MZYGV v Minister for Immigration & Anor [2010] FMCA 288 (30 April 2010)

Last Updated: 3 May 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYGV v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 288

MIGRATION – Application for review of RRT decision – grounds wholly formulaic and unparticularised – detailed and comprehensive RRT decision – application dismissed.

Migration Act 1958, ss.424A, 424A(3)(ba), 424A(3)(a), 425

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Applicant:

MZYGV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1375 of 2009

Judgment of:

Burchardt FM

Hearing date:

8 April 2010

Date of Last Submission:

8 April 2010

Delivered at:

Melbourne

Delivered on:

30 April 2010

REPRESENTATION

The Applicant:

In person (assisted by a Punjabi interpreter)

Counsel for the Respondents:

Ms E Holt

Solicitors for the Respondent:

DLA Phillips Fox Lawyers

ORDERS

(1) That the application be dismissed.
(2) That the Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1375 of 2009

MZYGV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) made on 30 September 2009. The application filed on 26 October 2009 follows a template with which the Court is well familiar. I have seen it on a number of occasions before, being the same even as to spelling and grammatical errors.
2. The applicant’s affidavit filed on 26 October 2009 simply annexes a copy of the decision of the Tribunal.
3. Orders were made by consent by Registrar Allaway on 2 December 2009 for the applicant to file an amended application and written submissions. He has done neither.
4. For the reasons which follow, I have concluded that the application must be dismissed.
5. Given the absence of any materials filed by the applicant, these reasons for decision must necessarily tend to follow fairly closely the submissions made by the Minister, particularly in relation to the procedural background.
6. The applicant is a 28-year-old citizen of India who arrived in Australia on a visitor’s visa on 9 July 2008. On 31 October 2008 he filed an application for a protection visa.
7. On 19 December 2008 a delegate of the first respondent rejected the application for a protection visa, review of which led to the Tribunal decision, which is now the subject of this application.
8. The Tribunal conducted a hearing on 10 March 2009 at which the applicant gave evidence with the assistance of an interpreter and thereafter, a further hearing was held on 8 April 2009 at which further evidence was given.
9. On 22 April 2009 the Tribunal sent the applicant a letter to which the applicant replied by letter dated 12 May 2009 (CB103 to104).
10. The Tribunal affirmed the decision under review on 30 September 2009.
11. The Tribunal’s decision runs from CB107 to 137. It appears to me to be a comprehensive recitation of the applicant’s claims and evidence, and comprehensive findings arising from them. There is substantial reference to country information which, of course, the Tribunal was entitled to do.
12. The applicant gave certain documentation to the Tribunal at the hearings (CB 87 – 90).
13. The central finding made by the Tribunal is at paragraph 139 (CB 131) as follows:
    • “For the reasons that follow, in assessing the applicant’s claims the Tribunal has found the evidence of the applicant to be inconsistent, vague, imprecise and at times implausible. Whilst the applicant has maintained consistency in the essential elements of his claims, he was unable to provide detail or consistency around key aspects of his circumstances, which has raised doubts in the mind of the Tribunal regarding the credibility of the applicant and the genuine nature of his claims.”
14. At paragraphs 140 to 181 the Tribunal dealt with the various claims advanced by the applicant and found comprehensively against him.

Section 424A

15. Under this ground in the application the first matter raised is that the Tribunal used adverse information to affirm the decision under review. I accept the submission of the first respondent that there was no breach of s.424A as the information upon which the Tribunal based its finding against the applicant was put to the applicant at hearings and further, by way of the s.424A letter. Some of the information relied upon by the Tribunal was given by the applicant during the process leading to the delegate’s decision and thus attracts the operation of s.424A(3)(ba) in any event.
16. The Tribunal relied upon independent country information but it was, in my view, entitled to do so. The letter from the Tribunal dated 22 April 2009 put the applicant on notice of possible adverse information and, in any event, country information is an exception pursuant to s.424A(3)(a) of the Migration Act 1958 (“the Act”).

Procedural Fairness

17. There is, in my view, no basis upon which it can be said that the Tribunal’s conduct of the proceeding was procedurally unfair to the applicant. The applicant appeared before the Tribunal on two occasions, and was subject to the s.424A letter.

Natural justice

18. The applicant has not articulated anything that suggests there is any force in this aspect of the grounds of application.

Matters raised at the hearing

19. When the matter was called before the Court, the applicant was invited to say anything he might wish to in support of his application.
    He asserted that he had been attacked in India and had suffered damage to his fingers and to his chest and stomach. He said he had been attacked by Shiv Sena on two occasions, the second time causing superficial injury to his stomach.
20. Following the oral submissions of counsel for the first respondent, which essentially adopted the written submissions already filed, the applicant said that he had some documents which he suggested the Tribunal had not considered. He said he provided medical evidence to the Tribunal, and another document which was also provided late. I take those to be the documents to which I have already referred in paragraph 12 above, which are stamped as having been received at the Tribunal.
21. Insofar as the applicant’s oral submissions raise any matters at all, they are plainly matters solely of merits review. There is nothing to suggest that the Tribunal failed to have regard to the various materials put before it by the applicant.
22. Finally, I should say that I accept the submissions by counsel for the first respondent, set out in paragraphs 71-74 of her written submissions, that if any breach of s.425 of the Act is alleged, there simply was no such breach.

Conclusion

23. The application is unfortunately in my opinion wholly unparticularised and none of the grounds asserted is made out.
24. Furthermore, having read the Tribunal’s decision, I am of the clear view that the Tribunal was well-seized of the task it was being required to perform and did not in any way fall into jurisdictional error in the form identified by the High Court in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 and the cases that have since expounded the law in this area.
25. It follows that the application must be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 30 April 2010