FEDERAL COURT OF AUSTRALIA

MZZQC v Minister for Immigration and Border Protection [2015] FCA 685

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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.

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 6 February 2015, which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). The Tribunal’s decision was to affirm a decision of the delegate of the first respondent, the then Minister for Immigration and Citizenship (the Minister), not to grant the appellant a Protection (Class XA) visa.

2    The appellant’s claims and background circumstances were summarised by the primary judge at [3]-[11] of the reasons for judgment: MZZQC v Minister for Immigration & Anor [2015] FCCA 233. There is no challenge to that summary. It provides a convenient background to the appeal:

3.    The applicant is a citizen of Mongolia. He arrived in Australia on 25 June 2008 as a visitor. He applied for a protection visa on 25 June 2012 … His claims to protection were initially set out in a Statutory Declaration …

4.    The applicant claimed to fear harm from the Mongolian authorities for reason of his, and his father’s, political profile and activities.

5.    The applicant claimed that his father had previously been “chief of police” in Mongolia. However, he had been “fired” after he did not cooperate with the “People’s Revolutionary Party” … His father then became politically active, and following the applicant’s return from Germany in 2004, where he had been studying, he assisted his father in his campaigning …

6.    The applicant claimed that he was persecuted and harmed while campaigning for his father … He claimed that in June 2004 he had been targeted, by having shots fired at a group he was campaigning with and, was then “handcuffed... blindfolded”, and driven to an “empty building” where he was “beaten”, until his father was called and told to stop his campaign …

7.    The applicant also claimed that he was released “two or three days later” and had to receive medical attention. He claimed that as a result of the attack on him, his father had told people not to vote for him, as he feared for his family’s safety. Further, the applicant claimed that he had made a complaint about the electoral process, and the harassment, to a “foreign observer”, whose car was later “torched” … Following the election, the applicant claimed that his father “withdrew” from society …

8.    The applicant moved to the United States of America (“the USA”) in 2005, where he continued his political activism against the Mongolian government … The applicant returned to Mongolia in 2008. He claimed that he was visited by “intelligence personnel” and told “this is enough of what you are doing” … The applicant assumed that this was with reference to his previous activism in Mongolia and the USA.

9.    The applicant further claimed that his father returned to politics in 2008 for the election, as a member of the Social Liberal Party. The applicant claimed that he became involved in campaigning again, and was present when a riot broke out that damaged government property. After the riot, the applicant feared for his life and left Mongolia, arriving in Australia, via the People’s Republic of China, on a visitor visa.

10.    The applicant has been in Australia since 25 June 2008. He stated he had lost his passport about one month before his visitor visa ceased to have effect. However, he said he did not wish to approach the Mongolian embassy to obtain a new one.

11.    He stated he had been employed, variously, by a Toyota dealership and by a private car dealership. During this time he was found guilty of “obtaining financial advantage by deception” as a result of writing cheques that could not be honoured. It appears he had also done this in the USA. In Australia, he was sentenced to four years imprisonment with a minimum non-parole period of two years. He was on parole when he applied for a protection visa.

The Tribunal’s decision

3    The appellant appeared before the Tribunal on 31 January 2013 to give evidence and present arguments. He was represented by a registered migration agent.

4    In its decision record, the Tribunal summarised the issues for its decision, as follows:

32.    The issue in this case is whether there is a real chance that, if the applicant returns to Mongolia, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of section 36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Mongolia, there is a real risk that he will suffer significant harm for the purpose of section 36(2)(aa) of the Migration Act.

5    The Tribunal considered that the decision under review should be affirmed.

6    The Tribunal’s decision record reveals that it gave thorough consideration to the appellant’s claims. However, it found a large number of the appellant’s factual claims to be, variously, implausible, not credible, fanciful or far-fetched. It provided comprehensive reasons for those findings.

7    It is not necessary for me to set out all the Tribunal’s findings and conclusions or its detailed analyses leading to those findings and conclusions. For present purposes, it is sufficient to note the following paragraph of the decision record:

74.    Based on the Tribunals findings above, the Tribunal does not accept the applicant’s claims that he will be arrested if he returns to Mongolia. The Tribunal does not accept that the applicant faces a real chance of being harmed by the Mongolian authorities given that it does not accept that the applicant has had any political involvement except for assisting his father with his political campaign during the 2004 election and an opportunistic photo opportunity with the President at some unknown point in time. The Tribunal does not accept that the applicant has any political profile, whether actual or imputed, and including that of being a suspected supporter of the then President, and therefore it does not accept his assertion in the hearing that the Mongolian authorities still fear he can put people together and go against the government again. While the Tribunal accepts that the applicant may have referred to the threat he believes he faces in Mongolia to the police during investigation of his criminal charges in Australia and this was also referred to by the judge in his judgement, for the reasons provided above, the Tribunal finds that the applicant’s claims are not credible nor that any matters raised in connection with his criminal matter gives rise to a real chance of serious harm for a Convention reason. The Tribunal does not accept the applicant’s claims regarding his anti-government political opinion and as such, it does not accept that he faces a real chance of persecution, now or in the reasonably foreseeable future, if he returns to Mongolia, for reason of his alleged political opinion. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution.

