MZYJR v Minister for Immigration & Anor [2011] FMCA 629 (18 August 2011)

Last Updated: 22 August 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYJR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 629

MIGRATION – Alleged jurisdictional error by Refugee Review Tribunal – whether Refugee Review Tribunal failed to consider critical evidence of witness in Egypt – whether Refugee Review Tribunal’s approach to the evidence permissible – whether Refugee Review Tribunal required to submit documents to DIAC Documentation Examination Unit.

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15

Applicant:

MZYJR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1223 of 2010

Judgment of:

Burchardt FM

Hearing date:

27 May 2011

Date of Last Submission:

27 May 2011

Delivered at:

Melbourne

Delivered on:

18 August 2011

REPRESENTATION

Counsel for the Applicant:

Mr. J. Gibson

Solicitors for the Applicant:

FCG Lawyers

Counsel for the First Respondent:

Mr R. Knowles

Solicitors for the First Respondent:

Clayton Utz Lawyers

ORDERS

(1) The application be dismissed.
(2) The Applicant pay the First Respondent’s costs fixed in the sum of $6,240.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1223 of 2010

MZYJR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 August 2010. The Tribunal affirmed a decision of the delegate of the first respondent to refuse to grant the applicant a protection visa.
2. It should be noted that the applicant is one of three young men who are relatives and/or lifelong friends from Egypt, all of whom applied for student visas in 2007. Two of them, who are known by the acronyms MZYJQ and MZYJR respectively, have made applications to this Court which were heard together.
3. The factual circumstances surrounding these two applications are, for all effects and purposes, identical and the submissions made by their counsel were made conjointly and, necessarily, in the same terms.
   I have given thought to producing one judgment only, but in the ultimate I have decided to issue separate judgments. The reason for this course is simply that the future conduct of any proceedings that may follow may not lead to the same congruity as has occurred in this Court.
4. Nonetheless, it should be noted that because of these matters the Reasons for Judgment will be almost identical, and will simply involve inserting the very slightly different factual circumstances of each applicant, together with some differences arising from the differences in the judgments handed down by the Tribunal.

The facts

5. The facts underlying this application are not controversial, although there was significant factual dispute before the Tribunal which came to adverse findings so far as the applicant was concerned.
6. What follows is taken from the court book and the contentions of fact and law of the parties.
7. The applicant was born on 1 August 1989 and grew up in a village near the city of Matay in Upper Egypt. His parents and one brother live in Egypt. He obtained a passport on 14 February 2007 and applied for a student visa on 29 April 2007. He arrived in Australia on 24 June 2007 and his student visa was valid until 15 July 2009. On 14 July 2009, he applied for a further student visa and on 20 November 2009, that application was refused. He has held a bridging visa since 14 July 2009. The application for a protection visa was made on 14 January 2010.
8. The applicant is a Copt and his claims of persecution on that ground arose in two ways. First, it was submitted that, as a Copt, he faced discrimination and persecution in Egypt generally. This ground was dealt with by the Tribunal and is not a matter of any moment in light of the way the application has been pressed before the Court.
9. The second and more telling ground advanced by the applicant arose out of an incident said to have occurred in February 2007. Leaving aside discrepancies in the accounts given not only by this applicant but by MZYJQ about the incident, the gravamen of it was that the applicant and his two friends (one of whom was MZYJQ) had intervened to prevent two Muslim youths from sexually assaulting two Christian girls from the village. A fight had occurred following which the Muslim boys ran away. Thereafter, it was asserted that a Muslim policeman arrested some 15 Christians in the coffee shop near to which the fight had taken place, and it took several weeks before they were released. It was asserted that these men had been held as hostages in order to compel the applicant and his friends to give themselves up.
10. Thereafter in fact nothing happened until May 2007 when the applicant and his friends were required to attend a police station in Matay, where they were interrogated and charged with being involved in preaching the Christian faith. It was further asserted that on 26 May 2007, the applicant and his friends were charged with “complotting in the Arab Republic of Egypt to change the religious regime from Islam to Christianity” and detained for 15 days before being released pending further trial.
11. The applicant asserted that his parents and his friends then assisted all three of the persons charged to obtain student visas and plane tickets, and they left for Australia in June 2007.
12. It was put that further harassment of the applicant’s family and the family of one of his friends had occurred in 2009.

