MZZXF v Minister for Immigration
[2014] FCCA 2138
•23 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZXF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2138 |
| Catchwords: MIGRATION – Judicial review – whether all integers of claims were dealt with – whether Tribunal discharged its function of substantive merits review – whether a mistake of fact in decision is a jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 430 |
| Abebe v Commonwealth (1999) 197 CLR 510 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 Minister for Immigration v Khawar [2002] HCA 14 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 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | MZZXF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2210 of 2013 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 1 September 2014 |
| Date of Last Submission: | 1 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smyth |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review filed 12 December 2013 and amended application filed 4 July 2014 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2210 of 2013
| MZZXF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 15 November 2013 (Court Book “CB” p.258). That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant arrived in Australian on 7 October 2011 as the holder of a visitor visa. She applied for a Protection visa on 19 December 2011 (CB p.2). A delegate refused to grant a Protection visa on 17 September 2012 (CB p.136). The applicant’s migration agent applied to the Tribunal on 3 October 2012 to review the decision of the delegate (CB p.137).
The applicant appeared before the Tribunal on 10 July 2013 (CB p.259 [3]) to give evidence and present arguments. The Court infers that this must have been in response to an invitation to attend the hearing, as otherwise the applicant would not have been aware of the date of the hearing.
In the amended application for judicial review filed on 4 July 2014, the grounds for review are stated as follows:
(1)The decision of the second respondent involved jurisdictional error in that it erred in its application of the “social group” claim to refugee status the applicant made and/or it failed to consider an integer or integers of her claim.
(2)The second respondent fell into jurisdictional error in that it failed to accord the applicant procedural fairness and/or failed to perform its duty under s 430 of the Migration Act 1958 (Cth) in that its decision discloses a wholesale copying of a passage from an unrelated decision.
PARTICULARS
(i)in par 122 of its decision, the second respondent refers to the female applicant as “he”.
(ii)in par 122 of its decision, the second respondent refers to the Nigerian applicant’s nationality as “Nepal”.
The applicant filed and served Outline of Submission on 4 July 2014.
The applicant submits that her claim for a visa was put on two bases.
Ground One
That the applicant had a well-founded fear of persecution on the basis of membership of a particular social group being:
·Women in Nigeria;
·Young, single women in Nigeria;
·Young, single women in Nigeria without male protection; and
·Rape victims.
Membership of those groups was claimed by the applicant (CB pp. 77, 82, 125.5 and 271–275); membership of the particular social groups were integers of the applicant’s claims.
The applicant submits that the Tribunal failed to consider each of the social groups. That is incorrect. The Tribunal considered ‘Rape victims’ at CB p.275.5. It considered ‘Single mothers’ at CB p.275.8. It considered ‘Vulnerable young single female/young female without male protection/women in Nigeria’ together at CB p.271.9.
The Tribunal concluded that the applicant was not attacked because she was a single vulnerable female as her attacker did not know that she was single or that she had no family protection (CB p.271.9).
The Court finds that the Tribunal considered memberships of all claimed particular social groups.
The Tribunal found that the risk of harm in Nigeria claimed by the applicant is not for reason of a membership of a particular social group, but because of her individual attributes. That finding of fact was open to the Tribunal.
The Tribunal referred to the decision of Justice Gummow in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, that where a member of a social group is being persecuted by reason of her membership of a particular social group, rather than because of any individual attributes the applicant possess, then the persecution is for reason of membership of that group (CB p.273.7). The Tribunal here decided that the harm feared was because of the applicant’s individual attributes.
The Tribunal did not accept that the applicant would be without family support if she returned to Nigeria (CB p.273.8). The Tribunal did not accept that the applicant’s brother in law is in hiding, or that all members of the family are in hiding (CB p.273.8).
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.”
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.”
The Court refers to the following decisions:
(a)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.”
The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact: see W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and par excellence Durairajasingham (supra) at [67].
(b)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 (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.
(c)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.
(d)Abebe v Commonwealth (1999) 197 CLR 510 at [137]:
“… there is no error of law… in making a wrong finding of fact…”.
(e)In Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 Sackville J (with whom North J agreed) said at [65]:
“To take this course on the basis of the court's own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker's failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made.”
At the hearing before the Court on 1 September 2014, Mr Smyth of Counsel appeared for the applicant and Mr D. Brown for the first respondent.
Submissions for the Applicant
Particular Social Groups
Mr Smyth submits that the Tribunal made no attempt to analyse the claims relating to ‘women in Nigeria, young single women in Nigeria or young single women in Nigeria without male protection’. The Court notes that all those groups appear at CB p.271 [87]. The Court referred Mr Smyth to CB p.271 [88]. Mr Smyth submits that the Tribunal did not deal with the claims adequately (Transcript “T” p.6, l.44. The Court finds that they were dealt with adequately at [88], [101] and [123].
Mr Smyth submits that the Tribunal did not accept that there could be the particular social groups that were claimed. The Court finds that the Tribunal set out the particular social groups claimed (CB p.271 [87]) and went on to consider them; it did not find that they could not exist. It found that there was no reason in principle why the groups claimed cannot constitute particular social groups (CB p.273 [95]).
