FEDERAL COURT OF AUSTRALIA MZYBC v Minister for Immigration & Citizenship [2009] FCA 417 Migration Act 1958 (Cth), ss 91R, 91R(2) MZYBC v Minister for Immigration and Anor [2008] FMCA 1567 affirmed MZYBC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL VID 1096 of 2008 GRAY J 4 MARCH 2009 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1096 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZYBC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAY J DATE OF ORDER: 4 MARCH 2009 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The time for the appellant to file and serve a notice of appeal be extended to 30 December 2008. 2. The draft notice of appeal filed on 30 December 2008 be treated as the appellant's notice of appeal. 3. The appeal be dismissed. 4. The appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1096 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZYBC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAY J DATE: 4 MARCH 2009 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court, delivered on 21 November 2008, and published as MZYBC v Minister for Immigration and Anor [2008] FMCA 1567. The learned federal magistrate dismissed with costs an application by the appellant to review a decision of the second respondent to the appeal, the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent to the appeal, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Sri Lanka. She arrived in Australia on 12 April 2007. On 21 May 2007, she applied for a protection visa. On 10 July 2007, the Minister's delegate made a decision refusing to grant her a protection visa. Unfortunately, by letter dated the same date, the appellant's migration agent was mistakenly advised that the appellant had been granted a protection visa. The letter was erroneous in that, although it included in the heading the name of the appellant, following the abbreviation "Ms", the references to the migration agent's client in the letter were all expressed in the male gender. The error was corrected by a subsequent letter dated 16 July 2007, which enclosed a copy of the earlier decision record, giving the delegate's reasons for refusing the application. 3 The appellant applied to the Tribunal for review of the decision. The Tribunal conducted a hearing on 10 October 2007, at which the appellant gave oral evidence through an interpreter in the Sinhalese language, and at which the appellant was represented by a migration agent. The Tribunal's decision was dated 1 May 2008 and handed down, or sent to the appellant, on 3 June 2008. 4 The appellant then applied to the Federal Magistrates Court for judicial review of the decision to refuse her a protection visa. Her application to that court was in something of a standard form, and was obviously prepared with the assistance of a lawyer or migration agent, although it was lodged in the name of the appellant. It particularised eight grounds under the general proposition that the Tribunal's decision was made without jurisdiction, or was affected by an error of jurisdiction. 5 In his reasons for judgment, the federal magistrate dealt with each of those grounds. The first was the allegation that, by taking into account what it considered to be the low level of knowledge of the applicant with respect to politics in Sri Lanka, the Tribunal took into account an irrelevant consideration. The federal magistrate found that the appellant's level of knowledge of politics in Sri Lanka was relevant to her claim that she had a well-founded fear of persecution for the reason of her political opinion if she should return to Sri Lanka. In particular, the appellant claimed a long history of involvement with the United National Party, and the Tribunal took the view that someone who had had such an involvement as she claimed would have had more knowledge of what the party stood for. The federal magistrate concluded that the appellant had not demonstrated an error by the Tribunal going to its jurisdiction, and that the consideration was relevant. 6 The second ground was that the Tribunal did not give adequate consideration to the appellant's psychological state. As the federal magistrate said, the Tribunal did discuss the appellant's psychological state, recounting evidence from two qualified professionals, and specifically taking into account the appellant's psychological state and general health as factors that might adequately explain her lack of knowledge or apparent interest in matters the Tribunal thought she ought to have known or been interested in. The federal magistrate took the view that this ground was an attempt to seek a merits review of the Tribunal's decision by challenging the Tribunal's conclusions of fact rather than a review on the basis of jurisdictional error. His Honour held that it was open to the Tribunal to proceed to make the findings that it did. 7 The third ground was that the Tribunal drew conclusions not based upon evidence. This ground challenged the Tribunal's finding on the delay between the appellant receiving death threats in the wake of the April 2004 general election in Sri Lanka and her departure from Sri Lanka to come to Australia in 2007. The federal magistrate set out in detail the Tribunal's reasoning on this matter, and found that the conclusions of the Tribunal were open to it. His Honour also said that there could be no error on the part of the Tribunal that would amount to jurisdictional error in that regard. 