MZYFN v Minister for Immigration
[2009] FMCA 1260
•24 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYFN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1260 |
| MIGRATION – Application for adjournment to obtain legal representation – delay – no apparent likelihood of legal representation being obtained – grounds not articulated either in application or submissions – no jurisdictional error patent in Tribunal’s reasons. |
| Migration Act 1958, s.424A |
| Applicant: | MZYFN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 917 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 26 November 2009 |
| Date of Last Submission: | 26 November 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 24 December 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms K. Walker |
| Solicitors for the Respondents: | Clayton Utz |
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 917 of 2009
| MZYFN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 July 2009. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant a protection visa to the applicant.
When the matter was called, the applicant, who represented himself with the assistance of an interpreter, sought an adjournment of the proceedings.
The applicant said that he had no one to represent him and had not understood what he had to do to prepare for the presentation of his case. He made an assertion to the effect that he had anticipated receiving correspondence in the mail which, it appeared, I was asked to infer had not been received.
It emerged, however, that the applicant had received a notice of listing sent to him by the Court and from what emerged from the applicant and from the first respondent’s representative, it seems clear that this material was received on or about 20 October 2009.
The applicant confirmed that he had tried to get legal representation but had not been able to find anyone and he also confirmed that he has not as yet been able to obtain, nor has he any pending interview with, any lawyer.
Counsel for the first respondent opposed the application for an adjournment. She handed up to the Court a letter from her instructors dated 28 July 2009 sent to the applicant in which the applicant was put on notice that he should get legal advice, and that any adjournment applications would be resisted.
Although the applicant was unable to confirm whether or not he had received the letter of 28 July 2009 as he does not read English, he confirmed that correspondence is routinely read to him by a friend. Given that the applicant plainly received other correspondence at that address, and that I have no doubt the correspondence was sent to him there, it seems reasonable to suppose that he did indeed receive it and has, thus, had a number of months in which to take on board its contents and prepare for the hearing.
In circumstances where the applicant has been on notice of the necessity to prepare his case properly, and has been advised to seek legal advice some almost four months ago, it did not seem appropriate to me to grant the adjournment, and I did not do so.
It is also relevant in this regard to note that the applicant has already tried to obtain legal representation but been unable to do so, and there is no evident prospect that any adjournment would in fact enable him to obtain legal representation.
The applicant’s substantive claim
I invited the applicant to address the Court as to any matters in support of his substantive application. He told me that he had called home and things are not good there and he did not wish to return. He repeated, in reply, that he still fears to go back home.
The application filed by the applicant on 20 July 2009 sets out grounds only in the most general terms. It is asserted:
“1. That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).
Particulars: (a) There was certain adverse information used by the Tribunal to affirm the decision under review.
(b) The Tribunal did not disclose the information in accordance with s 424A(1).
2. That the tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error.
3. That the tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.”
No particulars of any of the matters asserted in the previous paragraph were provided.
Registrar Allaway made orders on 2 September 2009 inter alia requiring the applicant to serve any amended application and written submission by 21 October 2009. Those orders were not complied with.
I do not draw any particularly adverse inferences against the applicant for his failure to comply with the Court’s orders because the applicant does not speak English and has not been able to obtain representation. Nonetheless it is true to say, as counsel for the first respondent submitted, that the applicant’s application, as augmented by his oral submission, does not give any precision to the grounds of application originally advanced. It is not possible to discern in the application itself, nor in what the applicant said to the Court, what the alleged jurisdictional errors are.
Counsel for the first respondent submitted that, notwithstanding the lack of specificity in the application, an examination of the Tribunal’s decision shows no jurisdictional error.
I have myself read the Tribunal’s Reasons for Decision and I accept the submission made by counsel for the first respondent. The Tribunal’s Reasons for Decision show that the Tribunal was well seized of its task. The Tribunal member accurately set out the relevant definitions as to refugee status, set out in a comprehensive way the factual matters asserted in the case, and came to conclusions upon the evidence that, in my view, were certainly open.
There is nothing in the decision, or otherwise, to be distilled from the materials in this case that shows that the Tribunal failed to consider relevant material, took into consideration material that was irrelevant or otherwise fell into jurisdictional error.
I accept, for the reasons advanced at paragraphs 16 to 18 of the first respondent’s written submissions, that there was no breach of s.424A of the Migration Act 1958 (“the Act”). Indeed, I would go further. The applicant has never articulated, even in the most generalised way, what adverse information is said to have been relied upon by the Tribunal.
I do not perceive that the Tribunal relied upon any adverse information. The Tribunal relied upon information given to it by the applicant and upon country information. It was entitled to do so.
I accept there is no basis for finding that there was an absence of procedural fairness. The Tribunal held two hearings at which the applicant gave evidence, and I accept the submission from the first respondent that the Tribunal’s reasons show that it put to the applicant its concerns about his claims. It also dealt with the issue of relocation within India which had not been dealt with in the reasons for the delegate’s decision, as the first respondent’s written submissions indicate.
The applicant was given two opportunities to appear before the Tribunal and did not, as the written submissions for the first respondent made clear, at any time request a further hearing.
The claim has never been articulated with sufficient detail and/or precision as to require detailed analysis by this Court. The matters put forward by the applicant simply fail altogether to express and/or identify any alleged jurisdictional error such that relief should be granted.
Furthermore, as already indicated, in my view the Tribunal’s reasons, on their face, do not show jurisdictional error. I would refer to, again, the helpful written submissions of the first respondent which I have, in some measure, paraphrased in these Reasons for Judgment.
The application is, in my view, without merit and should 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: 24 December 2009
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