MZYER v Minister for Immigration
[2009] FMCA 1314
•2 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYER v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1314 |
| MIGRATION – Review of Refugee Tribunal decision – grounds for review allege a breach of s.424A(1) and breaches of natural justice and procedural fairness – no ground made out – application dismissed with costs. |
| Migration Act 1958, ss.424A, 424A(3), 422B Federal Magistrate Court Rules 2001, rr.13.03A(1)(a), 13.03B(1)(a) |
| Applicant: | MZYER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 653 of 2009 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 2 December 2009 |
| Date of Last Submission: | 2 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 2 December 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Holt |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 1 June 2009 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 653 of 2009
| MZYER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
This matter comes before me today on an application to review a decision of the Refugee Review Tribunal (the Tribunal) dated 30 April 2009. In the application, three grounds for review have been set out.
The applicant appears here today unrepresented, but assisted by a Punjabi interpreter.
The applicant has failed to provide an amended application giving full particulars of the grounds that he relies on, and he has failed to provide written submissions as directed by Registrar Allaway on 1 July 2009, which written submissions were to be filed and served by 11 September 2009.
Whilst he has breached the Federal Magistrate Court Rules 2001 associated with complying with orders, and it is open to me to dismiss his application under Rule 13.03A(1)(a) and Rule 13.03B(1)(a), I have declined to do so, recognising the difficulties that someone like the applicant finds himself in where English is not his first language, and where he does not have legal representation.
Accordingly, I invited the applicant to expand upon the grounds that he has spelt out in his application, and also comment or respond to the written submissions of the first respondent, which I am satisfied were served on him by post in October 2009. He informs me that significant documentation, including the decision of the Tribunal and the first respondent’s written submissions, although received by him, have not been translated for him. Notwithstanding the difficulties he obviously has with language, I, nonetheless, find it extraordinary that correspondence from the first respondent and the Tribunal would not stimulate an aggressive attempt to have it translated. To the extent that he sat on his hands in this regard he must bear the burden of the outcome.
Background
By way of background, the applicant is a 30 year old citizen of India who arrived in Australia on 5 September 2008 on a visitor’s visa.
He came to Australia for the World Youth Festival conducted in Sydney. He departed Australia after that festival, but thereafter, because his visa was still valid, returned to Australia. On 1 October 2008 he made an application for a protection visa based upon, he claimed, a well founded fear of persecution for political and religious reasons in India.
Tribunal’s decision
I have read the decision of the Tribunal. It is a thorough decision which, I might say, canvasses all the claims that were made by the applicant, and gives reasons for the findings that it reached.
I might say at the outset that the reasons it provided for its findings display probative logic, and were certainly open to it on the evidence that was presented at the hearing.
Significantly, the Tribunal made an adverse finding about the credit of the applicant. In addition to the logic displayed in its reasons as to why it found as it did, it had the added advantage of observing the applicant give his evidence. It is always very difficult where credit findings are made for an applicant to thereafter review the decision made where the decision pivots on an adverse assessment of credit.
Some of the determinant findings made by the Tribunal were:
·the applicant had not joined the Indian National Congress Youth Wing as claimed;
·the incidences of violence in relation to the applicant’s work, in respect of him preventing dowry claims, were fabricated; and
·his claims were made for the purpose of progressing and assisting his protection visa application.
The Tribunal made numerous other findings about the claims made by the applicant, and, in broad terms, rejected them with the end consequence that the Tribunal found that the harm claimed to have happened did not happen, and that there was no real chance of harm occurring to the applicant in the reasonably foreseeable future if the applicant was to return to India. The Tribunal, therefore, found that it was not satisfied that the applicant faces a real chance of serious harm for reasons of religion, political opinion or, indeed, any other Convention related reason if he were to return now, or in the reasonably foreseeable future, to India. As I said earlier, those findings were open to the Tribunal.
Grounds for review
Specifically addressing the grounds that were set out by the applicant. The first was an alleged breach of s.424A(1) of the Migration Act 1958 (the Act). Although invited to expand verbally today on the particulars of that ground, the applicant was unable to do so.
That is understandable in all the circumstances he finds himself.
I have read the decision of the Tribunal with a keen eye to spotting whether there is, on the face of the decision, a breach of s.424A.
I am satisfied that the information that has been used by the Tribunal, by which it formed, or by which part of it was used to form, its decision, was information which can be described as country information of general application or information provided by the applicant himself. Further, the Tribunal invited a response to the information provided by the applicant when it was challenged by the Tribunal. None of the information used by the Tribunal was information relating to the applicant that was not brought to his attention, and about which he was not invited to comment.
(See ss.424A(3) and 424A(3)(ba)) I am satisfied there has not been a breach of s.424A (1) of the Act.
The next two grounds could be combined together, to some degree, as an alleged breach of natural justice or procedural fairness.
The provisions that relate to breaches of natural justice, as applies to this case, or, putting it a different way, the obligations required to fulfil procedural fairness are those spelt out in s.422B of the Act.
I am satisfied the Tribunal complied with those obligations.
In relation to the claim that there ought to have been a further hearing before a decision being made, I say that is without substance.
A full and fair hearing was granted to the applicant. All the integers of his claim were considered, and findings made accordingly.
There appears to be no basis that would have necessitated any further hearing. I am not satisfied that these grounds are made out; that is, grounds 2 and 3.
Conclusion
In conclusion, I am not satisfied that any of the grounds as set out in the application are made out. To the extent that I may have overlooked to make comment about relevant law or the findings, I rely on the written submissions of the first respondent, which I adopt.
The end result is that, of necessity, I have to dismiss the application filed by the applicant on 1 June 2009.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Sam Parker
Date: 14 January 2010
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