MZYEH v Minister for Immigration & Anor [2010] FMCA 27 (27 January 2010)

Federal Magistrates Court of Australia

[Index] [Search] [Download] [Help]

---

MZYEH v Minister for Immigration & Anor [2010] FMCA 27 (27 January 2010)

Last Updated: 27 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYEH v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 27

MIGRATION – Credibility – adverse finding – finding of fact par excellence – whether reviewable – no breach of natural justice – common law principles of procedural fairness do not apply.

Migration Act 1958 (Cth), ss.91R, 357A, 422B, 424A, 424AA, 474

SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 SZKMG v Minister for Immigration and Citizenship [2009] FCAFC 99 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (FC) W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Applicant:

MZYEH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 497 of 2009

Judgment of:

Turner FM

Hearing date:

7 December 2009

Date of Last Submission:

7 December 2009

Delivered at:

Melbourne

Delivered on:

27 January 2010

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) That the application filed 30 April 2009 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 497 of 2009

MZYEH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (the “RRT”) dated 31 March 2009, which affirmed the decision of a Delegate not to grant the applicant a Protection
   (Class XA) Visa.
2. The applicant arrived in Australia on 29 September 2007 on a subclass 456 visa that was valid for three months. He applied for a Protection Visa on 16 October 2007 (Court Book 78.4 and 169.2).
3. The applicant claims that he suffered persecution because of his involvement in, and attendance at, the Local Family Church
   (also known as the “Shouters”) [in the Peoples Republic of China (the “PRC”)]. He claims that he fears that he will face further persecution should he return to the PRC on the basis of his Christianity and continued participation with the underground church
   (Court Book 78.7) in the Fujian Province of the PRC. He claims that he was detained by the Public Security Bureau (the “PSB”) on
   11 April 2004 and held for 15 days (Court Book 78.9). He claims that he was detained again on 9 May 2007 and held for 15 days. He claims that he has been attending church service regularly since arriving in Australia.
4. The applicant produced what he claims to be original detention notices and release documents (Court Book 79.4). Those documents were examined by the Department (Court Book 173.2) and were found to “possess no paper security features (and were) produced using a desktop print process (and) could have been produced by anyone” (Court Book 70.6). The documents were found to be inauthentic
   (sic “unauthentic”) for the reasons set out at Court Book 173.2.
5. The RRT conducted a hearing on 18 March 2009 and invited the applicant to attend to give evidence and present arguments
   (Court Book 139). The applicant attended the hearing with his migration agent (Court Book 174.10). The hearing was conducted with the assistance of a Mandarin/English interpreter (Court Book 174.9).
6. The RRT affirmed the decision of the Delegate by decision dated
   27 February 2009 (Court Book 143). The applicant lodged his application for judicial review on 30 April 2009 which contains the following grounds:
   • (1) RRT did not take into account my case fairly. Chinese Government did a lot of harm me. RRT did not consider my situation in China.
   • (2) RRT did not use favorable cases to my application. RRT did not consider the risk for me to back.
7. The application came on for hearing on 5 October 2009 when the applicant stated that a copy of the Court Book had not been received by him. An order was made that day that a copy of the Court Book be served on the applicant within 24 hours, and that the hearing be adjourned until 19 November 2009.

An Affidavit of Service of was filed deposing that a copy of the Court Book and of the First Respondents Contentions of Fact and Law were delivered to the applicant by courier on 5 October 2009. By order in chambers on 17 November 2009, the hearing on 19 November 2009 was vacated and the matter was re-listed for 7 December 2009.

8. The applicant was invited to make submissions to the Court in support of his application. He asked why the Court had not viewed the video tape he presented to the RRT allegedly showing officials of the PRC raiding his house. The Court advised the applicant that it was not the function of the Court to make or review findings of fact; The function of the Court was to consider whether the RRT had made an error of law. The applicant made no other submissions, except that “he was not happy with the previous decision and wanted to appeal.”

Findings of the Court in relation to the grounds in the application

9. Ground one alleges that the RRT “did not take into account my case fairly. Chinese Government did a lot of harm to me. RRT did not consider my situation in China.”
10. The decision of the RRT shows that it considered the applicant’s claims to have been arrested (Court Book 172.7, 176.5 and 177.5), detained (Court Book 171.7), interrogated (Court Book 171.8) and mistreated (Court Book 171.8 and 176.8) by Chinese authorities for reason of his religious activities.
11. If the claim alleges bias:

no particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].

The Court refers to the following passage in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]:

“Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.”

Further, the fact that the RRT did not believe his claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.

There is nothing to show that the RRT acted dishonestly, or arbitrarily or capriciously. A claim of bias cannot be substantiated.

12. As to the claim that the RRT did not consider the applicant’s situation in China, the RRT considered his evidence about injuries he suffered in detention (Court Book 180, paras.83-87); about his arrest detention and mistreatment in April 2004 (Court Book 176, paras.56-60), and about his arrest detention and mistreatment in May 2007
    (Court Book 177 paras.62-64). The RRT considered the material in the applicant’s statement of 12 October 2007, attached to his visa application (Court Book 177, paras.24-25).

The RRT considered also the applicant’s statement submitted to the RRT (Court Book 174, para.38).

The Court dismisses the applicant’s claim that the RRT did not consider the applicant’s situation in China. The RRT considered the reports from the China Aid Association and noted that “neither makes any reference whatsoever to such problems (persecution of House Church leaders and members) occurring in the applicant’s province of Fujian, or in the City of Fuqing.”

