MZYMQ v Minister for Immigration
[2011] FMCA 817
•26 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYMQ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 817 |
| MIGRATION – Alleged jurisdictional error by Refugee Review Tribunal – grounds of application wholly unparticularised – Tribunal’s decision sustainable on three independent grounds – application dismissed. |
| Migration Act 1958, ss.424A, 424A(1), 425(1) |
| SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 231 ALR 592 |
| Applicant: | MZYMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| SecondRespondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 662 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 14 September 2011 |
| Date of Last Submission: | 14 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 26 October 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Alderton |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 662 of 2011
| MZYMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 April 2011 by which the Tribunal affirmed a decision of a delegate of the first respondent refusing the applicant a protection visa.
The application contains what the written submissions of the first respondent correctly describe as “bare assertions” that the Tribunal’s decision was “in breach of s.424A of the Migration Act 1958
(“the Act”), that the Tribunal made error of law and lack of procedural fairness and therefore committed jurisdictional error” and “that the Tribunal made denial of natural justice because it failed to provide further opportunity to appear hearing before the tribunal”. No further particulars are provided to elucidate these grounds of application. The applicant’s affidavit filed in support of the application merely asserts that “all information are correct which (unidentifiable) given by me in reduction of court”.
The applicant has failed to comply with orders made by Registrar Allaway on 1 June 2011 as to the filing of any amended application giving proper particulars of the grounds of the application or a supplementary court book and written submissions. I refer to these matters not as a matter of criticism of the applicant, who is not legally represented and whose English is at a level that required an interpreter to attend the proceeding. Rather, it goes to explain why it is that the Court has so little to go on by way of understanding the applicant’s case.
It should be noted that at the hearing before the Court, the applicant essentially only stated that what he had said was true.
For the reasons that follow, it is clear that the applicant cannot make out his case and that the application must be dismissed.
The relevant facts are taken from the court book and the written submissions of the first respondent which are, after all, all the Court has before it.
The applicant is a citizen of India who arrived in Australia on 1 January 2009, together with his wife who had a student visa. He applied for a Protection (Class XA) Visa on 31 August 2010.
Accompanying his Protection Visa application was a handwritten statement in which the applicant claimed that he had entered into an arranged marriage in India in 1991 and that thereafter his wife’s nature changed and they started fighting. He said that he had come to Australia to make a ‘fresh start’ and that while things had gone well for a brief while, the wife’s behaviour had regressed to what it had been in India. She had returned to India without telling him and had agreed to a divorce on condition of payment of 10,000,000 rupees, otherwise she threatened that she and her father would kill the applicant’s (and of course the wife’s) son, born in 1997.
The applicant attended the hearing on 8 April 2011 and it would appear from the Tribunal’s decision that he was given every opportunity to state his case.
The Decision of the Tribunal
Given the paucity of materials advanced by the applicant in support of his application, it is neither necessary nor appropriate to go through the Tribunal’s decision in laborious detail. Suffice it to say that the Tribunal accepted many of the factual assertions made by the applicant as to the difficulties that had obtained between the applicant and his wife.
The Tribunal did not, however, accept the applicant’s assertions about the level of violence threatened and/or perpetrated by the wife and her father. The Tribunal found (see paragraph 41 of the Tribunal’s decision CB 81) that the wife had not engaged in acts against the applicant’s son that would meet the description of serious harm nor had the wife made any threats that she intended to kill the son either in connection with the applicant’s obligation to make divorce payments or for any other reason. The Tribunal likewise did not accept the applicant’s assertions as to the level of threats either made in the past or likely to be made in the future by his father-in-law (see paragraphs 44-46 of the Tribunal’s decision).
It suffices to say for these purposes that the findings made by the Tribunal appear to me to have been well-open to it on the materials and evidence before it.
The Tribunal accordingly found that the applicant was not a person to whom Convention obligations were owed because it “does not accept that the applicant’s fear of future harm arising from these problems is well-founded” (paragraph 38, Tribunal’s reasons for decision).
The Tribunal went on to find that in any event, the claimed fear of harm was not a fear of persecution for a Convention reason. Putting the matter shortly, the Tribunal found that the marital difficulties that the applicant had indicated were not such as to fall within the definition set out in the Convention. It is sufficient to say that I agree with the Tribunal’s analysis of this aspect of the matter.
Having already, as it were, rejected the applicant’s application for two independent reasons, the Tribunal went on to consider the question of internal relocation and concluded that it was open to the applicant to relocate internally within India and that it would be reasonable in the circumstances for him to do so. Once again, it is sufficient to say that the Tribunal’s reasoning in this regard is one that I would also adopt.
Other Submissions of the Parties
The applicant simply asserted, as I have already said, that what he had said was true when he was before the Court. He also said that he continued to fear for his life if he was returned to India.
Counsel for the first respondent was essentially content to rely upon the written submissions filed, although the Court’s attention was drawn to the fact that any one of the three bases upon which the Tribunal rejected the applicant’s claim would be sufficient to defeat it.
Conclusions
The applicant has not advanced any meaningful particularised ground of application such as to identify jurisdictional error on the part of the Tribunal. Insofar as it is said the Tribunal’s decision was in breach of s.424A of the Migration Act 1958 (“the Act”), it is plain that this assertion cannot possibly be made out. I accept the submission at paragraph 23 of the first respondent’s written submissions that the Tribunal was under no obligation to comply with s.424A(1) because there was no information for the purposes of that section in this case. The information relied upon by the Tribunal was either the applicant’s oral evidence given at the hearing or the Tribunal’s consideration of that evidence which is likewise not information for the purposes of s.424A.
The Tribunal invited the applicant to attend a hearing at which it put to him in terms the proposition that the harm feared might not be serious harm, that his claims did not appear to have a Convention nexus and that it might be reasonable for him to relocate within India. I accept the submission for the first respondent that the Tribunal satisfied s.425(1) in the manner outlined in SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 231 ALR 592 by ensuring that the applicant was sufficiently alerted to the dispositive issues arising on review and that he had an opportunity to respond to them.
Furthermore, the Tribunal invited the applicant to the hearing.
He attended. There was, as the first respondent submits, no obligation to invite him to a further hearing.
Insofar as the grounds of application raise the issue of procedural fairness, there was no breach of the statutory scheme and there was no procedural unfairness in any event.
It is clear that the Tribunal’s conclusions on the three separate grounds pursuant to which it would have been open to it to dismiss the application were in every respect correct. The application is as I have indicated devoid of merit and must be dismissed with costs. I will so order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 26 October 2011
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