The evidence at the proceeding

13. It is not necessary to detail the course of the proceeding, as the matters that transpired before it are clearly set out in the Tribunal’s comprehensive Reasons. For these purposes, it is necessary only to concentrate on the evidence of an Egyptian lawyer, a Mr Halfa.
14. Mr Halfa provided documents to the Tribunal which in the ultimate the Tribunal gave little weight to. The critical document, for these purposes, is a copy of what was said to be a Court order sentencing the applicant to six months’ imprisonment (CB184). The record purported to be a decision record of proceedings on 11 September 2007, although I note that at the foot it is described as “stamped on 25/04/2010”, which would suggest that it was a copy made much later.
15. Mr Halfa gave oral evidence by telephone (CB235, paragraph 73):
    • “The Tribunal asked the witness if he obtained a copy of a document “Minutes of investigation” in relation to the three applicants. He said he had obtained a copy. The Tribunal asked him how he obtained a copy. He replied he was a well known lawyer and had his “ways to get this report”. The Tribunal asked the witness why the applicants could not have obtained such a report themselves. He replied because when it came to mattes related to sensitive issues it is not allowed to disclose any information as the people involved might contact human rights organisations. He said he was able to obtain a copy because he had his own ways. He said he got it himself from the court by his own means. The Tribunal asked him if he was given the original to take away and copy. He said the original was kept in court. The Tribunal asked him again if he was given an original to copy. He said no he couldn’t take it with his own hands. He added he didn’t take the original, but “someone who works in the court photocopied it and endorsed it and give it to him”.
16. It was Mr Halfa’s evidence that he had himself not only obtained a copy but actually seen the original sentencing document.
17. It should be interpolated at this point that Mr Halfa did not say he had seen the original sentencing document in this proceeding, but did in the matter of MZYJQ. I accept, however, the submission of counsel for the applicants that since the sentencing document clearly covered all of the three young men who were involved in the February 2007 alleged incident, the fact that he failed to make the same assertion in the other proceeding is of no moment. If he saw the document, he plainly saw it for all relevant purposes.
18. It is, as I say, clear that Mr Halfa asserted he had seen an endorsed copy of the original sentencing document. He also purported to explain why the document concerned was a copy.