Mr Smyth complains that the Tribunal found that the applicant was attacked for her individual characteristics which where the characteristics that brought her into the particular social groups that she claimed. The Court accepts Mr Brown’s submissions on this issue (post).
However, the first issue for determination is whether the Tribunal considered the claimed particular social groups? The Court has found that it did (supra).
Mr Smyth submits that at CB p.265 [52] the Tribunal considered the incident on the minibus, and not the claimed social group of ‘rape victims’. The Court finds that the Tribunal considered the rape incident and found that the minibus incident was a random crime (CB p.266 [55]). The particular social group of rape victims was considered also at CB p.275 [104].
The Tribunal set out its reasons for finding at [104] of the decision (CB p.275) “that there is no real chance that the applicant would be persecuted in the reasonably foreseeable future on account of being a victim of rape and a single mother and any fear of persecution on this basis is not well-founded.”
The Court rejects the contention that the Tribunal failed to address the integers of the applicant’s claims. Ground one is dismissed.
Ground Two
The applicant submits that the Tribunal fell into jurisdictional error by failing to accord procedural fairness, and failing to perform its duty under s.430 of the Migration Act 1958 (the “Act”). The decision of the Tribunal discloses two errors in [122] of the decision (CB p.278); the first by referring to the applicant has “he”; the other by referring to being removed to “Nepal”.
The Court finds that there is no error in law in making a wrong finding of fact: Abebe (supra).
The Tribunal was very aware that the applicant is a female, particularly because of the particular social groups referred to. Also the decision is replete with references to “she”, “her”, and “Nigeria”. It is clear that the decision was dealing with the applicant.
The Court finds that the errors in [122] are not such as to establish a jurisdictional error. Mr Smyth submits that it is not clear that the Tribunal was referring to the applicant in [122]. The Court finds that taken alone, [122] may appear that way, but read in context it is clearly about the applicant. The errors appear to be no more than mistakes. The Court finds no failure to comply with s.430.
Section 357A in Division 5 of Part 5 of the Act states that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. A breach of natural justice has not been established. The Court dismisses the contentions of the applicant on failing to accord procedural fairness, failure to comply with s.430, and the two errors in [122]. Ground Two is dismissed.
The applicant’s submissions allege that the Tribunal failed to deal with all alleged particular social groups. The Tribunal dealt with the alleged groups of:
·Vulnerable young single females (CB p.271.9);
·Young females without male protection (CB p.271.10);
·Women in Nigeria (CB p.271.9);
·Rape victims (CB p.275.5); and
·Single mothers (CB p.275.8).
Submissions for the First Respondent
Mr Brown submits that there is some question about whether the applicant had access to male protection. The Tribunal did not accept that the applicant was without family support and would be entirely without family support if she returned to Nigeria (CB p.273 [97]). The Tribunal did “not accept that her brother-in-law is in hiding and that all the other members of the family are in hiding” (CB p.273.8). Referring again to Lee (supra):
“The Tribunal is entitled to accept or reject… the evidence proffered as it thinks appropriate in all the circumstances.”
Mr Brown submits that the Tribunal found that the incidents of rape were not the result of the applicant membership of a particular social group, but random criminal events. The Court accepts that submission. The Court accepts Mr Brown’s submissions that it is possible for the applicant to have a set of characteristics, (here, a young woman) that can be the same as would make her eligible for membership of a particular social group, but the reason for risk on return to Nigeria was not because of membership of a particular social group, but because of the risk of a random criminal event.
Mr Brown referred to the decision in Minister for Immigration v Khawar [2002] HCA 14 for the proposition that it is possible to be the victim of a criminal event, and if State protection is denied for a persecutory or discriminatory reason, to claim a risk of harm because of memberships of a particular social group. The Tribunal dealt with this in [101] where it found that state protection was not withheld because of “membership of any gender based particular social groups but rather because the police are corrupt inadequately equipped and funded” (CB p.274.6).
Mr Brown submits that the particular social group of women who had suffered rape was dealt with as was the claim of absence of protection from a male. The Court agrees.
Reply for the Applicant
Mr Smyth complains about what he calls “the dearth of reasons” that the Tribunal gave. However, the Court does not find that the Tribunal evaded its core functions of substantive merits review, as prohibited in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166.
Mr Smyth submits that the finding at CB p.271 [88] is about the minibus incident and not about a particular social group. However, the Tribunal found that the applicant was not attacked because she was a single vulnerable female. The finding therefore was about single women in Nigeria.
Mr Smyth referred to CB p.273 [97], and submits that paragraph does not discharge the ground of young single women in Nigeria without male protection. The Court disagrees. The Tribunal was free to accept the applicant’s evidence about the lack of family support: Lee (supra), and her brother-in-law and family being in hiding. Paragraph 97 discharged the duty to make a finding on young single women in Nigeria without male protection.
Mr Smyth stated that the applicant makes no claim in reliance on the decision in Khawar (supra).
Mr Smyth complains that the Tribunal did not engage in reasoning sufficiently to discharge its functions. The Court finds that the Tribunal discharged its core function of substantive merits review.
Mr Smyth submits that the errors of fact in [122] are jurisdictional error. For the reasons already expressed, the Court rejects that contention.
The application for judicial review is dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 23 September 2014
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