MZYMV v Minister for Immigration
[2011] FMCA 907
•25 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYMV v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 907 |
| MIGRATION – Review of Refugee Review Tribunal – protection visa – application dismissed – no matter of principle. |
| Applicant: | MZYMV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 703 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 October 2011 |
| Date of Last Submission: | 25 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Counsel for the Respondent: | Ms Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed 20 May 2011 and the amended application filed 10 September 2011 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 703 of 2011
| MZYMV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal, dated 3 May 2011. The applicant was born in 1985 and is a citizen of India. He reads and writes in English, Punjabi and Hindi. He attended secondary school in Punjab and obtained a Bachelors degree in computer application and management from the Punjab Technical University in 2004. He then went to work on his family farm with his parents, who continue to reside in India. The applicant holds an Indian passport issued in 2010.
He came to Australia on a subclass 572 visa in 2007 and obtained a further subclass 572 visa in July 2007. In January 2009, he returned to India for a few weeks and then came back to Australia in February 2009. He obtained another subclass 572 visa in June 2009, which ultimately expired in September 2009. He then applied for a skilled visa onshore, but ultimately withdrew his application in August 2010. The applicant sought a protection visa in August 2010, which was refused by the delegate in December 2010 and the subject of the application to the Tribunal in January 2011.
The applicant made a number of claims with respect to his activities many years ago in India with respect to the Sikh community. He said that he was a member of the Akali Dal. He said that from different platforms he raised his voice and had come to the attention of various agencies, including the Indian Intelligence Agency, which he said accused him of being a Pakistani agent or a spy. These matters are listed at paragraph [25] of the Tribunal’s decision.
In October 2010, the delegate wrote to the applicant, inviting him to arrange a time to appear for an interview before the delegate. He did not contact the delegate during or after that time and the delegate concluded that on the written material, the delegate was not satisfied that he was entitled to a protection visa.
In the proceedings before the Tribunal, the Tribunal on 16 March 2011 wrote to the applicant by registered post, inviting him to give oral evidence and present arguments at the hearing on 24 April.
No response was received and the letter was not returned.
It appears from submissions from the bar table that the applicant was aware of the proceedings and of the letter but chose to exercise his right not to appear before the Tribunal, but rely upon his written material. Indeed, he says that in his written submissions:
The applicant had given the evidence by way of submission before, the applicant as far as the RRT is concerned had given the option to appear for an interview, the applicant using his option did not appear before the RRT, this may kindly be not used against the applicant.
The Tribunal determined to make a decision on the material before it and refused the application. The Tribunal noted:
[33] As the applicant did not attend the hearing, the Tribunal has been unable to question him in relation to these matters, leaving his claims unclarified and relevant questions unanswered.
[34] As the applicant has provided so few details concerning his claim to face a risk of harm in India, the Tribunal does not accept that the applicant is a member of the Akali Dal political party or that he has ever spoken out against atrocities committed by the Indian security forces when they raided the Golden Temple. The Tribunal does not accept the applicant ever urged investigations or enquiries into that raid or that he ever gave speeches about that raid. Accordingly, the Tribunal does not accept the applicant was ever harassed by the Indian authorities, accused of being a Pakistani agent or spy or tortured or persecuted by the Indian authorities or that he has suffered any other form of serious harm in India. Further, the Tribunal does not accept the applicant has been denied or would be denied the same degree of protection provided by the Indian authorities to other Indian citizens.
The applicant initially lodged an application with four grounds as the basis of his application. He then lodged a letter which is headed Amended Application on 10 August 2011. It is appropriate that I go through each of these matters.
Ground 1
In support of ground 1, the applicant simply alleges that his case was not heard according to law and that there was jurisdictional and legal error, as he supplied all of the information relevant to his claim.
The ground does not identify any particular error. To the extent that this ground refers to the fact that the Tribunal had received his application and ought to have determined it on the substance, it seems that the ground must fail as clearly the Tribunal did turn its mind to the substantive claim and did not dismiss his application on the basis of some technical or procedural ground relating to him not sending in material or not attending at the hearing. I therefore dismiss the first ground.
