FEDERAL COURT OF AUSTRALIA MZXDH v Minister for Immigration and Multicultural Affairs [2007] FCA 719 MIGRATION – application for protection visa – Refugee Review Tribunal – Tribunal member ceasing to act before decision made – whether reconstituted tribunal required to hold a further hearing. Migration Act 1958 ss 420, 422(2), 425(1), 427. Liu v Minister for Immigration (2001) 113 FCR 541 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 459 Hong v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 1308 NADG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 893 SXXB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 537 Abujoudeh v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 115 FCR 179 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 Re Minister for Immigration for Multicultural Affairs Ex Parte Durairajasingham (2000) 74 ALJR 405 MZXDH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL VID 608 of 2006 FINKELSTEIN J 15 MAY 2007 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 608of 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXDH Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL Respondent JUDGE: FINKELSTEIN J DATE OF ORDER: 15 MAY 2007 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 608 of 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXDH Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL Respondent JUDGE: FINKELSTEIN J DATE: 15 MAY 2007 PLACE: MELBOURNE REASONS FOR JUDGMENT BACKGROUND 1 The appellant is a citizen of the United States of America. He entered Australia on a business visa in 2001. Two years later he applied for a protection visa. A delegate of the Minister refused to grant the appellant a protection visa. The appellant applied to the Refugee Review Tribunal for review of the delegate's decision. His case was that if he returned to the United States he faced a real chance of being persecuted at the hands of members of organised crime syndicates. More specifically, the appellant's claim was that he feared being persecuted because of his membership of a particular social group which he described as 'persons who refuse to join the mafia' or 'persons who stood up to the mafia' or a combination of those two. 2 The tribunal conducted a hearing at which the appellant gave evidence. His claim was quite unusual. He said that there were over 200 instances where he had been targeted by certain organisations or gangs (in particular, the mafia) in the United States over a period of some 20 years. He also claimed being targeted by "agents of the United States government" including the CIA. 3 On 13 October 2004, the tribunal wrote and advised the appellant that the member reviewing his case had ceased to be a member of the tribunal and that his application would be considered by a reconstituted tribunal. The appellant was also informed that the reconstituted tribunal had listened to the tape of the hearing before the original tribunal and had read the transcript of the hearing and the relevant material from the appellant's file. 4 In the letter the appellant was advised that: "…the Tribunal wishes to give you an opportunity to provide any final submissions. In relation to this the Tribunal notes that in the hearing Mr Thompson raised with you his concerns about the credibility and plausibility of your claims and the issue of your mental capacity. The Tribunal shares these concerns as your oral evidence was often confused, unclear and difficult to follow and many of your claims appear unbelievable and implausible. If you or your adviser wish to provide additional submissions or comments on the Tribunal's concerns or information or documentation about your mental capacity this is to be done in writing and to be received by the Tribunal by 5 November 2005." The appellant did not respond. 5 The tribunal affirmed the delegate's decision. This followed its rejection of the main plank of the appellant's claim namely that he had been sought out and targeted for harm by the mafia and the CIA. 6 The tribunal emphasised its concern about the appellant's mental health and credibility. In its reasons it stated: "It is clear that the first Tribunal had concerns about the credibility and plausibility of the Applicant's claims, about the Applicant's state of mental health, and in any case, with whether his claims brought him within the Convention. … As this Tribunal noted in its letters to the Applicant and his adviser on 13 October 2004, it shares the concerns of the first Tribunal, and this Tribunal gave the Applicant and his adviser a further opportunity to provide submissions, or information, or documentation about the Applicant's mental state. However, nothing was submitted, and even if some sort of assessment of the Applicant's mental health was submitted, the Tribunal is still left squarely with the claims put forward by the Applicant or that arise squarely from his evidence." It is clear that the tribunal was of the opinion that the appellant's mental state explained the nature of his allegations which were, in the tribunal's view, extremely unlikely. 7 The appellant sought judicial review of the tribunal's decision in the Federal Magistrates Court. Three main issues were raised. First, that the reconstituted tribunal was required to invite the appellant to appear and give evidence and present arguments (the 'Reconstitution Issue'); secondly, that the tribunal failed to comply with s 420 of the Migration Act 1958 (Cth) because its review was not allegedly "fair, just, economical and quick" (the 'Fairness Issue'); and thirdly, that the second tribunal was obliged to make further investigation to substantiate the appellant's claims (the 'Investigation Issue'). 8 As to the Reconstitution Issue, the magistrate held that in consequence of ss 422 and 422A of the Migration Act there was no obligation, in the appellant's case, for a fresh hearing. Liu v Minister for Immigration (2001) 113 FCR 541 was cited as authority. 