MZYLM v Minister for Immigration & Anor [2011] FMCA 668 (2 September 2011)

Last Updated: 14 September 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYLM v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 668

MIGRATION – Review of decision of Refugee Review Tribunal – allegations of jurisdictional error – allegations not made out – application dismissed.

Migration Act 1958, s.424A

Applicant:

MZYLM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 412 of 2011

Judgment of:

Burchardt FM

Hearing date:

3 August 2011

Date of Last Submission:

3 August 2011

Delivered at:

Melbourne

Delivered on:

2 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr J. Atkins

Solicitors for the Applicant:

Hymans Solicitors

Counsel for the First Respondent:

Mr D. Brown

Solicitors for the First Respondent:

Australian Government Solicitor

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 412 of 2011

MZYLM

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 (“Tribunal”) dated 18 February 2011, by which the Tribunal affirmed a decision of the delegate to refuse to grant the applicant a Protection (Class XA) visa.
2. The applicant asserts a number of grounds in support of the application but for the Reasons that follow, I do not think that the applicant’s criticisms can be sustained. It follows that the application must be dismissed.

Background Facts

3. The procedural history and some of the background facts in this matter are not controversial and what follows is taken from the Court Book (“CB”) and the written submissions of the parties.
4. The applicant was born on 10 June 1989 and is now therefore 22 years old. He is a citizen of Ghana who arrived in Australia on 20 July 2009 as part of a Ghanaian national deaf and dumb football team, although he was not deaf or dumb himself. On 10 August 2009, he lodged an application for a Protection (Class XA) visa.
5. That application was refused by the delegate on 22 July 2010 and on
   16 August 2010 he applied to review that decision. He was represented by the Asylum Seeker Resource Centre and on 15 September 2010 the Tribunal invited him to a hearing of the matter.
6. On 1 November 2010, the applicant’s representative sent a facsimile message to the Tribunal enclosing a missing person advertisement
   (CB56-60) and the hearing was conducted on 3 November 2010.
   The applicant attended the hearing and was assisted by an interpreter arranged by the Tribunal. On 8 November 2010, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (“the Act”) and asked him to respond to some adverse information set out in the correspondence. On 30 November 2010, the applicant requested an extension of time to provide his comments and response, which was granted until 10 January 2011. Notwithstanding this, the applicant did not provide any further materials and on 21 February 2011, as earlier indicated, the Tribunal forwarded a copy of its decision dated
   18 February 2011 already referred to.
7. The applicant relies on various grounds set out in his amended application filed on 24 June 2011. It is convenient to deal with each ground in turn.

Ground 1: Breach of obligation to invite applicant to hearing – inaccurate interpreting

8. It should be noted that at this stage, the Court received little by way of submissions from either party about the substantive law in this matter, because in essence the parties adopted the same position as to what the effect of the authorities was. I shall follow that same approach.
9. It was common cause that a failure to provide adequate interpretation may in certain circumstances lead to a breach of the obligation to invite an applicant to a hearing. The transcript of the proceeding was not produced and although I offered counsel for the applicant an adjournment should he desire it to remedy this deficiency, that offer was expressly declined.
10. As counsel for the applicant very properly and candidly conceded, he could not take this matter much further. At paragraph 36 of his written submissions, the applicant contended:
    • “The applicant contends that errors arose at the hearing because he was very nervous and the interpreting was inaccurate. Evidence will be provided of these errors in interpreting at the hearing.”
11. In fact no such examples were proffered, save one alleged possible misunderstanding asserted by counsel for the applicant as to an exchange between the Tribunal and the applicant as to the physical features of Bawku.
12. There is nothing in the materials to suggest that this misunderstanding (if such it was) in any way affected the outcome of the proceeding. This ground is without merit.

Ground 2: Breach of the law – the Tribunal acted in breach of natural justice or failed to accord procedural fairness