8 The fourth ground was that the Tribunal misconstrued and misinterpreted the Convention criterion. This ground accused the Tribunal of misunderstanding the test to be applied, as it was not whether the Sri Lankan Government was willing or able to protect the appellant, but whether the appellant, owing to well-founded fear, was unable or unwilling to avail herself of the protection of that country. As the federal magistrate pointed out, the Tribunal concluded that the appellant did not face a real chance of persecution in the reasonably foreseeable future, and, on that basis, the availability of State protection was not a relevant matter. Any finding of the Tribunal about State protection was a secondary issue only, because the appellant did not have a well-founded fear of persecution. Again, his Honour referred in detail to the Tribunal's reasoning. 9 The fifth ground also raised the question of State protection, and the question whether a fear of persecution was unfounded, as did the sixth, which asserted that the Tribunal's decision on State protection was contrary to the material before the Tribunal. In relation to both of these grounds, the federal magistrate referred again to the fact that the Tribunal had concluded that the appellant did not have a well-founded fear of persecution. As his Honour said at [23] of his reasons for judgment: For this reason any errors that may have occurred in discussing state protection are not relevant as the [appellant] had failed to satisfy the relevant criterion for the grant of the visa 10 The seventh ground was that the claims of the appellant were capable of demonstrating a reasonable fear of persecution. As the federal magistrate said, this was simply an attempt to challenge findings of fact that the Tribunal had made. It was not open to the appellant to challenge in the Federal Magistrates Court those findings of fact. She had attempted to do so in the context of relying on the terms of s 91R of the Migration Act 1958 (Cth), which deal with the issue of what constitutes serious harm for the purposes of a protection visa. As his Honour said at [25]: Whilst the Tribunal referred to s.91R(2)…it does not appear to have relied upon this section as excluding the [appellant's] claim, rather the Tribunal had regard to the nature of the claims and formed a view as to whether or not it accepted that the matters put forward showed a real chance that the [appellant] would be subject to persecution in the reasonably foreseeable future. 11 The final ground alleged that the Tribunal incorrectly applied the relocation test. The federal magistrate pointed out that, as the Tribunal had found that the appellant did not have a well-founded fear of persecution, the issue of relocation within Sri Lanka was essentially academic. For these reasons his Honour refused the appellant's application for judicial review of the Tribunal's decision. 12 As I have said, the federal magistrate published his reasons for judgment on 21 November 2008. The appellant did not file any notice of appeal until 30 December 2008 when she filed an application for an extension of time to file and serve a notice of appeal. Her failure to do so is explained in an affidavit which she has filed in this Court. In essence, she says that she attended the hearing in the Federal Magistrates Court on 10 October 2008 when judgment was reserved. She believed that she would receive the judgment of the court with reasons, and that if she were unsuccessful she would be able to appeal to this Court. On 19 December 2008, she attended the registry to inquire about the judgment and was informed that it had already been delivered on 21 November. The appellant had not received the reasons for judgment at that time. She did not receive them until 29 December 2008. On the following day, she filed her application for an extension of time. 13 In these circumstances, it appears to me that I ought to grant to the appellant the extension of time she seeks. There is no material on which the Minister relies to the contrary. There is nothing in the file of the Federal Magistrates Court suggesting that the reasons for judgment were forwarded to the appellant on any date earlier than a date which would have conveyed them to her at the time she says she received them. Accordingly, I indicated that I was prepared to grant the necessary extension of time to the appellant and to proceed to deal with her appeal. 14 The appellant appeared today and made submissions through an interpreter in the Sinhalese language. It is very clear from the submissions that she made that she was attempting to persuade me that the Tribunal ought to have accepted the evidence that she gave, and to have found that she had a well-founded fear of persecution. I have endeavoured to explain to the appellant that it is not the function of this Court, nor the function of the Federal Magistrates Court, to interfere with the Tribunal's decision on questions of fact. So long as the Tribunal acts within its jurisdiction, according to law and following correct procedures, its decisions on matters of fact are matters entirely for it. Both the proceeding in the Federal Magistrates Court and the appeal to this Court are concerned only with issues of judicial review, which are essentially legal and procedural in nature, and not with the merits of the factual conclusions reached by the Tribunal. 