MZYLL v Minister for Immigration

[2011] FMCA 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYLL v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 554

MIGRATION – Alleged failure to comply with the Act – whether invitation to appear sent to correct address – where applicant fails to appear – Tribunal free to proceed without further enquiry.

Migration Act 1958 (Cth), ss.36(2)(b), 425, 426A, 441, 474
Migration Regulations 1994, reg.435D

Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
SZJMG v Minister for Immigration and Citizenship & Anor [2008] FCA 1145
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Applicant: MZYLL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 403 of 2011

Judgment of: F. Turner FM

Hearing date: 12 July 2011

Date of Last Submission: 12 July 2011

Delivered at: Melbourne

Delivered on: 12 July 2011

REPRESENTATION

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

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for judicial review filed 24 March 2011 is dismissed

2. The applicant pay the first respondent’s costs of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 403 of 2011

MZYLL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore and Revised)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 17 February 2011. That decision affirmed the decision of the delegate of the Minister for Immigration & Citizenship (the “Minister”) on 26 October 2010 to refuse to grant the applicant and his wife Protection (Class XA) visas. That decision appears at p.42 of the Court Book (“CB”).

2. The visa applicant and his wife are citizens of Malaysia who arrived in Australia on 12 June 2010. The wife applied for a visa by application for a member of the family unit (CB p.24). The wife’s application is therefore made under s.36(2)(b) of the Migration Act 1958 (the “Act”) and is dependent on the outcome of the husband’s application. The Court will therefore refer to the husband as the “applicant”.

3. On 6 December 2010 the applicant lodged an application for review of the decision of the delegate with the Tribunal (CB p.48). The Tribunal affirmed the decision of the delegate (CB p.72).

4. The applicant filed an application for judicial review which contains three grounds:

   (1)The Tribunal committed a jurisdictional error by failing to comply with the Act.

   (2)The Tribunal failed to notify the applicant of the hearing in the absence of the applicant.

   (3)The applicant will be at risk of suffering persecution if he returned to Malaysia.

Ground One

1. As to ground one, which is that the Tribunal committed a jurisdictional error by failing to comply with the Act, the Court finds that on

   
   

   23 December 2010 the Tribunal wrote to the applicant (CB p.54). The letter was sent to his notified address for correspondence at [12/309 Castlereagh Street, Sydney, New South Wales (CB p.50)]. The letter to the applicant invited him to attend the hearing on 27 January 2011 (CB p.54). The applicant was invited to appear to give evidence and present arguments relating to the issues arising in the case.

2. The Court accepts a submission by the first respondent that the invitation complied with the applicable legislative requirements as follows:

   ·It invited the applicant to appear before the Tribunal to give evidence as required by s.425(1) of the Act.

   ·It provided notice of the specified day, time and place of the hearing as required by s.425A(1) of the Act. The specification was 27 January 2011 at 9.30 am on Level 12, 460 Lonsdale Street, Melbourne.

   ·The invitation was given to the applicant by one of the means specified in s.441A of the Act, namely by registered post, which is contemplated by s.441A(4) of the Act.

   ·The invitation provided a period of time to the applicant which exceeded the prescribed period of 14 days notice as required by reg.435D of the Migration Regulations 1994 (the “Regulations).

3. Notification is taken to have been received seven working days after the date of the document. The Court refers to s.441C(4) of the Act. The applicant is therefore taken to have received notification on 6 January 2011 with the hearing to take place on 27 January 2011.

4. The invitation was despatched within three working days of the date of the letter. The Court refers to the affidavit of Joseph Benedict Johnson sworn and filed on 28 April 2011.

5. The Court will hand the affidavit of Mr Johnson to the applicant and refer to paragraph 6 where Mr Johnson states:

   the records indicate that correspondence sent… to the applicant… by registered post on 23 December 2010.

6. The invitation to the hearing contained a statement about the effect of s.426A of the Act, namely the options available to the Tribunal if the applicant failed to appear before it. That is a requirement of s.425A(4) of the Act.

7. The Court accepts that the applicant was clearly put on notice by the hearing invitation that the Tribunal was unable to make a favourable decision on the information before it and that if the applicant did not attend the hearing, the Tribunal might make a decision without further notice. The applicant will see that statement in the letter (CB p.54).

8. When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].

9. It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ (ante) per Downes J at [5].

10. The Court finds that the applicant did not attend the Tribunal hearing on 27 January 2011. (CB p.71.5). The Tribunal found that the applicant had provided “very little detail regarding his claims” (CB p.71.7).

11. In accordance with the letter to the applicant on 23 December 2010 the Tribunal proceeded to make its decision and the Court finds no error of law in the Tribunal proceeding that way.

12. “A decision-maker is not required to make the applicant’s case for them”. In the Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, it was decided, and the Court quotes that:

    an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider”. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40].

    It remains for the applicant to satisfy the tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for them”. The Court refers to 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 and Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451

13. The Court applies the following decision in another matter:

    “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.”