9 The magistrate rejected the Fairness Issue in relation to which the appellant claimed that he had not been given sufficient time to explain all the circumstances that formed the basis of his claim. The magistrate said: "The next point made by the applicant was that he did not have enough time to explain all the circumstances which led to him having a well founded fear of persecution for a convention reason. He told the court that he believed this would take approximately three days and he was only given a morning. It is clear from the transcript that during the course of the hearing the Tribunal asked the applicant to work out five or six dot points of the major incidents that occurred to him and the hearing was adjourned temporarily for that purpose. It is also clear that the applicant told the Tribunal that the case being made by him was a lengthy one but he did manage to bring it up to date and included incidents that he said involved his life being threatened whilst in Australia. The Tribunal has the power to control its own proceedings: see s.420 of the Act, and remarks of Ryan J in M17/2004 v Minister for Immigration (V543 of 2004) (2005) 85 ALD 597 at [51]). It is not required to be subjected to a filibuster. Obviously, if the Tribunal cuts an applicant short in a manner which indicates that it is not able to consider the whole of that applicant's claims it takes a risk that it will thereby fall into jurisdictional error. But the requirement of speed in decision-making in s.420 of the Act has been held to be "of a different order" than other aspirations in that section for "fairness and justice", and default of this provision would not, of itself, constitute jurisdictional error: as per Kirby J in NAIS & Ors v Minister for Immigration (2005) 223 ALR 171 at [75]. Indeed the Tribunal would not be able to achieve its s.420 objectives were it required "to accede to every request made of it": as per Ryan J in M17/2004 v Minister for Immigration (V543 of 2004) (2005) 85 ALD 597 at [51]. If, as here, it does at all times make the applicant aware of problems with the history the applicant is rehearsing and provides him with an opportunity to put more cogent arguments to it then there will be no error in bringing the proceedings to a conclusion after a reasonable period of time. This is what occurred." 10 As to the Investigation Issue, the appellant's complaint was that the tribunal failed to make its own enquiries into the appellant's allegations such as by contacting the FBI, amongst other organisations. The magistrate found that although the tribunal had the ability to obtain additional information under s 427, there was no duty to enquire in this case for the reason that the tribunal had offered the appellant the opportunity to put on further evidence: see generally, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Hayne and Gummow JJ and at [124] per Callanan J; SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 at [22] as per Hely J; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 459 at [27] as per Crennan J; Hong v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 1308 at [20] as per Finn J). 11 The appeal from the Federal Magistrates Court raises the same grounds. I will deal with them in turn. 12 Sections 422 and 425 enable the tribunal to be reconstituted when a member leaves and for that purpose permits the reconstituted tribunal to complete a hearing. The only question that arises is whether the tribunal should have held a further hearing. In Liu and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 541 at [37 ]-[43] ('Liu'), the Full Court held that it was not always necessary to hold a fresh hearing. "The reconstituted Tribunal [only had] to undertake what remains to be done in the review without interrupting the process, while picking up and carrying on the steps that have already been taken." See also NADG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 893; SXXB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA537; and Abujoudeh v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1351. 13 That said, the question still arises whether, in this particular case, the tribunal ought to have exercised its discretion to allow the appellant to present evidence at a second hearing – particularly as the tribunal's decision was based on adverse credibility findings. 14 This very point was considered in Abujoudeh v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1351. There Ryan J said at [31]: "This was not an extreme case of the kind adverted to by Hely J in Ahmed because the Tribunal's conclusions of implausibility were not based on an assessment by the Member who previously constituted the Tribunal, or anybody else, of the applicant's demeanour or apparent candour or lack of it when giving evidence. Rather, the Tribunal found those of the applicant's claims which it rejected to be implausible because they were inconsistent or difficult to reconcile with undisputed facts or general knowledge acquired by the Tribunal in the course of its experience. For example, the Tribunal pointed, in the passage quoted at [10] above, to the applicant's obtaining and continued possession of a current passport. The Tribunal also indicated, in the same context, the improbability that the applicant's parents were unaware, as he claimed, of his intensive Party activities. Similarly, the discrepancies which the Tribunal detected in the three summonses to the applicant to attend Court, could not have been overcome by an appearance of candour or truthful demeanour on the part of the applicant had he given evidence before the Tribunal as reconstituted. Likewise, the Tribunal's conclusion set out at [16] above in relation to the Good Conduct or Good Character Certificate depended on its own examination of that document and its objective assessment of the likelihood of its having been issued in the circumstances asserted by the applicant. The Tribunal also relied on internal inconsistencies between the applicant's claims to have been in hiding for some months before leaving for Australia and other parts of his account." At [32], Ryan J went on: "It will be seen, even from the brief résumé which I have just given, that the approach which led the Tribunal to characterise certain parts of the applicant's claims as implausible, was based on a dispassionate analysis of the content of the applicant's evidence, not the manner in which it was given. It is therefore, highly unlikely that, had the applicant been personally heard and seen by Ms Wood, his explanations of the inconsistencies on which she relied would have been so convincing or that his demeanour would have been so disarmingly frank as to overcome all or most of her objections." 