13. If the applicant is claiming that he was denied procedural fairness, s.422B of the Migration Act 1958 (the “Act”) provides that Division 4 of Part 7 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with.
14. Section 424AA provides:

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a) the Tribunal may orally give to the applicant 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) if the Tribunal does so--the Tribunal must:

• (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
• (ii) orally invite the applicant to comment on or respond to the information; and
• (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
• (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

15. The RRT complied with the requirement in s.422AA(a) by putting to the applicant potentially adverse information, being:
    • The similarity of the applicant’s claims to those in numerous other visa applications – letter to applicant dated 25 March 2008 (Court Book 64-65 and 182, para.102)
    • The findings of the Departments Document examination unit (Court Book 182, paras.102-103)
    • The failure of the applicant’s release and discharge certificates to be hand signed or stamped, as the Fuqing Municipality Detention Centre had advised DFAT would normally occur
      (Court Book 183, paras.104-105)
    • That according to a Chinese publication, a checklist of items seized would not normally be provided to a person from whom the items were seized (Court Book 183-184)
    • That the RRT had been informed that blank copies of detention documents had been seized in a raid on the offices of the applicant’s migration agent (Court Book 184, paras.108-110)
    • Adverse country information (Court Book 184-185,
      paras.112-117)
16. The RRT explained the relevance of the information to the applicant.
17. The information which formed the basis of the Tribunal’s finding that the applicant’s claims to have been detained by the Chinese authorities were fraudulent, was therefore put to the applicant.
18. The applicant was invited to comment on the information and he was told that he could request an adjournment to confer with his representative before responding (Court Book 185, para.118). After a brief adjournment to confer with his representative, the applicant replied orally to the information put to him (Court Book 185, para.119).
19. It has not been shown that the applicant requested further time to respond to the information put to him. Section 424AA(b)(iv) was therefore complied with, as were the other requirements of s.424AA.
20. Section 424AA having been complied with, there was no obligation to comply with s.424A [s.424A(2A)].
21. A failure to comply with a requirement in Division 4 has not been established. A denial of natural justice had not been established.
22. The effect of s.357A(1)of the Act is to exclude the Migration Review Tribunal from the common law obligations of procedural fairness. SZKMG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49-50] and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [48].

Section 422B is in the same terms as s.357A. Therefore the effect of s.422B is to exclude the Refugee Review Tribunal from common law obligations of procedural fairness.

A denial of natural justice or procedural fairness has not been established. Ground one is dismissed.

23. Ground two alleges that “the RRT did not use favorable
    (sic “favourable”) cases to my application” and “did not consider the risk for me to back (sic “to go back”).” The Court understands this to mean that the RRT failed to consider and accept country information in support of his application, and failed to follow a decision in a similar case, and did not consider the risks if the applicant was to return to the Fujian Province.

Country Information

24. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
    • “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.” NAHI Supra at [11]

It is well established that “both the choice and the assessment of the weight of” country information is a matter for the RRT.

“The Court cannot substantiate its own view of the material, even if it had a different view from that reached by the Tribunal.”

NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [13] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26]:

“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another.” (Ibid)

25. It is not open to the Court to review the RRT’s preference as to country information or the weight it gave it.
26. The RRT did consider statements of country information in similar cases relied on by the applicant (Court Book 105-138).

It considered also a case with similar claims in which the applicant was found to be a refugee (Court Book 174, para.42 and 187, para.127).

27. The deciding factor in the present case is that the RRT did not find the applicant to be a credible witness (Court Book 190, para.132 and 191, para.140) and did not accept the applicant’s claims
    (Court Book 191, paras.141-142 and 192, paras.143-147).
28. The Court refers to the following decisions:
    • “The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: 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. Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].”
29. There is no obligation on the RRT to list, in detail, each and every item of evidence put forward by the applicant.

SZEHN v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1389 at [58]:

“It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”

A failure to make a finding regarding a piece of evidence does not amount to jurisdictional error VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25].

30. It was for the Tribunal to decide what country information it accepted, and whether to apply decisions referred to by the applicant. Here the RRT found the applicant was not credible and it did not believe his claims.

The Court refers to following the decisions:

“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence... and no detailed reasons need to be given as to why that particular witness was not believed...In any event, the reason for 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. : Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].”

In W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703, 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] HCA 78; (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] HCA 47; (1990) 171 CLR 167 at 179; [1990] HCA 47; 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.”

The Court does not find 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.

31. The Court dismisses the claim that the RRT “did not use favorable (sic) cases to my application.”
32. The applicant claims that the “RRT did not consider the risk for me to (go) back.”

That claim is misconceived; At Court Book 192, para.147 the RRT stated that “country information tends to show that such people (members of the Local Family Church) are not experiencing persecution in Fujian province, and that there appear to be no reports to the contrary these past 6 years.” Consequently, the Tribunal finds that if the applicant returns to his home region in China there is only a remote chance that he will, in the reasonably foreseeable future, experience serious harm capable of amounting to persecution for the purposes of s.91R(1)(b) and 91R(2) of the Act for reasons of religion or for any other Convention reason.

The RRT found at Court Book 192, para.148:

As the Tribunal does not accept that the applicant has been persecuted in the past, and having regard to the country information referred to above at [137], the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm capable of amounting to persecution for the purposes of s.91R(2) in the reasonably foreseeable future if he returns to his home region in China, whether for the Convention reasons of his religion and/or his imputed political opinion, or for any other reason.

33. Those findings of fact were open to the RRT on the material before it and were not amenable to review.

In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

“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 merits of the case put to the Tribunal.”

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

34. Ground two is dismissed.
35. The Court finds 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.
36. The application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Erin Firns

Date: 27 January 2010