13. Here, the complaint made by the applicant is that the Tribunal knew that he wanted his representative to be present and knew, or ought to have known from the materials, that he had a history of depression which might touch upon his capacity to represent himself. It was submitted that this gave rise to a duty on the Tribunal’s part to stand the matter down and enable the applicant to further consider his position.
14. Counsel for the applicant submitted, based upon the audio disc, that the following sequence of events took place (transcript p 2-3):
    • “... around 10 minutes and 58 seconds or near enough to
      11 minutes of the first disk, after the tribunal member has concluded his introductory remarks about the procedures of the tribunal, he asked the applicant if he had any questions and the applicant at this – the applicant was asked by the tribunal if he had any questions at this stage. The applicant asked if it was possible to continue with the case in the absence of his representative. The tribunal member then said:
      • I don’t know where your representative is. Do you know where he or she is?
    • And the applicant said words to the effect, “I was told I would be contacted by my lawyer. After this time, I have never been contacted.” This is all done through the interpreting as well, sir. So this passage goes for about five minutes of the recording. The tribunal member said:
      • There is no requirement to have a lawyer present or representative present. It’s not always the case representatives attend with their clients. Your representative did not advise tribunal of attendance today or request postponement and we were provided just yesterday with a statutory declaration in support of your application. I can’t see a reason why you can’t proceed, but happy to hear what you have to say about it.
    • The applicant then says:
      • As long as this case can go on without it, but I have nothing more to say.
    • He then asks a second question – well, he asked – in respect, the applicant says:
      • I’ve never been to a tribunal hearing. I have only been to Immigration and this is my second time. As a result, I’m a bit shaky, as don’t have my representative.
    • The tribunal then said he understood about that:
      • And if at any time he wanted a break was happy to accommodate that.
    • The tribunal then asked the applicant if he wanted to adjourn the hearing now so he could try and contact his representative. The applicant said, “We can continue.”.”
15. It is common cause that this was said in a pleasant and non-intimidatory fashion by the Tribunal member.
16. The applicant submitted that given his limited education and the fact of the Tribunal’s adverting to the normality, so to speak, of people being self-represented, this would have intimidated and/or misled the applicant into not pressing for an adjournment to have his representative present. It was submitted that if the representative had been present matters might otherwise have been very different.
17. Counsel for the first respondent submitted that it was normal practice for the applicant to be questioned by the Tribunal member and that indeed representatives are not the ordinary position (this was not again said by counsel for the applicant who is himself an extremely experienced former Tribunal member). The first respondent submitted that proper processes had been followed and that in any event, the applicant’s representatives had been told of the hearing and had caused a statutory declaration to be filed the day before it.
18. In my opinion, the exchanges I have set out above could not properly be said, for a moment, to amount to a breach of procedural fairness such as to vitiate the validity of the hearing itself. Indeed, it would be hard to think of the Tribunal member conducting the exchange with an unrepresented, admittedly not well-educated, applicant speaking in a language foreign to him to better articulate the options that he did. It is conceded that the tone in which this was done was empathetic, and for the Tribunal to have to, of its own motion, stand the matter down and in effect almost compel the applicant to contact his representative would in substance amount to the Tribunal conducting the applicant’s case for him. In my view, it is well-established that this is not the Tribunal’s role.
19. In my opinion the conduct of the Tribunal on this occasion was not only not objectionable but eminently reasonable and perfectly proper. This ground must fail.

Ground 3: The Tribunal fell into jurisdictional error in that it failed to interpret correctly the law

20. There were various subsets of this ground as the matter was articulated. I will deal with them separately.

(a) The letter from Nora Fernandes of Foundation House

21. The applicant relied upon a letter from Nora Fernandes, a counsellor at Foundation House (SCB1). On disc 3 of the hearing discs, as counsel for the applicant informed me without objection, the applicant was asked whether there was anything further he wished to say and replied, at 59 minutes 30 seconds (transcript p-7):
    • “almost at the conclusion of disk 3, the applicant was asked if he had anything further he wished to say and it’s around – on disk 3, around the 59 minute, 30 second mark, he said: “I was getting scared when I hear of Immigration and from my – and appears from my lawyer,” although I might have substituted words – or anticipated words that are there “and a week since I hear my since is to be heard at tribunal. Still getting nightmares, seeing people attacking me. Sometimes I feel that if I return to Ghana to be pursued by people only to be killed. I work at Jayco,” which apparently he works there as a labourer where they manufacture caravans, your Honour. And he said, “Sometimes I just stop and people recognise something is wrong with me. Not able to tell them what’s wrong with me. I’m not a good talker, not able to explain.”
22. As counsel for the first respondent accurately submits, the letter from
    Ms Fernandes is dated 16 September 2009. It addressed the question of whether or not the applicant was able to work. It was of course wholly reliant upon the information provided by the applicant, although it should be noted that this is most commonly the case in any event and I note also that Ms Fernandes relied upon her observations of him during their interview.
23. Counsel for the first respondent submitted that the report had been prepared for ASAS and was concerned solely with whether or not the applicant could work. Counsel submitted correctly that this was not a medical report or a psychiatric report. It was also a report produced over a year before the Tribunal’s hearing, by which time the factual circumstances had materially changed in that the applicant was now fit for work and was working for Jayco.
24. At CB107, paragraph 132, the Tribunal expressly adverted to the letter from Ms Fernandes. The Tribunal said:
    • “the Tribunal has taken into account the letter from Foundation House provided to the Department, indicating that he was not physically fit for work due to psychological problems. However, the Tribunal notes that this conclusion was based on a single interview with the applicant and was substantially reliant on the applicant’s own description of his symptoms and past experiences. For the reasons outlined earlier, the Tribunal has serious concerns with the applicant’s credibility in this matter and, in the circumstances, has given the letter from Foundation House little weight.”
25. The Tribunal went on to say in the same paragraph that it noted that when the applicant was asked to comment on why it would not be reasonable or safe for him to relocate within Ghana, the applicant gave a number of reasons but did not make any mention of his medical or psychological symptoms. The Tribunal concluded that it did not accept that the applicant’s claimed difficulties provided a sufficient basis for concluding that internal relocation would not be reasonable in all the circumstances.
26. In these circumstances, the Tribunal clearly had regard to the evidence from Foundation House and its conclusions were, in my view, open to it on the materials as they stood. It follows that this ground is not made out.