(Errors in original.)

8    The Tribunal considered the applicability of the complementary protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act), but was not satisfied that protection obligations under that provision were owed to the appellant.

The Federal Circuit Court

9    The appellant’s application for judicial review (as amended) alleged that the Tribunal fell into jurisdictional error on a number of grounds. These may be summarised as:

    failing to comply with s 424A of the Act by not giving the appellant the original of a document that the Tribunal had received from Automattic Inc (Automattic), which contained information which the Tribunal had put to the appellant pursuant to s 424A: ground 1(a);

    bias: ground 1(b);

    failing to take into account relevant considerations: grounds 2(a)-(d); and

    making a decision that was legally unreasonable: ground 3.

10     The primary judge rejected each ground.

11    In order to understand ground 1(a), it is necessary to consider some further background material.

12    Before the Tribunal, the appellant claimed that, while in the United States of America, he had engaged in certain political activities, including starting a blog on Word Press. The Tribunal was unable to locate any evidence of the blog and raised this concern with the appellant at the hearing on 31 January 2013. On 20 March 2013, the appellant provided the Tribunal with a copy of an email dated 19 March 2013, which had purportedly been written and sent to him by David Obenland, a VIP Support Engineer from Automattic. The copy of the email was provided to the Tribunal to verify that the appellant had hosted a free blog between 23 April 2007 and 5 April 2008, and that this blog was terminated, due to a written complaint received from the Third Secretary of the Embassy of Mongolia in December 2007, because the appellant was posting misleading information about Mongolia and its government. The Tribunal made inquiries of Automattic to verify the employment of David Obenland. The Tribunal received advice from Automattic that nobody by the name David Obenland had been in its employment.

13    The Tribunal put this information (as well as other matters) to the appellant in a letter dated 18 June 2013. After informing the appellant of the response given to the Tribunal by Automattic, the letter continued:

This information is relevant to the review because the email response from the HR Lead that they have never had anyone by the name of David Obenland employed at Automattic raises serious concerns about the genuineness of the email you submitted from David Obenland and your credibility generally. Subject to your comments, this may lead the Tribunal to find that you did not have a blog on WordPress and that your claims are not credible. This may in turn lead the Tribunal to find that you have not published a blog critical of the Mongolian government or any Mongolian politicians, including the President, as you claimed or therefore that you were of any interest to the Mongolian authorities because of this. If the Tribunal relies on this, this would be reason or part of the reason for affirming the decision.

14    On 18 July 2013, the appellant responded, stating that he could not comment on why Automattic would state that David Obenland was not an employee. He said that, so far as he was concerned, he had received an email from this individual and took it to be genuine.

15    The Tribunal dealt with this response, at [53] of its decision record, in the following way:

53.    … The Tribunal has taken into consideration the applicant’s response however given the Tribunal’s concerns regarding the applicant’s credibility, as discussed throughout this decision, the Tribunal places considerable weight on the response provided by Automattic and finds the email from David Obenland is not credible. The Tribunal notes the applicant’s adviser’s reference in the response received on 18 July 2013 to their request to a copy of the correspondence between the Tribunal and Automattic and their concern that the applicant has not been given a full opportunity to comment upon the relevant information because their request was denied. The Tribunal is satisfied that the applicant was provided with clear particulars of the information and a full explanation as to how it is relevant to his case as required by the law. In light of the above, the Tribunal does not accept that the applicant had a blog as he claimed.

16    The primary judge concluded that the Tribunal’s letter dated 18 June 2013 provided “clear particulars” of the information that the Tribunal said would be the reason, or part of the reason, for affirming the decision under review. At [36]-[37], his Honour said:

36.    In essence the Tribunal’s letter referred the applicant to his own evidence (which of itself came within the exception to the obligation in s.424A(1), set out at s.424A(3)(b) of the Act), which was that he had received an email from “David Obenland”, and that the email said that he had published a “free blog”. It then told the applicant that it had information from Automattic Inc that they had never had anyone of that name in their employ.

37.    In my view, the Tribunal did provide “clear particulars” of this information. The Tribunal’s letter also made clear why this information was relevant to the review. Namely, that this raised concerns about the genuineness of the email he had submitted, which in turn may lead to a finding that his claims were not credible. The Tribunal also complied, therefore, with s.424A(1)(b) of the Act. It is difficult to see how a copy of the actual response received from Automattic Inc (the “document” that the applicant complains he should have been given) could have made the situation any clearer.

