M33 of 2003 v Minister for Immigration - [2005] FMCA 1214

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M33 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 1214

MIGRATION – Review of Refugee Review Tribunal decision – application to set aside previous order – non-appearance.

Migration Act 1958 (Cth)

Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Applicant:

APPLICANT M33 OF 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 706 of 2004

Judgment of:

Riethmuller FM

Hearing date:

15 July 2005

Date of Last Submission:

15 July 2005

Delivered at:

Melbourne

Delivered on:

15 July 2005

REPRESENTATION

Counsel for the Applicant:

Applicant M33/2003 appeared on his own behalf

Counsel for the Respondent:

Mr Brereton

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the applicant’s application for reinstatement be refused.
That the applicant pay the respondent's costs fixed in the sum of $1100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 706 of 2004

APPLICANTS M33 OF /2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application by the applicant seeking to set aside a decision on 2 June 2005 by myself dismissing the application as a result of his non-attendance.
The applicant has filed an affidavit setting out that he has experienced back pain for several years and that on the day of the hearing his pain was so extreme he was unable to get out of bed. He says that he eventually came into the courthouse later in the morning but that the registrar told him then that the decision had already been made.
There is no evidence by way of a doctor's certificate annexed to the affidavit. However, it does provide some explanation for his non‑attendance on that day. Whilst I note that the Minister challenges the veracity of the affidavit, in light of the balance of the issues, it appears to me that there is little point in having cross-examination about its contents.
The application is for judicial review of a decision of the Refugee Review Tribunal of 8 January 2002. The decision runs for some 29 pages, discussing the applicant's case in some detail. In this matter there was considerable evidence before the tribunal, as this is not the first occasion that the applicant has had a tribunal hearing. The first tribunal decision was challenged by the applicant and orders for judicial review were made by North J, remitting the matter back for a rehearing by a differently constituted tribunal which led to the hearing and decision that is currently before the court.
Following the handing down of the current decision, the applicant applied to the Federal Court in proceedings V102 of 2002 for judicial review. The applicant discontinued these proceedings on 8 October 2002 but later sought the intervention of the Minister. As a Ministerial discretion, the Minister declined to intervene and the present application was brought in the High Court of Australia. The present application is about a year out of time in that there are time limits for applications for writs of certiorari and mandamus in the High Court Rules which are six months and two months respectively. Counsel for the Minister submitted that in the circumstances the application should be dismissed in any event because it is out of time and there is no adequate or satisfactory explanation for the delay.
It appears to me that the fact that the applicant had commenced proceedings in the Federal Court, discontinued them and then sought the discretionary intervention of the Minister are of themselves factors that militate strongly against extending the time available under the rules for bringing this application. In addition, the extension that the applicant seeks is for a significant period when one has regard to the time limits that are in place under the High Court Rules (having regard to the comments of the court in Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491).
It appears to me that this is not a case upon which the applicant would be granted leave to proceed out of time and have an extension to bring the proceedings.
I have also taken the opportunity of reviewing the grounds of claim by the applicant before making this decision. Those grounds are set out in his further and better particulars of contentions of fact and law of 13 August 2004 which are as follows:
Grounds of claim
Failure to take into account relevant considerations
8. The tribunal found that the Applicant had no political profile in Turkey since 1980. In so finding the Tribunal failed to take into account a relevant consideration in that it had also found that the applicant resumed his involvement in HADEP in 1993.
Falling into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant materiel or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion
9. The tribunal accepted that:
a)The Applicant’s house was fired on in 1996 and that his car caught on fire shortly thereafter;
b)he had received threatening phone calls between 1993 and in 1996.
10. The tribunal failed to independently consider and accord sufficient weight to those claims, because of its finding that the applicant did not have a sufficiently high political profile.
11. The Tribunal accepted that Kurdish businessmen had been killed by Turkish security forces, for reasons including political affiliation or perceived political affiliation, but failed to accord sufficient weight to that finding in assessing the applicant’s claim that he was a member of a persecuted, cognisable social group.
The ground articulated in paragraph 8 of the outline is to the effect that the tribunal erred in concluding that the applicant had no profile in Turkey when it had accepted that he had resumed his involvement in the HADEP party in 1993. In isolation, this gives some indication of a possible ground for judicial review. However, a review of the decision made by the tribunal places this in considerable context. At page 15 of the decision, the tribunal said:
If the applicant was an office holder of HADEP the Tribunal would have expected him to be more knowledgeable of their politics and be aware of when the election, which he claimed he campaigned for, was. Due to his lack of knowledge and the inconsistencies and anomalies of his evidence the Tribunal does not accept that he was an office holder of HADEP. At most the Tribunal accepts that he was a sympathiser and donated money to the party. This low level involvement would not have brought him to the attention of the authorities or led to adverse treatment by them and the Tribunal therefore does not accept that he was arrested and detained and beaten as a result of his involvement.
The tribunal's ultimate findings were set out at page 28:
The Tribunal found that the applicant has had no political profile in Turkey since 1980. Based on the country information regarding the return of failed asylum seekers which indicates in the vast majority of cases they are not ill-treated on return, the Tribunal finds that the chance of the applicant being imputed with an adverse political opinion on the basis of his claim for refugee status (if the Turkish authorities were aware of it) has no real substantial basis and is remote. There is no real chance that he will be persecuted for reasons of being a failed asylum seeker and his fear of persecution on the basis is not well-founded.
It does not appear to me that the findings of the tribunal in this regard are inconsistent or that it could be said that the tribunal failed to take into account (in its final determination with respect to the chances of persecution) a relevant earlier finding about the applicant's involvement in the HADEP. In substance, the tribunal did not accept much of the evidence of the applicant and his claims to have had significant involvement with the HADEP. Previous evidence by the applicant where he was unable to state what the initials HADEP stood for in a political party that he claimed to have significant involvement in weighed heavily in the tribunal's mind. Similarly a lack of knowledge of the policies of the party and strategies adopted by the party weighed upon the tribunal's mind in this regard. The tribunal made a number of findings significantly adverse to the applicant on credit. It does not appear to me that this ground has a prima facie or arguable ground of jurisdictional error.
With respect to paragraphs 9 through to 11 of his outline, it does not appear to me that these paragraphs articulate more than an application for a merits review in that the applicant is effectively challenging the fact-finding of the tribunal rather than issues relating to jurisdictional error.
In the circumstances, the applicant does not appear to me to have articulated a case upon which he would have an arguable case to be entitled to an order nisi or judicial review in any event. In the circumstances, I see no purpose to be served in reinstating the application as it does not appear that the applicant has an arguable case to either obtain an extension of time or ultimately obtain an order nisi for review. I therefore refuse the application that is before me today.
In this case the applicant has been unsuccessful both in his reinstatement application and it seems to me would inevitably be unsuccessful in his judicial review application. The ordinary rule is that the successful party should have their costs. The fact that the unsuccessful party is unlikely to be able to afford to meet that cost is not of itself a reason for not ordering costs in favour of the successful party.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: