Mpelo v Minister for Immigration and Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

Mpelo v Minister for Immigration & Multicultural Affairs [2000] FCA 608

SIMON LEGO MPELO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 235 OF 2000

LINDGREN J
8 MAY 2000
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 235 OF 2000

BETWEEN:

SIMON LEGO MPELO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

8 MAY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent's costs.

3.Orders 1 and 2 not be entered prior to 30 May 2000.

4.The applicant have liberty to re-list the matter on 24 hours' notice prior to 30 May 2000 for the making of any further submissions on his behalf.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 235 OF 2000

BETWEEN:

SIMON LEGO MPELO
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LINDGREN J

DATE:

8 MAY 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

Introduction

  1. The applicant ("Mr Mpelo") applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of a delegate ("the Delegate") of the respondent ("the Minister") not to grant him a protection visa.

  2. Section 29 of the Act provides that subject to the Act the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

    (a) travel to and enter Australia;
    (b) remain in Australia. 

  3. Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under the Act. It is not in dispute that the Minister delegated all relevant powers to the Delegate. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.

  4. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). 

  5. Article 1A(2) of the Convention provides that a refugee is any person who:

    “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his…

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Details
Case
[2000] FCA 608
Decision Date

CaseChat Overview and Summary

In the case of Mpelo v Minister for Immigration and Multicultural Affairs, Mr Mpelo, a national of the Democratic Republic of Congo, applied for a protection visa after arriving in Australia without documentation. His application was rejected, and upon review by the Refugee Review Tribunal (RRT), the decision was affirmed. Mr Mpelo subsequently sought judicial review of the RRT's decision in the Federal Court of Australia.

The legal issues before the court included whether the application for judicial review had a reasonable basis and whether the RRT's reasons disclosed any grounds for review permitted by law. The court considered the lack of detailed grounds for the application and the absence of legal representation for Mr Mpelo at the hearing.

The court held that the application lacked a reasonable basis for review and that the RRT's reasons did not disclose any grounds for review. The judge noted that Mr Mpelo had not been able to make submissions in support of his application due to the lack of legal representation. The court was open to the possibility that a lawyer might identify a ground of review but concluded that, based on the information available, no such ground existed. The judge allowed Mr Mpelo three weeks to seek legal representation and relist the matter for further submissions.

The court dismissed the application for judicial review, ordered Mr Mpelo to pay the respondent's costs, and stayed the entry of the orders until 30 May 2000 to allow for potential re-listing and further submissions on behalf of Mr Mpelo.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent's costs.

3. Orders 1 and 2 not be entered prior to 30 May 2000.

4. The applicant have liberty to re-list the matter on 24 hours' notice prior to 30 May 2000 for the making of any further submissions on his behalf.

