MZWGM v Minister for Immigration - [2004] FMCA 1062

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWGM v MINISTER FOR IMMIGRATION

[2004] FMCA 1062

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth)

Applicant:

MZWGM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 499 of 2004

Delivered on:

14 December 2004

Delivered at:

Melbourne

Hearing Date:

14 December 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the applicant

Counsel for the Respondent:

Ms R.A. Hearn‑Mackinnon

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application be dismissed.
The applicant do pay the respondent's costs fixed in the sum of $2,300.00.
The applicant be granted leave to apply to have the matter reinstated within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 499 of 2004

MZWGM

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment.
This is an application by the applicant to seek judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) made on 23 March 2004. The applicant claims to be a citizen of Sri Lanka. He arrived in Australia on 1 August 2001. On 10 August 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act. A delegate of the Minister considered the application on 26 February 2002 but ultimately declined to grant a protection visa on 19 March 2002. The applicant then sought review by the RRT. The grounds of the applicant's application are in a form that is commonly seen in this court and are in the following terms:
1. The respondent has fallen into jurisdictional error in that:
Particulars:
a)The tribunal misinterpreted the convention reason and failed to undertake its mandated task of correctly applying the convention reasons on the evidence that the applicant was persecuted by the Sri Lankan police and other forces closer to the Sri Lankan government with the tacit support of the government of Sri Lanka of being a supporter and/or perceived supporter and activist of the LTTE couple with his identity as a Muslim who happened to have married to a Tamil journalist.
b)The tribunal has failed to understand the deeper significance of the applicants claim. The tribunal failed to discuss the relevant country information with the applicant and how that information likely to be the reason or the part of the reason for the refusal of the application. Consequently, the tribunal has failed to undertake its mandated task of correctly interpreting sections 36, 65 and 424A of the act.
The proceedings were filed on 11 May 2004 in this court. They were listed for directions hearing on 21 July 2004, at which time Registrar Efthim ordered the applicant to file and serve an amended application and supplementary documents by 10 September 2004. At the time the applicant was represented by a solicitor from Victoria Legal Aid. The applicant did not comply with these orders. The matter was listed for a further directions hearing on 15 September 2004. The applicant was ordered to file and serve an amended application and supplementary court book by 29 October 2004 and contentions of fact and law by

12 November 2004. The applicant was again represented by Mr Lucas of Victoria Legal Aid before the court on that date but the applicant has not to date filed any material as ordered, nor supplied any to the respondent.
The respondent seeks dismissal of the application pursuant to rule 13.03 of the Federal Magistrates Court Rules. The information set out above is attested to by an affidavit of Mr Hayes, a solicitor acting on behalf of the respondent, filed on 8 December 2004.
This morning when the matter was called on the applicant appeared in person and was unrepresented. He stated that he had not engaged a solicitor and was discussing the matter with a migration agent in Sydney. He was advised that the court required him to provide some explanation for the delay but, more importantly, some indication of the cause of complaint or issue that he had with the decision of the RRT. I stood the matter down to allow him to telephone his migration agent to obtain some assistance in this regard if he needed to and also indicated to him that if the matter was not dismissed I would intend to list it for hearing in January or February so that there were no further unnecessary delays in the matter. The applicant has not returned to the courtroom. The applicant has been called twice in the last hour and has not appeared.
In the circumstances the matter should be dismissed.
I have taken into account the terms of the RRT decision. In this case the applicant said that he left Sri Lanka in 1994 to seek employment. He married his wife in 1994. He says that his wife has been persecuted in Sri Lanka as a result of her occupation as a journalist and perceived involvement with the Tamil Tigers. He said that this resulted in some harassment of himself as well. His claims are set out in some detail at pages 7 to 12 of the RRT’s decision.
The RRT noted some inconsistencies with his version of events; for example, him saying that he is now cleared by the police but maintaining that he has a convention ground for a protection visa. He claimed that the police were particularly interested in his wife as a result of a bombing at Galadari Hotel. It was put to him that the widely reported bombing was undertaken by a suicide bombing squad who undertook the bombing at a time when his wife was not in fact in Sri Lanka. The RRT stated that it had difficulty believing that his wife would be suspected to have had a connection with this incident. The RRT also put to the applicant that independent country information showed that after bomb blasts there were police sweeps in the communities and he advised that his wife's family were living away from the area where the blasts occurred. He said that only the servants of the house were at the house when the police asked for the wife.
The RRT also put to him that in his visitor visa application he had indicated that his wife was remaining in Sri Lanka when in fact she was already in Australia. He said that he did not understand the application form. The applicant has been working in the accounting industry in Hong Kong for some time. He denied that he was seeking a visa to come to Australia for economic reasons.
The RRT ultimately did not accept that the applicant was the subject of ill‑treatment as described by him by the police. The RRT found that the applicant's evidence about his allegations were vague. It noted that he claimed that he had been detained by the police and then released after three days as a result of the assistance that his father had obtained from what was described as a "ministerial person". However, the applicant was unable to name the ministerial person who had been instrumental in his release.
The RRT ultimately rejected the applicant's version of events and did not believe him. The RRT was satisfied that he did not have a well‑founded fear of persecution on convention grounds. It was also satisfied that there was not a real chance of him suffering serious harm amounting to persecution now or in the reasonably foreseeable future for any convention reason actual or imputed.
There is nothing on the face of the decision that indicates a proper basis for judicial review. The RRT member appears to have properly stated the test that the member needed to apply. The RRT member spent some considerable time in the decision recounting the version of events and the various matters put to the applicant before the RRT member ultimately concluded that she rejected him on the question of credit. Whilst the Minister's delegate had regard to section 36(3) of the Migration Act as a basis for refusing a protection visa, this did not form part of the basis of the RRT's decision to refuse a protection visa.
The applicant claims that the RRT ought to have put more of the country information to him. However, this is not the current state of the law. In any event, significant issues arising from the country information appear to have been put to the applicant as set out in the RRT's reasons. The applicant has taken no steps to place any alternative version of events before this court either in the form of an affidavit by him, a tape of the hearing or a transcript.
In the circumstances there is no proper basis for judicial review apparent on the material.
I therefore dismiss the application.
Having regard to the circumstances of the case and the number of appearances involved and the Federal Magistrates Court scale, I am satisfied that the costs sought by the respondent ($2,300.00) are reasonable and that they should be paid by the applicant.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: