MZYHF v Minister for Immigration

[2010] FMCA 600

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYHF v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 600

MIGRATION – Application for judicial review of Refugee Review Tribunal decision – grounds wholly unparticularised – application dismissed.

Migration Act 1958, s.424A

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

Applicant: MZYHF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1603 of 2009

Judgment of: Burchardt FM

Hearing date: 16 July 2010

Date of Last Submission: 16 July 2010

Delivered at: Melbourne

Delivered on: 17 August 2010

REPRESENTATION

The Applicant: In person (with the assistance of an interpreter)

Counsel for the Respondents: Mr B. Wee

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application filed 14 December 2009 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1603 of 2009

MZYHF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 November 2009. 

2. The grounds of application are extremely familiar to the Court.  They are the same, even as to spelling errors, as those provided in a number of recent cases.  They were plainly not prepared by the applicant because she speaks no English. 

3. For the reasons that follow, I do not think the application has merit and I will dismiss the application with costs. 

The grounds advanced by the applicant

1. In her affidavit, filed on 14 December 2009, the applicant relevantly stated:

   “1.    I came in Australia because of my safety and security of my life.  I suffered life threathining fear in my country. 

   I lodged my Protection visa application to the DIMA at Melbourn and later review to the RRT.  I attended RRT hearing in Melbourn.  I am not satisfied with the Tribunal’s decision, and I seek judicial Review in this matter.”

2. The affidavit went on to annex the Tribunal decision. 

3. The grounds set out in the application are:

   “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 juridictional error. 

   3.    That the tribunal made denial of natural justice.  Because it failed to provide further opportunity before the tribunal.”

4. At the hearing before the Court, when invited to make any submissions or advance any matters that would assist her case, the applicant in substance said only two things.  First she said that a friend, with whom I infer she had been living, was going to India shortly and she would thereafter have no accommodation.  Secondly, she said she needed more time to submit proofs and referred to a medical report about her sister. 

5. On 3 February 2010, Registrar Allaway made a number of directions, including requiring the applicant to file and serve an amended application giving proper particulars of the grounds of the application and written submissions. 

6. The applicant did not comply with those directions.  I do not make this observation so as to be critical of the applicant, who plainly speaks no English and would have struggled to comply with those directions on any view.  Rather, it goes to emphasise the lack of detail with which the Court is confronted in seeking to analyse the claims that the applicant makes. 

Some aspects of the Tribunal’s decision

1. The Tribunal’s decision, in addition to being exhibited to the applicant’s affidavit, is also of course part of the Court Book.  As a general observation, I would say that the 24 page decision in my view shows that the Tribunal was well seized of the task it was being required to perform, and includes a comprehensive analysis and a consideration of the claims that the applicant made. 

2. More particularly, I note that the Tribunal was clearly aware of the applicant’s assertion that one of her sisters had been raped.  The Tribunal examined the material advanced by the applicant in this regard carefully and ultimately concluded that the applicant was not to be believed.  The basis for these conclusions seems to me to be cogent. 

3. It should also be noted that the Tribunal gave the applicant four weeks to arrange translation of documents she had presented, and to provide any further information in support of her case (see paragraph 63 of the Tribunal’s reasons). 

4. The Tribunal went on to say, at paragraph 64:

   “The Tribunal permitted the applicant a considerably longer period of time in which to supply further material, and to arrange translations of the documents she sought to provide the Tribunal.  No further information or documents were received from the applicant, nor was there any evidence of further contact by the applicant with the Tribunal.”

5. The Tribunal hearing took place on 24 February 2009 and it was not until 5 August 2009 that the Tribunal sent the applicant a section 424A letter, quoted at paragraph 65 of the Tribunal’s reasons.

6. The applicant responded in writing on 26 August 2009.  The Tribunal took the response into account (see paragraph 66 of the Tribunal reasons). 

Consideration of the individual grounds of application

1. The applicant complains that the Tribunal breached section 424A of the Migration Act 1958 (“the Act”) because certain adverse information was not disclosed to her. I accept the submission of the first respondent that the Tribunal did comply with section 424A. It sent the applicant a comprehensive section 424A letter where it identified the relevant information and explained the information and concerns that it had.

2. The Tribunal also relied upon country information, but it was, of course, entitled to do so. 

3. The first ground is not made out. 

4. The applicant makes a generalised allegation of lack of procedural fairness as the first respondent’s written submissions indicate. 

5. Having read the Tribunal’s reasons for decision, and bearing in mind the time granted to the applicant to provide further material (which the applicant did not take advantage of) and the section 424A letter, I do not think that the complaint of lack of procedural fairness is made out.

6. The applicant’s third claim, that she was denied natural justice, likewise cannot be made out. The Tribunal was not required to invite the applicant to a further hearing and indeed the applicant did not request one. No further information was provided, as the first respondent submits, either in the applicant’s section 424A response or otherwise, that required a further hearing.

Conclusion

1. In my view, the Tribunal’s decision represents a clearly reasoned response to the applicant’s claim.  The Tribunal was well aware of the task it was required to conduct and nothing in the reasons for decision, in my view, suggest that the Tribunal fell into jurisdictional error.  The particular grounds advanced by the applicant, wholly unparticularised as they are, are simply not made out. 

2. Insofar as the applicant’s oral submissions before the Court are concerned, her implicit request to provide further material in relation to the rape of her sister cannot be sustained.  Not only did the applicant fail to provide any such material in the period from February to August 2009 (and, indeed, thereafter until the decision was brought down on 20 November 2009) but in any event, such material, not having been before the Tribunal, is not now admissible before the Court. 

   
   

   (See MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 per Nicholson J at [8].

3. For these reasons, I do not believe the application has merit and I will order that it be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: 

Date:  17 August 2010