MZYAG v Minister for Immigration
[2009] FMCA 527
•24 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYAG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 527 |
| MIGRATION – Appeal – decision of Refugee Review Tribunal – procedural fairness. |
| Migration Act 1958 (Cth), s.424A |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | MZYAG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 480 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 May 2009 |
| Date of Last Submission: | 29 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 24 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appearing in person |
| Counsel for the Respondents: | Ms Hannett |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the Respondents costs, fixed at $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 480 of 2008
| MZYAG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Georgia, he arrived in Australia on 13 March 2004 and sought a Protection Visa on 14 May 2004. He claimed that he feared of persecution by Georgian authorities as a result of his imputed political opinion following a disagreement with officials of the Georgian state dance company.
On 17 June 2004 a delegate refused his application for a Protection Visa, which decision was affirmed by the Tribunal on 27 April 2005. On 21 December 2006, the Federal Magistrates Court set aside the Tribunal decision and remitted the matter to the Tribunal to be determined according to law.
On 29 May 2007 the applicant had a hearing with a Georgian interpreter before the Tribunal. Due to the difficulties of obtaining an interpreter in Australia, that interpreter was by electronic link from the United States.
The applicant claimed that he had been a dancer in the ballet company for some time, but that the dancers in the company had not been able to speak freely. He says that he had a dispute with the Director as he believed that the dancers and the company should be able to speak their mind and that the company should be run on a more democratic basis. The applicant says that as a result of this he was thrown out of the company, the KGB placed pressure upon his family and tried to discredit him by telling his family that he had stayed in Australia because he had stolen money and that he would be imprisoned if he returned to Georgia, and that there was charges laid against him of a criminal nature in Georgia.
The applicant also said that his uncle had been killed as a result of these events.
The Tribunal decision sets out, at great length, the reasons for its decision. The Tribunal outlined the case before it and then carefully analysed the evidence. Notably, the Tribunal had 3 hearings, one on 29 May 2007, the second on 11 December 2007 and the third on 26 February 2008.
Ultimately, the Tribunal accepted that the applicant had challenged the former Director about the conditions of company members. It also accepted that he was fired from the company and may have been threatened by the Director. The Tribunal did not accept, however, that his dismissal from the company of itself amounted to serious harm.
Ultimately, the Tribunal did not accept that the applicant had been falsely charged with stealing money in Australia, nor that the President of Georgia would be likely to corruptly and personally act to have the applicant punished, despite a potential friendship between him and the Director of the ballet company. The Tribunal did not accept that the applicant’s uncle was killed as a result of the applicant’ situation, nor that Georgians can not speak publicly on issues of public interest.
After weighing up the various matters, the Tribunal ultimately concluded that the applicant did not have a well-founded fear of persecution in the reasonably foreseeable future in Georgia and dismissed his application.
The applicant raised 2 grounds of appeal. The first was a claim that the Tribunal had failed to accord him procedural fairness by failing to give him sufficient opportunity to provide further evidence or make further submissions. The second was that the Tribunal had failed to comply with s.424A of the Migration Act 1958.
Ground 1
In support of Ground 1, the applicant says that the Tribunal failed to give him a proper opportunity to provide documentary evidence to show that he had been charged with criminal offences in Georgia. The submission was developed to a submission that he was not aware that he needed to, or ought to, provide documentary evidence until after the Tribunal’s decision.
Notably, the applicant had 3 separate opportunities to appear before the Tribunal over a period of 9 months, following the first judicial review application which was successful in setting aside the first Tribunal decision. The matter has been pending in this Court for a year and yet the applicant still has no documents that he can point to which would be relevant to the decision. In making his submissions on the application, the applicant said that he wished to have an opportunity to take time to attempt to obtain those documents.
On the material before me, I am not persuaded that the applicant was denied an opportunity to place material before the Tribunal. Indeed, he appears to have had a far greater opportunity than most applicants in Refugee Review Tribunal cases.
The fact that he still has no material to point to which could be considered in determining whether or not there was any document which may arguably make a difference to the outcome, indicates that the applicant is not likely to be able to obtain any further material in any event.
In the circumstances, I am not satisfied that the applicant has made out this ground.
Ground 2
In support of the second ground, the applicant says that the Tribunal did not accept that he had been falsely charged because he did not produce documents. The applicant says that the Tribunal ought to have told him that, in the absence of documents, the Tribunal would take a view contrary to his evidence, or at least not accept his evidence, and therefore ought to have provided him with a Notice in accordance with s.424A.
It appears clear from the decision that the information relied upon by the Tribunal was the evidence that the applicant gave, and their analysis of that information. It appears that the applicant’s case was that the Tribunal ought to have put to the applicant the inconsistencies in his evidence, or the lack of material supporting his case, to allow him to comment upon that. This does not amount to a breach of s.424A: see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26. As the Court said in that case, at para. 18, ‘information’ does not encompass the Tribunal’s subjective appraisals, thought processes or determinations.
In these circumstances, I am not persuaded that the applicant has made out this ground and therefore the application ought to be dismissed.
The Adjournment Application
In this matter, the applicant sought an adjournment on the day of the hearing based upon material faxed the day before. That material indicated that he was suffering from depression (in the form of a short letter from a Doctor). Whilst the applicant speaks little or no Russian and the Doctor speaks Russian and not Georgian, the applicant says he can communicate with the Doctor. It is difficult to see how an accurate diagnosis could be ascertained. In any event, the applicant did not give evidence of taking any anti-depressant medication, but rather anti-anxiety medications. The adjournment was refused however, as I was not able to deliver judgment immediately, I provided both parties with the opportunity to file any further submissions in writing on or before 29 May 2009 should there be something further than the submissions made at the oral hearing. No further submissions were filed.
I therefore order that the application be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 3 June 2009
0
1
1