MZWEW v Minister for Immigration
[2005] FMCA 886
•6 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWEW v MINISTER FOR IMMIGRATION | [2005] FMCA 886 |
| MIGRATION – Review of Refugee Review Tribunal decision – re-instatement application – no prima facie case – summary dismissal. |
| Migration Act 1958 (Cth) |
| Minister for Immigration v Eshetsu (1997) 197 CLR 611 Minister for Immigration & Multicultural & Indigenous Affairs v Anthony Pillai [2001] 106 FCR 426 |
| Applicant: | MZWEW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 356 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 April 2005 |
| Date of Last Submission: | N/A |
| Delivered at: | Melbourne |
| Delivered on: | 6 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | MZWEW appeared on his own behalf |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Brereton |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the applicant’s application for re-instatement be dismissed
That the applicant pay the respondent's costs fixed in the sum of $800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 356 of 2004
| MZWEW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by MZWEW to set aside the orders of Phipps FM of 11 February 2005 wherein his Honour dismissed the application as a result of the non‑appearance of the applicant.
The hearing date was set by me on 30 November 2004 in the migration noncompliance list. The matter came before me on that date as the applicant had failed to comply with earlier directions. However, despite his failure to comply with the earlier directions, he had complied with the directions by 30 November. On that day I made directions for the respondent to file a notice of facts and contentions and the matter to be set for hearing on 11 February 2005.
It appears that the applicant attended on 16 February rather than the 11th and therefore missed his hearing date, which resulted in the matter being dismissed for non‑appearance.
It appears to me that if the applicant could show a prima facie case or an arguable case, it would be appropriate to provide the applicant with another hearing date as there is some explanation, albeit not perfectly satisfactory, as to how it came about that he missed that hearing date. Such an order would have also required some determination as to what should occur about the costs for that date.
On behalf of the respondent, however, Mr Brereton says that the applicant's material does not disclose an arguable case. A review of his written submissions was undertaken today, as well as reading the contentions by the Minister and the decision of the Refugee Review Tribunal.
Most significantly, the Refugee Review Tribunal rejected the application on the basis of a lack of credibility, finding the applicant's evidence unconvincing in a number of aspects. With some aspects of the matter, the Tribunal went so far as to say that it found the applicant's evidence entirely unconvincing. It is not for this court to review the merits of a matter: Minister for Immigration v Eshetsu (1997) 197 CLR 611.
The applicant does not point to a very specific legal error on the part of the Tribunal but criticises the Tribunal for taking into account country information which appears in the court book. It is difficult to see that this is a proper ground for judicial review in that it is quite proper for the Tribunal to take into account country information. It is a matter for the Tribunal to form its own views as to what evidence it accepts or rejects when considering both the evidence of the applicant and the country information. It appears to have done this in the usual manner and provided detailed reasons.
The Tribunal is not required to make independent enquiries: Minister for Immigration & Multicultural & Indigenous Affairs v Anthony Pillai [2001] 106 FCR 426.
The applicant also argues, or at least sets out in his material, references to a sur place claim. However, I do not see how that would apply in this particular case in that the events relied upon by the applicant as showing the basis for his claim all appear to have occurred prior to him coming to Australia.
In the circumstances, I am not satisfied that there is an arguable case or a prima facie case on the part of the applicant and therefore no good purpose would be served by revoking the orders of Phipps FM and relisting the matter.
I therefore formally refuse the application of the applicant today.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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