MZYYS v MINISTER FOR IMMIGRATION & ANOR - [2012] FMCA 1215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYYS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1215

MIGRATION – Refugee Review Tribunal – whether denial of procedural fairness – application for merits review.

Migration Act 1958 ss.36(2)(aa), 422B, 424A , 424A(3)(ba), 425

Applicant:

MZYYS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 752 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

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

The application filed on 21 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 752 of 2012

MZYYS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

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 because of his father’s membership of the Congress Party and because of his own involvement in demonstrations against a local Akali Dal leader. The applicant also said that in 2007 he distributed flyers house to house. Shortly afterwards, he said that he was attacked by Akali Dal supporters. He said that he sustained minor injuries and was taken to hospital.
The applicant said that his attackers were arrested but released without charge. The applicant said that his attackers then went to his house and made threats against him.
The applicant said that he then moved to another area of India to study for his International English Language Testing System test. He said he fled to Australia in 2009. The applicant said that he feared that his attackers would continue to look for him if he were to return to India.
The applicant attended an interview with a delegate of the Minister. The delegate found the applicant’s claims and evidence to be vague and lacking in credibility. The delegate said that the applicant’s claims lacked any real detail, specific dates or supporting documentation. The delegate concluded that the applicant’s claims were not credible. However, the delegate said that even if the applicant’s claims were true, state protection was available to the applicant. The delegate considered that the applicant’s delay of two years in applying for a protection visa was inconsistent with him holding a subjective fear of persecution.
The applicant sought review by the Tribunal. The applicant attended a hearing before the Tribunal.
The Tribunal noted a number of inconsistencies in the applicant’s written and oral claims. Consequently, the Tribunal did not accept that the applicant had been attacked by Akali Dal supporters or that there was a real chance that the applicant would be persecuted on his return to India by Akali Dal supporters.
The Tribunal also considered the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958. Because of its credibility concerns relating to the applicant, the Tribunal did not accept that the applicant or his family had been significantly harmed or threatened in the past. The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm in the future from Akali Dal supporters or any other group.
The Tribunal considered the position of the applicant’s father. The Tribunal was willing to accept that the applicant’s father was a member of the Congress Party. However, the Tribunal did not accept that the father’s political involvement would have any significant adverse consequences for the applicant.
The applicant sought review in this court. The applicant is unrepresented. His application contains no particulars. The applicant did not file an outline of submissions. When asked today what he would like to say in support of his application, the applicant said he had nothing to say.
The first ground in the application 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.
It was clear from the delegate’s decision that the applicant’s credibility was in issue and that the Tribunal might not believe his claims. Consequently, the known material made it clear to the applicant that the case could be decided against him essentially on the basis that it was decided against him.
In relation to procedural fairness more generally, the present application was subject to s.422B of the Act. The Tribunal appears to have complied with the statutory regime of affording the applicant procedural fairness under s.425 of the Act. The applicant was on notice about the matters on which the decision turned.
The applicant has not identified, and I have been unable to detect, any information that needed to be put to him for comment under s.424A of the Act. The Tribunal specifically relied upon inconsistencies between the applicant’s written evidence to the department and his oral evidence to the Tribunal. The information consisting of his written evidence to the department need not be restated to the applicant pursuant to s.424A(3)(ba) of the Act. More generally, inconsistencies are not information as that term is understood in the context of s.424A. This ground is not made out.
The second ground in the application is that:
The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived [at] in accordance with the requirements of the Migration Act.
It is not clear what the applicant means in this ground. It appears to me that the Tribunal did reach its decision in accordance with the Act. This ground appears to be challenging the merits of the Tribunal’s decision. This court is not permitted to undertake merits review of Tribunal decisions. This ground is not made out.
The third ground in the application is that:
The Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant [sic] circumstances and the consequence of the claim.
This ground is not particularised. Again, it appears to seek merits review. This court is not permitted to review Tribunal decisions on the merits. This ground is not made out.
The fourth ground in the application is that:
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.
This ground is not particularised. That is, the applicant has not identified any particular matter that he says the Tribunal failed to consider. This ground again appears to seek merits review. This court is not permitted to review the merits of decisions of the Tribunal. This ground is not made out.
As none of the applicant’s grounds has been made out, the application must be dismissed.
The first respondent has sought the costs of the proceeding fixed in the sum of $5,400. That is below the scale amount. The applicant has asked that the costs be waived. However, he has advanced no reason for that course. In all the circumstances, it seems to me to be appropriate that costs follow the event in the usual way. Accordingly, there will be an order that the applicant pay the first respondent’s costs fixed in the sum of $5,400.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 17 December 2012