MZYNF v Minister for Immigration
[2011] FMCA 762
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYNF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 762 |
| MIGRATION – Refugee Review Tribunal – whether Tribunal unreasonably refused adjournment of hearing. |
| MZYNE v Minister for Immigration & Anor [2011] FMCA 761 |
| Applicant: | MZYNF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 752 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 4 October 2011 |
| Date of last submission: | 4 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Advocate for the Applicant: | Mr P Sabelberg |
| Solicitors for the Applicant: | Sabelberg Morcos Lawyers |
| Counsel for the First Respondent: | Catherine Symons |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 30 May 2011 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 752 of 2011
| MZYNF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is Egyptian. He entered Australia on
24 September 2007 on a student visa. He returned to Egypt from
2 June 2009 until 21 July 2009 to visit his family in his village.
He applied for a protection visa on 27 May 2010.
Although he was represented by solicitors, the applicant did not file and serve any written submissions in this proceeding. However, a solicitor appeared for the applicant at the hearing. The applicant’s solicitor relied in this proceeding on the oral submissions made in the matter of MZYNE v Minister for Immigration & Anor [2011] FMCA 761.
The applicant in this proceeding, and the applicant in MZYNE, had related claims. These reasons are, in relation to grounds 1 and 2, the same as the reasons in MZYNE.
Claims
The applicant claimed in his protection visa application that he was a Coptic Christian. However, in his interview with the delegate, he indicated that, in fact, he was an evangelical Christian.
The applicant told the delegate (CB67 and CB68) that in November 2006 he began to use a store house on his father’s land as a meeting place for Muslims who had converted to Christianity. The store house was about half an hour out of town. It enabled converts to worship away from other people.
The applicant said that, in February 2007, internal security came to the store house looking for a woman who the applicant and others had allegedly kidnapped. The applicant and others were detained for three days. They were charged but the applicant was released on an undertaking.
The applicant said that when he returned to Egypt in 2009 he saw the woman’s family and he received threats by telephone.
The applicant told the Tribunal that his family was involved in a feud with a Muslim family, because his cousin had killed a Muslim in self-defence. The applicant said that the feud was inflamed by the alleged kidnapping of the woman, Ms Mohammad. The applicant said he was not sure whether the Muslim who had been killed was related to Ms Mohammad.
The applicant told the Tribunal that when he returned to Egypt in July 2009, he was accused of being behind Ms Mohammad’s disappearance. The applicant said that he was threatened with the same fate as his cousin.
The Tribunal’s reasons for decision
The Tribunal accepted that the applicant was an Egyptian Christian who worshipped at both evangelical and Coptic churches. The Tribunal accepted that a property was used as a meeting place for recent converts to Christianity. The Tribunal accepted that Ms Mohammad was a recent convert who attended the meeting place.
The Tribunal accepted that the meeting place was raided by the authorities in 2007, at the possible behest of Ms Mohammad’s family. The Tribunal accepted that the applicant was detained for three days. However, the Tribunal noted that the authorities had shown no further interest in the applicant since then. The Tribunal considered that there was not a real chance that the applicant would be mistreated by the authorities in connection with the events of February 2007.
The Tribunal did not accept that the applicant was pursued by Ms Mohammad’s family. The Tribunal did not accept that there was any connection between Ms Mohammad and the murder of a Christian by a Muslim in September 2006.
Ground 1
The first ground of review in the application filed on 30 May 2011 is:
That the member of the Tribunal … made a decision against the weight of evidence which was unreasonable and in denial of natural justice.
The applicant’s solicitor initially conceded that the complaint that the decision was against the weight of the evidence was essentially seeking merits review. He also said that he was unable to point to any particular aspect of the decision that supported the claim that it was so unreasonable that no reasonable decision maker could have made it. The applicant’s solicitor was unable to elaborate on the denial of natural justice ground.
However, later in his submissions concerning MZYNE, the solicitor for the applicant said that the Tribunal had been unreasonable or had misinterpreted the situation and had thus erred by describing the dispute which resulted in the murder of the Christian in September 2006 as a land dispute rather than a religious dispute. It was further submitted that the incident was a case of religious persecution and all of the applicant’s complaints flowed from it.
This submission appears to have no connection with the present matter. That is, there does not appear to have been an equivalent finding.
Additionally, in his reply in the matter of MZYNE, the applicant noted that the Tribunal had made inconsistent findings. There do not appear to have been equivalent findings in the present matter. This ground is not made out.
Ground 2
The second ground of review in the application filed on 30 May 2011 is:
… the Tribunal did not allow reasonable time to obtain information and supporting documents to submit as evidence.
The applicant applied for a protection visa on 27 May 2010.
He applied to the Tribunal on 12 November 2010.
