MZYAF v Minister for Immigration - [2008] FMCA 1303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYAF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1303

MIGRATION – Application for judicial review – grounds of application un-particularised – non-compliance by applicant with court orders – application dismissed.

Migration Act 1958, ss.91R(3), 424A, 424A(1), 424A(3)(b), 425

MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911

Applicant:

MZYAF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 469 of 2008

Judgment of:

Burchardt FM

Hearing date:

25 August 2008

Date of Last Submission:

25 August 2008

Delivered at:

Melbourne

Delivered on:

3 October 2008

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms S.E. Burchell

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

The application filed 23 April 2008 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 469 of 2008

MZYAF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this matter the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which was given on 13 March 2008. In his application filed on 23 April 2008, the Applicant raised three grounds of application. The second and third were wholly un-particularised, and the first merely asserted a breach by the Tribunal of s.424A(1) of the Migration Act 1958 (“the Act”) in that the Tribunal was alleged to have failed to disclose adverse information used by it.
Subsequently on 4 June 2008 Registrar Caporale ordered that the Applicant file and serve an amended application with proper particulars, supplementary court book and contentions of fact and law. None of those orders have been complied with.
At the hearing on 25 August 2008 the Applicant, who was self-represented with the assistance of an interpreter, made the following assertions/submissions.
He said that he had commenced a partnership in 1999 and that his partner and he were from different political parties; he said that he was from the BJP and that his partner was from the Congress Party and there had always been arguments between them as a result.
He said he relocated himself in India for five years during which time he had been in hiding some two to three hundred miles away from his home in a hilly area of Rajasthan. He said that that was the reason he feared for his life. He said that he still feared for his life and that he would definitely be murdered by his partner and a former employee if he returned to India.
He said that he keeps receiving information that they keep coming to his house and that if he returned he would be killed. He said that when he rings home, his daughter tells him his property has been sold. He said that she has told him that he should kill himself in one way or another, and that he should not return to India. He says, "I don't see any way out except death."
It will be readily apparent that the Applicant has not particularised the matters set out in his application. He has given no details of the alleged information that the Tribunal has been said impermissibly to have relied on in breach of s.424A. He has given no particulars of the error of law and lack of procedural fairness alleged. He has given no particulars of the natural justice denial alleged.
It should be noted that a number of the matters that the Applicant asserted today were not in fact asserted before the Tribunal. It is true that the assertions about fear of his partner and employee were before the Tribunal, and also that he relocated and that he said he feared for his life. The more recent material, however, relating to what his daughter told him, or what he has otherwise learned about his former partner and former employee coming to his house and the resultant risks to his life on return, was not before the Tribunal.
Further, on 8 September 2008 the Applicant forwarded by facsimile some pages in what I presume to be Hindi or Gujarati (without any translation) and two pages of what purport to be medical records from 2002.
It is not open to the Applicant to seek to introduce new evidence of this sort in these circumstances (see the judgment of Nicholson J in MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]). In any event, even if this material was taken on board it would not alter the outcome of the proceeding. In substance it is merely a repeat of the assertions of risk of harm that the Applicant made before the Tribunal.
Counsel for the First Respondent submitted, correctly in my view, that the submissions made by the Applicant before the Court only went to the issue of merit; they do not raise any question of jurisdictional error. Counsel submitted that there are only two possible grounds raised by the application. The first is the possibility of a breach of s.424A in the manner considered by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, and the Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006]

FCAFC 2.
It is accepted that there was no s.424A letter but counsel submitted that that was because all the information upon which the Tribunal relied was given to it by the Applicant himself in his application, and in his oral evidence. Although the delegate had relied upon country information, the Tribunal did not do so. I accept counsel's submission that this would, on any view, enliven the exemption contained in s.424A(3)(b) of the Act.
The findings of the Tribunal are set out at CB 71-72, and are paraphrased in the terms set out in paragraph 13 of the First Respondent's contentions of fact and law. The paraphrase is an accurate one.
The Tribunal did no more than to listen to the Applicant's claims and to not believe them. This does not, on any view, show jurisdictional error. Indeed, I would go further and say the Tribunal's conclusions were not only open to it, but were conclusions which the materials led to inexorably.
The second possible ground of error is that the Tribunal failed properly to conduct a hearing in accordance with s.425 of the Act as explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. However, here the Applicant knew, or should reasonably have known, that the delegate had rejected all his claims. He should have been aware that these would be the issues on review.
If one looks at the Tribunal's decision at CB 69-72 one notes, as I have already said, that the Tribunal analysed and dealt with the Applicant's claims as they were articulated to it. The Tribunal's conclusions were, as I have already said, open to it on the material and it was always clear that the veracity of the entire account put forward by the Applicant was what the proceeding would be about. There is therefore no force in this possible ground of application either.
For completeness and as a matter of fairness, counsel for the First Respondent took me to the relatively recent decision of the Full Court of the Federal Court in SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 (“SZJYA”). That was a case in which the Court found that the treatment of the Applicant’s sur place claims had not been properly dealt with pursuant to s.425 because the Applicant was not given a fair opportunity to respond to those aspects of concern about that evidence that the Tribunal had. That was a case turning very much on the operation of s.91R(3) of the Act.
As I observed to counsel for the First Respondent during the proceeding however, that was a radically different case to the one here. SZJYA was about the application of the Act where there are claims made which have not been the subject of any kind of exchange between the Tribunal and the Applicant. Here, by way of contrast, the case was about what the Applicant told the Tribunal; the Tribunal simply failed to believe the Applicant.
In my view, the claim as articulated by the Applicant is wholly un-particularised and has not in any way been made out. I further accept the submissions of the First Respondent for the reasons that I have given that the two, or arguably three, possible points that could be raised out of the materials in the Applicant's favour are likewise incapable of being made out.
It therefore follows that the application must be dismissed and the Applicant must pay the First Respondent's costs. There will be orders to that effect.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 3 October 2008