MZYDQ v Minister for Immigration
[2010] FMCA 791
•3 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYDQ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 791 |
| MIGRATION – Review of Refugee Review Tribunal decision – alleged jurisdictional errors – application raising only matters of merits review – application dismissed. |
Migration Act 1958
| MZYHY v Minister for Immigration and Citizenship [2007] FCA 622 |
| Applicant: | MZYDQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 81 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing date: | 24 September 2010 |
| Date of Last Submission: | 24 September 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 3 November 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms M. Ngo |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 81 of 2010
| MZYDQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed on 22 January 2010, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 22 December 2009. The Tribunal concluded that the applicant was not a person to whom Australia owes Convention obligations. The applicant filed an affidavit in support of his application, likewise on
22 January 2010, which said relevantly:
“1. There is no religious freedom in China.
2. I do fear to go back to China. If I go back, I will be put into jail again.”
Otherwise, the affidavit merely appended the decision of the Tribunal. The grounds set out in the application are threefold. The first ground is that:
“1. RRT did not give me fair decision for my application.”.
The second ground is:
“RRT did not use the positive cases in my application. they did not account my risk in China.”
The third ground is:
“All i said is correct. but RRT did not trust me.”
Given these very generalised assertions, it is little surprise that on
3 March 2010 Registrar Caporale made orders which included a direction that the applicant file and serve a supplementary court book and any written submissions by April. Those orders were made by consent. The applicant has not filed any such materials but the Minister has filed written submissions. The Minister’s contentions of fact and law traverse the history of the matter in terms which appear to me to be uncontroversial. The Minister’s submissions also paraphrase the Tribunal’s reasons for decision at paragraphs 20 to 22 in terms which appear to me to be a fair synopsis of what the Tribunal found.
In my view, the grounds of the application, unparticularised as they are, cannot be said, even giving them the widest possible interpretation, to be anything other than simple merits review. In substance, the grounds assert the Tribunal came to the wrong conclusion. There is nothing in my view, having read the Tribunal’s reasons carefully, to suggest that the Tribunal was in any way unfair to the applicant. The Tribunal plainly extended natural justice to the applicant in the sense that it clearly complied with the statutory obligations in respect of the conduct of the hearing and the process whereby the Tribunal came to its conclusion. In truth, it was, as the Minister submits, open to the Tribunal in the circumstances not to believe the applicant and that is what the Tribunal did.
That process does not, in my view, disclose any jurisdictional error. When the matter came before the Court today, the applicant was initially reluctant to say anything at all. That is entirely understandable given the cultural difficulties he would face in representing himself in a language he does not speak and in a legal system with which he would be wholly unfamiliar. Nonetheless, it robs the Court of any significant or, indeed, any assistance from him in articulating his claims. Following a certain amount of assistance, if I can so describe it, from the Court the applicant did make some brief addresses. He said he does wish the Australian Government to provide protection for him and that he does not want to return to China and that if he returned because of his Falun Gong association he will be arrested again. He requested the Court to consider his case.
The Minister’s counsel relied upon the written submissions made and submitted, in my view correctly, that the sort of merits review matters raised by the applicant are not properly considered in an application of this sort. In reply, the applicant asserted that he did submit arrest warrants and matters about his injury. He said in the ultimate he was not certain whether they were given to the Tribunal. The Minister’s counsel confirmed that there did not appear to be any such materials in the court book and I accept that that is correct. It therefore follows, given that the court book represents a comprehensive collection of the materials before the Tribunal, that those materials were not before the Tribunal. It is clear from the judgment of Nicholson J in MZYHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] that such new evidence cannot now be entertained by this Court.
Nonetheless, in an endeavour to be entirely fair to the applicant I asked him if he had copies of the documentation with him, with a view to having them shown to the Minister’s representative to see if anything flowed from that. The applicant said he had left the documents at home. In circumstances where it was clear that the material cannot have been before the Tribunal for the reasons I have already described, it did not seem to me appropriate to adjourn to give the applicant an opportunity to produce documents that were doomed to be excluded in any event. If they had been present I would have allowed them to be shown to the Minister’s representative as a matter of simple courtesy to the applicant but I have no doubt that the result would have been the same.
For these reasons the application must be dismissed and the applicant must pay the first respondent’s costs and I will make orders to that effect.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 3 November 2010
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