17    Further, the primary judge rejected the relevance to this ground of review of an allegation by the appellant that the Tribunal had breached his privacy. The primary judge concluded (at [57]) that compliance by the Tribunal with the provisions of the Privacy Act 1988 (Cth) is not a prerequisite to the making of a valid decision: Goldie v Commonwealth of Australia (2000) 180 ALR 609 at [85]-[87]; Abbasi v Minister for Immigration and Multicultural Affairs [2001] FCA 1274 at [67]; SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452 at [32].

18    With respect to ground 1(b), the appellant complained that the Tribunal had shown “excessive attention” to matters concerning his credibility. He alleged that the Tribunal failed to base its decision on his claims and evidence. He also alleged that the Tribunal did not give him an opportunity to be heard. These failures were said to extend to the advice from Automattic received by the Tribunal as well as a photograph of the appellant apparently with the President of Mongolia.

19    The primary judge considered relevant authorities, including Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

20    The primary judge considered that this ground, as advanced, was really a complaint that the Tribunal had come to the wrong decision on the merits. The primary judge noted that bias, or the apprehension of bias, is not made out simply on the basis of a disagreement with the Tribunal’s findings of fact. The primary judge concluded (at [115]) that the appellant had not established either actual bias or an apprehension of bias.

21    As to ground 2, the appellant alleged that the Tribunal had failed to take into account, as relevant considerations, the following matters:

    The photograph of the appellant purportedly with the President of Mongolia, and matters related thereto;

    The email from David Obenland to the appellant in relation to his alleged blog, and matters related thereto;

    An “Order to Remand Suspect Under Custody” purportedly issued by the Criminal Police Authority of Mongolia and matters related thereto; and

    Certain “specific circumstances” including a “finding” concerning the appellant’s fear of persecution in Mongolia that had been made by Judge Wilmoth in the County Court of Victoria when convicting and sentencing the appellant to imprisonment on eleven counts of obtaining a financial advantage by deception and three counts of obtaining property by deception.

22    The primary judge held that the Tribunal had considered all of these matters but either placed little weight on them because of its adverse findings with respect to the appellant’s credibility, or placed greater weight on other, more persuasive, evidence before it. As to the “finding” made by Judge Wilmoth, the primary judge concluded that it was for the Tribunal to come to its own findings as to whether the appellant faces a real chance of persecution, now or in the reasonably foreseeable future if returned to Mongolia, by reason of his alleged political opinion.

23    As to ground 3, the primary judge rejected the appellant’s allegation that the Tribunal’s decision was unreasonable. His Honour referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 and noted that a decision is not unreasonable in circumstances where minds may differ as to the outcome. His Honour concluded (at [106]) that the Tribunal’s decision was reasonable; it accepted some of the appellant’s factual claims but gave cogent reasons as to why those matters did not rise to serious, and subsequently, significant harm.

24    Further, his Honour concluded (at [107]) that the Tribunal’s adverse view of the appellant’s credibility was based on inconsistencies, implausibilities and deficiencies in his evidence, as well as concerns about how the appellant’s claims to protection were developed and emerged before the Tribunal. His Honour concluded (at [108]):

108.    In circumstances where the Tribunal’s findings were reasonably open to it, where the Tribunal gave reasons probative of the evidence and where minds may differ as to the outcome, unreasonableness is not made out. Nor, for that matter did the Tribunal’s reasoning and decision lack an “evident and intelligible justification” for findings of fact (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76]).

The appeal

25    The appellant appeared at the hearing of the appeal unrepresented, as he had at the hearing in the Federal Circuit Court.

26    When the hearing of appeal was called on, the appellant made an application for an adjournment on grounds foreshadowed in a written communication to the Court on 24 June 2015. The Minister opposed the adjournment, and I refused the appellant’s application. My reasons for the refusal are given below.

27    The appellant’s notice of appeal contains four grounds, stated as follows:

1.     Jurisdictional error(s) in the decision of the Federal Circuit Court of     Australia.

2.    Jurisdictional error(s) in the decision of the Second Respondent.

3.    Reasons provided in the decision of the Second Respondent that the Appellant was not a person in respect of whom Australia has protection obligations under the Refugee Convention were neither logical nor rational.

4.    Further Grounds of Appeal will be provided once the Appellant has a legal representation, and the review of written reasons for the decision has been completed.    

28    Although grounds 1 and 2 assert “error”, no error is identified. The reasons that are alleged to be neither logical nor rational are not identified. Moreover, the basis or bases on which the reasons are alleged to be neither logical nor rational is (are) not identified.