14. As stated earlier in this hearing the Tribunal is entitled to accept or reject evidence as it thinks appropriate in all the circumstances. The Court refers to that statement in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464.

15. The Tribunal did not accept that the applicant experienced discrimination by reasons of ethnicity in the Malaysian Higher Education System or generally (CB p.71.9). That is a finding, which is not amenable to review.

16. It did not accept that the applicant was put in jail for cooking pork for his customers or that he was nearly put in jail for the same reason (CB p.71.10).

17. The Tribunal did not accept that the applicant’s parents’ home was burgled and that their personal possessions were stolen when the applicant was 10 years old or that the Malaysian authorities failed to protect the applicant at the time (CB p.72.1).

18. On the evidence before it, the Tribunal did not accept that the applicant has suffered any Convention related persecution in the past or that he faces a real chance of suffering Convention related persecution in Malaysia if he returns there (CB p.72.3).

19. The Tribunal did not accept, on the evidence before it, that the applicant has a well-founded fear of being persecuted in Malaysia now or in the reasonably foreseeable future for any Convention reason (CB p.72.4).

20. The Tribunal did not accept that the applicant’s wife has a well-founded fear of being persecuted in Malaysia now or in the reasonably foreseeable future for any Convention reason (CB p.72.5).

21. The Court finds no error of law made by the Tribunal in making those findings. They were findings of fact that were reasonably open to the Tribunal on the evidence before it. Those findings are not amenable to review.

22. The Tribunal found, therefore, that it was not satisfied that Australia has protection obligations to the applicant under the Refugee Reviews Convention or to the applicant’s wife. The Tribunal affirmed the decision of the delegate.

23. It is possible that a ground of complaint is that the Tribunal hearing was scheduled for Melbourne despite the fact that the applicant’s address for service was in Sydney. To do so was within the Tribunals power under s.441 of the Act which provides:

    (1)Sittings of the Tribunal are to be held from time to time as required, in such places in Australia as are convenient.

24. In any event the Tribunal advised the applicant, in its invitation to appear, that if he wished to appear in Sydney he could do so with a videolink to the Tribunal in Melbourne. (CB p.54.6).

25. No failure to comply with the Act or any other error of law has been established.

26. Ground one of the application for judicial review is dismissed.

Ground Two

1. Ground two claims that the Tribunal failed to notify the applicant of the hearing, (which was held) in the absence of the applicant. The Court finds that the invitation to the hearing was sent to the correct notified address for correspondence. That address is set out in the Application for Review as 12/309 Castlereagh Street, Sydney, New South Wales, 2000 (CB p.50).

2. Examination of the letter to the applicant shows that it was sent to him at 12/309 Castlereagh Street, Sydney, New South Wales, 2000. The notification of invitation was therefore sent to the correct address. On failure of the applicant to attend, the Tribunal was authorised to proceed to make a decision. That authority comes from s.426A of the Act which, in subsection (1) provides:

   The tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

3. Ground two of the application for judicial review is dismissed.

Ground Three

1. Ground three is a claim that the applicant will be at risk of suffering persecution if he returns to Malaysia. At the beginning of the hearing today the applicant stated to the Court that he wished to state why he couldn’t return to Malaysia. He stated that his son had passed away, before the applicant left Malaysia and stated that he did not wish to go through the grounds again that were put to the Tribunal as to why he could not return to Malaysia.

2. Ground three alleges that the applicant will be at risk of suffering persecution if he returns to Malaysia. The Tribunal found that the applicant had not established that claim. That finding of fact was open to the Tribunal on the material before it and is not amenable to review. It is dismissed.

3. As stated earlier in this hearing, the applicant is confined to the material put before the Tribunal, and fresh evidence is not admissible unless it bears on some jurisdictional error.

4. An applicant for judicial review is confined to material put before Tribunal see SZJMG v Minister for Immigration and Citizenship & Anor [2008] FCA 1145 per McKerracher J at [27]:

   “27 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 MZXHY 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 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. 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.”

5. It has not been shown that any fresh evidence could bear on jurisdictional error, and the applicant conceded he did not want to put fresh material, he merely wanted to restate the material put to the Tribunal, which has already been dismissed.

6. Ground three of the application for judicial review is dismissed.

7. The applicant was invited to make submissions today in support of his application. The fact that his son had passed away before the applicant left Malaysia was not put to the Tribunal for consideration, and the applicant concedes, properly, that the very unfortunate loss does not relate to his grounds for seeking judicial review of the decision of the Tribunal.

8. 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.

9. The application by the applicant for judicial review is dismissed.

10. The wife’s claim also fails as it relies on the outcome of the applicant’s case which has now been dismissed.

11. The Minister, having succeeded in this matter, seeks an order that the applicant pay the Minister’s legal costs. The rules of the court provide that if a proceeding such as this is conducted or concluded at a final hearing the Minister can seek costs of $5,865.00. The Minister has not incurred that level of costs and is seeking an order that the applicant pay $4,200.00 costs to the Minister.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date: 19 July 2011