MZYJO v Minister for Immigration & Anor [2011] FMCA 25 (21 January 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYJO v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 25

MIGRATION – Application for review of a decision of the Refugee Review Tribunal.

Migration Act 1958 (Cth), s.424A(1)

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471

Applicant:

MZYJO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1184 of 2010

Judgment of:

Whelan FM

Hearing date:

14 December 2010

Date of Last Submission:

14 December 2010

Delivered at:

Melbourne

Delivered on:

21 January 2011

REPRESENTATION

Solicitors for the Applicant:

DLA Phillips Fox

The Respondent:

In person

ORDERS

(1) The application is dismissed.
(2) The Applicant will pay the respondent’s costs in the sum of $5,865.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1184 of 2010

MZYJO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application under the Migration Act 1958 (Cth) (“the Act”), in which the Applicant seeks certain orders to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 August 2010. The Applicant also seeks an order that the Tribunal review, according to law, the decision of the delegate of the Minister for Immigration & Citizenship (“the Minister”) to refuse a protection visa sought by him.
2. The Applicant arrived in Australia on 20 November 2008 on a visitor’s visa, having previously been in Australia for some time in July 2008 to attend the World Youth Festival. He applied for a protection visa on 6 January 2010. The Applicant is an Indian citizen. The grounds upon which that application was made is that he claims he would be persecuted if he returned to India on the grounds of his religion, being a Christian.
3. On 27 April 2010, a delegate of the Minister refused the protection visa application and, on 20 May 2010, he applied to the Refugee Review Tribunal to review the delegate’s decision. There was a hearing conducted by the Refugee Review Tribunal on 30 July 2010 and, on 5 August 2010, the Tribunal decided to affirm the delegate’s decision. On 25 August, the Applicant applied to this Court for a judicial review of the decision of the Refugee Review Tribunal. The grounds on which the Applicant seeks relief are as follows:
   1. Ground 1 is that the Tribunal decision was in breach of section 424A(1) of the Act. The particulars given for that ground are that there was certain adverse information used by the Tribunal to affirm the decision, and that the Tribunal did not disclose that information to the Applicant in accordance with the provisions of the Act.
   2. Ground 2 of the application is that the Tribunal made an error of law and lacked procedural fairness.
   100. Ground 3 is that the Tribunal denied the Applicant natural justice because it failed to provide a further opportunity before the Tribunal.
4. The Applicant did not seek to amend the application or to provide any further or better particulars, and nor did he provide any written submissions prior to the hearing. Each of the grounds were put to the Applicant by the Court, and he was invited to address the Court to elaborate on the matters on which he sought to rely. In relation to ground 1, the only information which the Applicant identified was the information which he, himself, had provided to the Tribunal.
5. In relation to ground 2, the Applicant was unable to identify any error of law by the Tribunal, nor was he able to indicate in what way he had been denied procedural fairness by the Tribunal. In relation to ground 3, the Applicant indicated that he did not seek a further hearing from the Refugee Review Tribunal, and nor did he seek to provide further material to the Tribunal after the hearing on 30 July.
6. I accept the submission by the Minister that the Applicant has, in effect, abandoned grounds 2 and 3 of his application.
7. The decision record of the Tribunal is set out in the Court book at pages 99 to 111. In relation to ground 1 of the grounds in the application, the Minister has submitted that the Tribunal did not believe the Applicant in his claim that he suffered persecution because of his religion. In particular, the Tribunal found that the Applicant’s evidence concerning the two events upon which he relied was both inconsistent and implausible. On a reading of the decision record, I am satisfied that those matters were put to the Applicant by the Tribunal.
8. Mr Wee for the Minister, referred the Court to the decision of the High Court in SZBYR v Minister for Immigration.[1] In particular, he referred to paragraph 18 of that decision. The Court says at that paragraph:
   • If the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting information within the meaning of paragraph (a) of section 424A(1).[2]
9. The High Court went on to refer to the decision in VAF v Minister for Immigration,[3] where the word “information” was considered by the Court. The Court in that case found that the word “information”:
   • does not encompass the Tribunal’s subjective appraisals, thought processes or determinations . . . nor does it extend to identified gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.[4]
10. I am satisfied that in this case the information referred to by the Applicant does not fall within the ambit of s.424A(1). I am, therefore, satisfied that ground 1 of the application is not made out. As neither ground 2 nor 3 have effectively been pursued in these proceedings, and nothing before me would indicate any basis for an application on those grounds to be successful, I am, therefore, satisfied that the application should be dismissed.
11. Given that this application has been dismissed, the Respondent has sought that the Respondent’s costs, which would amount to the sum of $5,865.00, should be paid by the Applicant in relation to these proceedings.
12. As I have found that none of the grounds of the application are made out, and the Applicant has been entirely unsuccessful in this application, I am satisfied that an order for costs is warranted.

I certify that the preceding 12Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twelvetwelve (12) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date: 21 January 2011

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[1] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.
[2] Ibid at paragraph 18.
[3] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471.
[4] Ibid, [2004] FCAFC 123 at 24; (2004) 2006 ALR 471 at 24.