MZYBN v Minister for Immigration
[2008] FMCA 1719
•23 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYBN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1719 |
| MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – consideration of absence of legal representation. |
| Migration Act 1958, s.427(6) |
| MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 NBMB v Minister For Immigration and Citizenship (2008) 100 ALD 118 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 |
| Applicant: | MZYBN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 911 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 S.A. Burchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
That the Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 911 of 2008
| MZYBN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant, who is self‑represented, has raised a number of matters which he says justify his application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”).
As is often the way with self‑represented litigants, it is not altogether easy to characterise his claims, but I think that counsel for the first Respondent is correct, taking the application and the affidavit in support both filed on 25 July 2008, to characterise three grounds as being before the Court:
a)an alleged failure by the Tribunal to properly analyse and dispose of the Applicant's claimed fears of persecution on the basis of a social group in Manipur, namely the Meitei group;
b)a failure by the Tribunal to give the Applicant an adjournment to obtain further materials; and
c)the inability of the Applicant to present his case properly because of the lack of legal representation.
The social group
In his original application (CB 18-19) the Applicant identified his difficulties as arising from his relationship with underground moneylenders. He said they would kill him if he returned to India because he had not paid back to them the money he had borrowed.
It was on this basis that the delegate dealt with the matter. The delegate relevantly found (CB 120):
“People who use underground moneylenders and cannot service the loans cannot be said to share a uniting characteristic which has a social impact, other then their fear of harm.”
The delegate went on to say:
“Indeed it may be argued that the applicant's circumstances in relation to his underground borrowings are of an individual nature rather than related to a social group.”
The delegate went on to find that the essential and significant reason for the harm feared was not a convention ground and rejected the application.
The claim that the Applicant was a member of the Meitei group was raised for the first time at the hearing before the Tribunal. The Applicant's claims are recorded at paragraphs 42 and 43 of the Tribunal’s reasons (CB 217).
The Applicant also claimed, it would appear, that he was a member of various other organisations (see paragraph 78 – CB 220).
The Tribunal noted (paragraph 79 - CB221):
“When asked by the Tribunal to detail his involvement, his activities in support of the various groups and the frequency with which he attended meetings, he was unable to provide any details.”
The Tribunal found that the Applicant had no active involvement with any political or rebel group and faced no real chance of serious harm from political opponents should he return to India.
It should also be noted that the Applicant continued before the Tribunal to press, at least to an extent, his fears arising out of the alleged money‑borrowing that he had asserted before the delegate.
I accept the submission from the counsel for the first Respondent that this matter was dealt with by the Tribunal in a way that was well open to it on the facts. The Tribunal did not fall into jurisdictional error in this regard.
The application for adjournment
The Applicant sought to adjourn the matter before the Court when it was heard on 5 December 2008 to give him more time to get relevant documentation. That application was misconceived. There is no power in the Court to entertain the admission of further materials in circumstances such as these.
This is an application for judicial review and the Court is limited to the material before the Tribunal (see MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J).
Insofar as the application for an adjournment was sought before the Tribunal, the first Respondent's counsel has taken me to the relevant extracts of the Court Book at CB 171, 173, 175, 178, 185, 191, 192‑3 and 195.
It suffices for present circumstances to say that the Applicant first sought an adjournment to get the sort of material he apparently now seeks to obtain and such an adjournment was granted according to the terms of his request. He sought further adjournments when that was insufficient.
The Tribunal in the ultimate refused to adjourn further because it felt that six months was a sufficient period of time to give to the Applicant to get his case ready. In my view, that was a reasonable conclusion.
I note that in NBMB v Minister For Immigration and Citizenship (2008) 100 ALD 118 at [14] Flick J said:
“The tribunal unquestionably has a discretionary power to adjourn proceedings: s.427(1)(b) of the Migration Act. Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision‑makers. Relevant to the exercise of that discretion by the tribunal in the present context is the legislative direction that it must conduct its review in a manner which "is fair, just, economical, informal and quick". Procedural decisions of tribunals such as the Refugee Review Tribunal should not be lightly disturbed.”
His Honour went on to say at [22]:
“The opportunity was extended to the appellants to "give evidence and present arguments relating to the issues arising in relation to the decision under review" within the meaning of section 425(1). That section confers upon an applicant an opportunity to "appear before the tribunal to give evidence and present arguments"; the section does not confer upon an applicant a unilateral right to secure an adjournment of proceedings so that some particular evidence of a witness is in fact available. So long as an applicant has been given a meaningful opportunity to "give evidence and present arguments", even if it is not the particular evidence which an applicant may prefer, there has been no breach of section 425.”
In my opinion, the decision of the Tribunal not to grant an adjournment as sought by the Applicant in the circumstances of this case did not constitute jurisdictional error. I note in passing that when the Applicant sought further adjournment before the Court, he was quite unable to give any timeframe as to how much time he would need to get the materials he sought in any event.
Lack of legal representation
Insofar as this ground is raised by the Applicant's affidavit (and he did not press it with any great emphasis at the hearing), I accept the submissions of the first Respondent. Section 427(6) of the Migration Act 1958 (“the Act”) makes it clear that there is no entitlement to legal representation before the Tribunal. The absence of a legal representative does not give rise to procedural unfairness and jurisdictional error. I respectfully adopt the remarks of Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 where her Honour said at [78]:
“It must be borne in mind that the method of the Tribunal is inquisitorial. That is, the Tribunal controls the fact‑finding process, the examination of witnesses and the identification of issues. A person appearing to give evidence is not entitled to be represented or to examine or cross‑examine any witness: see s.427(6). The Tribunal may, and commonly does, invite an adviser to make oral submissions towards the end of a hearing, or in writing after the hearing. Whilst an applicant may request the Tribunal to obtain oral evidence from a nominated witness, and the Tribunal must have regard to the request, the Tribunal is not required to comply with it: see s.426(3). The Tribunal has a wide discretion as to how it conducts a hearing.”
In my view, the absence of legal representation, given the terms of the legislation, does not give rise to jurisdictional error in this case.
Conclusion
In the circumstances, none of the Applicant's grounds of application are made out and the application must be dismissed with costs.
I certify that the preceding twenty-three (23) 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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