MZYJF v Minister for Immigration

[2010] FMCA 935

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYJF v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 935

MIGRATION – Refusal of protection visa – whether breach of natural justice – independent country information excluded from s.424A(1) – whether denial of procedural fairness – particular social group.

Migration Act 1958 (Cth), ss.422B, 424, 425, 474

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Luu & Anor v Renevier (1989) 91 ALR 39
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

Applicant: MZYJF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1038 of 2010

Judgment of: Turner FM

Hearing date: 22 November 2010

Date of Last Submission: 22 November 2010

Delivered at: Melbourne

Delivered on: 22 November 2010

REPRESENTATION

The Applicant appeared In Person with the assistance of a Punjabi interpreter

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application for judicial review filed 22 July 2010 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1038 of 2010

MZYJF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore and Revised)

1. The applicant in this matter has been refused a Protection Visa, and seeks judicial review of that decision. The applicant was refused a visa by a decision of the delegate to the Minister on 13 August 2009. That decision commenced at Court Book (“CB”) p.39. The decision was affirmed by the Refugee Review Tribunal (the “Tribunal”) by a decision dated 30 June 2010 (CB p.102).

2. The grounds of the application to the Court are set out in the application filed on 22 July 2010.

3. The grounds of the application are:

   (1)That the Tribunal’s decision was in breach of s.424A(1) of the Migration Act 1958 (the “Act”).

   (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.

4. Ground one alleges that the Tribunal breached s.424A(1) of the Act because it relied on adverse information to affirm the decision of the delegate. The decision of the Tribunal shows that it relied on extensive country information in reaching its conclusion. The Court refers to CB commencing p.114 through to p.126, which sets out that country information.

5. Section 424A(1) of the Act does not apply to independent country information and sub-s.(3) of that section provides:

   (3)This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;.…

   Country information falls within the exception in s.424A(3)(a) of the Act. Ground one has not been established and it is dismissed. 

6. Ground two alleges that the Tribunal denied the applicant procedural fairness. The applicant has not demonstrated a denial of procedural fairness. The Tribunal sent the applicant a letter pursuant to s.424A of the Act (CB p.71). That letter invited the applicant to comment on his delay in applying for a visa and the fact that country information indicates that he had the option of relocating within India. The applicant was invited to appear before the Tribunal to give evidence and present argument (CB p.61). The applicant appeared on

   
   

   9 November 2009 with the assistance of an interpreter (CB p.108 at [28]). Section 425 of the Act was therefore complied with.

7. Section 422B(1) of the Act provides that the division in which it appears:

   is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   The applicant has not established a breach of any provision in that Division. Ground two is dismissed.

8. Ground three alleges a denial of natural justice, because “it failed to provide further opportunity before the tribunal”. Other than in s.424AA(b)(iv) of the Act, there is no provision in Division 4 of Part 7 of the Act requiring the Tribunal to provide further opportunity to an applicant. There is no evidence that the applicant asked the Tribunal for a further opportunity to make submissions or provide material and no evidence that such a request was refused. A breach of s.424AA(b)(iv) has not been established.

9. An applicant must provide the Tribunal with sufficient information about his claims to satisfy the Tribunal. The Court refers to the decisions in Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39; Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 as follows:

   Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.

   “The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.”

   A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

   “The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.”

10. There is no proof that the applicant sought, and was denied a further opportunity to present his case. Ground three is dismissed.

11. The decision of the Tribunal shows that the Tribunal did not accept many of the applicant’s claims, because they were inconsistent with material before the Tribunal. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

12. The Tribunal found that the harm the applicant fears is not for reasons of his nationality, his race or his political beliefs (CB p.127 at [104]). That finding of fact was open to the Tribunal and is not amenable to review.

13. The Tribunal considered the applicant’s claim to fear persecution because he belonged to a particular social group of a backward class or caste, (CB p.126 from [100] – p.132 at [139 to 143]). The Tribunal did not accept that claim for reasons it stated. That finding of fact was open to the Tribunal on the material before it and is not amenable to review.

14. The Tribunal was not satisfied that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future on the basis of his religion (CB p.132 at [138]). The tribunal set out its reasons for that finding at CB p.128 to 130. That finding of fact was open to the Tribunal on the material before it and is not amenable to review.

15. The Tribunal was therefore not satisfied that the applicant faces a real chance of persecution for any Convention reason (CB p.132 at [144]). That finding is not amenable to review.

16. The Court has invited the applicant today to make submissions in support of his application, but he has declined that invitation.

17. 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.

18. The application for judicial review by the Court is dismissed.  As the Minister has been successful in this matter, the Minister’s counsel makes application that the applicant pay the Minister’s costs of $5,865.00. That is the figure set out in the Rules, or the Schedule to the Rules of the Court. The Court so orders.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 30 November 2010