The Tribunal’s approach to the evidence

19. It should be noted that the Tribunal clearly had regard to the delegate’s decision. It referred to it in terms at paragraphs 20 to 29 of its Reasons for Decision (CB222-224).
20. The delegate had before her two translated documents from Mr Halfa, being a letter (CB125) which asserted that the sentence number was 311915 and that the applicant had been sentenced to six months’ imprisonment on 11 September 2007, and also a translation of a court order likewise confirming the sentence. The delegate noted (CB144) that documents provided by the applicant were copies, and said:
    • “At interview the applicant was advised that as photocopied documents these have little value because they do not allow for assessment of alterations, security features, quality of printing or other factors that can assist in determining the authenticity of the documents.”
21. This finding is of some significance when one comes to the second ground advanced by the applicant.
22. Having referred to the delegate’s decision, as I have indicated, the Tribunal went on to deal with a summary of the evidence at the review hearing, at paragraphs 33 to 73 of its decision (CB225 to 235). Having dealt with country information, the Tribunal went on to make its findings and reasons at CB236 to 243. The Tribunal found that the applicant was of Egyptian ethnicity and Orthodox Coptic Christian religion. The Tribunal also accepted that, in certain circumstances, Coptic Christians in Egypt can face discrimination, but that each claim should be assessed on its own merits.
23. The Tribunal’s findings amounted to a comprehensive rejection of the applicant’s claims in relation to the incident in February 2007 and subsequent events:
    • “99 The Tribunal has considered the whole sequence of events claimed in relation to the alleged attempted rape by two Muslim boys and what has followed. The Tribunal finds the applicant not to be a credible witness. His account of events has appeared to be carefully rehearsed, vague and lacking in detail or so embellished and exaggerated as to be implausible for these reasons the Tribunal finds the applicant is not a credible witness and that his claims are fabricated.
      • ...
    • 107 The Tribunal has carefully assessed the applicant’s evidence in this application and finds he is not a credible witness. The Tribunal does not accept the applicant’s assertions in relation to the February 2007 incident and the subsequent events including firstly the detention of 15 people, the applicant’s detention for 15 days and the six months sentence purportedly imposed upon him in September 2007. The Tribunal finds the applicant’s evidence cannot satisfy it that he is a person to whom Australia owes protection obligations.”
24. It is not necessary to set out each of the findings that dismissed the applicant’s factual assertions. They are set out in detail between paragraphs 76 to 120 of the decision (CB236-243).
25. In my opinion, these findings would seem to have been well open to the Tribunal on particular facts of the case.
26. While making proper allowance for the difficulties the applicant faced, the Tribunal made in effect what were demeanour findings against him.
27. The Tribunal referred to Mr Halfa’s evidence at paragraph 106 (bearing in mind that it was set out in detail at paragraphs 72-73):
    • “The Tribunal has considered all the documentary evidence submitted in support of the application. The Tribunal has considered the evidence of the witness Mr Halfa and the recently obtained documentation submitted as corroborative of the applicant’s claims. Mr Halfa, who says he is a lawyer in Egypt, said he obtained the documents using his “own means” and relying upon an unknown third party to copy and certify the authenticity of the documentation he obtained in relation to minutes of the investigation and sentencing.”
28. The Tribunal continued at paragraph 108:
    • “In assessing the value of the documentation, the Tribunal has had regard to recent authority contained in MIAC v SZNPG [2010] FCAFC 51 and MIAC v SZNSP [2010] FCAFC 50. The Tribunal has considered all the translated documents (and their provenance) proffered by the applicant as corroborative evidence. The Tribunal has found the applicant is not a credible witness. The Tribunal finds that the significant concerns it has with the applicant’s credibility far outweighs any weight the documentation submitted might carry. As the applicant cannot be believed the Tribunal gives little weight to the corroborative documentation.”

The grounds of attack upon the Tribunal’s decision

29. As set out in the applicant’s amended application, and in the oral submissions advanced before the Court, only grounds 2 and 3 in the amended application were pressed.

Ground 2 – the Tribunal’s failure to pay any regard to the corroborative oral evidence of Mr Halfa by failing to make an express or any finding in relation to his evidence concerning the Court and police documents