15 In her draft notice of appeal on which she seeks to rely, the appellant expressed three grounds as follows: 1. The learned Federal Magistrate erred in not finding that the second respondent ("the Tribunal") acted without jurisdiction in acting in breach of its obligations under the law. 2. The Learned Magistrate erred in not finding that the Tribunal acted without jurisdiction in that the decision was based in part on a finding not open on the material before the Tribunal. 3. The Learned Magistrate erred in not finding that the decision was affected by jurisdictional error in that there was a reasonable apprehension that the Tribunal was biased 16 None of these grounds is accompanied by any particulars. None of them matches directly the grounds on which the appellant relied in the Federal Magistrates Court, although the first two grounds are perhaps capable of covering some or all of the grounds of her application at first instance. The third ground is a totally new allegation that was not put before the Federal Magistrates Court. In the course of the hearing today I have endeavoured to ascertain from the appellant some detail of each of these grounds. She has not been able to provide me with any, but has reverted, on several occasions, to arguing the merits of her appeal as she sees them. 17 I am therefore in the position of not having any detailed exposition of the proposed grounds of appeal. I have examined carefully the reasons for decision of the Tribunal to see if I can find any suggestion of jurisdictional error. I have been unable to do so. Even if it could be said that the Tribunal reached conclusions of fact that were wrong, it could not be said that this amounted to jurisdictional error. Therefore, there is no ground for saying that the federal magistrate erred in not finding that the Tribunal acted without jurisdiction, or acted in breach of its obligations under the law. I can find no error on the part of the federal magistrate in this respect. 18 Similarly, I have not been able to detect anything that would fit within ground two. When I asked the appellant what was the finding that she said the Tribunal made that was not open on the material before it, she referred to the failure of the Tribunal to make a finding in her favour about the cause of damage she says occurred to her house. It may be that ground two was originally an attempt to raise again the issues associated with the delay in the appellant's departure from Sri Lanka. At some time, there might have been an intention to suggest that the Tribunal made a finding adverse to the appellant on that delay, which was not open on the material. If that were the case, then the attempt would have failed. I can find no error on the part of the federal magistrate in the way in which his Honour dealt with the suggestion that the Tribunal mishandled the issue of delay. The appellant had every opportunity to explain her position to the Tribunal and did not do so. 19 The question raised by ground three is even more problematic. When I asked the appellant for details of anything that might raise a case of reasonable apprehension of bias on the part of the Tribunal, she referred to the unfortunate correspondence in which her migration agent was informed erroneously that she had been granted a protection visa. The events surrounding that correspondence could in no way reflect upon the approach of the Tribunal to the appellant's case. They could in no way make out a case for reasonable apprehension of bias on the part of the Tribunal. The events, as they occurred, seem to me to be inconsistent with any notion of such bias. The reasons for decision of the Tribunal are detailed. They cover almost 40 pages. It is difficult to conceive that a Tribunal member, who was even inclined to be dismissive of the appellant's case, would have bothered to reason in such a detailed way. There is every indication that the Tribunal approached its task as it ought to have, and reached its conclusion by the detailed reasoning that is set out in those reasons for decision. 20 Accordingly, the appellant has not been able to make out any of her grounds of appeal. My own examination of the Tribunal's reasons for decision, and of the federal magistrate's reasons for judgment, does not suggest to me that there is any ground on which the appeal could succeed. It is therefore necessary to dismiss the appeal. 21 Counsel for the Minister has sought an order that the appellant pay the Minister's costs of the appeal. Such an order would be in accordance with the normal principle that costs follow the event. The only reason advanced by the appellant that she should not have to pay the Minister's costs is that she lacks the means to do so. The fact that an unsuccessful party is without resources to meet an order for costs is not usually regarded as a reason for not making the normal order for costs. No other reason appears for not making such an order. Accordingly, the appellant will be ordered to pay the Minister's costs of the appeal. 22 The Court orders that: 1. The time for the appellant to file and serve a notice of appeal be extended to 30 December 2008. 2. The draft notice of appeal filed on 30 December 2008 be treated as the appellant's notice of appeal. 3. The appeal be dismissed. 4. The appellant pay the first respondent's costs of the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 28 April 2009 The appellant appeared in person Counsel for the respondents: Mr C Truong Solicitor for the respondents: DLA Phillips Fox Date of Hearing: 4 March 2009 Date of Judgment: 4 March 2009