MZOAU v Minister for Immigration
[2004] FMCA 19
•23 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZOAU v MINISTER FOR IMMIGRATION | [2004] FMCA 19 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa. PRACTICE & PROCEDURE – Application filed out of time and lacked competency – where the applicant sought a re-examination of the merits of the case – no jurisdictional error established as the applicant did not set out how the Tribunal erred – fear of persecution – all applications dismissed. PRACTICE & PROCEDURE – Migration – application initially dismissed – no appearance of the applicant when called – applicant later located in another part of the Court – dismissal set aside – request for an adjournment on grounds that the applicant had not had an opportunity to seek legal assistance – adjournment denied. |
Migration Act 1958 (Cth), ss.36(2), 430A(6), 441C, 477, 477(1A), 477(2),
Federal Magistrates Court Rules 2001, Rule 13.30
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24
Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 54
Nasi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 242
| Applicant: | MZOAU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 433 of 2003 |
| Delivered on: | 23 January 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 15 January 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent's costs fixed in the sum of $5,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 433 of 2003
| MZOAU |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The application
The applicant is a citizen of the former Yugoslav Republic of Macedonia. He was born on 15 January 1962 and came to Australia in 1985 as a visitor. He met his future wife and returned to Australia in December 1996 to visit her. They were married in March 1997. He then applied for a spouse visa. He returned to Macedonia for three months in 1999. The spouse visa was refused on 9 September 1999 on the basis that the marriage was not genuine.
On 1 July 2002 the applicant was detained as an unlawful non-citizen. Also on that day he applied for a protection visa. That application was refused by the respondent's delegate on 31 July 2002. The applicant lodged an application for review with the Refugee Review Tribunal, (the Tribunal) on 21 August 2002. By a decision handed down on 20 December 2002 the Tribunal affirmed the decision of the minister's delegate not to grant a protection visa. On 30 April 2002 the applicant filed an application in the Federal Magistrates Court.
The respondent has filed a Notice of Objection to competency on the basis that the application is out of time. Subsection 477(1A) of the Migration Act 1958 (Cth) ("the Act") provides that an application to the Federal Magistrates Court in respect of the privative clause decision must be made within 28 days of the notification of the decision. In this case the applicant did not attend when the Tribunal handed down its decision. Accordingly, he was notified of the decision under cover of a letter dated 20 December 2002 in accordance with section 430A(6) of the Act. By section 441C of the Act the applicant was taken to have received the letter and the enclosed decision seven working days after its date.
Accordingly the 28 days began to run on or about 3 January 2003 and expired on or about 31 January 2003. The present application which was filed on 30 April 2003 was about three months out of time. Under section 477(2) of the Act the Court must not make an order allowing an application in respect of a privative clause decision to be made outside the 28 day limit. Nevertheless, if a decision is found to contain jurisdictional error such that it is not a privative clause decision the time limit in section 477 of the Act will not apply (see Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 at [41] [89]).
As it is necessary to determine whether there is a jurisdictional error before it can be determined whether the time limit in section 477 of the Act applies, and in accordance with the decision in Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 54, the respondent has requested that the objection to competency be heard at the same time as the substantive application, and I have proceeded on that basis.
Application for an adjournment
This matter was originally listed for hearing on 13 January at 2.15 pm. The applicant did not appear when the matter was called. Some time not long after 2.30 pm when the applicant had been called several times and was still not present upon the application of the respondent
I dismissed the application pursuant to Rule 13.30 of the Federal Magistrates Court Rules 2001 and ordered the applicant pay the respondent's costs.
Not long after the decision was granted the applicant was located in another part of the Court. The respondent was contacted and the matter was relisted before me today. The respondent did not object to an order setting aside the orders made on 13 January and accordingly I set aside the dismissal of the application and the order for costs. The applicant who was unrepresented applied for an adjournment. He contended that he had applied for legal aid and that he had expected that he would be represented by legal aid at the hearing as he had no representation, and between 13 January and today had clarified that Legal Aid were not acting for him, sought an adjournment to obtain legal representation.
I did not grant an adjournment. I was satisfied that the applicant was given some assistance by Victoria Legal Aid at the callover at the time that the matter was listed for hearing. I accept that he made an application for legal aid, however, I am satisfied that Legal Aid did write to him on 12 August 2003 to inform him that his application for legal aid had been refused. There has never been any solicitor representing the applicant who at all times has appeared unrepresented. I am satisfied further that the respondent ascertained in September 2003 that Legal Aid would not be acting for the applicant and consequently on several occasions in September and early October attempted to telephone him.
