M118 of 2004 v Minister for Immigration
[2005] FMCA 1292
•16 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M118 of 2004 v MINISTER FOR IMMIGRATION | [2005] FMCA 1292 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) |
| Applicant: | APPLICANT M118 OF 2004 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 563 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 16 August 2005 |
| Date of Last Submission: | 16 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed pursuant to Rule 13.03A(d) of the FederalMagistrates Court Rules 2001.
The applicant do pay the respondent’s costs fixed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 563 of 2005
| APPLICANT M118 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant in this matter is a citizen of India. He last entered Australia on 21 February 2002 following a return visit to India on
10 January 2002, before which he was in Australia on a student visa.
On 1 August 2003 he lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa. He claimed a protection visa on the basis of his political opinion, as a result of which he said he faced a real chance of persecution at the hands of members of the political parties known as the BJP, the RSS and the BD. He also claimed persecution from the Indian authorities on the basis of false charges of a criminal nature, saying that the authorities could not provide him with state protection.
A delegate of the Minister refused the application on 15 September 2003 and the applicant then applied to the Refugee Review Tribunal (‘the Tribunal’) on 3 October 2003. In his written submissions to the Tribunal he claimed that he was attacked by members of the BD and RSS during the 1999 Indian parliamentary elections and was subsequently attacked by members of those parties after he assisted his party to victory in university elections. He said that later his house was attacked in 2002 by BD and RSS members and that his escape was miraculous. He says that he would be unable to shelter in other parts of India as a result of the fact that the political parties have members throughout the country. His application before the Tribunal was refused.
The applicant did not attend for his hearing before the Tribunal despite correspondence by the Tribunal to two different addresses they held for the applicant. Correspondence to one of the addresses was returned marked "left address" but the other correspondence was not. There is no real doubt in this case that the applicant had notice of the hearing as there is a note from an officer of the Tribunal of a telephone call confirming the nature of the correspondence.
The letter advised the applicant that the Tribunal had considered the material that was before it and would be unable to make a decision in his favour on that information alone and invited to attend for a hearing. He was therefore clearly on notice that without attending or providing more material the Tribunal was going to find against him.
The inevitable occurred in the Tribunal decision on 7 April 2004 where the Tribunal recounted the claims and noted the concern that the applicant would return to India in January or February 2002 despite the circumstances he claimed. The Tribunal also noted the claim of adverse interest of the police in him for criminal charges yet he was able to leave India without apparent difficulty.
Based on the information provided to it, the Tribunal was not satisfied that the applicant had a proper basis for a protection visa. That was a finding open to the Tribunal and not unlikely in the circumstances that had led up to the hearing, particularly having regard to the very limited nature of the details of the claims made by the applicant.
There is nothing in the reasoning or process of the Tribunal that appears to me to indicate jurisdictional error on the part of the Tribunal.
The applicant lodged an application in the High Court for judicial review of the decision on 8 June 2004. It was an application for an order nisi under the High Court rules as they were then framed. The application was supported by a draft order nisi which lists the grounds as follows:
1. The decision made by the Second Respondents:
(a) was made without jurisdiction or is affected by an error of jurisdiction;
(b) is affected by an error of law;
(c) is so unreasonable that no reasonable decision maker could have made it;
(d) is based on finding for which there was no evidence or other material;
(e) takes into account irrelevant considerations;
(1) fails to take into account relevant considerations;
(g) was an improper exercise of power conferred by the Migration Act 1958;
(h) was otherwise contrary to law;
(i) was made in bad faith.
PARTICULARS
I will provide the particulars later
2. Further or in the alternative, the Second Respondents:
(a) failed to accord the applicant natural justice;
(b) failed to follow the procedures required by the Migration Act;
(c) asked the wrong question or misconceived her duty.
PARTICULARS
As above
Notably the grounds said to be relied upon by the applicant are a list of all the possible grounds that one could identify, in the way that perhaps a law student would list as possible grounds for judicial review when studying the area of law. Most significantly the applicant set out in the section marked Particulars:
I will provide the particulars later.
His affidavit in support of the order nisi provides no particulars of the jurisdictional error that would be alleged.
This is not a case where an applicant has set out in lay terms rather than technical legal terms some fact or circumstance that forms the basis of his claim for judicial review, rather a case where he sets out nothing other than his preference that the decision maker grant him a visa. He made no complaint as to the process or the reasoning of the Tribunal.
The matter was remitted to this court by the High Court and an order for directions was made by a Registrar. The applicant did not attend the hearing before the High Court when the matter was remitted, nor before the Registrar, nor has he attended today.
On the material before me I therefore refuse to make an order nisi or, to use the language now utilised in Part 25 High Court Rules, I refuse to issue an order to show cause.
I dismiss the applicant's application.
[Further discussion ensued]
I must also determine whether or not the applicant should pay the respondent's costs. The respondent has been entirely successful, the applicant has not attended to pursue the matter. There are no other facts or circumstances that would lead to an exercise of the discretion otherwise than in favour of the party who is successful in the litigation.
In this case the application was first before the High Court and then remitted to this court which added additional costs compared to a matter that commenced only in this court. Whilst the applicant has not pursued his claim, the respondent has nonetheless drawn submissions and filed a court book and attended today for a hearing.
In all of the circumstances I am satisfied that the claim for costs in the sum of $7,500.00 is reasonable.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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