Background

Background to the litigation

Mr Mpelo's case is that he is outside the country of his nationality, Democratic Republic of Congo, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of, perhaps, membership of a particular social group or political opinion (see later). Procedural background On 25 October 1999 Mr Mpelo arrived at Port Botany as a stowaway and without documentation. He was taken into immigration detention at Villawood Immigration Detention Centre. On 8 November 1999, he applied, through Macpherson & Kelley, Migration Agents of Dandenong, Victoria, for a protection visa (visa subclass 866). (The form of application bears the date 1 November 1999.) The Delegate refused the application on 29 November 1999. On 1 December 1999 Mr Mpelo applied to the RRT for review of the Delegate's decision. The RRT conducted a hearing on 11 February 2000. On 14 March 2000 it affirmed the Delegate's decision. Mr Mpelo filed the present application in this Court on 20 March 2000. The proceeding was before this Court for directions on 31 March 2000. Mr Mpelo was unrepresented. I made directions including a direction fixing the matter for hearing today. Mr Mpelo said at the time that he would wish to seek legal representation and I informed him that he should understand that representation would have to be arranged in time for today's hearing. On the hearing today Mr Mpelo is again unrepresented and has handed to me certain papers showing that he applied to the Pro Bono Schemes conducted by the Law Society of New South Wales and the Bar Association of New South Wales. Mr Mpelo states that he has inquired of the Bar Association and been informed that no decision has yet been taken on his application. Accordingly, he has asked that today’s hearing be adjourned. There is no indication that Mr Mpelo will have the services of a legal representative and I think that sufficient time has been allowed for him to obtain such representation. However, I propose to direct that the order which I will make dismissing his application be not entered for a period of three weeks during which time Mr Mpelo or any lawyer on his behalf will be at liberty to have the case re-listed on twenty four hours’ notice for the purpose of making submissions.The present application for review of the RRT’s decision In his application filed on 20 March 2000 by which the present proceeding was commenced, Mr Mpelo did not identify any ground of his application. In fact, apart from identifying the decision of which review is sought as being an RRT decision dated 15 March 2000 reference N99/30920, Mr Mpelo answered all other parts of the standard form of application for an order of review with the words "Details will be sent at a later date". Ms Watson, who appears for the Minister, submits that the application should be dismissed pursuant to O 20 r 2(1)(a) as modified by O 54B r 5 of the Federal Court Rules, that is, on the ground that no reasonable basis for the application has been disclosed. I agree and should record that I invited Mr Mpelo this morning to make any submission that he might wish to make in support of his application and he said that he did not feel able to do so as this was a matter on which he would need legal advice.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LINDGREN J
Ms Watson submits in the alternative that the RRT’s Reasons disclose no ground of review permitted to the Court. While I agree that they do not, there is always the possibility that a solicitor or barrister representing Mr Mpelo and studying the case closely may discern such a ground of review. I remain open to persuasion that a ground of review described in s 476(1) of the Act exists, but if no submission is made within the three week period to which I have referred, I will remain satisfied on the material before me that no such ground of review is available. In order to reach that stage of satisfaction, I have studied the Reasons for Decision of the RRT which I will now outline. The Reasons for Decision of the RRT The RRT commenced its Reasons for Decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a "refugee". It then turned to consider Mr Mpelo's claims and evidence. The RRT first recounted the claims Mr Mpelo made soon after he was found as an unauthorised passenger and the next day at Villawood Detention Centre and, later, those he made in writing with professional assistance. Mr Mpelo claimed he was fleeing for his life. He had no travel documents. He claimed he had fled the Democratic Republic of Congo, his home country, after being forcibly conscripted to "fight the rebels". Government agents had taken him on the night of 21 September 1999. He had not received prior notice that he was required to render military service. When Mr Mpelo's father had struggled against his son being taken, he was shot. Mr Mpelo was taken for training to a camp in the forest. He claimed that he would be sent to fight after only four days’ training and that he would be killed. On 22 September, he escaped with other new conscripts. He escaped by scaling a fence. Then he walked in the jungle for ten days. He walked to the Congo/Angolan border where he received a lift in a truck to a port. The driver suggested he escape by ship. He stowed away on a ship on 9 October 1999 without knowing its destination. He followed workers on board and was apparently not noticed. The RRT noted: “He fears returning to Congo as he would be ‘sent back to the army and killed’, being considered ‘a traitor and treated as such’. As it is the Congolese Army who would wish him harm, he cannot expect protection from the authorities”. The RRT noted that Mr Mpelo's story had at first seemed an implausible one, citing inconsistencies between the accounts given in the first interview and his written claims. However, in the “Findings and Reasons” section of its Reasons for Decision, the RRT accepted that Mr Mpelo was a transparently honest witness. It concluded that any discrepancies should be viewed as demonstrating problems of communication rather than an intention to deceive. Mr Mpelo was born in Kinshasa, the capital of Congo, was married and had two young children (twins). The RRT's inquiries established that there was no formal system of registration at a certain age for national service. Mr Mpelo told the RRT that after his father was shot, his father was taken away in an ambulance alive and that he was unaware of his father's current state of health as he had had no contact with his family.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

Full text does not contain this section.