MZYGP v Minister for Immigration - [2010] FMCA 187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYGP v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 187

MIGRATION – Application to review decision of Registrar to dismiss application – in substance an application to reinstate the application – merits of substantive application also considered.

Migration Act 1958, ss.424A, 424A(1)

MZXHY v Minister for Immigration and Citizenship [2007] FCA 622

Applicant:

MZYGP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1174 of 2009

Judgment of:

Burchardt FM

Hearing date:

24 February 2010

Date of Last Submission:

24 February 2010

Delivered at:

Melbourne

Delivered on:

24 March 2010

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr B. Wee

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The decision of Registrar Caporale on 4 November 2009 to dismiss the application be affirmed.
The application be dismissed.
The Applicant pay the First Respondent’s costs (including costs earlier ordered) fixed in the sum of $6,000.00.
There be a stay of 60 days with respect to payment.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1174 of 2009

MZYGP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 15 September 2009, the applicant filed an application for judicial review seeking review of a decision of the Refugee Review Tribunal given on 21 August 2009. The matter was the subject of a directions hearing on 4 November 2009 at which time the applicant did not attend. Registrar Caporale dismissed the application pursuant to Rule 13.03c(1)(a) of this Court’s Rules because of the non-attendance of the applicant. That decision was then the subject of an application for review filed on 22 January 2010. Under the heading Order(s) Sought, the applicant said the following:
“(1) Leave be granted to include additional grounds for review of the decision of the Tribunal on the ground of Jurisdictional error.
(2) the application be allowed.
(3) there be an order in the nature of certiorari to quash the decision of the Tribunal.
(4) there be an order in the nature of mandamus requiring the tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa sought by the applicant.
(5) The First respondents pay the applicant’s costs.”
It should be noted that was obviously not filled in by the applicant who speaks and appears to read no English, but it is also noteworthy that the application for review did not seek to set aside the orders made by Registrar Caporale pursuant to the Court’s Rules. The applicant filed an affidavit on 22 January 2010 which states as follows:
“1. THAT I WAS AWAIR OF THAT I HAD HEARING ON4 OF NOVEMBER 2009 BUT AT THAT TIME BEFORE TWO WEEK OF DIRECTION HEARING I WENT TO DARWIN, NORTHERN TERRITORY FOR FARM WORK AND I WAS COMING TO HEARING BUT I CAN NOT FIND ANY FLIGHT TO MELBOURNE BEFORE ONE DAY OF HEATING SO I RING THE FEDERAL MAGISTRATE COURTE ON 4 OF NOVEMBER2009 BUT THEY WANT FAX AND I TOLD THEM ON THAT DAY THAT I WAS LIVING IN FARM SO THERE WAS NO FAX FACILITIES AWAILABLE OVER THERE AND WHEN I RETURNE IN MELBOURNE ON24/12/2009 I FIND OUT THAT MY APPLICATION IS DISMISSED BUT I DON’T KNOW ON THAT TIME BECAUSE I DIDN’T HAD PHONE COVERAGE OVER THERE IN DARWIN.” [SIC]
Although sworn by the applicant, that was plainly not written by him because, as I say, he does not speak English. Nonetheless, in view of its contents I decided to treat this as an application to reinstate the proceeding. I directed on 2 February 2010 that the matter be adjourned to 24 February 2010 and that, relevantly, the parties present argument today, not only on the application to reinstate but on the applicant’s substantive application to review the decision of the Tribunal. The first issue to be considered is whether or not the application should be reinstated. In one sense that is a misnomer because this is an application for a review of the powers of the Registrar and, therefore, operates as a hearing de novo. Nonetheless, since the applicant failed to attend the original hearing, it seems to me that the issue is still a live one.
Here I think there is considerable force in the submissions made by the first respondent. The first respondent says – and it seems to be clear that it is correct – that the applicant would have known about the directions hearing date when he filed his judicial review application on 15 September 2009. He had two months to get himself organised to be present and although the applicant says he could not get a flight and said further today that he had difficulties with funds, that is scarcely a satisfactory explanation. To the extent that it might be relevant, I would decide that the applicant has not shown a valid reason for his non-attendance originally in any event.
Nonetheless, one needs to bear in mind that as a person wholly untutored in the law and completely inexperienced with our legal system and not speaking English, it is only proper to give latitude. While as I say I think the better view is that the applicant has not satisfactorily explained his non-attendance, I think I should nonetheless deal with his substantive application. It is arguable that that is appropriate anyway as this is a review of the decision of the Registrar. The original application to which I have already made reference has a number of grounds. Those grounds, I regret to say, are all too familiar. It is quite clear that there is at least one party in the migration system, if I can so describe it, who provides these uniformly identical grounds to applicants.
