MZYAF v Minister for Immigration and Citizenship [2009] FCA 115 (13 February 2009)

Last Updated: 27 February 2009

FEDERAL COURT OF AUSTRALIA

MZYAF v Minister for Immigration and Citizenship [2009] FCA 115

Migration Act 1958 (Cth) s 424A

MZYAF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
VID 871 of 2008

TAMBERLIN J
13 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 871 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZYAF Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	13 FEBRUARY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.
   

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 871 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZYAF Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TAMBERLIN J
DATE:	13 FEBRUARY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Burchardt who, on 3 October 2008, dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal), which affirmed a decision of a delegate of the Minister to refuse a protection visa. The ground of appeal is that the Federal Magistrate erred in not finding that the Tribunal breached s 424A of the Migration Act 1958 (Cth) (the Act) by not disclosing adverse information it used to affirm the decision under review.
2. When the matter came on for hearing before me this morning the appellant appeared in person with an interpreter and advanced some material to me from the bar table which indicated that he feared, if returned, he would be persecuted and he said that he had been hiding in the jungle for some time and in substance he sought to re-argue the merits of the application.
3. In order for the appellant to success upon this appeal, it is necessary to identify some error in the decision of the Federal Magistrate which is appealed from. I have considered the reasons of the Federal Magistrate in relation to the information used by the Tribunal, particularly in paragraphs 11 through 14 of the Tribunal decision and can find no error in them. I believe that the information used on the material before me was information which was available to the appellant and was indeed produced by the appellant, and nothing has been put to me which would cause me to believe that there has been any error in the reasoning or in any principles expressed in the decision of the Federal Court Magistrate.
4. In relation to the Tribunal decision, the applicant had claimed that he feared persecution from two former business associates on the ground of religion, political opinion and membership of a particular social group. The Tribunal accepted that the applicant is a Hindu and that he is an active member of a political party and is from a high caste and that he was in the steel fabrication business. However, the Tribunal considered that in view of the time he remained in India since an attack had been made on him, which he referred to, and having regard to the fact that he chose to return to India after travelling to Germany in 2006, there was no real or genuine or objective basis for fearing persecution if returned to India.
5. This is a question of fact and is one for the Tribunal member, having heard the evidence and seen the documentation, to decide and is not one which this court can reconsider on the merits of the case. This morning the appellant seeks to re-argue the matter and put matters going to the factual material before the Tribunal and the errors in its decision factually, but I am not persuaded that there has been any factual error demonstrated or that, indeed, there was any error in the decision of the Tribunal. Accordingly, for these reasons, I dismiss the appeal from the decision of the Federal Magistrate with costs in this matter.
   

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 13 February 2009

Appellant:	unrepresented
Counsel for the First Respondent:	Ms S. Burchell
Solicitor for the First Respondent:	Ms E. Loh, Clayton Utz

Date of Hearing:	13 February 2009
Date of Judgment:	13 February 2009