MZYBA v Minister for Immigration
[2008] FMCA 1693
•23 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYBA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1693 |
| MIGRATION – Alleged jurisdictional error – grounds of application wholly unparticularised – applicant electing to make no submissions – application dismissed. |
| Migration Act 1958, s.91R(1)(b) |
| Applicant: | MZYBA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 756 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 5 December 2008 |
| Date of Last Submission: | 5 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms E. Latif |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
That the application be dismissed.
That the Applicant shall pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 756 of 2008
| MZYBA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) on 24 June 2008. The decision of the Tribunal was given on 14 May 2008.
In the application, the grounds set out were:
“The facts of the application has not been taken into consideration. Irrelevant facts are taken into consideration. Details of the facts are not in.”
In an affidavit filed on 24 June 2008, the Applicant stated:
“I am the deponent in the above matter. I am applying for Judicial Review of my application for protection visa, desided by the Refugee Review Tribunal. The is ineflict because of judicial errors such as procedural fairness and wrong application of law.” [sic]
It is immediately apparent that those are very generalised assertions. The Applicant has not complied with consent orders for the filing of written submissions or contentions of fact and law.
In saying this I note, however, that he does not speak English and according to the materials, has had only a relatively limited education in Malaysia and it would not perhaps be thought likely that he would have been able to articulate any contentions of fact and law to any great degree of sophistication in any event.
When the matter was called this morning, I explained the way in which the Court would hear from the parties. I then, having made this explanation, invited the Applicant to address the Court. He said that he had nothing to say.
Counsel for the First Respondent was content to rely upon the contentions of fact and law filed by her.
It is of course for the Applicant to make out his case and in one sense, since he has advanced nothing by way of any detail to support his application, it must necessarily fail. However, it is proper nonetheless in my view to examine the statement of decision and reasons of the Tribunal.
The procedural history of this application is set out in paragraphs 3 to 7 of the contentions of fact and law of the First Respondent and is not controversial. The Applicant is a 27-year-old citizen of Malaysia who arrived in Australia on a visitor visa on 22 November 2007. On
4 January 2008he applied to the Department for a Protection visa. That application was refused by a delegate on 16 January 2008. On 11 February 2008 the Applicant applied to the Tribunal and as I have already said, on 14 May 2008 the application was rejected.
The claims articulated by the Applicant are that he claimed refugee status because:
a)he was a Tamil and ethnic Indian;
b)he faced discrimination in operating his business;
c)he participated in a rally on 25 November 2007 by the Indian community against the discriminatory practices of the Malaysian Government. He said that because of those activities, he faced arrest by the police if he returned to Malaysia;
d)he claimed to be a Christian and that he feared he would be harmed if he returned to Malaysia because of his religious belief.
The Tribunal accepted that the Applicant was a citizen of Malaysia and a Tamil. The Tribunal accepted that the Applicant's business claims might face difficulties because of the limited opportunities for non‑Bumiputras in Malaysia. The Tribunal, however, was not satisfied that these difficulties amounted to serious harm within the meaning of s.91R(1)(b) of the Migration Act 1958 (“the Act”).
The Tribunal did not accept that the Applicant was a Christian because of the delay in his making of the claim, which was only articulated at the Tribunal hearing, and because of inconsistent evidence given at the hearing.
The Tribunal likewise did not accept that the Applicant was involved in organising the 25 November 2007 rally. Despite an extensive search, the Tribunal was unable to find country information to support the Applicant's assertion as to how he came to be involved and made negative findings as to his credibility in relation to being involved.
The Tribunal's decision runs to 21 pages. It traverses the Applicant's claims and evidence in considerable detail. It recites likewise in considerable detail the independent country information. It is apparent that the Tribunal was correct to describe its researches as "an extensive search of the available sources (paragraph 84, CB 89)".
It is sufficient to say that in my view, the Tribunal's findings as to the Applicant's claims were well and truly open to it on the materials provided. There is simply nothing to suggest that the Tribunal fell into error. It follows that the Tribunal did not commit jurisdictional error in making the findings that it did. The application must therefore be dismissed with costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B Evans
Date: 23 December 2008
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