The Tribunal sent the applicant an invitation dated 14 December 2010 to attend a hearing on 10 February 2011. It included the following paragraph:
The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
A Tribunal case note dated 12 January 2011 indicates that the applicant and his cousin, Mr MZYNE, attended the Tribunal’s counter on that date. The case note records the following, among other things:
The applicants expressed concern about the processing of their review applications and said that for a number of months now, they had been trying to contact their appointed representative, Mr Mark Mercurius. They stated that they could not reach him as he would not take their calls and would not see them when they went to his office. They claimed that he had some vital documents which were valuable to their cases and they were unable to get these documents from him. They asked if the Tribunal could contact him and request these documents, I advised that this was not the role of the Tribunal. I advised that they could contact the MARA and lodge a complaint if they were unsatisfied with their migration agent; however, both applicants stated they were too scared to do that as they were afraid of the repercussions.
…
The applicants stated that they needed to see what was on their Tribunal files and DIAC files. They advised that their representative hadn’t provided them with a copy of the DIAC refusal letters, so they did not know the exact reason as to why they were refused. I advised they could access a copy of the Tribunal file and DIAC file under FOI and proceeded to explain the FOI process. The applicants also emphasised that they required a copy of the DIAC interview recording.
A further case note of the same date says:
Further to casenote 4999392, in relation to both RRT 1010157 and 1010158, the RAs were advised that FOI requests can take up to 30 days and their hearing is set for 10/2/11. I told the RA that I am aware that DIAC FOI is experiencing delays at the moment; so their request may not be processed within 30 days, it may take longer. The RAs mentioned making a request for a hearing postponement. I told them if they wished to do so, they can make their request in writing, outlining their reasons, and I can put their request to the Member.
The applicant lodged a freedom of information request on 12 January 2011. On 24 January 2011, the applicant attended the counter again. The case note says:
[Mr MZYNE] explained that they have received the hearing invitation but they are concerned that they will not have enough time to receive the CD of information that they are awaiting for from DIAC, before the hearing. He asked that if at all possible, the hearing is postponed until such time that the documents are received. The applicant also said that they need a Christian interpreter at the hearing, as at the last hearing the interpreter was Muslim and they did not feel comfortable saying what they needed to say.
I helped the applicant put this in writing and the letter was signed by [Mr MZYNE] and [the applicant].
The applicant put his request for an adjournment in writing in the following terms:
Please, postpone our hearing until we receive documents we are waiting for (CD).
For the hearing, we would like a Christian interpreter.
The request was received by the Tribunal on 24 January 2011. Later on the same day, a Tribunal officer left a telephone message for the applicant. Mr MZYNE returned the call a little later. The relevant case note says:
The applicant’s friend (related applicant) [Mr MZYNE] returned my call. I advised that the Member had considered his request for postponement but has decided not to postpone the hearing date. I also advised that the Member was aware that the applicant was still awaiting some documents from DIAC but that can be discussed at the hearing on 10/02/2011.
[Mr MZYNE] said he understood and would translate this for the applicant.
On 27 January 2011, the applicant again attended the counter. A case note says that the applicant explained that he was still awaiting documents requested under freedom of information from the Tribunal and the Department of Immigration and Citizenship and had still been unable to recover from his former agent some documents from Egypt that supported his case. A Tribunal officer assisted the applicant to write a letter to the Tribunal, received on 27 January 2011, in the following terms:
I’m writing to request a posteponement (sic) of our hearing schuled (sic) for 10/02/2011.
We’re still waiting for a copy of our DIAC files and interview CD.
We’re also waiting for A (sic) copy of Tribunal files which we request (sic) on 12/01/2011 which we have not received.
I’m also writing to inform u (sic) that Mr. Mark Makarious (sic) is no longer our immageration (sic) agent. Please, Remove (sic) him from our record.
At The (sic) moment we are having a lot of Troubles (sic) contacting Mr. Mark Makarious and getting all The Documents (sic) we have given him in support of our case, A (sic) lot of these Documents (sic) we’re unable to bring copies from egypt (sic).
Getting copies of Documents (sic) needed to help our case will take some more time.
Please, we urge u (sic) to reconsider our request for A Posteponement (sic) of the hearing date.
On 1 February 2011, the applicant again attended the counter. The case note of that attendance reads as follows:
[Mr MZYNE] visited the front counter. He again asked for the hearing to be postponed. He asked that I speak to his friend on his mobile phone, which I did. His friend from church reiterated that the hearing should be postponed due to the fact there are documents outstanding, and that the applicant’s previous representative is not being helpful. Also the situation in Egypt is making it difficult to get further documents. I advised that the Member has considered their request for postponement but has decided to keep the scheduled hearing date.
[Mr MZYNE] then asked that he and [Mr MZYNF] (the related applicant) please receive a copy of the Tribunal’s file ASAP. I advised I would finalise his FOI request (for the Tribunal file) this afternoon.
