MZZOV v Minister for Immigration

[2015] FCCA 3539

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZOV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3539

Catchwords:
MIGRATION – Application for judicial review of decision – Protection (Class XA) visa application – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: MZZOV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1116 of 2013

Judgment of: Judge Riethmuller

Hearing date: 22 September 2015

Date of Last Submission: 22 September 2015

Delivered at: Melbourne

Delivered on: 22 September 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Gangemi

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No Appearance

ORDERS

1. The Application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.00.

3. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1116 of 2013

MZZOV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This is an application for a judicial review of a decision by the Refugee Review Tribunal made on 24 June 2013.  The applicant is from Sri Lanka and of Tamil ethnicity. The applicant applied for a protection visa in September 2012.  The applicant appeared before the Tribunal on 28 March 2013 to give evidence and present arguments with the assistance of an interpreter. The Tribunal summarised his claims of risk at paragraph 23 of the decision saying:

   The issues to be decided in this case are whether the applicant will be harmed in Sri Lanka because he has a film of an argument with Traffic Police; because of an imputed LTTE connection and anti-government opinion; because of his ethnicity; or because he left Sri Lanka illegally. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The Tribunal member then proceeded to carefully deal with the evidence relating to each one of these claims.  The Tribunal dealt with the claim relating to a film of an argument with traffic police at paragraphs 31 to 44.  The Tribunal dealt with the claims relating to an imputed LTTE connection at paragraphs 24 to 30.  The balance of the claims were dealt with in paragraphs 45 through 62.  The Tribunal ultimately concluded that the applicant was not at real risk of significant harm if he were to return to Sri Lanka.

3. The application before this Court was filed in July 2013.  The application lists two grounds as follows:

   1. The Refugee Review Tribunal did not afford me procedural fairness.

   2. The Refugee Review Tribunal applied the wrong legal test.

4. The hearing of this application was delayed for a considerable period awaiting a decision of the High Court of Australia that may have impacted upon this case.  As it turns out that decision did not have an impact upon the applicant’s case. 

5. During the course of submissions before me the applicant sought an adjournment saying that he had an appointment with the Asylum Seekers Resource Centre some time this week.  The case has been before the Court for over two years.  Notice of this hearing was sent to the parties in February 2015. There is no explanation of the delay in doing anything about preparing his case over the last two years.  I am not persuaded that making an appointment to see a legal centre shortly before a hearing that has been listed for so long is a proper basis for an adjournment. 

6. The applicant explained the basis for his grounds of application as being a problem with an interpreter and whether or not the Tribunal considered a medical certificate.  There is no evidence of any particular difficulty with respect to the interpreter at his tribunal hearing.

7. The applicant did not identify any particular exchange or topic of discussion where he says or can explain how a misinterpretation may have impacted upon his hearing.  In these circumstances there is no arguable case of misinterpretation and there is no claim before me that has enough detail to cause me to consider adjourning even for further investigations. 

8. The medical evidence appears in the court book at page 219.  The Tribunal discusses these issues at paragraphs 38 and 42.  I am not persuaded that it is arguable that the Tribunal failed to properly consider this evidence, nor that they did not afford the applicant procedural fairness on this issue.

9. It is not apparent from reading the Tribunal’s decision that they applied the wrong legal test, nor has there been any argument pointing out any error in the legal test that the Tribunal applied. 

10. In the circumstances, I dismiss the application.

    [further argument ensued]

11. In this case, the Minister has been entirely successful.  Costs ordinarily follow the event in ordinary civil litigation.  The scale fee for a case of this type is $6825.  The Minister should have his costs.

12. I, therefore, formally order that.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date:  14 January 2016