MZXAM v Minister for Immigration

[2006] FMCA 477

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXAM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 477

MIGRATION – Application for review of RRT decision – use of country information – merits review urged – application dismissed.

Migration Act 1958, s.424A

Applicant: MZXAM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG703 of 2005

Judgment of: O’Dwyer FM

Hearing date: 16 March 2006

Delivered at: Melbourne

Delivered on: 16 March 2006

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Lewis

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application for Review filed on 10 June 2005 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG703 of 2005

MXZAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. This matter comes before the court on an application for review filed on 10 June 2005 wherein the applicant seeks a review of the decision of the Refugee Review Tribunal (the tribunal) made on 31 March 2005 and handed down on 22 April 2005.  That decision of the tribunal affirmed an earlier decision of the first respondent’s delegate, who refused a protection visa to the applicant.

2. The background to the applicant is this that:

   a)he is a 26–year–-old single male from Malaysia who is of Indian ethnicity and who is a Hindu by religion.

   b)he has had experiences in Malaysia whereby he was subjected to, in his own words, harassment and abuse by the dominant Muslim community in Malaysia because of his religion; and

   c)he sought to help alleviate that problem by actually converting to Islam but I gather that has not alleviated his concerns and the experiences he has had, what he says is discrimination.

3. In support of his review application the applicant has filed written submissions dated 31 October 2005.  In those written submissions the applicant addresses the legal aspects of a review and appears, certainly on the face of it, to be mindful of the legal issues involved in a successful review application, namely, the requirement for the applicant to show that there was a jurisdictional error in the decision of the tribunal.  The applicant has listed a number of areas where he asserts jurisdictional error is exhibited.

4. In response to the applicant's submissions the first respondent has filed contentions of fact and law which addresses each of the issues raised by the applicant and also addresses the law that the first respondent says applies to these matters.

5. In my view, having read the reasons of the tribunal critically – and I have read them critically because I am conscious of the fact that the applicant is unrepresented – the Contentions of Fact and Law of the first respondent spells out correctly the factual basis for the tribunal’s decision and in my view also applies correct law.  It further goes on to correctly apply the law to the facts of the applicant’s application for a protection visa.

6. Without going into a great deal of detail and repeating those matters that are addressed in those Contentions of Fact and Law filed by the first respondent, I propose to adopt them as being the correct analysis of the application for review and the correct application of the law. 

   
   

   I reserve the right to fully expand on those should this matter proceed to another place.

7. In light of that, I am satisfied that no jurisdictional error was committed by the tribunal and that the determination of the tribunal was one that was in keeping with the law applying, also with the facts and circumstances as presented by the applicant to the tribunal. 
   The decision of the tribunal was one that was certainly open to it in all of the circumstances of this case.

8. The significant complaint of the applicant, I might add, was one which was critical of the tribunal process in that:

   a)the tribunal used and adopted information generally described as country information in circumstances where he was denied an opportunity to respond to it and also, as I understood his case, to highlight how that information did not apply to him.  He would have liked the opportunity of proving that he was in a different circumstance.

   In respect or that, the country information is in my view information that was not required to be disclosed to the applicant, and that s.424A (3)(a) of the Migration Act 1958 applies to that country information.

   b)the applicant complained also about the fact that he was not given adequate, as I understood his case, notice of the fact of how the tribunal would go about its business and how it would make determinations, and principally was not advised that documentary information supporting his own case should have been presented to the tribunal.

   Mr Lewis’s comments about that, both orally today and also in the written submissions, are in my view correct:  that the tribunal was under no obligation to present the case or make good any shortcoming in the applicant’s case.  This is trite law.

9. In all those circumstances, then, the only decision I can make is that the application for review which was filed on 10 June 2005 be dismissed.

10. Annexed to this judgment are the first respondent’s Contentions of Fact and Law adopted by me.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate:

Date:  16 March 2006