(b) The guidelines on the assessment of credibility

27. This sub-ground of ground 3 was not pressed with any great vigour before the Court. The applicant concedes that these are guidelines only and I accept the submission of the first respondent that the fact that the Tribunal did not expressly refer to them does not indicate jurisdictional error. I would go further and say that having read the Tribunal’s decision as a whole, it would appear to me the Tribunal more probably than otherwise did apply the guidelines in any event.

(c) Issues about country information

28. The applicant’s case was that the Tribunal fell into jurisdictional error in failing properly to take account of the information contained in folio 49 of the Department’s file (see paragraphs 53 and 54, applicant’s written submissions).
29. I accept that the Tribunal expressly accepted at paragraph 105 (CB101-102) and at paragraph 106 that the position in Bawku is such that members of the applicant’s tribe, the Mamprusi, are at risk and that the applicant in fact left Bawku for this reason. The Tribunal, notwithstanding certain reservations, said at paragraph 106:
    • “The Tribunal is also prepared to accept that the applicant left Bawku and travelled to Kumasi in order to get away from the long history of tribal violence affecting Bawku and its surrounds. As set out above, independent country information referred to earlier demonstrates that there is a long history of tribal violence between Mamprusis and Kusasis in the Bawku region. Against that backdrop, and given the Tribunal’s acceptance that the applicant is a Mamprusi from Bawku, the Tribunal accepts that the applicant left Bawku in order to escape this generalised tribal violence.”
30. The material to which the Tribunal is alleged by the applicant not to have had proper regard only goes to establish the general proposition that Bawku is an extremely dangerous place in general and for Mamprusis in particular.
31. Given the finding the Tribunal made, any failure to consider the material referred to was of no moment. Furthermore, it was not the Tribunal’s obligation to refer to each and every piece of information before it in any event. This ground cannot succeed.
32. Further submissions were made by the applicant under this ground as to the reasonableness or otherwise of the Tribunal’s finding that it was reasonably possible for the applicant to relocate within Ghana.
33. The Tribunal did clearly consider this matter in detail before arriving at the conclusion in paragraph 128 (CB106) that:
    • “... based on the independent country information referred to earlier and the Tribunal’s assessment of the applicant’s particular circumstances and past experiences, the Tribunal remains of the view that the applicant’s risk of being harmed by Kusasis in parts of Ghana other than the far north, such as Kumasi or Accra, is remote and, accordingly, not well-founded.”
34. In fact this finding, which counsel for the first respondent in my view accurately described as a core finding, is only buttressed by the material in the Supplementary Court Book which showed that the Department, in response to a request for country information, replied to the question:
    • “Would men of Mamprusi ethnicity be likely to be harmed for being Mamprusi in a large city, eg Accra or Kumasi,” with the response, “no.”
35. The first respondent’s submissions that the Tribunal’s decision as to relocation does not give rise to jurisdictional error is entirely correct.

Ground 4 – Wednesbury unreasonableness

36. Counsel for the applicant conceded that this was essentially a matter which was wrapped up in the earlier grounds. Counsel referred again to the applicant’s reasons for fear for his safety in Ghana and the problems arising out of his self-representation.
37. I think counsel for the first respondent correctly submits that this ground takes the matter no further in these circumstances.

Conclusion

38. None of the applicant’s criticisms of the Tribunal’s decision are in my view made out and accordingly, it follows that the application must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 2 September 2011