The grounds set out in the application are the same even as to the spelling errors and grammatical errors that I have seen on at least two or three other occasions recently. The next thing to be said is that those grounds are wholly unparticularised and no indication is given in the applicant’s materials as to why they should be sustained.
The first ground raised is an assertion that the Tribunal’s decision was in breach of s.424A(1) of the Migration Act 1958 (“the Act”) because there was adverse information used by the Tribunal to affirm the decision under review and that that information was not disclosed in accordance with s.424A. There is no indication as to what that information is said to have been and there is no indication in my view in the reasons of the Tribunal to support the criticism made.
The second matter raised in the grounds of application is that the Tribunal made an error of law and lacked procedural fairness and, therefore, committed jurisdictional error. Once again, no particularity is given to that assertion and, subject only to a matter I will come to in a moment, I think there is no support in the Tribunal’s decision or the submissions made before me to justify it.
The third matter alleged is that “The Tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.” There is once again nothing in the grounds nor in the affidavit material of the applicant to support that assertion. Nonetheless today the applicant, who represented himself with the assistance of an interpreter, made reference to the fact that documentation had been obtained from India.
He further made reference to the fact that further documentation could have been obtained from India. It emerged as the proceeding continued that at the Tribunal hearing, the applicant had offered to get further information from India but the Tribunal had not taken advantage of that offer. As counsel for the Minister rightly says, that matter is in fact dealt with in the decision of the Tribunal. At paragraph 63, the Tribunal said, relevantly:
“Asked whether there was anything else he wished to add, the applicant said that he could provide proof of the story.”
The Tribunal goes on to say at paragraph 64:
“The Tribunal explained that even if he could demonstrate to its satisfaction that he was at risk of persecution, his claims appeared to fall outside of the scope of the Convention.”
Once again, putting the matter shortly, I accept the submission of the first respondent that, taken at its highest, this was an invitation by the applicant seeking to put further evidence before the Tribunal which the Tribunal declined to accept. That was, once again putting the matter at its highest, an application for an adjournment which the Tribunal declined. That was a procedural ruling open to the Tribunal to make. There is, however, a further point to be made. When one reads the Tribunal’s decision, one sees that the Tribunal dealt in detail with the applicant’s claims.
The Tribunal was well-seized in my view of the task before it and dealt with it in a fashion entirely consistent with the authorities and the law. In essence, the conclusions of the Tribunal are well set out at paragraph 84, which is in the following terms and I quote:
“In any event, even if the Tribunal did accept the scenario which the applicant has put forward, and it does not, there is no evidence to suggest that the behaviour of Vishnubhai Kantibhai in seeking to harm the applicant would be motivated by anything other than base criminal reasons. The applicant himself was unable to identify any Convention reason for the harm feared. Consequently, even if the applicant were at risk of serious harm capable of amounting to persecution from Vishnubhai Kantibhai, the Tribunal is not satisfied that it would be for a convention reason.”
That conclusion was a conclusion of fact based upon the evidence of the applicant himself. In those circumstances, it is quite plain that the Tribunal did not fall into jurisdictional error. I would go further, however, and say that, having read the Tribunal’s reasons as a whole, I see no grounds to conclude that the Tribunal’s decision was infected by jurisdictional error, either in the form indicated in the originating application or otherwise. In his oral submissions today, when invited to put anything forward that he wished, the applicant explained his failure to get to Melbourne for the directions hearing as being due to not having enough money. That rather belies the fact that he was able to get to Darwin in the first place but, as I say, I have already dealt with that issue.
He went on to say that whatever he told the Tribunal was the truth and there was no lie about it and referred to the fact that it took him seven months to get out of the country before coming here and applying for a visa. I accept, as counsel for the Minister submitted, that that issue is comprehensively dealt with in the Tribunal’s reasons. Insofar as it might be concluded that the applicant was seeking an adjournment in order to put further material before this Court, the difficulty is that such material is not receivable. The authorities clearly establish that this Court, in conducting a hearing for judicial review where the issues are of the sort in this case, the Court is not entitled to take further evidence that was not before the Tribunal (see MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]).
For these reasons, I am of the view that the proper exercise of my power in reviewing the decision of the Registrar is to affirm the Registrar’s decision to dismiss the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 24 March 2010