MZWGN v Minister for Immigration
[2005] FMCA 213
•21 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWGN v MINISTER FOR IMMIGRATION | [2005] FMCA 213 |
| MIGRATION – Protection Visa. PRACTICE AND PROCEDURE – Non–appearance of applicant – whether appropriate to proceed to hear application for summary dismissal as abuse of process or dismiss for non–appearance. |
Migration Act 1958, s.474A
Judiciary Act 1903, s.39B
Applicant VM116 of 2003 v Minister for Immigration & Anor [2004] FMCA 168
| Applicant: | MZWGN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 502 of 2004 |
| Delivered on: | 21 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 21 February 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr. C. Fairfield |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 11 May 2004 be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 502 of 2004
| MZWGN |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the applicant seeks review of a decision of the Refugee Review Tribunal (the RRT) made on 26 May 2000. The application was filed on 11 May 2004 pursuant to s.474A of the Migration Act 1958 (the Act) and s.39B of the Judiciary Act 1903. The RRT decision in this instance had affirmed a decision of a delegate of the respondent to refuse an application for a protection visa.
When the matter was called this day there was no appearance for the applicant. I am satisfied that the applicant, by virtue of correspondence which I have directed be placed on the Court file and by reason of previous orders of the Court brought to the attention of the applicant, is aware of these proceedings and aware that the application was listed for hearing this day.
Where an applicant fails to appear in a number of instances an appropriate order is made under the rules that the application simply be dismissed, essentially for non‑appearance. In this instance, however, for reasons which will become apparent, I have been invited to consider the application on its merit and to either dismiss the application as an abuse of process and/or dismiss the application on the basis that there is no merit in the application. In this application there has been no demonstrated denial of procedural fairness or breach of the rules of natural justice or that in any event there has not been any demonstrated practical unfairness arising out of the RRT decision.
It is appropriate to consider both the issue of whether there is an abuse of process and to further consider the substantive application and I propose to do so. It is significant to note that in this application, the applicant has filed and served contentions of fact and law, which I note were filed with the Court on 10 September 2004. That generated the filing of the respondent's contentions of fact and law on 7 January 2005.
By way of background it is noted that, the applicant, a male citizen of Sri Lanka, is of Sinhalese ethnicity. He arrived in Australia on 17 July 1998. He lodged an application for a protection visa on 28 August 1998 and the application was refused by a delegate on 26 November 1998. On 9 December 1998 the applicant filed an application for a review of the delegate's decision by the RRT. He attended a hearing, gave evidence and was represented. By a decision dated 26 May 2000, handed down on 9 June 2000, the RRT affirmed the decision of the delegate.
The applicant joined what are described as the Lie & Muin representative proceedings in the High Court of Australia on 30 June 2000. He filed an application for an order nisi in the High Court of Australia in relation to the decision of the RRT on or about 21 May 2003. I have before me the draft order nisi, which contained a number of grounds for review claiming the RRT decision was made without jurisdiction, was affected by error of law, constituted Wednesbury unreasonableness, was based upon a finding for which there was no evidence or material, took into account irrelevant considerations, failed to take into account relevant considerations, was an improper exercise of power conferred by the Act, was otherwise contrary to law and was made in bad faith.
Further in the draft order nisi grounds particularised included the failure to observe or breached the rules of natural justice in that the tribunal failed to comply with procedures prescribed by the Act and failed to give the applicant particulars of information, which the tribunal considered or ought to reasonably have considered as a reason or reasons for affirming its decision, the decision under review.
What is interesting about this case is the procedure that followed from the High Court, given the matter was remitted by that Court to the Federal Court of Australia, which transferred the application to the Federal Magistrates Court. This Court heard the matter, and delivered a decision on 18 March 2004 (Applicant VM116 of 2003 v Minister for Immigration and Anor [2004] FMCA 168). I had ordered on that occasion, that the application for an order nisi be refused with a further order in relation to costs. An application was made by the applicant for leave to appeal from the judgment and orders made by this Court to the Federal Court of Australia, which decided on 28 April 2004 that the application for leave to appeal be refused.
In my decision, I had considered the issue of country information and in my reasons for decision, referred to the decision of the RRT, to which I shall refer presently. Justice Sundberg of the Federal Court in refusing leave to appeal states in part that:
“The draft ground of appeal does not appear to have been propounded before the Magistrate. No attack is made on anything his Honour said. Rather the applicant wants the Court to revisit what he calls the Tribunal's finding that “events that affected the applicant in 1994” did not constitute serious harm within section 91R of the Migration Act 1958”.
His Honour Sundberg J then refers to a statutory declaration before the RRT where the applicant claimed he had been a supporter of the United National Party, (the UNP) election campaign in 1994, which that party lost. He continued, he claimed, UNP activities and was associated with a former minister and his local UNP organisation. He claims, and it is clear in the declaration that he asserts he encountered lots of difficulties obtaining government employment and as a significant UNP supporter was the subject of violence on many occasions. As Sundberg J notes then, and it applies now, there are no particulars of the difficulties or the violence. It is relevant to note that in considering those matters the RRT states, it is clear from the applicant's testimony at the hearing and the tribunal finds that he was a low level supporter of the UNP. He stated:
“The tribunal finds that the applicant was and is not a high profile UNP member or supporter and in those circumstances, having regard to the above country information there is no real chance that he will suffer persecution for his political opinion/UNP support if he returns to Sri Lanka”.