On each occasion the applicant did not answer the telephone and there was a message which stated the telephone was switched off. There was no facility to leave a voice-mail message. On 7 November 2003 the respondent served the applicant with a copy of the respondent's contentions of fact and law to the address contained in the applicant's application. The address in the application seems to have been the applicant's address at all relevant subsequent times. The applicant contended that he had not received the letter from Legal Aid telling him that he would not be granted aid.
As I am satisfied that Legal Aid wrote to him at his address I am not entirely satisfied that the letter was not received. Even if I were so satisfied, as the applicant was aware of the hearing date it was incumbent upon him to find out whether there would be representation and to take some steps to prosecute his matter properly. He was aware of the orders made on 16 July by Registrar Efthim requiring him to file contentions of law and fact by 11 September 2003. He was also required to file and serve a supplementary Court book, if any, by 29 August.
When those dates came around if he had heard nothing from Legal Aid it was incumbent upon him to contact them to ascertain whether his application had been successful. It was not sufficient, in my view, to simply do nothing, even if he had not received the letter from the Legal Aid Commission and then expect the Court to adjourn the matter subsequently.
I have also had some regard to the merits of the case when considering the application for adjournment. Whilst I accept that no representation is available to the applicant, his application does not reveal any arguable grounds and no contentions of law and fact have been filed by him. I also note that he made application for legal aid and that application was unsuccessful.
The applicant's claims
The applicant said in his initial application to the department that:
a)he came to Australia initially because he was a visitor and later to visit his wife;
b)he had been in Australia for more than five years;
c)most of his family are in Canada;
d)he has nothing left in Macedonia;
e)because of the political situation in Macedonia he is scared to go back;
f)if he did return the Macedonian government would ill treat him because he was an Albanian Macedonian; and
g)he has heard lots of shock stories about persecution of Albanian Macedonians and would provide more detailed information.
After an interview with the delegate on 30 July 2002 the applicant said:
a)he could not return to the former Yugoslav republic of Macedonia (FYROM) because he has nothing and no-one there except a married sister who lives in a small house where he would not be able to reside;
b)after the convention definition of "refugee" was explained to him he said he could not return because of his Albanian ethnicity;
c)that he had no problems because of his ethnicity before he left FYROM; and
d)since his arrival in Australia he has heard there has been a lot of bloodshed and he has witnessed the problems when he returned in 1999.
He informed the delegate in answer to why he had returned there if the situation was so grave that he had gone to visit his father who was visiting FYROM and had fallen ill and that he knew that he would be able to return to Australia.
In response to being told that a framework agreement had been signed which laid the groundwork for a peaceful multi-ethnic state and that legislation had been passed to give effect to the agreement he said that the government promised these things but they did not happen in practice. He asserted that many houses had been destroyed and the fighting continues and there are few ethnic Albanians in the area he came from. He said if he returned he would have to remain loyal to the ethnic Albanians because otherwise they would harm him, but that if he stayed loyal the ethnic Macedonians would persecute him and that some of his friends had been jailed because of their ethnicity.
The applicant attended at the Tribunal hearing and gave oral evidence. He told the Tribunal that:
·Apart from a short period he has remained in Australia since the 1990s.
·That in the late 1990s he returned to Macedonia where he met his father but his father was in hospital when he was there.
·In Macedonia he had worked as a farmer up until the mid 1990s. He worked his father's land but the land has now been sold.
·He explained he did not want to return to FYROM because he does not have anyone left there and when asked if there was any other reason stated that the Albanian community in Macedonia was very small, particularly in Biola and the surrounding district.
When asked if he had any problems prior to coming to Australia in the mid-1990s he said that he had had problems all his life because he was Albanian. He said that if he went to hospital he would not get treatment because he was Albanian and if he asks help from the government it will not be forthcoming because he was Albanian. He agreed that his father was admitted to hospital in the late 1990s because of his health problems and when pointed out that this did not indicate that Albanians were denied medical treatment he stated his father was admitted because they have money and if they did not have money his father would not have been admitted to hospital.
When asked if he had any problems when he returned to FYROM in the late 1990s he referred to one occasion when he was having a drink with a friend and an argument erupted. He said the argument occurred as they were accused of speaking Albanian. He said the police came and accused them of being drunk. The applicant stated that if he now returned he would be immediately arrested on arrival and most likely sent to prison. He stated that he would be accused of being a member of a political party.
