Applicant MZMOQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 615

FEDERAL COURT OF AUSTRALIA

Applicant MZMOQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 615

APPLICANT MZMOQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V133 OF 2004

MERKEL J
29 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V133 OF 2004

BETWEEN:	APPLICANT MZMOQ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	29 APRIL 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the appeal be dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V133 OF 2004

BETWEEN:	APPLICANT MZMOQ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	29 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant in the present matter is a national of Vietnam.  He arrived in Australia in January 1998 on a student visa.  On 3 January 2002 he applied for a protection visa.  A delegate of the Minister and the Refugee Review Tribunal (“the Tribunal”) both refused to grant that visa.  Before the Tribunal the appellant had the opportunity to appear and to explain at the hearing his claim of being entitled to a protection visa.  The decision of the Tribunal recalls that although the appellant had said he would attend his scheduled hearing he did not do so.  It also records that neither the appellant nor his adviser provided reasons as to why the appellant did not attend the hearing.  As a consequence, the Tribunal decided the matter on the papers before it and concluded that it was not satisfied that the appellant had a well founded fear of persecution for any convention reason.

2. I have carefully perused the Tribunal’s reasons and they appear to fairly and accurately set out the claims, the information upon which the Tribunal relied in rejecting those claims, and the reasoning of the Tribunal in arriving at its decision.  The appellant sought review of the Tribunal’s decision before a Federal Magistrate.  The Magistrate dismissed the application.  In the Magistrate’s reasons, the history of the matter and the Tribunal’s findings were set out in summary form.  The Magistrate dealt with each of the alleged errors raised in the appellant’s amended application and concluded that the application was entirely without merit and should be dismissed.  The appellant then appealed to this Court with a notice of appeal that appears to have been drafted by someone advising him, having some but not a great deal of legal knowledge about the issues that could arise on appeal.

3. In substance it was argued that the Magistrate failed to take into account both relevant considerations and relevant information and therefore committed a jurisdictional error.  It is also suggested there was a procedural error in that the Magistrate should have found that the Tribunal’s decision was biased.  Before this Court, the appellant was informed of the date of the final hearing.  It was plain that he needed legal assistance if he was to conduct the hearing on any reasonable or proper basis.  When the matter came on before the Court today, he asked for an adjournment in order to get legal assistance.  I refused that application on the basis that he has had ample time to have tried to get legal assistance and that also he was not able to produce any information to the Court that suggested that any assistance was likely.

4. Counsel for the respondent has set out in some detail an outline of the respondent’s submissions.  The appellant was invited by me to endeavour to explain what was the real ground of complaint that he had in relation to the way in which the matter has proceeded but was not really able to put forward or articulate any particular ground.  I have carefully perused the decision of the Tribunal and that of the Federal Magistrate and cannot discern any error of substance or procedure made by either of them.  Further, I have considered the respondent’s outline of submissions and I am satisfied that the outline is comprehensive and fairly and accurately sets out the reasons why the errors complained about by the appellant in his documentation have not been established. 

5. It therefore follows that no error, either by the Magistrate or by the Tribunal, has been demonstrated. As a consequence the appeal to this Court is to be dismissed with costs. 

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

Associate:

Dated:            19 May 2004

Counsel for the Appellant:	Appeared in person
Counsel for the Respondent:	Ms JK Macdonnell
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	29 April 2004
Date of Judgment:	29 April 2004