In his judgment Sundberg J states:
“As I have said, nothing in the Magistrates decision suggests that this was an issue before him. Assuming the applicant can now raise it on this application for leave, it has no prospect of success if leave were granted. The finding the Tribunal made was based on the applicant's testimony at the hearing, the transcript of which was not before me, and was plainly open to it.
I mention that extract from his Honour's decision, noting that it was a decision dealing with a decision of this Court refusing the order nisi. It is noted in the contentions of fact and law filed in this Court in support of the current application that in paragraph 1 under the heading ‘Contentions of Fact and Law’ the applicant appears, in my view, to recite almost verbatim the matters set out in paragraph 1 of the draft order in the order nisi application that was before the High Court.
It is conceded by the respondent that despite the fact that the application currently before the Court was filed on 11 May 2004, the decision of the RRT in this instance, is not what could be regarded as a privative clause decision for the purposes of the Act, though the Court does have jurisdiction in relation to that decision pursuant to s.39B of the Judiciary Act.
In my view, there is clearly a basis upon which this Court could properly conclude that this application is what might be described as an abuse of process. It seems to me that, albeit in the absence of the applicant the facts and contentions filed by him in support of the application, he seeks to re‑agitate facts and circumstances which have clearly been in part the subject of earlier proceedings, at least in the High Court. He sought to further agitate the issues by way of further material before the Federal Court in the application for leave to appeal from this Court's decision to refuse the order nisi. He raises matters which are not, in my view, on a proper reading of the material, matters which could be regarded as constituting an arguable case.
I conclude that in this matter the applicant has sought to use the various procedures of the various Courts in a way which has ultimately led to a significant extension of time and delay. In the absence of particulars or matters raised which could properly be regarded as having any substance and having regard to the chronology of Court proceedings and events, it seems to me, that in the circumstances this case, clearly being one that is not arguable, could properly constitute what could be described as an abuse of process.
Even if I were wrong about that, it seems to me on the material before me, that there is no basis upon which this Court could conclude that there has been a denial of procedural fairness or a breach of the rules of natural justice. The case of the applicant had been put before the RRT not so much on the basis of his association with the UNP or otherwise. In fact, in material in the Court book, that is correspondence from the applicant's then representatives, it was positively asserted that the applicant did not suffer persecution due to his imputed political opinion while he was in Sri Lanka, which simply stated:
“There is a reasonable chance he will suffer persecution by the Sri Lankan authorities upon his return to Sri Lanka”.
A key issue, however, which was agitated both before the RRT, based upon the statutory declaration in support of the protection visa concerned a particular incident. It was a specific incident which had occurred to the applicant arising from his service on a vessel and the vessel was engaged, according to the applicant's statutory declaration, in activities which are described as transporting weapons and food items to the Sri Lankan army fighting against the Liberation Tigers of Tamil Eelam (the LTTE). A specific reference is made to an event occurring on 20 June 1998. It is not necessary for me to recite the details of those allegations set out in the statutory declaration. It is clear that the RRT considered that matter and indeed incorporated the whole of the statutory declaration in its reasons for decision. It perhaps had earlier gone further than it needed to go in terms of dealing with the claim by making the findings to which I referred to earlier about the applicant being a low level supporter of the UNP. However, in considering the specific issue the RRT, with some degree of reluctance or hesitation, accepted the applicant's account of the incident and found that he was being sought by the Sri Lankan authorities in relation to it.
It is not necessary for me to recite the details of that incident but the RRT goes on to say there is insufficient evidence before it to find that the applicant is of interest to the LTTE. The supply of weapons to the LTTE directly or indirectly is a breach of a number of laws, including theft and Prevention of Terrorism Act offences in Sri Lanka.
It is on the basis of that finding that the RRT, in reaching its decision, makes reference to there being a number of laws to which the applicant could be charged, including general criminal law, (theft) and Prevention of Terrorism Act. It goes on to say:
“… The maintaining of national security and the protection of public safety, and the arrest of terrorists and the prevention of diversion of government weapons to terrorists/enemy are a ‘legitimate object of the country of refuge’. As stated by McHugh in Applicant A supra at 258, ‘A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens’. …”
The RRT found the laws under which the applicant could be charged are criminal laws and security laws that are aimed at protecting the community. It found that those laws are laws of general application. It further found there was no information before the tribunal that indicates the laws under which the applicant could be charged are applied in a discriminatory manner. Significantly it found that if the applicant were to be arrested and charged over the shipping incident involving theft of weapons, it would not be persecution but rather prosecution pursuant to laws of general application applied in a non‑discriminatory manner and to achieve a legitimate object of the country of refuge. Hence, in considering the material, it rejected the application for a protection visa by affirming the delegate’s decision.
In my view there is nothing in the material which would suggest that there has been any error of a kind which would, justify intervention.
I am satisfied that on the material before me the RRT properly considered the material then placed before it by the applicant and, as
I have indicated, I am satisfied that the application, even if I were not to find it was an abuse of process has no merit and in the circumstances ought properly be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 February 2005
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