MZYAB v Minister for Immigration
[2008] FMCA 1166
•15 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYAB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1166 |
| MIGRATION – Refugee Review Tribunal – challenge to findings of fact – findings of implausibility – allegations in letter from third party – whether Tribunal required to inform the applicant of allegations – application dismissed. |
| Migration Act 1958 (Cth), ss.44A, 422B, 424A |
| Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 |
| Applicant: | MZYAB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 418 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 15 August 2008 |
| Date of Last Submission: | 15 August 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | In person. |
| Counsel for the First Respondent: | Mr W.G. Gilbert |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 418 of 2008
| MZYAB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The applicant arrived in Australia on 15 April 2006 as the holder of a student visa, which was granted on the basis that he was the spouse of the holder of a student visa.
On 23 October 2006 the spouse advised the Department for Immigration and Citizenship that the applicant was no longer living with her. The applicant’s student visa was cancelled on 16 April 2007, and on 17 August 2007 he applied for a protection visa.
In his protection visa application, the applicant said that he was born in Sri Lanka in 1981, making him now about 27. He is a Sinhalese and a Buddhist. He is a qualified dance teacher and choreographer. He fell in love with a Tamil girl, whose family supported the LTTE. Her family wanted to kill him. Her father threatened the applicant.
The applicant’s family were strong UNP supporters. The applicant performed at UNP events, which were anti-government. PA supporters threatened the applicant with death if he did not stop dancing at events in support of the UNP. The applicant claimed he was assaulted and his home was damaged. He said that, since coming to Australia, unknown people have gone to his house looking for him.
The delegate refused the application and the Tribunal affirmed that refusal, after conducting an oral hearing which the applicant attended and after sending the applicant a letter under s.44A of the Migration Act 1958 (Cth) (“the Act”).
The Tribunal had serious doubts about the truth of the applicant’s claims about his relationship with the Tamil girl. However, The Tribunal proceeded on the basis that those claims were truthful. The Tribunal found, on the applicant’s own evidence, that the relationship had ended in 2005 and the applicant had married another woman.
The Tribunal found it highly implausible that the Tamil girl’s family would still be pursuing him. The Tribunal also found it implausible that the applicant was persecuted for reasons of his support of the UNP.
The applicant filed in this court an application and written contentions. The contentions did not match with the grounds set out in the application. At the hearing before this court, where the applicant appeared in person with the assistance of an interpreter, the applicant said that he relied upon his contentions but not the matters set out in the application.
The matters set out in the contentions were, firstly, that the applicant said that the Tribunal failed to take into account the Tamil girl’s connections to the LTTE and the country information about how the LTTE deals with its opponents. It is clear from the Tribunal’s decision that it did take into account the Tamil girl’s connection to the LTTE. However, the Tribunal rejected the applicant’s claim on the basis of implausibility.
The applicant did not lodge any country information with the Tribunal. In any event, the Tribunal did not accept that the applicant did not accept that the applicant had anything to fear from the Tamil girl’s family or her connections.
The applicant said, secondly, that there was no evidence for the Tribunal to find that the applicant was not involved in election-related activities for the UNP. However, the Tribunal did accept that the applicant was involved in such activities. The Tribunal did not accept that those activities led to the applicant being persecuted.
The applicant, thirdly, challenged the Tribunal’s finding that it was implausible that he would have danced in UNP election activities. However, that was not what the Tribunal found to be implausible. In any event, implausibility findings are within the province of the Tribunal.
The applicant says, fourthly, that the Tribunal made certain wrong findings of fact. Even if it did, the errors would not be jurisdictional errors such as to entitle the applicant to relief. The ground raised by the applicant in his contentions cannot be sustained.
The first respondent has, very properly, raised in his contentions another issue; that is that the Tribunal noted in its reasons on 18 January 2008 it received a letter making certain allegations about the applicant’s activities in Australia. The Tribunal decided not to inform the applicant about these allegations.
The Tribunal considered that the allegations were not relevant at all or were of negligible relevance to the applicant’s claims of persecution. Those claims concerned events that occurred in Sri Lanka. There was no claim that the applicant might be persecuted because of events that had occurred in Australia. The Tribunal also considered that the letter contained factual inaccuracies. In these circumstances, the Tribunal considered that the letter was not particularly credible.
In my view, the Tribunal correctly formed the view that the common law of natural justice did not require the Tribunal to inform the applicant of the allegations (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88).
However, common law natural justice did not apply in this case, by reason of s.422B of the Act. Instead, the Tribunal was required to comply with s.424A of the Act.
It is clear to me that the Tribunal’s conclusion that the information contained in the letter was not relevant meant that the information contained in the letter was not information that would be the reason or part of the reason for affirming the decision under review. Accordingly, the Tribunal was under no obligation to comply with s.424A in relation to the information contained in the letter. Consequently, there was no error by the Tribunal in this regard.
In the circumstances, the application must be dismissed, with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Riley FM
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