MZYIP v Minister for Immigration
[2010] FMCA 691
•20 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYIP v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 691 |
| MIGRATION – Applicant invited to attend hearing to provide further information – not attend – Tribunal exercised discretion to decide matter without taking further action to enable the applicant to appear – inconsistency between claims and country information is not information within s.424A – Application confined to material put before the Tribunal. |
| Migration Act 1958 (Cth), ss.424, 425A, 464, 474 Migration Regulations 1994 (Cth), r.4.35D |
| Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 SZJMG v Minister for Immigration and Citizenship & Another [2008] FCA 1145 |
| Applicant: | MZYIP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 630 of 2010 |
| Judgment of: | Turner FM |
| Hearing date: | 20 August 2010 |
| Date of Last Submission: | 20 August 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 20 August 2010 |
REPRESENTATION
| The Applicant did not appear |
| Counsel for the First Respondent: | Mr McKenna |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
Pursuant to Rules 13.03A(1)(a) and 13.03B(1)(a) of the Federal Magistrates Court Rules2001 (the “Rules”), the application filed
9 April 2010 be dismissed as the applicant has failed to comply with Order 3.2 of the Orders made 1 June 2010.
Pursuant to Rule 13.03C(1)(c) of the Rules, the application filed
9 April 2010 be dismissed as the applicant is absent from this hearing.
The applicant pay the first respondent’s costs fixed at $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 630 of 2010
| MZYIP |
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 31 March 2010.
That decision affirmed the decision of a delegate of the Minister on
18 January 2010 to refuse to grant the applicant a Protection
(Class XA) visa.
The grounds for the application for judicial review are set out in the application filed on 30 April 2010 as follows:
(1)I am (and then the applicant’s name) a citizen of India, arrived in Australia on 19 August ’09 and applied to the Department of Immigration and Citizenship for a protection visa.
(2)In India I am member of political group and doing the social activity in India. So I have this fear on my life if I go back to India, other political person kill me.
The Court understands ground two to be that the applicant, being a member of a political group who does social activity in India, fears for his life if he goes back to India as other political persons will kill him. Both grounds are assertions of fact and do not raise a ground for judicial review.
In his affidavit in support of his application, the applicant sets out the following grounds:
(1)I am (applicant’s name) citizen of India arrived in Australia on
19 August 2009 and applied to the Department of Immigration and Citizenship for a Protection visa.(2)In India I am member of a political group and doing the social activity in India so I have fiver of my life if I go back to India the other political person killed me.
(3)The Tribunal delegate’s decided refuses my protection visa. I am not certified (sic “satisfied”) with the decision because the delegate’s not properly understand what I am going to say and which my seduction (sic “situation) is. If I go back in India. I have some proof showing my seduction. So please give a chance and review my application.
Grounds one and two do not raise grounds for judicial review.
Ground three alleges that the Tribunal misunderstood his application and that he has proof showing what his “seduction”, which the Court reads as “situation”, will be if he goes back to India.
From reading the decision of the Tribunal and that ground, it appears as though the applicant would have wanted to file additional material before the Court which was not before the Tribunal. The applicant has not appeared today but the Court will deal with the applicant’s claim to be able to file additional material in that sense.
An application for judicial review is confined to the material put before the Tribunal. The Court refers to the decision in SZJMG v Minister for Immigration and Citizenship & Another [2008] FCA 1145 per McKerracher J at para 27 as follows:
“An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXYH v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:
“It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 observed that appeals to the Court from the Administrative Appeals Tribunal ‘…are only on questions of law.” Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework”.
The Court therefore would have decided that no further material could have been submitted by the applicant.
Nothing put by the applicant in the material constitutes a ground for judicial review. However, the Court will examine the Tribunal’s decision. The Court accepts the written submissions for the first respondent in paras.40 to 43 as follows:
It is noted that the Tribunal’s “Findings and Reason”s include reference to the fact that the applicant’s claims of being attacked because of his membership of the BSP were at odds with independent country information (Court Book (“CB”) 78 [31]). The applicant’s claims of being attacked because of his membership of BSP were provided orally by the applicant to the Department (via the delegate) and would therefore not fall within the exemption provided by s.424A(3)(ba) of the Migration Act 1958 (the “Act”). However, it is submitted that the applicant’s claims of being attacked because of his membership of the BSP are not “information” for the purpose of s.424A(1).