Ground 2
In respect to ground 2, the applicant says that there is a complete failure on the part of the respondent, to take into consideration the atrocities and persecution that members of the Akali Dal Mann group was suffering. He says that there is a large amount of country information. It does not appear that in this case the proceedings even reached the phase of testing the allegations against country information. The Tribunal was not satisfied on the material and was unable to clarify with the applicant the circumstances of his claim.
It is clear from paragraph [34] that it is the applicant’s specific case that was not successful, not some general findings with respect to the Akali Dal. In these circumstances, it does not seem to me that ground 2 can be made out.
Ground 3
Ground 3 is a more general and lengthy statement by the applicant, relating to the events that occurred and that would form the foundation of the claim that he has made. It is really a lengthy discussion of the facts and circumstances that underline the claim. In substance, it seems that this is a ground seeking merits review. That is, asking this Court to review the decision and that the ground as formulated is a submission about the facts and circumstances. As this is a judicial review and not merits review, it does not appear to me that this ground is made out, nor can it be said that on the basis that the Tribunal ultimately determined the case, that this was material that they erred in law in failing to specifically refer to in the decision.
Ground 4
The fourth ground is that there has been a legal error coupled with jurisdictional error on the basis that the decision-maker relied upon the findings of the delegate, rather than making their own independent decision with respect to the facts and circumstances. In support of this ground it was said that there was no interview letter sent to the applicant at his address and as such, the applicant was unable to appear before the Tribunal. This seems inconsistent with the submissions today and the more recent letter discussing the fact that he exercised his option not to appear.
In any event, there is no evidence that the letter was not actually received, in that there is no affidavit material and the material on the Tribunal file indicates the letter was duly sent. It is also inconsistent with him deciding to exercise his option not to appear. In these circumstances, I am not persuaded that ground 4 can be said to have been made out.
Ground 5
In his document headed Amended Application on Behalf of the Applicant, it seems that the first two and a half pages are in substance a merits review application recounting the various difficulties that have occurred with respect to the events in that part of the world, involving the Sikh community and the role of the Akali Dal. As with previous grounds, the difficulty the applicant faces in this case is that the Tribunal were not satisfied that he was in fact a person who was involved in these events or spoken out against them such as to bring him within the ambit of the test for a protection visa.
In these circumstances, it is simply an attempt to review the merits of the decision, which is not open to the applicant on judicial review.
In this regard, I dismiss this part of the application.
Ground 6
The final part of the application was based upon the proposition that the applicant claims that the Tribunal erred by drawing adverse inferences against him as a result of his failure to appear at the interview. As is apparent from the quotes from the Tribunal’s decisions above, this is not a case where the Tribunal have concluded that they should reject his evidence simply as a result of him choosing not to appear before the Tribunal in person. Rather, it is a case where they have reviewed the written material and given the state of the written material, they were not satisfied to the requisite standard and indeed, they had made that plain in the letter that they forwarded to him on 16 March, where the letter stated at the second paragraph:
The Tribunal has considered the material before it, but is unable to make a favourable decision on this information alone.
It is not surprising that on the brief written material, a Tribunal would not be satisfied of a protection claim and that it would be necessary for a person to appear in person and answer questions as to the detail of the claim and subject themselves to the appropriate scrutiny of a Tribunal making such a significant decision. In these circumstances, I am not persuaded that the Tribunal in this case has erred in law in this respect.
As none of the grounds either specifically stated in the original application or as can be ascertained from the document headed Amended Application have been made out, I therefore must dismiss the application for judicial review.
[Further argument ensued]
In this matter, the respondent has been entirely successful. The respondent seeks costs in the sum of $3,500. Costs ordinarily follow the event in matters of this type. There are no facts or circumstances that have been placed before me to indicate that the successful party ought not to receive a costs order in their favour. The quantum of costs that are sought by the Minister are far less than the scale fee, no doubt reflecting the actual costs incurred given that the way in which this matter was prosecuted, both before the Tribunal and before this Court was with minimal material and that in these circumstances, reduced costs were actually incurred. It seems to me that the figure sought is a reasonable figure having regard to the nature of the matter and the scale.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riethmuller FM.
Date: 22 November 2011
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