Later on 1 February 2011, the Tribunal provided the applicant with a complete copy of his Tribunal file. On 2 February 2011, the applicant attended the counter and collected a letter dated 2 February 2011 from the Tribunal, which said, in part:
On 24 January 2011 the Tribunal received a request that the hearing be postponed. The Tribunal received further requests for postponement on 27 January 2011 and 1 February 2011.
The Presiding Member has considered all the requests carefully but has decided not to postpone the hearing.
The case note of the attendance on 2 February 2011 states that Mr MZYNE confirmed that the applicant would attend the hearing on 10 February 2011.
A further case note indicates that on 8 February 2011, at 4.13 pm, the applicant telephoned the Tribunal. The note records the following:
The RAs called and gave permissions for their friend, [JM], to speak on their behalf. They told me that they are very stressed, they’ve had lots of problems with their solicitor, they cannot get the paperwork from their solicitor, and wished to have the hearing postponed. They will go and get a psychologist’s report to support their stress. I confirmed with them they have already made a few requests for a hearing postponement and the Member has considered their requests and declined to postpone the hearing.
They asked if they submitted a psychologist report with their hearing postponement request, would the Member postpone the hearing? I told them that the Member would consider their request but I did not know if the Member will grant the hearing postponement or not. The friend said that they will try and see a psychologist this afternoon but a psychologist is very expensive and they did not want to waste their time if the Member will not be granting the hearing postponement. He also asked when would the Member advise them if a postponement is granted. I told him that if he did make a submission today/tomorrow, given that the hearing is on 10 Feb 2011, the Tribunal will contact them with a response tomorrow. I told them I would speak to the Member.
I told him, given the short time frame, any submission should be provided by fax.
I called [JM] back. As requested by the Member, I told him that the Tribunal will consider any request for postponement, but this does not necessarily mean that a postponement will be granted. I also informed him that the Member is aware of their concerns and circumstances. All reasonable effort will be made to put them at ease at the hearing and make the process stress-free. At the hearing they will have the opportunity to discuss the nature of the documents they wish to provide and the Member may allow them further time to provide any addition documents, information and/or comments. (emphasis added)
[JM] told me that he feels better after the comments above and the RAs will not be requesting a hearing postponement and they will no longer be seeing a psychologist. They are fine to proceed with the scheduled hearing. He will take them to a counsellor friend instead of a psychologist to calm the RAs down. He also told me that the RAs have lodged a complaint against their solicitor with the Office of the MARA and DIAC and this solicitor has complaints from 52 people. (emphasis added)
The RAs also requested their friend, [JM], be present at their hearing as an observer (not a witness). I confirmed with [JM] that he may be present but will not be able to speak as he is not a witness. I told him the hearing for both RAs start at the same time at 9am with the same Member, and an Egyptian Christian interpreter has been booked for the hearing.
A case note dated 8 February 2011 indicates that the freedom of information request sent to the Department of Immigration and Citizenship on 12 January 2011 had not been complied with as at
8 February 2011.
The hearing proceeded before the Tribunal on 10 February 2011.
At the conclusion of the hearing, the Tribunal told the applicant that the Tribunal would send him a letter, inviting him to comment on certain information. The Tribunal said that the invitation to comment would be an opportunity for the applicant to provide any further documents he wished.
Following the hearing, by letter dated 15 February 2011, the Tribunal invited the applicant to comment by 10 March 2011 on certain information. In response, the applicant sent the Tribunal a letter dated
7 March 2011. The letter enclosed various documents, including some apparently from Egypt.
The Tribunal handed down its reasons for decision on 28 April 2011. That was approximately 11 months after the application for a protection visa was lodged, about five months after the application to the Tribunal was lodged, about two months after the Tribunal hearing and about seven weeks after the applicant’s response to the Tribunal’s post-hearing invitation to comment letter.
The applicant was legally represented at the hearing before this court. The applicant did not nominate any particular document that he would have liked to put before the Tribunal, but which he was unable to put because of a lack of time. The applicant did not say how the documents that he would have liked to have put before the Tribunal could have altered the decision that was made.
In the circumstances, I am not satisfied that the failure to give the applicant more time could have made a difference to the outcome. Moreover, I do not consider that the Tribunal, in the circumstances of this case, was unreasonable in refusing an adjournment. The applicant was vague about the documents that he wished to provide. There is no obligation on the Tribunal to defer a hearing to allow an applicant to provide vaguely described material. The processes of the Tribunal were not conducted with undue haste. Ultimately, on 8 February 2011, the applicant told the Tribunal officer that he would not be seeking a hearing postponement. This ground is not made out.
Ground 3
The third ground of review in the application filed on 30 May 2011 is:
That the Tribunal did not adequately consider evidence presented and was biased against the applicant.
This ground was not pressed.
Conclusion
As none of the grounds have been made out, the application must be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 25 November 2011