FEDERAL COURT OF AUSTRALIA

MZYYQ v Minister for Immigration and Border Protection [2014] FCA 166

THE COURT ORDERS THAT:

1.    The title of the proceeding be amended to show the first respondent as “Minister for Immigration and Border Protection”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court published as MZYYQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1260 in which the primary judge dismissed the appellant’s application for judicial review. The primary judge reviewed a decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) visa (“the Protection Visa”).

2    The task of the Federal Circuit Court in dealing with the judicial review proceeding brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3     The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the primary judge is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11], (Branson, Finn and Finkelstein JJ).

4    The reasons for judgment of the primary judge conveniently set out the relevant background at [4] to [6] as follows:

The Applicant is a citizen of Sri Lanka who was born in Colombo, Sri Lanka on 25 January 1977. He is now aged 36 years. He is a single man of Tamil ethnicity. He first arrived in Australia on his own passport and on 9 July 2005, on a Class TU Subclass 573 Student visa valid until 30 August 2008. On 2 September 2008, he applied for and obtained a four week Bridging visa. On 15 September 2008, the Applicant applied for a Class TU Subclass 572 Student (Vocational Education and Training Sector) visa. That application was refused by a Delegate of the First Respondent. The Applicant appealed against that decision on 3 March 2009. On 22 April 2010, the Migration Review Tribunal affirmed the decision not to grant the Applicant a Class TU Subclass 572 visa. On 21 May 2010, the Applicant appealed to the Minister of Immigration and Citizenship (as he then was) (‘the Minister’) to intervene in his case. On 23 February 2011, the Minister declined to intervene in the Applicant’s case.

On 17 March 2011, the Applicant lodged an application for a Protection (Class XA) Subclass 866 visa. The Applicant claimed to fear persecution on account of his Tamil ethnicity, his race or ethnicity as a Tamil of Indian origin, his actual and imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (‘LTTE’) and the United National Party (‘UNP’) and on account of his membership of particular social groups comprising his father’s family, “Tamils of Indian Origin”, “failed asylum seekers from Western Countries” and the “Tamil Diaspora”. He claimed that his father was a UNP supporter who was the personal assistant to the Mayor of Kandy and that he died in suspicious circumstances in 1999.

The Applicant claimed that he did not suffer harm until 2005 when he was questioned by police as a suspected LTTE supporter after assisting in a tsunami relief project. He then fled to Australia to escape regular monitoring by the police. In 2009, he claimed he participated in a Sri Lankan protest in Melbourne. When he refused to participate in a later anti-LTTE protest, he claimed one of his flatmates accused him of being a LTTE supporter and threatened to expose him with photos taken whilst he was participating in the Sri Lankan protest. The flatmate then returned to Sri Lanka and threatened his family, as did the authorities, his family being his sister and widowed mother. The Applicant feared he would be asked to report to police and harmed on his return to Sri Lanka.

5    Before the primary judge was a notice which raised three grounds. Those grounds are in substance the same as the grounds raised in the appellant’s notice of appeal. I will deal with each ground in turn. Ground 1 before the primary judge was in the following terms:

The Tribunal has breached section 424AA of the Migration Act, in that all the evidence given to the Tribunal by the applicant has been put to the applicant contrary to the tenor of the relevant sections.

6    In addition to repeating the terms of that ground, the appellant’s notice of appeal also referred to the primary judge’s reasons for judgment and asserted that the primary judge did not reproduce in her reasons for judgment relevant passages from a judgment relied upon by the primary judge. The appellant’s additional complaint is frivolous and raises no suggestion of appealable error.

7    As to the substantive matter raised by ground 1 of the notice of appeal, I will deal with it as though it raises as an assertion that the primary judge failed to identify jurisdictional error in the decision of the Tribunal because the Tribunal failed to act in accordance with s 424AA of the Migration Act. The primary judge dealt with this challenge at [23] and [24] of her reasons for judgment as follows:

The Applicant’s written submissions appear to assert that the Tribunal breached s.424AA of the Act in putting to him concerns it had with the credibility of his evidence during the hearing in accordance with the section. It was open to the Tribunal to proceed in this manner. “Information” for the purposes of s.424A of the Act does not include inconsistencies, or doubts about an applicant’s claims arising from inconsistencies (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at paragraph 17). Accordingly, it may not have been strictly necessary for the Tribunal to put the above inconsistencies to the Applicant for comment. In any event, there was simply no error in the Tribunal putting this material to the Applicant for comment according to s.424AA of the Act during the hearing (SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at paragraph 30).

