MZYYQ v Minister for Immigration and Border Protection

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.