act 1958 (the “Act”), by failing to give the applicant before the hearing details of independent information that it had about politics in India. That information is referred to under the heading Country Information (Court Book “CB” pp.158 to 168).

2. Section 424A provides:

   (1)Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   (2)The information and invitation must be given to the applicant:

   (a)except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)that is non-disclosable information.

3. The Court has examined the details set out between CB pp.158 and 168, and finds that the information is not specifically about the applicant or another person, and is covered by the exemption in s.424A(3)(a).

4. The Court finds that the Tribunal did not breach s.424A by failing to give the applicant details of that information.

5. Ground 1 is dismissed.

Ground Two

1. Ground 2 of the application alleges that the Tribunal had no jurisdiction to make the decision because “its unreasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.”

2. Nothing has been put to the Court to support this ground. An error of law has not been established.

3. Ground 2 is dismissed.

Ground Three

1. Ground 3 claims that the Tribunal’s decision was “unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidation pressure from Akali Dal members”.

2. The Court finds that this ground is an attempt at merits review, which is not possible on judicial review.

3. 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.”

4. And at [11]:

   “By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”

5. 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.”

6. The Court refers to the following decisions:

   ·Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J 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.”

   ·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 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…”.

7. 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.”

8. Ground 3 is seeking an impermissible merits review and is dismissed.

Ground Four

1. Ground 4 claims that the applicant was denied procedural fairness by the Tribunal reaching adverse conclusions that certain aspects of his claims were implausible. The Tribunal did not make that finding. Even if it did, the Court refers to the decision in Durairajasingham (supra) and the approval of the description “implausible” in that decision. The Court dismisses that objection.

2. Ground 4 then asserts that the Tribunal reached conclusions that were not obviously open on the known material. That is another attempt at merits review. That objection is dismissed.

3. Ground 4 then asserts that conclusions were reached without giving the applicant an opportunity to be heard in respect of those matters.

4. Section 422B of the Act provides:

   (1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   (3)In applying this Division, the Tribunal must act in a way that is fair and just.

5. The Court accepts the written Submissions of the first respondent filed 11 October 2013 as follows:

   “21. Any assessment of the applicant’s claims that the Tribunal denied him procedural fairness must be considered in the context of section 422B of the Act, which states that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   22. The Tribunal has not failed to comply with the requirements of that code. It did not breach ss 424A or 424AA. It invited the applicant to attend a hearing under s 425….”

6. That invitation appears at CB p.133. The applicant accepted that invitation (CB p.143). The applicant attended a hearing before the Tribunal (CB p.156 [43]).

7. The submissions from the first respondent continue:

   “…It adequately alerted the applicant the nature of the issues arising in relation to the decision under review (including the critical issue of the existence of effective state protection)….

8. The Court there refers to CB p.157 [48 ]:

   “The applicant was asked further about whether the state authorities could offer him protection against the harm which he alleges.”

9. The first respondent continues:

   “…It considered the applicant’s claims to invoke Australia’s protection obligations, including claims not clearly articulated by the applicant.”

10. The Court refers to CB p.169 to 170 [133] to [134], which deal with the possibility of the applicant’s membership of, or their association with, the Congress Party being characterised as membership of a particular social group.

11. The Court finds no merit in ground 4. Ground 4 is dismissed.

12. The Tribunal then considered the protection obligations of provisions in s.36(2)(aa) of the Act (CB p.171 [145]).

13. The Tribunal made a finding of fact that it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) (CB p.171).

14. That finding is not amenable to review. The court refers to the decision in NAHI (supra).

15. 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.”

16. The application for judicial review is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date:  6 May 2014