MZWGT v Minister for Immigration
[2005] FMCA 1211
•3 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWGT v MINISTER FOR IMMIGRATION | [2005] FMCA 1211 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) |
| Applicant: | MZWGT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 519 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 3 May 2005 |
| Date of Last Submission: | 3 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 3 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application filed 29 April 2004 be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 519 of 2004
| MZWGT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant in this matter arrived in Australia on 12 October 2001 and lodged an application for a protection visa on 13 November 2001. He was refused a protection visa on 6 May 2002 and then applied to the Refugee Review Tribunal (‘the Tribunal’). The Tribunal affirmed the delegate's decision on 20 April 2004, following which, on 13 May, the applicant then lodged an application for review in the Federal Magistrates Court.
The two grounds of the application are as follows:
1. The Respondent failed to observe the proper procedures with regard to the Applicant and to act in accordance with substantial justice.
2. The Respondent exceeded its jurisdiction.
It is difficult in this case to see how the respondent has exceeded its jurisdiction, in that the Tribunal did not exercise any power to overturn the delegate's decision or determine that a visa should issue. Rather, the complaint must be that the respondent failed to exercise its jurisdiction under the Act.
In any event it matters little as it is a ground that has no real substance in this case and does not give any indication of the nature of the complaint being made by the applicant.
The other ground is that the respondent failed to observe the “proper procedures”. No indication is given in the material as to why it is said the respondent failed to observe what are said to be "the proper procedures" or "to act in accordance with substantial justice".
I note from a review of the Tribunal’s decision that the Tribunal made conclusions in the following terms:
The failure of the Applicant to provide more than an outline works against the Tribunal accepting his claims. While he has claimed to be a Baptist pastor, he provides no information as to where and how he achieved that standing. He has provided no indication of support from the Baptist churches in Australia to which, the Tribunal speculates, he would have turned on his arrival here. There is something rather too convenient in his claim that his house was vandalised and all his documents stolen, including the constitution of the church, the list of members, books and his computer. He has provided no information such as to alleviate the Tribunal’s doubts on this. He has been in a position to describe the foundation of his church, its constitution, the number and source of its members, particulars as to which members lost which jobs and who were tortured and otherwise mistreated. He has not provided any information as to the location of his church group and just which authorities refused to allow it to meet and what public places were refused to them. The Tribunal finds that the alleged attack on his home and destruction of all information concerning his church is so unreliable as to be unacceptable.
He also has not provided any description of the alleged shooting incident nor that where he claimed a petrol bomb was thrown into his church while they were meeting. These are very serious allegations and could be expected to be accompanied by details. In finding against the truth of these claims, the Tribunal has taken into account that the Applicant did no more than repeat them, mostly word for word, in his application for a review of the negative decision of the Minister’s delegate.
It is for an Applicant to make out his claims: it is not for the Tribunal to make them for him. In this case, he has rejected an opportunity to respond to the negative decision of the Minister’s delegate in the full knowledge that the Tribunal was not able to make a favourable decision on what was already before it. In this matter also, country information points to his State being one where religious identity is important but also one where the State does not persecute people for reasons of their religion. The political system would collapse should that happen. The Tribunal also has taken into consideration that he left Lebanon on a valid passport in his own name; there is no information as to why he had to get his church members to get it nor why they would be able to get one for him in his own name if he was a wanted and/or persecuted person.
The Tribunal is not satisfied that it has before claims which are genuine. It is plausible that he is a Baptist pastor; it is plausible that he joined or founded a Baptist church in Lebanon. However, plausibility is insufficient. As a person in such a position, the Applicant could be expected to provide some details and even some documentation as to his status as a pastor and the formation of his church. Without that, the Tribunal must make a finding against him. The rest of his claims are too general to be accepted and he has not taken up the opportunity offered to him to alter that circumstance. The incongruence between his claims and country information about Lebanon, his failure to provide essential details of his alleged circumstances and the fact that he left Lebanon on a genuine travel document by the normal exit route, lead to a finding that he was not persecuted for reasons of his religion and was then and is not now at risk of harm from the authorities or from any other group or individual.
The Tribunal finds that his alleged fear of persecution for a Convention reason is not well-founded and that he is not a refugee under the terms of the Refugees Convention as amended by the Protocol.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criteria set out in s36(2) of the Act for a protection visa.
It is difficult to see that a complaint with respect to procedural fairness could be levelled at the Tribunal in circumstances where the applicant has not chosen to attend and participate in the hearing process before the Tribunal. That he was given a specific opportunity to do and notified accordingly is proved by the letter of 7 January 2004 in the court book at pages 56 and 57, specifically inviting him to attend at a hearing of the Tribunal and give oral evidence and present arguments in support of his claim. That included a response form so that he could tell the Tribunal if he was attending.
In the circumstances I dismiss the applicant's application.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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