As submitted by Counsel for the First Respondent, to the extent that the Applicant is asserting that the Tribunal erred by putting to him information from in his student visa application and his Ministerial intervention request and not his Protection (Class XA) Subclass 866 visa application, this assertion plainly cannot succeed. The Tribunal is entitled to have regard to any information it considers relevant (s. 424(1) of the Act). There is no obligation on the Tribunal to only have regard to information that the Applicant had provided in relation to his Protection (Class XA) Subclass 866 visa application in reaching its decision.

8    In my view, the primary judge was correct to dismiss ground 1 of the application before her. I find no appealable error in relation to ground 1 of the notice of appeal.

Ground 2

9    Ground 2 of the application before the primary judge was in the following terms:

The volumes of country information sighted by the Tribunal in affirming the decision were never put to the applicant and thereby the Tribunal has not afforded natural justice and/or procedural fairness to the applicant and it fell into jurisdictional error.

10    The appellant’s notice of appeal (at ground 2) replicates that ground but goes on to identify where the appellant asserts the issue was taken up by the primary judge in her reasons and asserts that the passage referred to in her Honour’s reasons does not appear to answer the relevant ground of review. In his outline of submissions filed with the Court on the appeal, the appellant also contended that the country information that he had submitted to the Tribunal was never taken into account by the Tribunal and that it was a jurisdictional error on the part of the Tribunal not to take into account country information provided by the appellant.

11    The outline seems to raise a new ground and to go beyond the compass of ground 2 of the notice of appeal. I ought not entertain it including because the assertion is plainly wrong. Paragraphs [39], [117]-[119] and [172] of the Tribunal’s reasons demonstrate that the Tribunal was both aware of the country information that the appellant relied on and considered that information. The appellant’s complaint seems to me to be no more than a complaint that the Tribunal failed to place sufficient weight on the country information that he relied on. That, of course, was a matter for the Tribunal.

12    Returning then to ground 2 of the application before the primary judge, the primary judge dealt with that ground at [25] of her reasons as follows:

As to ground two of the Application filed 19 June 2012, it cannot succeed. Section 422B of the Act applied to these proceedings. The Applicant was entitled to those statutory rights. The choice of (and weight given to) the ICI [independent country information] was a matter solely for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at paragraphs 11 to 13). There was no obligation on the Tribunal to put the ICI on which it relied to the Applicant for comment, pursuant to s.424A of the Act. Further, the ICI provided by the Applicant to the Tribunal fell within the exceptions as set out in ss.424A(3)(a) and 424A(3)(b) of the Act.

13    There is no appealable error in the approach which the primary judge took to ground 2 of the application before her. Accordingly, ground 2 of the notice of appeal should be rejected.

Ground 3

14    Ground 3 of the appellant’s application before the primary judge was in the following terms:

The Tribunal acted on the evidence available on his student visa application and lost sight of the evidence presented in his protection visa application and consequently has not reviewed his protection visa application and thereby fell into jurisdictional error. Consequently the finding of the credibility of the applicant has been illogical in that the Tribunal has acted only on the evidence available on his student visa application.

15    That same ground is relied upon as ground 3 of the appellant’s notice of appeal. In addition, the appellant’s third ground asserts that the primary judge did not answer the issue posed by the appellant.

16    In his outline of submissions and in the oral submissions he made this morning, the appellant emphasised his contention that the Tribunal had misdirected itself by focusing its energies on matters to do with his student visa application and not on the claim he made for a Protection Visa. Before dealing with the manner in which the primary judge dealt with this ground, it is necessary to make some reference to the decision of the Tribunal, and in particular that part of its decision at [159]-[166].

17    At [159] of its decision, the Tribunal noted that it had significant concerns about the credibility of the applicant’s claims in light of inconsistencies between what the applicant had stated at the hearing or as part of his Protection Visa application and information contained in departmental files in relation to the appellant’s previous application for a student visa, his appeal of the refusal of that application to the Migration Review Tribunal, a request for intervention made to the Minister and his interview with immigration officials in relation to bridging visas. The Tribunal’s concern about the credibility of the appellant also arose because of the significant period of time between when the appellant arrived in Australia and when he claimed that his fears of harm crystallised, and when he lodged his Protection Visa application.