When it was pointed out to him that he had not had such problems on his last visit to FYROM he stated that then he was going to look after his father. He said that he had never been involved in a political party previously and he was not sure when the last elections occurred. He agreed there was fighting last year and that a peace deal has been signed but said that whoever he speaks to tells him the situation for Albanians in Macedonia is bad.
In relation to the country information about the fighting and discrimination in FYROM he stated that things are bad there. When it was suggested the country information, whilst indicating that discrimination did occur does not indicate that it amounts to harm serious enough to amount to persecution, he stated this may be the case though in his region things were worse. When asked why he could not go to another area he said that you have to have money to do this because land is expensive.
At the Tribunal hearing a friend of the applicant gave evidence to the Tribunal. His evidence was that the applicant had been in Australia for some years and has adapted to the Australian way of life. He opined that it would be hard for him to adapt if he returned to FYROM and that if he returned he would not be left alone and would be hassled because people would think that he has been to Australia and that he is educated. It is possible that he would be hassled to join the army and there is a lot of corruption in FYROM and that the applicant is not used to that. He stated that the applicant has no house and land and is difficult for anyone to live in Macedonia without money. He suggested that the country information does not paint an accurate picture and that things were bad for Albanians in Macedonia.
The Tribunal's decision
The Tribunal considered that the problems the applicant claimed to have experienced in FYROM were not so serious as to amount to persecution or be an indication that he would face persecution in the future. The Tribunal considered that the applicant's claims he would be arrested on arrival in FYROM was implausible. The Tribunal noted that he had never belonged to a political party and he was not accused of so belonging the last time he went to the FYROM. The Tribunal accepted that the country information does indicate that Albanians at times do face discrimination, particularly in relation to education. However, the Tribunal considered that as a middle-aged man the applicant would not face discrimination serious enough to amount to persecution.
The Tribunal noted that much was said at the hearing about the length of time the applicant had been in Australia. However, the Tribunal noted that of itself this did not bring the applicant within the convention. The applicant asserted that the Albanian population was between 30 and 40 percent of the population, however, the Tribunal found in favour of the applicant that the ethnic Albanians constitute about 23 percent of the population of FYROM. However, the Tribunal did not consider the applicant would be denied a livelihood or accommodation because of his ethnicity.
Considering the evidence as a whole the Tribunal was not satisfied the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore does not satisfy the criterion set out in section 36(2) for protection visa.
The applicant's grounds
The applicant relies on three grounds set out in his application. The first is that the Tribunal did not accept the legitimate evidence that supports his case. This ground contained no particulars, but appears to be an invitation to the Court to redetermine the merits of the case. The Court has no jurisdiction to do so (Nasi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 242 at 3). However, the Tribunal apparently accepted that the events the applicant described about his life in FYROM had occurred and in that sense accepted his evidence as legitimate. What it did not accept, however, was that those events indicated that the applicant faced a real chance of persecution in the future, nor did the Tribunal accept the applicant's speculation about what might happen to him in the future.
I can find no substance in this ground.
Secondly, the applicant simply states that the Tribunal made an error of law in its decision. He does not suggest what the error of law might be. Having regard to the decision and the evidence before the Tribunal, it does not appear to me that there is any way the Tribunal could have reasonably come to any different decision. In any event, the applicant would need to show jurisdictional error rather than a mere error of law.
Thirdly, the applicant argues that he cannot go back to Macedonia because of fear of persecution after six years in Australia. This again appears to be an invitation to re-examine the merits of the case or alternatively a plea on compassionate grounds. Again these are not matters within the jurisdiction of the Court.
There is nothing that I can discern from the material presented on behalf of the applicant or indeed from the decision of the Tribunal to suggest that any error, let alone jurisdictional error, has occurred.
Competency of the application
It is clear that there is no error, let alone any jurisdictional error, on the part of the Tribunal which would take the decision outside section 477 of the Act, and in particular obviate the need to comply with the time limits in section 477. Thus, as the time limits in section 477 of the Act apply, the applicant is out of time with his application and the application is incompetent and must be dismissed. Section 477(2) gives the Court no discretion in which to extend time if the decision is one to which the privative clause relates.
It will be apparent from my Reasons for Judgment, in any event, that even if the appeal had been brought within the time set out in section 477 no error, let alone jurisdictional error, has been established and the application would have failed. Accordingly the application must be dismissed and the applicant's application filed 30 April 2003 must also be dismissed on the basis that it is filed out of time.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date:
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