MZYCC & Anor v Minister for Immigration & Anor [2009] FMCA 122 (12 February 2009)

Last Updated: 12 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYCC & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 122

MIGRATION – Application for adjournment – alleged non receipt of Court Book – finding that Court Book served on applicant – adjournment denied – Request for adjournment to provide material not put before Tribunal – adjournment refused – matter to be decided on material before the Tribunal.

Migration Act 1958 (Cth), ss.424A, 474 Migration Regulations 1996, reg.1.12

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SZINP v Minister for Immigration & Citizenship [2007] FCA 1747 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145

First Applicant:

MZYCC

Second Applicant:

MZYCD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1176 of 2008

Judgment of:

Turner FM

Hearing date:

12 February 2009

Date of Last Submission:

12 February 2009

Delivered at:

Melbourne

Delivered on:

12 February 2009

REPRESENTATION

The First Applicant:

Appearing in person

Counsel for the Respondents:

Mr Wee

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicants pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1176 of 2008

MZYCC

First Applicant

MZYCD

Second Applicant

And

MINISTER FOR IMMIGRATIN & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore and revised from transcript)

Application for adjournment

1. The applicant has given evidence today that he has not been supplied with a copy of the green Court Book in this matter. He said he was handed a copy to look at during the directions hearing on 5 November 2008, but that it was taken back and he was told that he would be sent a copy later.
2. Evidence was presented by Ms Koya, who attended the hearing on
   5 November 2008 as representative of the first respondent.
   Her evidence is that she handed the applicant a copy of the Court Book and did not take it back. She said she would never do that.
   She prepared file notes at the hearing and an Exhibit has been tendered, Exhibit “R1”, which includes Note 2, “CB given to the applicant in Court.” She then sent an email to an officer of the first respondent at 4.51pm on Wednesday, 5 November 2008 which was the date of the directions hearing, and in the commentary at the end of that email she stated, “The applicant was served with a copy of the Court Book in Court”. That email is Exhibit “R2”.
3. The Court accepts the evidence of Ms Koya, and therefore rejects the evidence given by the applicant to this Court, which causes it serious concern. The applicant has given sworn evidence to this Court.
   The Court will not let that consideration influence its determination in this matter. However, it will consider referring that matter to the appropriate authority.
4. As the Court has determined that the applicant was given a copy of the Court Book on 5 November 2008, the matter will proceed immediately.
   The application for an adjournment is dismissed.

The substantive case

5. The Court makes the following decision in this matter. This is an application for judicial review of a decision of the Refugee Review Tribunal dated 4 September 2008. That decision affirmed the decision of the Delegate not to grant the applicants’ protection class XA visas.
6. The applicants are husband and wife. Only the husband makes claims of persecution, and he is regarded by the Court as the applicant, and his wife as a member of the family unit. The Court refers to Migration Regulations 1996 (the “Regulations”) reg.1.12(1) and the (Court Book at page 55.10) where the Delegate found that the wife was a member of the family unit of the applicant.
7. The application sets out the following grounds.
   • “1. That the Tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).
     • Particulars:
     • (A) There was certain adverse information used by the Tribunal to affirm the decision under review.
     • (B) The Tribunal did not disclose the information in accordance with s 424A(1).
   • 2. That the Tribunal made error of law and lack of procedural fairness and therefore committed jurisdictional error.
   • 3. That the Tribunal made denial of natural justice. Because it failed to provide further time to the applicant to produce other evidences before the Tribunal.”
8. The applicant and his spouse arrived in Australia on 24 March 2008 (Court Book page 15) and applied for protection class XA visas on
   1 May 2008 (Court Book 1). The applications were refused by a Delegate on 19 June 2008.
9. The decision of the delegate is contained in the (Court Book commencing at page 54).
10. The applicant applied to review the decision of the Delegate.
    By decision dated 4 September 2008 the Refugee Review Tribunal affirmed the decision not to grant the applicants’ protection class XA visas.
11. The Refugee Review Tribunal conducted a hearing on 4 September 2008 at which the applicant husband gave evidence and presented arguments with the aid of an interpreter (Court Book 101.5).
    The Tribunal made findings of fact as follows; the business (the applicant claimed to have) did not exist, or at least that if it did exist it was not his business (Court Book 103.2). The Tribunal did not accept that an employee of the applicant was implicated in the Bombay bombings, or that the applicant came under pressure as a result (Court Book 103.4). The Tribunal did not accept that the applicant was attacked as a result of these events (Court Book 103.4). The Tribunal did not accept that there is a real chance of the applicant suffering any harm amounting to persecution in India for a Convention reason should he return there in the foreseeable future (Court Book 103.5).
    The Tribunal found that the applicants do not have a well-founded fear of persecution in India for a Convention reason (Court Book 103.6).
12. All the above findings of fact were properly open to the Tribunal on the material before it and are not open to review. The Court refers to the decision in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and quotes a passage as follows:
    • “To engage in fact-finding about the merits of the applicants' case is no part of the function of the Court.”
13. The Court refers also to the decision of Justice Collier in SZINP v Minister for Immigration & Citizenship [2007] FCA 1747 at paragraph 26 as follows:
    • “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts.”
14. The findings of fact were made on the basis of the evidence presented by the applicant for the purpose of the application for review.
    • “The RRT is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
15. That statement comes from the decision in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464.
16. The evidence given by the applicant is subject to the exception in s.424A(3)(b) of the Migration Act 1958 (the “Act”) which provides that:
    • “This section does not apply to information ... that the applicant gave for the purpose of the application for review.”
17. Ground 1 of the application claims that the decision of the Tribunal was in breach of s.424A of the Act. No breach has been established. Ground 1 is rejected.
18. Ground 2 of the application alleges a lack of procedural fairness, because the Tribunal failed to provide further time for the applicant to produce further evidence.
19. The applicant applied for the review of the decision of the Delegate on 10 July 2008. That application is contained in the (Court Book commencing on page 66). He was invited to the review on 24 July 2008. A copy of the letter inviting the applicant to the review is contained at (Court Book 86). The review hearing was conducted on
    4 September 2008 (Court Book 99.4).
20. The Court finds that the applicant appeared at that hearing and was given a full opportunity to prepare for and present material to the Tribunal. The fact that the applicant appeared is shown at (Court Book 101.5). There is nothing to prove that the applicant requested an adjournment from the Tribunal and that the Tribunal refused that request. The applicant has not tendered a transcript of the proceedings before the Tribunal on 4 September 2008. He has failed to establish that an adjournment was requested and refused.
21. Today the applicant has requested the Court to adjourn this hearing to enable him to get medical evidence from India to present to the Court. He is therefore seeking an adjournment to obtain new material that was not put before the Tribunal. The Court has refused that application for an adjournment. This matter is to be decided according to the material put before the Tribunal. SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 at [27] per McKerracher J.
22. The applicant was not denied procedural fairness. Ground 2 is dismissed. The applicant was not denied natural justice. Ground 3 is dismissed.
23. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere. The application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Kirra Vickerman

Date: 12 February 2009