30. As expounded by counsel for the applicant, the real complaint made under this heading is that the Tribunal failed to address a critical aspect of Mr Halfa’s evidence namely, that he had seen the relevant documents and, most particularly, the sentencing document. It was strongly submitted that the Tribunal’s failure to mention Mr Halfa’s evidence that he had seen the document and to make any finding that he was untruthful was a failure to examine a critical piece of corroborative evidence, such that the Tribunal fell into jurisdictional error in this failure.
31. Two recent authorities of the Full Court of the Federal Court give, in my respectful view, helpful guidance in cases such as these. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [25], North and Lander JJ said:
    • “[25] Where the RRT has conducted an inquiry in accordance with Div IV of Pt 7 of the Act and considered all of the evidence which has been adduced in relation to the claims proffered by the applicant for the Protection (Class XA) visa, and has reached a state of satisfaction that the claims have no foundation in fact, the RRT is not obliged to reach a different conclusion because there is a piece of evidence which supports the applicant’s case. Moreover, if the RRT rejects the applicant’s claims and fails to give sufficient weight to the piece of evidence relied upon so as to allow the applicant’s application that is not evidence of either pre-judgment or apprehended bias.
      • [26] Neither does the RRT fall into jurisdictional error if it fails to express its reasons for rejecting corroborative evidence with full clarity. In the present case, the RRT dealt with the evidence of a baptismal certificate by saying that it was “not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence”. It would have assisted if the RRT had explained its rejection in greater detail. As we have said, it was implicit in the reasoning of the RRT that it did not regard the baptismal certificate as genuine. It was desirable that the RRT set out the basis of the doubts concerning the baptismal certificate beyond simply its doubts concerning the first respondent’s evidence generally. This deficiency in the way the RRT articulated its reasoning may explain why the Federal Magistrate said the RRT failed to engage in “an active intellectual process of considering the corroborative material”, and that the RRT “failed to engage in any meaningful consideration of the purported baptismal certificate”. The brevity with which the RRT dealt with the corroborative evidence is unsatisfactory, but does not justify the conclusion drawn by the Federal Magistrate that the RRT fell into jurisdictional error.
      • [27] Of course, if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Div IV of Pt 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its “imperative duties”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
      • [28] However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.”
32. In Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50, North and Lander JJ said at [19]:
    • “[19] It was contended by the first respondent that the RRT was not entitled to put no weight upon the witness statement in the absence of the RRT first deciding that the first respondent had lied. The first respondent relied upon [49] of the reasons of McHugh and Gummow JJ who said:
      • In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
33. At [33] North and Lander JJ continued:
    • “[33] Thus, consistently with Applicant S20/2002[2003] HCA 30; (2003) 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.”
34. At [36] North and Lander JJ continued:
    • “[36] When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand. ...”
35. At [37] North and Lander JJ continued:
    • “[37] Several further observations should be made concerning the type of situation addressed in Applicant S20/2002[2003] HCA 30; (2003) 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
      • [38] The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002[2003] HCA 30; (2003) 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002[2003] HCA 30; (2003) 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
      • [39] On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.”
36. In this case, a fair reading of the Tribunal’s Reasons taken as a whole, leads to the conclusion that the Tribunal did indeed consider all the evidence that was before it, including the evidence by Mr Halfa that he had seen the documents in question. In my opinion, it was open to the Tribunal to form the view that it did of the applicant’s evidence, and to form the conclusion that, as a result, the other material provided by the applicant was not sufficiently strong to outweigh those concerns. The obligation of the Tribunal is to consider the applicant’s case not, as the first respondent’s submissions correctly assert, to issue a line by line refutation of each and every piece of evidence upon which the applicant relied that was capable of making out his case.
37. In these circumstances, I do not think that jurisdictional error is made out.

Ground 3 – the failure of the Tribunal to make any inquiry of the DIAC examination unit

38. It is clear that the applicant sought, through his agent, that the Tribunal submit his documentation to the DIAC Documentation Examination Unit if there were any concerns as to its genuineness (see CB217).
39. This failure to inquire was said to be so glaring as to give rise to jurisdictional error.
40. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15, the majority of the High Court stated at [25]-[26] that:
    • “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
      • [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. ...”
41. In this case, the delegate had already made observations which were clearly known to the Tribunal about the difficulty of examining these documents in circumstances where they were not originals, as I have indicated earlier in these Reasons for Judgment.
42. Further, although I was invited to take judicial notice of the relative ease of access to the DIAC Documentation Examination Unit, I am not in a position to do so. I do not know how long it would take to have sent the documents to that body, nor can I do more than speculate as to what the result of the deliberations might have been. It should be noted that the delegate (whose Reasons for Judgment appear to suggest some expertise in the matter) had doubts as to whether these documents could be properly examined in any event. In the ultimate, I accept the submission at paragraph 2.16 of the first respondent’s supplementary submissions that the Tribunal did not make any express finding that the corroborative documentary evidence was bogus. Likewise, the Tribunal did not choose to disregard the evidence. Rather, in evaluating the evidence as a whole and balancing it against the evidence of the applicant himself, the Tribunal determined that the documentation did not outweigh the poor impressions of the applicant’s own evidence.
43. This was, in my view, a perfectly proper exercise by the Tribunal of the functions it was required to perform and, in these circumstances, does not give rise to jurisdictional error.

Conclusion

44. In my view, the attacks made upon the Tribunal’s decision are not made out, and it follows that the application should be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 18 August 2011