MZYYN v Minister for Immigration
[2012] FMCA 1245
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYYN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1245 |
| MIGRATION – Refugee Review Tribunal – whether applicant afforded procedural fairness – whether Tribunal considered Convention grounds – whether Tribunal actually biased – no jurisdictional error. |
| Migration Act 1958 ss.36(2)(aa), 422B, 424A, 424A(1), 424A(3)(b), 424A(3)(ba) |
| Applicant: | MZYYN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 705 of 2012 |
| Judgment of: | Riley FM |
| Hearing date: | 20 November 2012 |
| Date of Last Submission: | 20 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Advocate for the First Respondent: | Katherine Whittemore |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed on 13 June 2012 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 705 of 2012
| MZYYN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of India. He claimed to fear persecution from relatives because of his inter-caste marriage and from creditors who he had not repaid.
The Tribunal accepted that the applicant had entered into an inter-caste marriage. However, the Tribunal did not accept that the applicant had suffered harm in the past on account of that inter-caste marriage. The Tribunal considered that there were substantial inconsistencies in the applicant’s account. The Tribunal did not accept that the applicant had been threatened by his wife’s family or stoned by upper caste goons or ostracised from his village.
The Tribunal also considered that there were substantial inconsistencies in relation to the applicant’s claims to fear harm from his creditors. The Tribunal was not satisfied that the applicant had borrowed the money he claimed to have borrowed.
The Tribunal, because of the various inconsistencies in the applicant’s claims, was not satisfied that the applicant would face significant harm in the future for reasons specified in the Refugees Convention.
The Tribunal also considered the question of complementary protection under s.36(2)(aa) of the Migration Act 1958. The Tribunal was not satisfied that the applicant met the relevant criteria.
The applicant appeared in person before the court today. He did not file written submissions. His application was unparticularised. Before the court today, the applicant said that everything he had said to the Tribunal was true. He said that the Tribunal had not taken into consideration what he had said.
The Tribunal’s reasons for decision show that it did consider in a good deal of detail the claims made by the applicant. The applicant’s complaint appears to be simply that the Tribunal did not accept what he said. This court is not able to review decisions of the Tribunal on the merits. The matters raised by the applicant today are not indicative of jurisdictional error.
The first ground of review in the application filed on 13 June 2012 is as follows:
The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion[s] that [the] applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters.
The application in this case was subject to s.422B of the Act. The Tribunal essentially made its decision on the basis of inconsistencies in the applicant’s evidence and credibility issues concerning his evidence. The Tribunal’s view of the applicant’s credibility and inconsistencies in his evidence is not information within the meaning of s.424A(1) of the Act. The evidence the applicant gave to the Department and to the Tribunal is excluded from the requirements of s.424A by s.424A(3)(ba) and s.424(3)(b) respectively.
The decision record shows that the Tribunal did give the applicant an opportunity to be heard on the inconsistencies in his evidence. The inconsistencies were discussed with the applicant during the hearing before the Tribunal: see paragraphs 40, 46, 55, 56 and 59 of the Tribunal’s reasons for decision. Ground 1 is not made out.
The second ground of review in the application is as follows:
The applicant satisfy [sic] the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
The applicant has provided no particulars of this ground. The decision of the Tribunal appears to address the relevant matters under the Convention. I am not persuaded that this ground is made out.
The third ground in the application is as follows:
The RRT has failed to investigate [the] applicant’s claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 15 May 2012 was effected (sic) by actual bias constituting judicial error.
The applicant has not provided any particulars of this ground. The Tribunal is under no obligation to conduct an independent investigation of an applicant’s claims, except, perhaps, in very limited circumstances which do not appear to exist in this case. The Tribunal is able to consider the material an applicant puts before it and assess the matter on that basis. Consequently, the Tribunal’s failure to conduct an independent investigation of the applicant’s claims is not indicative of actual bias.
There is nothing else before the court which would indicate actual bias in this case. Consequently, I am not persuaded that this ground is made out.
As none of the applicant’s grounds has been made out, the application must be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 17 January 2013
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