29    When I asked the appellant whether he had any understanding of the grounds of appeal he had raised, he said that he had no legal understanding of those grounds and that the notice of appeal had been prepared with the assistance of a law student.

30    When invited to make submissions in support of his appeal, the appellant said that, because he was not a lawyer, he was not able to do so. I note, however, that the appellant was able to conduct the hearing of his application for judicial review before the Federal Circuit Court.

31    The Minister provided detailed written submissions, which are on the Court file. I was greatly assisted by these submissions.

32    I have given careful consideration to the primary judge’s reasons. They are detailed, lucid and comprehensive. I can discern no appealable error in his Honour’s reasoning or conclusions. It follows that the appellant’s appeal must be dismissed. The appellant should pay the Minister’s costs.

Refusal of the appellant’s adjournment application

33    This appeal was commenced on 18 February 2015. A hearing was appointed for 15 May 2015. The appellant was advised of that hearing date on 7 April 2015.

34    On 12 May 2015, the appellant sent an email to the New South Wales District Registry, seeking an adjournment of the appointed hearing. He stated that, on that morning, he had received news that his brother had been shot and killed in Mongolia. This information was unverified. However, in the circumstances, the Minister, quite properly, did not oppose the hearing being adjourned.

35    On 13 May 2015, the parties were informed that the hearing of the appeal had been adjourned to 26 June 2015.

36    On 24 June 2015, the appellant sent an email to the New South Wales District Registry in which he sought to apply for a further adjournment of the hearing on three grounds.

37    The first ground was that he is fasting for the holy month of Ramadan. In that connection he said that he would not be able to attend the hearing of the appeal “in good physical or mental state” to present his case. He said that he believed that fasting would “blur the awareness and responsibility of his statements and claims during the hearing”.

38    The second ground was that, if the appeal could be heard in the second half of August 2015, the appellant would be able to produce a witness from Automattic who would be coming from the United States of America. The appellant said that the name and occupation of this witness was not presently known to him because “[Automattic] haven’t nominated anyone yet”.

39    The third ground was that the appellant intended to appeal a decision made by Legal Aid NSW not to grant him legal aid.

40    The parties were informed that I was not prepared to deal with the appellant’s adjournment application on an informal basis and that any application for an adjournment was to be made at the hearing appointed for 26 June 2015.

41    When making his adjournment application on 26 June 2015, the appellant advanced a further matter. He said that, on the previous afternoon, he had obtained the assistance of counsel who had indicated his preparedness to “look into the matter” for the appellant.

42    I was not satisfied that any of these matters would justify an adjournment of the hearing of the appeal.

43    As to the question of fasting, the appellant stated at the hearing that he was, in fact, an atheist but that, out of respect for his grandfather, who was a practising Muslim, he had always fasted during Ramadan. It is, of course, a matter for the appellant if he wishes to fast during Ramadan. However, I do not accept that, simply because he is fasting (if that be the case), he could not attend and conduct the hearing of his appeal. I should say that, according to my observation, the appellant appeared to be suffering no impediment whatsoever on the basis of his alleged fasting. Further, the appellant’s intention to fast must have been well-known to him at the time when he was informed on 13 May 2015 of the adjourned hearing date. He raised no impediment at that time to his ability to appear at a hearing on 26 June 2015. For his own reasons, he delayed, without proper justification, to take any steps to apply for an adjournment on this basis.

44    The second ground of the appellant’s adjournment application does not assist him. Further evidence going to the merits of his application for a protection visa would not be admissible in the appeal.

45    As to the third ground of his adjournment application, the appellant does not have a right to legal representation. As I have noted, he appeared before the Federal Circuit Court to prosecute his application for judicial review, without legal assistance. His desire to have legal assistance at the hearing of his appeal has only now been raised. It did not feature as a ground for seeking an adjournment of the hearing appointed for 15 May 2015. There is no evidence of the appellant having made an application for a grant of legal aid. He tendered a copy of a completed but unsigned application to appeal a refusal to grant legal aid, dated 24 June 2015 (the date he foreshadowed his further adjournment application). There is nothing to suggest that such an appeal, as referred to in that document, would have any prospects of success.

46    Further, there is no evidence before the Court of any other attempts by the appellant to obtain legal assistance, apart from his efforts apparently made yesterday afternoon. This attempt comes far too late. But for the appellant’s application for an adjournment made on 12 May 2015, the appeal would have been heard on 15 May 2015, as originally appointed.

47    In refusing the appellant’s application for an adjournment, I also took into account, in a provisional way, the appellant’s likely prospects of success, having regard to the primary judge’s reasons for judgment and the grounds stated in the appellant’s notice of appeal.

Disposition

48    The appeal will be dismissed, with costs.

Associate:

Dated:    8 July 2015