MZYFJ v Minister for Immigration & Anor (No.2) [2010] FMCA 74 (23 February 2010)

Federal Magistrates Court of Australia

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MZYFJ v Minister for Immigration & Anor (No.2) [2010] FMCA 74 (23 February 2010)

Last Updated: 25 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYFJ v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2010] FMCA 74

MIGRATION – Application for judicial view of RRT decision – grounds of application unparticularised – consideration of Tribunal’s decision.

Migration Act 1958, ss.424A(1), 424AA

Applicant:

MZYFJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 785 of 2009

Judgment of:

Burchardt FM

Hearing date:

23 December 2009

Date of Last Submission:

23 December 2009

Delivered at:

Melbourne

Delivered on:

23 February 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr D. Brown

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.
(2) The Applicant pay the First Respondent’s costs fixed in the sum of $5,565.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 785 of 2009

MZYFJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 2 June 2009. The Tribunal affirmed the decision by a delegate of the Minister on 3 December 2008 not to grant the applicant a visa as a refugee.
2. For the reasons that follow, I do not think the applicant has advanced anything that would justify granting him the relief that he seeks, and the application should be dismissed.

The Application

3. The application filed on 26 June 2009 advances three very generalised grounds, which are:
   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 procedural fairness and therefore committed jurisdictional error.
3. That the tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.
4. That application was supported by an affidavit which stated:
   • “I came in Australia because of my safety and security of my life. I suffered life threathining fear in my country.
     • I lodged my Protection visa application to the DIMA at Melbourn. and later review to the RRT. I attended RRT hearing in Melbourn. I am not satisfied with the Tribunal’s decision, and I seek judicial Review in this matter.” (sic)
5. The affidavit then annexed the decision of the Tribunal.
6. On 5 August 2009, Registrar Allaway made orders which included that the applicant file and serve any supplementary court book and/or application together with written contentions of fact and law on or before September 2009. Those orders have not been complied with.
7. I mention this not to criticise the applicant for failing to do something which, given his lack of English and legal skills, he would be likely to be unable to do, but rather to emphasise that the Court is confronted only with a very bare bones case.
8. At the hearing before me, when invited to say anything that he wished to say, the applicant, not without considerable hesitation, eventually said words to the effect that, “My case is the truth and I am a Christian.”
9. The Minister relied essentially upon the written contentions of fact and law filed.
10. Given that the applicant in effect said nothing material at the hearing and that his written materials do not disclose any jurisdictional error on the part of the Tribunal, what follows is necessarily something of a paraphrase of the first respondent’s contentions of fact and law, which seem to me cogent.

Decision

11. The applicant arrived in Australia on 9 July 2008 for the purposes of attending World Youth Day and thereafter returned to India before coming back to Australia again on 5 September 2008, using the visitor visa he already had as it was still valid.
12. The applicant’s claim for a protection visa asserted that he belongs to the “Christian religion and backward class of society” and faced violence from various Hindu militant organisations. He claimed that he could not be protected from these organisations which had the backing of the BJP, a major political party in India.
13. The applicant made a number of claims to the Tribunal which supported his claims as to fears of persecution.
14. The applicant attended the Tribunal on 16 February 2009 and gave evidence and presented arguments. Some of the answers given by the applicant to questions from the Tribunal might reasonably cast doubt upon the extent to which the applicant was a Christian (see CB103 at 79 to 81).
15. At the hearing, the Tribunal put various matters to the applicant for him to comment on, which were:
    1. the applicant’s claims of involvement in a church appeared to be at odds with his actual evidence at the hearing;
    2. his claims were strikingly similar to those of another claimant; and
    100. inconsistencies in his written and oral evidence. (These are elaborated further at CB105 at 90 to 93).
16. The applicant in response said he might have been confused because he was nervous and asked for a month to submit additional written materials, which the Tribunal agreed to. No such materials were received.
17. A further Tribunal hearing was conducted on 21 May 2009 because the Tribunal realised it had not dealt with the applicant’s protection claims based on being a member of a “backward class of society”. Further s.424AA points were put to the applicant by the Tribunal, but it should be noted that when the Tribunal expressly raised reference to what the applicant meant by belonging to a backward class, he replied that the Christian religion was considered a backward class. The only class that he was claiming to belong to was that of Christians (CB107 at 104).
18. The Tribunal did not find the applicant to be a credible witness and, more particularly, found that he had lied about his authorship of the entirety of his statement of claims, which had been lifted from the internet (CB120 at 144). A number of other very damaging credit points were made as noted in paragraphs 41 to 47 of the first respondent’s written submissions.
19. It is fair to say that the Tribunal completely disbelieved the applicant on all the material points.
20. Having read the Tribunal’s decision, I am satisfied that the Tribunal well understood the task it was undertaking. The decision correctly cited the relevant law and dealt in detail, and in my view comprehensively, with the applicant’s claims and its conclusions about them. The Tribunal dealt in terms with the s.424AA warnings that it had given at both the first and second hearings.
21. In my view, it is clear that the Tribunal did not fall into jurisdictional error.
22. The applicant has not identified any adverse information that was improperly used by the Tribunal and I do not see that there is any. Likewise, I do not see that there was any information that the Tribunal failed to disclose in accordance with s.424A(1).
23. The grounds which assert error of law and lack of procedural fairness giving rise to jurisdictional error and a denial of natural justice are wholly unparticularised and in any event, I do not think that the Tribunal erred in these regards or otherwise.
24. In my view, the application is without merit and should be dismissed and I will so order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 23 February 2010