MZYPO v Minister for Immigration

[2012] FMCA 412

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPO v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 412

MIGRATION – Off shore entry person – review of Independent Merits Reviewer recommendation – ground alleged was the failure to make the recommendation according to law – no particulars given – Applicant unrepresented – Applicant could not advance any case in support of application – Applicant failed to take reasonable steps to prepare for hearing – critical examination of Independent Merit’s Reviewer statement of reasons undertaken – First Respondent’s contention of fact and law adopted as a correct statement of the law – no jurisdiction error discernible – Application dismissed.

Migration Act 1958, s.36(2)

Applicant: MZYPO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 1127 of 2011

Judgment of: O’Dwyer FM

Hearing date: 18 April 2012

Date of Last Submission: 18 April 2012

Delivered at: Melbourne

Delivered on: 18 April 2012

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Moseley

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed on 4 August 2011 be dismissed.

2. That the Applicant pay the First Respondent’s costs, fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1127 of 2011

MZYPO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This matter comes before me today on an application by the Applicant to review the recommendation made by an Independent Merits Reviewer on 4 July 2011; which recommendation to the

   
   

   First Respondent was that the Applicant not be recognised as a person to whom Australia has protection obligations. 

2. The application by the Applicant sets out a very generalised ground for review.  It simply states that the recommendation of the Independent Merits Reviewer was not made in accordance with law.  No particulars as to what that legal error might be have been provided. 

3. It is to be noted that the Applicant is unrepresented and does not have any legal training. He has said to the Court today that, first, he never received, until recent times, the contentions of the First Respondent and he spoke of the difficulties imposed on him by his detention in Scherger, with the end result being that he says he has not had a translation of the Independent Merits Reviewer's reasons for her recommendation or the contentions of the First Respondent.  He is not in a position to expand any further on the stated ground in his application and is really unable to prosecute his case in any sensible manner today.

4. In circumstances such as this, it falls upon the Court, in my view, to have a very critical look at the reasons of the Independent Merits Reviewer with an eye to seeing whether an error can be found.  I have, certainly, read the decision with a critical eye for error; but, on the face of it, I am unable to find any.  I have also invited the representative of the First Respondent to indicate, as a model litigant, whether he is able to ascertain, on the face of it, any error and he is unable to do so; which gives me confidence in my own assessment.

5. In respect of those reasons, I am satisfied that the Independent Merits Reviewer gave a very detailed decision, which examined the evidence of the Applicant, the submissions made on his behalf by his representative and the applicable country information. In a very thorough, in my view, analysis of the evidence, the Independent Merits Reviewer highlighted the inconsistencies over time in the story and the claims made by the Applicant. These inconsistencies are very significant and have led the Independent Merits Reviewer to conclude that the Applicant was an unreliable witness and that he had not suffered persecution in the past in Sri Lanka, nor was there a likelihood of him suffering any persecution in the future. Accordingly, he did not qualify for the issue of a refugee protection visa, as set out in section 36(2) of the Migration Act 1958 and, having reached that conclusion, which I find is a conclusion reached for cogent reasons, she made the recommendation she did.

6. The First Respondent has filed and served contentions - I am satisfied of the service of the contentions - which contentions, for the purpose of this decision, I adopt as being a correct statement of both the law so far as it relates to this recommendation and more generally the appropriate law applicable to the issues potentially in contention in these types of cases. I reserve the right to refer fully to those contentions should there be a need to. (Annexed, for the sake of fullness, is a copy of those contentions)

7. On the question of whether the Applicant has been given adequate opportunity to prepare a case for hearing today, I note that he acknowledged receipt of a green book (Court Book) some long time ago. It is highly probable it would have been in November 2011 because that green book was sent under cover of a letter from the Minister’s legal advisors dated 22 November 2011.  In addition, in July 2011, he was sent the recommendation and the statement of reasons of the Independent Merits Reviewer.  He was further sent advice as to what he should do to get appropriate legal advice. Of all these things I am satisfied.

8. He said that he sought legal assistance but, for some reason or other, without indicating why, he was refused assistance. It is obvious that he was not forthcoming as to why. From my own knowledge, I know that there is capacity at Scherger to get appropriate interpreters and to follow through with legal aid, in particular, for the provision of legal advice.  But he comes here today asking me to accept that he was unable to get advice and interpreters and I can only conclude that he sat on his hands in relation to this significant matter and did not prepare for the hearing, as it was in his capacity to do so.

9. In light of all that, there is only one possible order I can make in these circumstances, and that is to dismiss the application that was filed on

   
   

   4 August 2011.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Date:  18 May 2012