MZAFO v Minister for Immigration

[2015] FCCA 1194

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1194

Catchwords:
MIGRATION – Review of Refugee Review Tribunal – protection visa application – judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 425A

Applicant: MZAFO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1124 of 2014

Judgment of: Judge Riethmuller

Hearing date: 24 April 2015

Date of Last Submission: 24 April 2015

Delivered at: Melbourne

Delivered on: 24 April 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The Application filed 10 June 2014 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1124 of 2014

MZAFO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal made 16 May 2014.  The applicant, who is a citizen of India, applied to the Department for a protection (Class XA) visa (‘the visa’) on 20 May 2013. The application was refused by a delegate of the Minister on 20 December 2013.

2. The Applicant came to Australia in 2009 as a dependent on his wife’s student visa.  The Applicant and his wife have divorced.  The Applicant is now concerned about threats that he says he has received from his parents in-law because of the divorce.  The Tribunal describes his case at paragraph 11 of its decision, saying:

   11. The applicant claimed in his protection visa application that he has received constant threats of physical harm from his in-laws because of the divorce and he fears they will kill him if he returns to India. The applicant has not provided any details of his claim such as details of the circumstances of the divorce; his former wife’s current circumstances; her family’s values and circumstances; the content and timing of the claimed threats; why his former in-laws wish to harm him; or how they would be able to harm him. The Tribunal invited the applicant to attend the hearing but he did not appear and did not contact the Tribunal in relation to the hearing. Nor did the applicant attend an interview with the delegate in relation to his claim.

3. The Tribunal had written to the Applicant at his address, inviting him to appear before the Tribunal to give evidence. The letter to the Applicant, inviting him to attend a hearing, was sent on 15 April 2014. The hearing date was 12 May 2014. The Applicant did not appear before the Tribunal. The Tribunal were not persuaded, on his written material alone, that he was entitled to the visa. As a consequence, the relevant sections, ss.425 and 425A of the Migration Act 1958 (Cth) (‘the Act’) have been complied with. It was therefore open to the Tribunal to determine the case without taking any further steps.

Grounds for Review

1. The Applicant relies upon the following four grounds for judicial review:

   1. The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequence Tribunal decision is not a decision at all in law.

   
   
   

   2. My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance with section 424A.

   
   
   

   3. Unfairness was involved in the failure of the Tribunal to send further communication to substantiate my claim of Refugee status and therefore there was a denial of natural justice.

   
   
   

   4. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

Ground 1

1. The first ground was that the Tribunal had sent the invitation to the wrong address on account of a mistake made by an unknown Third Party.  There is no affidavit material in relation to this allegation.  When the applicant appeared before me today, I asked him why he didn’t attend the Tribunal hearing.  He said that he had blood pressure and later said that he had depression.

2. When I asked the Applicant where he was at the time of the hearing, he said that he was in attendance upon a medical clinic.  The Applicant does not allege that he attempted to contact the Tribunal on the day of the hearing nor the day after to advise as to the reasons for his nonattendance.  There was nothing before the Tribunal to indicate that there was any difficulty with the Applicant attending for a hearing.  There is no evidence before me that would show that the conduct of a Third Party caused a fraud upon the Tribunal.

3. In these circumstances I am not persuaded that the Applicant has an arguable case on ground 1.

Ground 2

1. The second ground alleges that the Tribunal had an obligation to attempt to contact the Applicant again.  Ordinarily, there is no such obligation on the Tribunal and there is nothing on the facts of this case that might indicate that the ordinary position should not be adopted.

2. The second ground also mentions s.424A of the Act, which requires the Tribunal, in certain circumstances, to give an Applicant notice of material upon which the Tribunal might intend to rely. In this case, the Tribunal looked only to the material that the Applicant had given it. The Tribunal is not required to give the Applicant notice that it is considering his own material.

3. For these reasons the second ground does not identify an arguable ground.

Ground 3

1. The third ground appears to be saying the same thing as the second ground, but in different words.  It also alleges a denial of natural justice.

2. I am not persuaded that he has an arguable case for the reasons I have already stated.

Ground 4

1. The final ground alleges that the Tribunal had no jurisdiction to make its decision because it did not come to its conclusions in accordance with the Act.

2. The main role of the Tribunal is to determine whether or not to believe what somebody says about the facts.  In doing so, The Tribunal looked at the Applicant’s written material.  The Tribunal made a decision that it did not believe that material.  This is not surprising, when the Applicant did not attend for a hearing or contact the Tribunal to tell them that he had health problems that would prevent him from attending.

3. In the circumstances I am not persuaded that the Applicant has an arguable case under this ground.  I therefore dismiss the proceedings.

   [discussion ensued]

4. The Applicant has been unsuccessful.  Costs should ordinarily follow the outcome of the case. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  13 May 2015