The applicant’s claims of being attacked do not contain, in their terms, a rejection, denial or undermining of the applicant’s claim to be a person to whom Australia owed protection obligations. Rather, if believed, they would go towards rejecting, not affirming, the decision under review. For this reason it is submitted that this information is not information for the purposes of s.424A(1); SZBYR at 17
Further, the meaning of “information” in the context of s.424A is related to the existence of evidentiary material or documentation.
As such, it is submitted that an inconsistency between claims made to the delegate and independent country information does not amount to information for the purposes of s.424A(1) (CB 78 [31]).
I continue the quote from the Minister’s submissions:
“It is submitted that the information which formed the reason, or part of the reason for the Tribunal’s decision was exempt from the operation of s.424(1) by reason of section s. 424A(3)”.
“Country information is exempted by s.424A(3)(a). As such the requirement to provide the applicant with the particulars of information that would be the reason or part of the reason for affirming the decision under review did not arise.” The Court observes that such information was country information.
Continuing the quotation:
On 2 March 2010 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to its application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at the hearing on 29 March 2010.
On 29 March 2010 the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances the Tribunal decided pursuant to s.426A of the Act to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Court observes that the invitation to attend “informed the applicant that the Tribunal was unable to make a decision in his favour on the information before it and invited the applicant to attend the hearing in order to submit further evidence in support of his claims.”
The Court refers to s.425A(1) of the Act as follows:
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
The invitation was sent to the applicant by post at the last known address of service nominated by the applicant. Section 425A(1) of the Act was therefore complied with.
The invitation provided a period of notice to the applicant that complied with the prescribed period of 14 days as per reg.4.35D of the Migration Regulations 1994 (Cth) (the “Regulations”).
The invitation to attend contained “a statement to the effect of s. 426A of the Act, regarding the options available to the Tribunal if the applicant failed to appear at the scheduled hearing.”
The Court determines that the invitation complied with the statutory requirements contained in reg.4.35D and sub-ss 425(1), 425A, 426(1) and 441A(4) of the Act. No breach of s.425 or s.425A occurred.
Failure of the applicant to respond to an invitation to give information under s.424(2) carries the consequence that the Tribunal may make a decision on the review without taking any further action to obtain the information. The Court refers to ss.424C(1) and 425(2)(c) of the Act and to the decision in the Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 at [28] that failure to respond to an invitation carries the consequence that the Tribunal may proceed to make a decision. The Court finds no breach of s.425 or s.425A of the Act.
The Court accepts the following submissions for the first respondent:
“The onus was on the applicant to satisfy the Tribunal that all statutory elements of his application were made out, Minister v Immigration and Ethnic Affairs v Guo (1999) 191 CLR 559 at 596. The Tribunal was not obliged to take steps to make out the applicant’s case for him, Luu v Renevieer (1989) 91 ALR 39 at 45. Further, the Tribunal is not required to uncritically accept claims of the applicant; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 551”.
The Court notes the reference to page 551 in the submissions, which should be page 451.
Continuing the quote:
“In accordance with s.426A(1), the Tribunal considered its discretion to make its decision on the review without taking any further action to enable the applicant to appear before it”. The Tribunal noted that the applicant had not attended the hearing or contacted the Tribunal to explain his failure to attend, that’s evident from CB 77 at para.26.
To continue from the submissions:
“It is submitted that there is nothing to indicate any jurisdictional error in the manner in which the tribunal met its obligations and considered its discretion under this section”.
The Court accepts those submissions.
An error of law has not been established. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances and pursuant to s.474 of the Act, there is no jurisdiction for this court to interfere.
The application for judicial review is dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 8 September 2010
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