MZZVA v Minister for Immigration and Border Protection

[2014] FCA 1261

FEDERAL COURT OF AUSTRALIA

MZZVA v Minister for Immigration & Border Protection [2014] FCA 1261

Citation:	MZZVA v Minister for Immigration & Border Protection [2014] FCA 1261
Appeal from:	MZZVA v Minister for Immigration & Border Protection [2014] FCCA 1455
Parties:	MZZVA v MINISTER FOR IMMIGRATION & BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 363 of 2014
Judge:	PAGONE J
Date of judgment:	6 November 2014
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review – where adverse credibility findings made by Tribunal – whether Federal Circuit Court gave reasons for decision – whether Tribunal and Federal Circuit Court erred by failing to consider appellant’s claimed political opinion.
Cases cited:	SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582
Date of hearing:	6 November 2014
Date of last submissions:	6 November 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The appellant appeared in person assisted by an interpreter
Counsel for the First Respondent:	Ms E Latif with Mr D Bolkunowicz
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The second respondent submits save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 363 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZVA
Appellant

AND:

MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	6 NOVEMBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 363 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZVA
Appellant

AND:

MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PAGONE J
DATE:	6 NOVEMBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. The appellant appeals from a decision of the Federal Circuit Court of Australia made on 13 June 2014 to dismiss his application for judicial review.  The appellant had sought review of a decision of the Refugee Review Tribunal made on 8 October 2013 affirming the decision of a delegate of the Minister not to grant the appellant a protection visa.

2. The appellant is a Sri Lankan citizen of Sinhalese ethnicity who first arrived in Australia in 2007 on a student visa which expired on 30 August 2011.  He applied for a protection visa the following day, namely on 31 August 2011.  He claimed to have returned to Sri Lanka on 30 July 2011 in a statement accompanying his protection visa application, claiming that he was detained on arrival by Sri Lankan air force personnel and was questioned before being handcuffed, blindfolded and transferred to an air force camp where he was detained and beaten.  The appellant stated that he was released on 1 August 2011 and taken to a hospital where he was treated for his injuries, and then stayed with an aunt in Colombo following his discharge from hospital until he was able to flee Sri Lanka on 6 August 2011.  In his statement, the appellant attributed these events to his and his family’s political involvement in the United National Party and Democratic National Alliance, and stated that his family had been harassed and intimidated for their association with former General Sarath Fonseka. 

3. The appellant’s application for a protection visa was rejected by the Minister’s delegate on 26 October 2011.  The reasons given for refusal of the application were in essence that the delegate considered the appellant’s claims to be lacking in detail and doubted the credibility of the applicant’s account.  The appellant applied for review of the delegate’s decision on 25 November 2011.  He was invited to appear before the Tribunal to give evidence and did so with the assistance of an interpreter at three separate hearings, and also submitted two statutory declarations setting out his claims.  Evidence was also given before the Tribunal by the appellant’s mother.  The appellant was represented during the course of the Tribunal’s review process by a representative from the Asylum Seeker Resource Centre, who also made submissions on his behalf.  The Tribunal found that the appellant’s claims were not credible and for this reason was unable to accept them.  The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 30 October 2013.  The Federal Circuit Court decided against the appellant in his application to that court.  He has now appealed that decision to this Court. 

4. The appellant raises two grounds of appeal in his appeal to this Court.  The first ground of appeal is that the learned “magistrate” did not give any reasons for the dismissal of his application.  The reference to “magistrate” in this ground may be taken as referring to the learned Federal Circuit Court judge.  The ground of appeal, however, cannot be sustained in view of the learned Federal Circuit Court judge’s reasons, published on 13 June 2014.  In particular, in paragraphs 29 to 37 of the learned Federal Circuit Court judge’s published reasons for judgment there is set out the conclusions for her Honour’s decision, which are apt to, and do, explain the reasons for the outcome dismissing the appellant’s application:

   29.I am indebted to the First Respondent for the excellent explanation of the Court’s jurisdiction in this matter and for the written submissions presented.  I fear, unfortunately, from the Applicant’s submissions that he has failed to understand that the Court’s powers are limited in these matters to a consideration of whether the Tribunal made a jurisdictional error.

   30. In this matter, the findings of the Tribunal were based substantially on its view of the credibility of the Applicant’s evidence. In short, the Tribunal did not accept the Applicant’s claims because it was not satisfied of their veracity.

   31.The assessment of credit is a matter for the Tribunal.  The Court should only interfere with the Tribunal’s findings of fact based on an assessment of the Applicant’s claims if the Court is satisfied that there is no rational basis for those findings, and that there is no evidence upon which the Tribunal could reach such a view.