15 Thus the critical factors that are relevant in determining whether there should be a second hearing are: (1) Whether the implausibility of the evidence was based on the appellant's demeanour or apparent candour (or lack thereof) when giving evidence; (2) Whether the implausibility of the evidence was based on inconsistencies with undisputed facts or general knowledge acquired by the tribunal in the course of its experience; (3) Whether the implausibility of the evidence was based on internal inconsistencies between the appellant's claims and other parts of his account. 16 The tribunal's finding on credibility was not based on how the appellant gave evidence – that is, the manner in which the evidence was given. The finding was based on the content of what the appellant said. The tribunal viewed the evidence as implausible based on the implausibility of its content. Considerations such as how the appellant conducted himself during the hearing were irrelevant. In any event, the accuracy and weight given to demeanour of a witnesses giving evidence is a controversial topic. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306, Kirby J stated at [88]: "There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana'), Atkin LJ remarked that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour'. ... Fifty years ago, the Supreme Court of Canada wisely declined to offer guidelines about the kinds of demeanour that would afford reliable indicators of the trustworthiness of witnesses. The studies of experimental psychologists since that time had confirmed the danger of placing undue reliance upon appearances in evaluating credibility. Such studies were not available to the appellate courts when the rules of deference to the assessments of trial judges on questions of credibility were first written. They are available to us today. Although they have not yet resulted in a re-expression of the appellate approach (and by no means expel impressions about witnesses from the process of decision-making) the studies have two consequences. Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility." Kirby J continued at [89]: "None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing." 17 See also, A Cin, Assessment of Credit - Trial Judge Isn't Always Right (2001) 23(7) LSB(SA) 21; K Mack, Challenging Assumptions About Credibility (2001) 39(10) LSJ 60; (2001) 21(4) Proctor 16. 18 I agree with counsel for the Minister who submitted that: "[The] adverse credibility finding … wasn't based in any way on demeanour or some other need to actually observe MZXDH at the hearing. It was based on listening to the tapes and reading the transcript and having distinct difficulties in believing the claims. It was a situation where the Tribunal member simply found the claims implausible without receiving some other evidence, some other documentary evidence that might back them up." 19 The fact is that this case is one in which little (if any) weight need be given to the demeanour of the appellant. It was quite appropriate for the tribunal to base its findings on the tapes and the transcript. 20 The appellant claims that he not only survived attacks from the mafia, but the CIA as "agents of the United States government." He says the mafia tracked him to Chicago. After reporting this to the Chicago Police Department, he was offered two options. One was to go to a mental hospital in Chicago, the second option was to go home. After two weeks at the mental hospital, the appellant went home. There he was then confronted by a person who resembled a "TV mafia hit man". The mafia hit man failed in his attack. The appellant said he escaped through a back door. This is one of numerous near miss attempts by the mafia on the appellant's life. The story is inherently implausible. 21 The tribunal was entitled to take into account, as it no doubt did, that the appellant had been in a mental institution for two weeks. It is true there is no medical report that explains the appellant's medical state, but the tribunal did ask the appellant to provide a report but he declined. 22 In light of the foregoing I am satisfied that the finding on credibility was open to the tribunal without the need for a future hearing. In this connection I take into account what McHugh J observed in Re Minister for Immigration for Multicultural Affairs Ex Parte Durairajasingham (2000) 74 ALJR 405, 417: "If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged." 23 The second issue is whether the second tribunal failed to comply with s 420 of the Act because its review was not "fair, just, economical and quick". I see no reason to depart from the reasons of the magistrate. 24 The third issue is whether the tribunal was obliged to carry out its own investigations to substantiate the appellant's claims. 25 As the magistrate pointed out, s 427 empowers the tribunal to make enquiries, but this duty is merely permissive. The principal authority is Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12. There the appellant claimed he was suffering from post traumatic stress disorder. The High Court held that although the tribunal was concerned about the appellant's mental health, it was under no duty to obtain medical reports or enquire about the mental health of the appellant. 26 Here, the appellant claims that his allegations should have been checked with the FBI, the Honolulu Police Department, the Memphis Police Department, the Tennessee Bureau of Investigation, and the Detroit Police Department. The investigations suggested by the appellant are more onerous than that suggested in MIMIA v SGLB. In my view this type of information, if it was available, should have been provided by the appellant as part of his own case. It was not for the tribunal to make his case for him. 27 In my view, the tribunal did not commit jurisdictional error and the appeal from the magistrate should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 15 May 2007 Appellant appeared in person: Counsel for the First Respondent: R Knowles Solicitor for the First Respondent: Clayton Utz Date of Hearing: 30 October 2006 Date of Judgment: 15 May 2007