MZYON v Minister for Immigration
[2011] FMCA 1056
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYON v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 1056 |
| MIGRATION – Independent Merit’s Reviewer decision – application out of time. MIGRATION – Independent Merit’s Reviewer decision – no matter of principle – application dismissed. |
| Applicant: | MZYON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | MLG 1089 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 14 December 2011 |
| Date of Last Submission: | 14 December 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 14 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person. |
| Counsel for the Respondents: | Mr Mosely |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application filed on 28 July 2011 be dismissed.
The Applicant pay the First Respondent’s costs fixed at $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1089 of 2011
| MZYON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore Reasons)
The Applicant in these proceedings is a man from Afghanistan. He is an Hazara, and lived in Jaghori.
The Applicant brought a claim for a protection visa on the basis that he was at risk from attack by the Taliban because of his Hazara ethnicity and Shi’a religion. He also claimed that he was at risk of persecution when he travelled between Jaghori and Ghazni. He explained that he did need to travel outside of Jaghori from time to time.
The Applicant’s claims are set out in detail from paragraphs 11 to 56 of the decision of the independent merits reviewer. The reviewer also considered the available country information in some detail from paragraphs 57 to 61. Whilst the reviewer had some concerns about how reliable the evidence of the Applicant actually was, the reviewer proceeded on the basis of giving the Applicant the “benefit of the doubt”: see paragraph 91.
Ultimately, the reviewer concluded that whilst in Jaghori the Applicant was not at risk and the country information supported that finding. In addition, the reviewer relied upon a recent press report in the Canberra Times explained the considerable political influence that the Hazara people now have in Afghanistan, having won 59 of the 249 seats in the lower house of Parliament in September 2010 (see paragraph 77 of the decision).
The reviewer concluded that the Applicant had travelled outside of Jaghori on only two occasions in the last four years. The reviewer was not satisfied that the Applicant would need to travel regularly outside of Jaghori to earn a livelihood (see paragraph 88).
The reviewer set out what the substance of the Applicant’s claim was with respect to travel at paragraph 90, saying:
[90] As noted, the claimant had twice travelled from Jaghori to Ghazni. In 2002, he travelled by the dangerous Qarabagh route, when the vehicle which drove through the road-block resulting in several passengers being killed. In his later statement the claimant also stated before this he had travelled between Jaghori and Ghazni city through Nawur district and then a Pashtun area, encountering insults and thrown stones. The claimant in his statement was vague about the timing of this occurrence, although it appears almost certain that it was during the period of Taliban rule before November 2001 rather than during the subsequent Taliban insurgency.
The reviewer concluded that there is a relatively safe route that is regularly used, from Jhagori to Ghazni City (see paragraph 93). The crucial finding of the reviewer in this regard is set out at paragraph 94, where the reviewer says:
[94] Although a number of the references to difficulties of access to Jaghori which have been cited are broad and general, the relatively recent DFAT advice of September 2010 is quite specific and is relied upon by the reviewer. The reviewer is satisfied that should the claimant believe that it is essential for him to travel from Jaghori to Ghazni city, he can sacrifice some convenience and take the frequently used and secure route through Nawur and thereby avoid the more direct but dangerous Qarabagh route.
The reviewer goes on to specifically consider the activities of the Taliban on the roads out of Jhagori, but was not satisfied that the activities of the Taliban were focused on Hazaras because of their ethnicity so much as activities to disrupt communication generally in areas that are not under Taliban control.
However, this aspect of the Tribunal’s reasons are not the central question. Essentially, the Tribunal found that the Applicant was not at risk of persecution in Jhagori, and that there was a safe travel route from Jhagori to Ghazni City. Whilst accepting that there was some inconvenience in this route, the reviewer did not conclude that the Applicant had established the necessary facts to show an entitlement to a protection visa.
Extension of time
Whilst the Applicant was represented by a migration agent, who made submissions to the reviewer after the hearing, his application to this Court was around 14 days after the time limit for applications had expired. The Applicant therefore needs an extension of time to bring this application.
Counsel for the Minister quite properly identified the relevant considerations, and that the Minister could not point to any specific prejudice beyond the general prejudice to the efficient administration of the Minister’s Department and the court. As counsel submitted, the real consideration of significance is whether the Applicant appears to have merit in his application.
The grounds of the application are as follows:
a)The Independent Merits Reviewer (IMR) did not afford the Applicant procedural fairness.
b)The IMR applied the wrong legal test.
Whilst the Applicant had lawyers that only withdrew in late November, no particulars were ever provided of the grounds of the application, and no outline of argument or affidavit material was filed on the Applicant’s behalf.
Ground 1
The independent merits reviewer is alleged to have failed to provide the Applicant with procedural fairness. The Applicant submitted that the reviewer only asked brief questions, and following the answers of the Applicant, that the merits reviewer would agree or accept what the Applicant said. There is no transcript before me to read the exchanges that occurred at the interview. The reviewer did put country information to the Applicant, which the Applicant, in his submissions before me, says he answered.
The Applicant’s advisor made written submissions to the reviewer following the hearing, which commence at court book 121. On the material before me, it does not appear that the Applicant has been denied procedural fairness. The Applicant had an opportunity to put his case to the reviewer. The Applicant had an opportunity to answer questions about the country information. The Applicant must have understood that the outcome of the case was not certain at the end of the interview, as his advisor sent in further written submissions after the interview.
In the circumstances, I therefore find that the Applicant does not have a reasonably arguable case on this ground.
Ground 2
In support of ground 2, the Applicant said that the reviewer rejected around nine out of the 10 cases that he reviewed. The Applicant also said that the nine cases that were rejected involved Hazaras, and the one case accepted involved a Pashtun. There is no actual evidence of this statistic. Such a statistic, on its own, does not show legal error. For example, nine out of 10 cases that are brought to the Federal Magistrates Court under the migration legislation are refused. This does not show a large rate of legal error by the court. The Applicant did not point to anything in the decision to show an error of reasoning by the reviewer.
I therefore find that the Applicant does not have an arguable case with respect to this ground on the material provided.
Conclusion
In this case, the Applicant requires an extension of time to bring his application. I have considered the grounds of his application. I am not persuaded that he has an arguable case. As the application does not have any merit, by that I mean it does not seem to me that it is an arguable case or a case that could win, it is not appropriate for me to then grant an extension of time for him to bring his application.
I therefore refuse the application and accordingly dismiss his case.
[further argument ensued]
Costs
The Minister seeks costs in the sum of $6240. This is the scale fee for an application of this type. Whilst the Applicant did not succeed in obtaining an extension of time, the substance of his application was argued. I am satisfied that the scale fee is reasonable in this case. In proceedings of this type, costs are ordinarily ordered against the person who does not succeed, in favour of the party who succeeds in the case. There is nothing in the factual circumstances of this case to indicate that costs should not follow the outcome of the case.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Riethmuller FM.
Date: 9 January 2013
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