MZYHY v Minister for Immigration - [2010] FMCA 589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYHY v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 589

MIGRATION – Application for judicial review of Refugee Review Tribunal decision – dismissed by Registrar for non-attendance – application for reinstatement pursuant to Rule 16.05 – consideration of merits of substantive application.

Federal Magistrates Court Rules 2001, r.16.05(2)(a)

Hunter Valley Developments Pty Ltd v Cohen, Minster for Home Affairs & Environment (1984) 3 FCR 344
Craig v South Australia (1995) 184 CLR 163
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255

Applicant:

MZYHY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 387 of 2010

Judgment of:

Burchardt FM

Hearing date:

19 July 2010

Date of Last Submission:

19 July 2010

Delivered at:

Melbourne

Delivered on:

12 August 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms P. Mitchell

Solicitors for the Respondents:

Clayton Utz Lawyers

THE COURT ORDERS THAT:

The application in a case filed 12 May 2010 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $1,760.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 387 of 2010

MZYHY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 17 February 2010, the Refugee Review Tribunal (“the Tribunal”) rejected the applicant’s application for review of a decision of the delegate. Both the delegate and the Tribunal rejected the applicant’s claims that he was a person to whom Australia owed Convention obligations. On 17 March 2010, the applicant filed an application to review the decision of the Tribunal, together with an affidavit in support. The affidavit in support simply says:
“I do not want to go back as we were persecuted in China. Chinese gov doesn’t have human rights. I do fear to go back to China.”
The grounds set out in the application are three, and are as follows:
“1. RRT did not believe that the evidences provided by me are true. That’s not fair.
2. RRT used failed cases against my application. They did not believe the whole things I said are true.
3. RRT did not consider that I would be put in jail if I return. I have risk to go back to China.”
It should be noted that neither of those documents were marked as having been prepared with the assistance of an interpreter, nor was there any mention made of any agent acting on the applicant’s behalf. It is clear from his appearance in Court today that the applicant does not speak sufficient English to himself have been able to have prepared those documents.
The application was marked by the Court on its face as having a return date on 5 May 2010 at 2 pm. From exhibit SAT-3 to the affidavit of Sarah Ainslie Thompson, filed on 4 June 2010 by the Minister, it is clear that the solicitors for the Minister wrote to the applicant further informing him of the hearing date.
On 5 May 2010, Registrar Allaway dismissed the application because the applicant did not attend Court. On 12 May, the applicant filed an application in a case seeking to reinstate the application pursuant to Rule 16.05(2)(a) of this Court’s Rules. He filed a further affidavit, which relevantly reads:
“I got missed for my first hearing date in Federal Magistrate Court. I am so sorry about it.
I did not receive the letter and My English skill is not at all. Please forgive me and arrange a new date.”
When the matter came before the Court today, the applicant informed me that he did in fact receive the notice but was not informed by his agent of the hearing date, and that he cannot read English. He said that his daughter is pregnant and will be sent back to China and being under-age, may face pressure to terminate her pregnancy. Indeed, that information, I should make it clear, came from his daughter who attended Court with the applicant.
The applicant went on to say that when he was in the Tribunal he provided all materials available to him but the Tribunal did not believe him. He said he wanted the Australian Government to investigate his case and said that he really was persecuted in China. I should say that from that recitation it is clear that the grounds set out in the application are the only grounds in substance upon which the applicant relies.
Counsel for the Minister submitted that the explanation for the non-attendance by the applicant was insufficient. She pointed to the fact, correctly enough, that there is no reference to an agent in the application or in the application in a case. She referred to the notification by the solicitor, constituted by exhibit SAT-3. She further went on to submit that if the Court was against that submission, she would concede that the application was made within a reasonable time, and went on to submit, however, that there was no substantive merit in the actual application itself.
This, of course, is one of the matters that has been considered generally to be relevant, (see judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minster for Home Affairs & Environment (1984) 3 FCR 344). The other matters raised in that case, such as prejudice, are not, in my view, of any moment. I accept the submission advanced by counsel for the Minister that the Tribunal considered, and indeed considered carefully, the evidence that the applicant put before it at two hearings and in writing.
I accept that the Tribunal roundly disbelieved the applicant, for reasons which, having read the Tribunal’s reasons as a whole, seem to me to be cogent. The complaint that the Tribunal did not believe the evidence provided by the applicant in my view constitutes merits review in its clearest form. It is not a permissible exercise in a hearing of this sort.
There could be no possible submission to the effect that the Tribunal’s decision was affected by Wednesbury unreasonableness, nor is there anything in what the applicant put that suggests that the Tribunal had regard to irrelevant evidence, misunderstood its task, or otherwise fell within the ambit of jurisdictional error, identified originally in

Craig v South Australia
(1995) 184 CLR 163, and perhaps best indicated by this passage from VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Full Court of the Federal Court stated:
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
The second ground raised by the applicant is that the Tribunal used failed cases against his application. To the extent that that can be understood, it might be taken to be a reference to the citing of authority by the Tribunal. I accept that insofar as the Tribunal did so, it did so unobjectionably, and it does not give rise to any error. The latter part of the ground, namely that the Tribunal did not believe the applicant, returns again to the merits review issue I have discussed above.
The final ground raises the fact that the Tribunal did not consider that the applicant might be jailed if he returned to China and that he faces risk if he returns to China. I accept that the Tribunal dealt with this issue in terms and refer to paragraphs 139, 142, 144 to 145 and 150, which were correctly cited by counsel for the Minister in this regard.
The matters raised in relation to the daughter’s difficulties in the event that she were to return to China are, of course, not before the Court. Her visa status is unclear in any event. From the material, I had the impression that she was here on a student visa. There is nothing to suggest it has expired, other than the daughter’s complaint uttered in the Court today. In any event, whatever the position as regards the daughter, it is a matter not before the Court.
In reply, the applicant said that he had tried his best to provide information, that he had no idea when he was in China that he could seek refugee status and that everything had been provided that he was able to provide. He questioned what he needed to do to get a visa, and although it may have lost something in translation, I understood his remarks to suggest that he felt that the Tribunal had not sympathetically considered his application.
He made a relatively extensive reply, but it is fair in my view to say that he is obviously desperately concerned that if he returns, his house will be confiscated and sold, and that his parents, who are of an advanced age, will have nowhere to live. He is also very concerned about the education of his son, who is in the final year, it would seem, of secondary education. All these are, of course, matters of very understandable and genuine concern to him, but the difficulty is that the Tribunal dealt with them and formed the view that they did not give rise to a Convention nexus. In my view, the Tribunal was correct to make that finding.
It is clear in my opinion that the applicant’s case has no sufficient chance of success to make it appropriate to exercise the Court’s discretion in the applicant’s favour in any event.
I would only say, finally, that the explanation for non-attendance is scarcely compelling, but if that were the only issue, I would have given the applicant the benefit of the doubt. It is the manifest absence of any arguable case, or any merits at all, within the meaning of jurisdictional error that makes it inappropriate to reinstate the application.
The application in the case will be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 12 August 2010