MZYXK v Minister for Immigration and Citizenship
[2013] FCA 300
•5 March 2013
FEDERAL COURT OF AUSTRALIA
MZYXK v Minister for Immigration and Citizenship [2013] FCA 300
Citation: MZYXK v Minister for Immigration and Citizenship [2013] FCA 300 Appeal from: MZYXK v Minister for Immigration & Anor [2012] FMCA 1096 Parties: MZYXK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 1099 of 2012 Judge: NORTH J Date of judgment: 5 March 2013 Date of hearing: 5 March 2013 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 18 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms E Holt Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1099 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYXK
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
5 MARCH 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be taxed or be agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1099 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYXK
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE:
5 MARCH 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an appeal from orders made by the Federal Magistrates Court on 28 November 2012. The federal magistrate dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal made on 23 March 2012. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the appellant and his wife protection class (XA) visas.
THE APPELLANT’S CLAIMS
The claims made by the appellant were made in a written statement accompanying his visa application. In that statement he said that he is an Indonesian citizen and is ethnic Chinese and a Christian. He is married and travelled to Australia legally on 11 October 2011 on a visitor visa.
The appellant claimed that as an ethnic Chinese he was in a group which is targeted by native Indonesians. He said that ethnic Chinese have no security or human rights in Indonesia. He said that on 13 and 14 May 1998 ethnic Chinese were targeted by “original Indonesia[ns], houses and shops were burned [and] ethnic Chinese women were raped”. He said that Indonesia is politically unstable.
He also claimed that as a Christian and Chinese he would be discriminated against by the majority of Indonesians who are Muslims. He said most government officials are Muslim and give preference to Muslims. He claimed that in some areas ethnic Chinese Christians and Catholics face “prosecution” and many were imprisoned by the government. He said that non-Muslims would be discriminated against and even killed.
The appellant fears that if he goes back to Indonesia he will be “prosecuted” by the Indonesian government or killed by Indonesian Muslims because he is Christian. His past experiences have accumulated into psychological fear. He claimed that the Indonesian authorities cannot and would not protect him. The appellant’s wife also made a claim as a member of a family unit, being married to the appellant.
THE TRIBUNAL DECISION
The appellant did not avail himself of an interview offered by the delegate of the first respondent, nor did the appellant appear at a hearing arranged before the Tribunal.
After setting out the claims of the appellant, the Tribunal said at [32]:
The Tribunal finds the first applicant’s claims to be vague and lacking in detail. He provided no dates, names or any details with respect to his claims. He does not give any accounts of his being targeted, or harmed, or discriminated against. He does not claim to have reported any incident or discrimination or any other matter to authorities in Indonesia. He does not explain why he cannot avail himself of the protection of his country of nationality.
Then the Tribunal concluded at [33]:
On the basis of the very limited evidence before it, the Tribunal does not accept the first applicant’s claims.
THE JUDGMENT OF THE FEDERAL MAGISTRATE
The appellant then sought judicial review before the Federal Magistrates Court. He relied on three grounds, as follows:
(1)The decision made by the second respondent [was] affected by a jurisdictional error.
(2)The second respondent breached its obligation pursuant to the Migration Act 1958.
(3)The second respondent failed to provide the applicant with another chance for hearing.
The federal magistrate recorded at [10]:
In response to a question from the Court as to why he had not attended the hearings before the delegate and the Tribunal, he confirmed that he had not done so because he was copying what a friend of his had done in similar circumstances. It appears that the decision not to attend both before the delegate and the Tribunal was a conscious one taken by the applicant in the light, presumably, of the experiences of his acquaintance.
The federal magistrate concluded at [18]:
The applicant has given no details whatever of any facts or matters or things that apply directly to him such as to ground a Convention protection. His failure to advance such material has scarcely been assisted by his conscious choice not to attend before either the delegate or the Tribunal. In my view, there is no error disclosed by the Tribunal’s reasoning and, indeed, given the nature of the claims put, and the applicant’s failure to engage with the process, the outcome was effectively almost inevitable. The federal magistrate then dismissed the application with costs.
THE APPEAL
On the hearing of the appeal the appellant was assisted by an interpreter.
On 19 December 2012, the appellant filed a notice of appeal in this Court. It advanced two grounds, namely,
(1)the Federal Magistrate Burchardt failed to consider the second respondent breached its obligation pursuant to the Migration Act 1958 in making decision.
(2)the second respondent failed to advice [sic] the appellant that he could seek additional time [to] comment on or respond to the information adverse to him and the second respondent failed to provide the applicant with another chance of hearing.
Counsel for the first respondent indicated at the commencement of the hearing of the appeal that written submissions filed on behalf of the first respondent had not been served on the appellant.
The appellant sought further time in order to have the submission translated and to respond. It would not serve the interests of justice for such an adjournment to be granted. The essence of the written submission was that the Tribunal was entitled to make the decision which it did because the appellant failed to substantiate his case before the Tribunal. This central argument was put to the appellant by the Court and his response was sought to it. Nothing would be achieved by postponing the hearing of the appeal, in view of the appellant’s response and of the finding by the federal magistrate that the appellant took a conscious decision not to appear before the Tribunal.
The appellant was asked to explain each of the two grounds of appeal and was unable to give any explanation for them. He was also asked whether he was able to specify any errors made by the federal magistrate or the Tribunal and again he was unable to do so. It was explained to him that by failing to attend before the Tribunal, he gave the Tribunal little scope to act in his favour. He then asked the Court to give consideration to his case and it was explained to him that the Court was concerned with the question whether the Tribunal had made any jurisdictional error, but was not able to rehear the facts.
The appellant then said that he was not aware that he should have attended the hearing before the Tribunal and he requested that the Court order that his case be remitted for further hearing by the Tribunal. It was explained to the appellant that the Court was unable to make such an order unless the Tribunal had made a jurisdictional error and there was no basis for concluding that it had made such an error.
Consequently, the appeal must be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 5 April 2013
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