18    In paragraphs [160]-[166] of the Tribunal’s reasons, the Tribunal detailed the basis of its concerns and the nature of the inconsistencies that those concerns were sourced in. It is not necessary for me to recount those concerns at any length. It is sufficient that I note that those concerns included the appellant’s failure to refer to fearing harm should he be returned to Sri Lanka when he sought intervention by the Minister. They were also based on a finding made by the Tribunal that the appellant deliberately provided false information to the Minister about whether he was in a relationship with an Australian citizen. Further, the Tribunal was concerned about inconsistencies between information given by the appellant during an interview with a departmental official in relation to a bridging visa and information provided in relation to the Protection Visa application. The Tribunal noted that during an interview with a departmental official, the appellant said that he feared harm because he had been arrested by the Sri Lankan police following a bomb blast in a sacred temple. The Tribunal noted that no reference to that incident was made in the appellant’s application for his Protection Visa, nor was it raised before the Tribunal until the Tribunal asked about the inconsistency at its hearing. The Tribunal came to the view that the information given by the appellant to departmental officials was false.

19    In addition, the Tribunal was concerned about the significant period of time between when the appellant’s visa expired, when the Migration Review Tribunal affirmed its decision to refuse his onshore student visa application, and when the appellant lodged his application for a Protection Visa. Those concerns also raised questions about the credibility of the appellant’s claims in the view of the Tribunal.

20    In light of all of those considerations, the Tribunal found that the appellant was not a witness of truth, and consequently, rejected many of the factual matters that the appellant relied upon in support of his application for a Protection Visa.

21    In her reasons for judgment the primary judge dealt with this ground at [26] as follows:

The Tribunal, in a long and detailed decision record considered each and every of the Applicant’s claims and made adverse credibility findings open to it on the evidence before it. The Tribunal findings were not illogical as claimed by the Applicant and the Tribunal’s decision was not a decision that no rational or logical decision maker could arrive at on the same evidence (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraphs 121 to 131 per Crennan and Bell JJ). The Tribunal was not require [sic] to accept the Applicant’s claims at face value and the weight to be given to his claims and evidence, including his documentary evidence, was a matter for the Tribunal to assess as part of its fact-finding function (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at paragraphs 281 to 282; Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122 at paragraph 35). The Tribunal’s findings were open to it on the material before it which included the various inconsistent claims made by the Applicant, and the Court cannot review the merits of the Tribunal’s decision.

22    I see no error in the approach of the primary judge in this respect. There is no illogicality involved in the Tribunal having taken into account for the purpose of assessing the credibility of the appellant, the appellant’s prior conduct and prior statements in relation to his student visa or other applications made by him. The appellant’s conduct in relation to the other applications was relevant and probative of the appellant’s credibility. There was more than a sufficiently logical connection between the Tribunal’s finding as to credibility and the material that it relied upon for that finding. The weight that the Tribunal attached to the credibility finding and the use of that finding to reject much of the factual basis for the appellant’s claims was a matter for the Tribunal and a matter in relation to which the Tribunal did not fall into jurisdictional error.

23    The appellant’s third ground of appeal must be rejected.

Ground 4

24    In his application before the primary judge, the appellant raised a fourth ground as follows:

The decision of the Tribunal has been infested with bias in that the Tribunal failed to look into the applicant’s claim for a protection visa in spite of the overwhelming evidence rather selectively engaged in illogical acceptance and rejections of claims not pertinent to the applicant’s claim for protection.

25    That ground is repeated as ground 4 of the notice of appeal together with an observation that despite the ground not having been pressed before the primary judge, the primary judge dealt with it. The appellant’s outline did not press this ground and nor did he press it in the oral submissions made to the Court. In any event, as the Minister’s contentions rightly state, insofar as the appellant does press this ground as a distinct ground of appeal, it plainly cannot succeed.

26    It was unnecessary for the primary judge to express any view on a ground of review which had been withdrawn. The fact that the primary judge did so cannot logically give rise to an error affecting its decision to dismiss the application for judicial review on the grounds that were, in fact, maintained. It follows that insofar as ground 4 was pressed, the ground should be rejected.

Conclusion

27    I am not therefore satisfied that the appellant has established any appealable error in the judgment of the primary judge. It follows that the appeal should be dismissed with costs.

Associate:

Dated:    6 March 2014