MZYKI v Minister for Immigration
[2011] FMCA 585
•2 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYKI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 585 |
| MIGRATION – Extension of time sought to review the decision of the RRT – merit of review considered in context of whether extension should be granted – no reasonable prospect of success – extension of time refused and application for review dismissed. |
| Applicant: | MZYKI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1725 of 2010 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 2 June 2011 |
| Date of Last Submission: | 2 June 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 2 June 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr McKenna |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 13 December 2010, and amended on
21 February 2011 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,685.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1725 of 2010
| MZYKI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
In this matter I gave ex tempore reasons as set out below.
Under consideration was the threshold issue as to whether I should grant an extension of time to the Applicant for the filing of his application to review the decision of the Refugee Review Tribunal (the Tribunal) made on 16 September 2010. The Applicant was considerably out of time. In determining whether an extension of time should be granted I examined the strength and merit of the possible substantive grounds for review as articulated by the Applicant and determined that the Applicant did not have a reasonable prospect of success. I therefore refused to grant the extension of time.
Ex tempore reasons
This matter comes before me today on an application for review by the Applicant in respect of a decision handed down by the Refugee Review Tribunal on 16 September 2010; which decision affirmed an earlier decision by the First Respondent’s delegate, made on 7 June 2010, to refuse a protection visa to the Applicant.
By way of general background, the Applicant is a citizen of Lithuania who came to Australia on 17 March 2010 after living a few years, approximately, in New Zealand, and on arriving in Australia, within a couple of days of his arrival, on 19 March 2010 lodged an application for a protection visa.
The basis of his application, on the material that has been provided both to the Department and before the Tribunal, was that, in summary, very unhappy events had happened in the Applicant’s life in his native country of Lithuania, which commenced with an unhappy childhood but which then manifested itself in a circumstance which caused, no doubt, the Applicant considerable concern and distress, when after appearing before a Court in Lithuania in consequence of a failure or refusal to pay child support for his daughter in Lithuania, he, on his own evidence before the Tribunal and in support of his application, made a threat to kill his wife in the presence of a Lithuanian judge.
The consequence of that, I am advised, is that he spent a period of three months in prison. His term of imprisonment is significant in that during that time he was assaulted, and on his description, “severely assaulted and suffered harm”. The circumstances giving rise to the assault, it appears, was his failure to wash dishes, which caused his fellow prisoners to assault him. He says that, as a consequence, he was not protected and that the authorities are unable to protect him.
Also, in consequence of his support for a former president of Lithuania, Mr Paxis, he was “warned off” – they are my words – by a telephone call that threatened him because of that manifest support and, to some degree, it formed a basis before the Tribunal for a nexus between the Convention and the concerns he raised. He was concerned by the prospect of being again put in prison, ostensibly arising from the non-payment of child support, which he said would be a pretext that would afford the authorities justification to put him in prison because of his political expression of support for President Paxis. There was, on the findings of the Tribunal, one such telephone call, a significant number of years before the Applicant had left Lithuania.
I have been provided, as required, pursuant to the Registrar’s orders, written submissions prepared by Mr McKenna, who appears before me today, in support of the First Respondent’s position and in response to the grounds for appeal as articulated by the Applicant, with the assistance of his wife. The written submissions presented by the Applicant are in broad terms and attached to an affidavit filed in Court.
As is often the case in circumstances where a party represents themselves on these types of cases, they – not unreasonably, and understandably – have a limited understanding of the law that applies to these types of review, and most often, and again understandably, seek this Court to enter into a merits review of the case and seek, by that process, to have a more favourable outcome than that they experienced in the Tribunal.
As I pointed out to the Applicant at the start, there are very technical legal arguments involved in these sorts of review, and I will go through some of those very shortly. Suffice to say, however, that I am satisfied, from a reading of the Tribunal’s decision, that the Tribunal set out the law applicable in a very, if I might say, pithy way, with an economy of expression that is to be commended in these sorts of reasons. I have no issue with the Tribunal’s understanding of what the law is as expressed by the Tribunal.
The Applicant, however, takes significant issue with a number of the findings of fact made by the Tribunal, and seeks to re-agitate in this Court those issues. By way of example, there was reference made today in oral submissions, to the Tribunal’s evaluation of the evidence before it concerning the inheritance of a property by the Applicant from his grandmother, and the political environment in which Lithuania now suffers, according to the Applicant; and the findings, generally, about the nature of the nexus, which is necessary, between the serious harm or risk of harm and a Convention-based ground for asylum.
The submissions of the First Respondent, in my view, also express the law as should be applied in these types of cases; and the First Respondent, doing the best as I believe can be done in trying to understand the nature of very limited grounds for appeal, has expanded on what the First Respondent believes them to be and address those, and there is nothing I have heard today that suggests that there has been a failure to consider any potential grounds. The submissions, in my view, reflect a proper interpretation of the law and the application of that law to this particular case. I reserve the right to refer further to those submissions in due course but, suffice to say, the major hurdle for the Applicant is his capacity to draw a nexus to the complaints he makes about the conduct dealt to him in Lithuania, and likely to be dealt to him if he was to return, with a Convention ground, which nexus the Tribunal has determined does not exist.
The findings of fact of the Tribunal are, in my view, findings of fact reasonably open to it upon the material before it, bearing in mind the fact finding task is a peculiar task within the purview of the Tribunal; it is beyond this Court to go beyond that in these particular circumstances. The reality is that I am not satisfied that there is any reasonable prospect of success should I grant an extension of time in this matter, which is the issue the First Respondent relies on in the first instance. Of course, I have addressed at the outset the merit of the review in light of those matters that I need to consider as to whether I should extend time. The reality is that the application that was filed was way out of time, and leaving aside the question of whether there was a reasonable explanation for that, there is the determinate issue of whether there is any merit in the application.
For the reasons that are set out in the submissions of the First Respondent, I am satisfied that there is no merit, nor any reasonable prospect of success, if the application was to proceed after an extension of time. Accordingly, I intend to dismiss the application which was filed on 13 December 2010, and as amended on 21 February 2011.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 2 June 2011
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