   32.The Tribunal raised with the Applicant serious concerns that it had about the fact that significant claims, such as his father’s disappearance in May 2011, were not raised in his statement to the Department, nor were any of the significant political activities he claimed he and his family were involved in and instances of serious harm which he claimed to have occurred prior to 2010.

   33.In its reasons for decision, the Tribunal set out its reasons for rejecting a number of the Applicant’s claims.  The Tribunal referred to contradictions in the evidence and concerns about the Applicant’s evidence.  The Tribunal’s conclusions on all aspects of the Applicant’s claims can also be sourced to its findings concerning his credibility as a witness.

   34.Even if the Tribunal made some errors in its fact-finding, these are not matters which necessarily lead to a conclusion that the Tribunal made an error of law.  There is no error of law per se in making a wrong finding of fact.  There is an exception to that general proposition where a Tribunal makes a finding that is so unreasonable that no reasonable decision-maker could have reached that conclusion on the material before them.  On the face of the decision, the Tribunal did not fall into that type of error.

   35.The Applicant has not identified the irrelevant considerations which he says the Tribunal took into account in determining his claims.  The Tribunal took into account the evidence called by the Applicant, its assessments of the truth of the Applicant’s evidence and relevant country information.

   36.In the absence of any information relied upon by the Tribunal being identified by the Applicant as irrelevant, it is difficult for the Court to conclude that the Tribunal made such an error.  Irrelevant considerations are ones which the Tribunal is prevented from having regard to, because of the subject matter, scope and purpose of the power it exercises in conducting a review of the Applicant’s claim for refugee status.

   37.I am unable to discern anything in its decision to indicate that the Tribunal strayed beyond the scope of its statutory functions in the matters it took into consideration in the conduct of the review.  For these reasons, the application must be dismissed.

   [Footnotes omitted.]

   Her Honour’s reasons are expressed sufficiently to explain, both to the litigant and to others, the basis upon which that court proceeded and the reasons why the application to review the decision of the Tribunal was dismissed by her Honour: see SZKLO v Minister for Immigration and Citizenship (2008) 247 ALR 582 per Flick J.

5. The second ground of appeal is that both her Honour and the Tribunal erred because they had not assessed the appellant’s claim about his political opinion.  A factual reassessment of the appellant’s political opinion was not a matter that was open for her Honour in the appeal to the Federal Circuit Court, but it is clear from the decision of the Tribunal, that the Tribunal did consider the very matter which the appellant in this Court claims did not happen.  It is clear from the Tribunal’s reasons, particularly at paragraph 5, that the Tribunal was aware of the claim made by the appellant, and it is clear from the reasons, beginning at paragraph 14 and concluding at paragraph 67, that the Tribunal did assess the appellant’s claim about his political opinion.  The Tribunal, however, did not accept the submissions that had been made on behalf of the appellant.  The Tribunal was not persuaded by the evidence that the appellant had given.  At paragraph 34, the Tribunal said:

   Even were the family relationship demonstrated by credible material evidence, I do not find it alone automatically determinative that the parents or applicant hold pro-Fonseka political beliefs, allegiances or acted in his support.  Nor do I accept that even imputed or close or active support for Fonseka is necessarily predictive of serious harm.  As I raised with the applicant at a hearing, I do not find relevant, independent, credible country information suggestive that those who support or act for Fonseka leads to a real chance of serious harm in Sri Lanka.  Reports cited in the primary decision indicate even those close campaigns detained along Fonseka were soon after released.  I noted at the third hearing Fonseka’s relief from detention.  Having regard to the accepted evidence about the applicant’s and family circumstances and the information cited and the assessments in this paragraph, I find it speculative and the chances very remote that harm will flow to the applicant even directly or indirectly via his immediate family members now or in the reasonably foreseeable future in Sri Lanka due to a family relationship to Fonseka. 

   It is clear from these reasons that the ground of appeal is not established.  It is also clear from the oral submissions made this morning that the appellant’s complaint is an attempt to challenge the weight to be given to the evidence that had been before the Tribunal and the Federal Circuit Court, or to have the evidence re-evaluated.  An appeal to this Court, however, does not permit another hearing on the evidence.  The jurisdiction of this Court is limited to ensuring that there are no errors of law by those who Parliament has entrusted with the duty to make a decision on the facts and evidence.  It is not for this Court to substitute its view of the facts and evidence for that of the Tribunal.

6. No error of law is revealed in the decision of the Federal Circuit Court or of the Tribunal and neither ground of appeal is capable of being made out in the face of the actual decision.  In those circumstances, I will dismiss the appeal.  In doing so I note that the appellant did not file any written submissions.  Written submissions had been filed by the Minister, but the appellant was invited present his case without having to deal with the written submissions which the Minister had filed.

7. The orders will be to dismiss the application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

Associate:

Dated:       21 November 2014