MZWIN v Minister for Immigration (No.2) - [2005] FMCA 516

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWIN v MINISTER FOR IMMIGRATION (No.2)

[2005] FMCA 516

MIGRATION – Protection visa – whether any jurisdictional error or denial of procedural fairness – application considered in absence of applicant – substantive application considered rather than dismissed for non-appearance – credibility of applicant’s husband relevant – inadequate particulars – no error disclosed.

Migration Act 1958, s.417

MZWJF v Minister for Immigration [2005] FMCA 517

Applicant:

MZWIN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 578 of 2004

Judgment of:

McInnis FM

Hearing date:

8 April 2005

Delivered at:

Melbourne

Delivered on:

8 April 2005

REPRESENTATION

Applicant:

No appearance

Counsel for the Respondent:

Ms S.E. Moore

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 24 May 2004 be dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $6500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 578 of 2004

MZWIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application number MLG 578 of 2004 the applicant is MZWIN and the respondent is Minister for Immigration & Multicultural & Indigenous Affairs.
The application was filed on 24 May 2004 and the applicant has not appeared. In a separate decision I refused what I took to be an application for adjournment. It is noted that the applicant's husband is present in court and the court has dealt with a separate application filed by him in matter MZWJF v Minister for Immigration [2005] FMCA 517. It is relevant to note that in the wife's application her husband, who is present in court this day, gave evidence before the RRT and an issue of his credibility was relevant before the RRT.
This application, whilst being considered in the absence of the applicant, in my view should proceed to a final determination on the substantive merits of the application. On some occasions the court in the absence of a party is minded to simply dismiss the application pursuant to rule 13.03A of the Federal Magistrates Court Rules. Having regard to the chronology of events and the fact that the applicant's spouse is present and that I have refused any application for an adjournment on what I regarded as inadequate documentary material, it seems to me in circumstances of this kind that it would be somewhat artificial and inappropriate to simply dismiss the application for want of appearance when it is clear from the material before me that in this case for reasons which will become apparent I cannot see any real basis upon which it could be claimed that the application in this instance has any merit or that there is any real basis upon which there should be judicial review of the decision. Where that is apparent to a court, it is inappropriate to simply proceed to dismiss an application for want of appearance and the duty of the court, in my view, should be to make some proper and meaningful assessment of the merits of the claim as presented, where as I say on the face of it there does not appear to be any or any significant arguable case raised.
Whilst it may appear presumptuous to draw that conclusion in a matter of this kind, I have carefully considered the material filed for and on behalf of the applicant, which in this instance includes the application, the applicant's contentions of fact and law which were filed on

16 November 2004, a handwritten document filed on behalf of the applicant that is written by her husband who is present in court and

I have considered of course the material in the court book and the supplementary court book, together with the respondent's contentions of fact and law. It is appropriate in those circumstances to consider that material available to the court and not otherwise delay this matter, particularly considering the long history of this matter.
The application seeks review of a Refugee Review Tribunal (RRT) decision dated 22 May 1997. That is a decision that was made almost eight years ago. The RRT in its decision had refused a protection visa and did so by affirming a decision of the delegate to likewise refuse the application for a protection visa. In this application the applicant is a 53‑year‑old female citizen of India who had arrived in Australia on

15 June 1995 on a visitor visa. On 2 October 1995 she applied to the then department for a protection visa.
It is noted that that application referred to the applicant's husband as the second application and also referred to him having made, however, a separate application for refugee status. For present purposes, as with the court's decision in relation to the applicant's husband's application, it is not necessary for me to recite in detail the issue of applications and whether or not the husband's application is properly considered part of his wife's application. It seems to me preferable in a case of this kind where the parties are unrepresented to consider the merits of each application separately having regard to the matters raised on the material and to not be unduly technical in the approach one adopts in considering this matter.
It is therefore not necessary for me to consider in detail the chronology of events in relation to the consideration of this applicant's application, although I do note that the applicant and her husband had three sons even though her visa application recorded for each one that although they were not in Australia at the time of application, she did not know their country of residence.
The delegate in this matter had refused the grant of the visa to the applicant on 30 October 1996 and it was on 18 November 1996 the applicant applied to the RRT for review of that decision. A hearing was conducted on 7 May 1997. At that hearing the applicant gave evidence with the assistance of an interpreter and, as indicated earlier, the applicant's husband also gave oral evidence. The applicant was represented by a legal representative. The RRT in considering this application was constituted by the same member as the member who considered and determined the application of the applicant's husband. In this application, when asked if there was any objection to the same tribunal member hearing the wife's application, no objection was raised. The decision of the RRT on 22 May 1997 resulted in a finding that it was not satisfied that the applicant is a refugee. On 10 June 1997 the department made a decision that the applicant's case was not one that satisfied ministerial guidelines for stay in Australia on humanitarian grounds in consideration of the minister's discretion under s.417 of the Migration Act 1958 (see court book page 108).
On 23 June 1997 the applicant's then legal representative being a different legal representative to the one which appeared at the RRT hearing - wrote to the then Minister requesting that he exercise his discretionary power under s.417 of the Act to substitute for the decision of the RRT a more favourable decision to the applicant on the basis that it was in the public interest to do so (see court book 109‑110). The applicant later submitted further material in support of that application. By letter dated 22 June 1998 the applicant was advised that her request that the Minister had decided not to exercise his power under section 417. The same decision was taken by the Minister on 27 May 1999.
It is perhaps appropriate to refer in passing to the consequences of that matter, though I do so only for the sake of completeness in the sense that it was submitted by the respondent that reliance upon an application under s.417 should be taken to be acceptance on the part of the applicant of the decision of the RRT. I note a number of authorities have been referred to but for reasons which will become apparent I do not regard it as necessary for me to decide that issue in this application. It is relevant to note in this case, however, that this applicant on

20 November 1998 joined what are described as the Lie and Muin proceedings in the High Court. Again, I do not need to recite the details of what occurred in relation to those proceedings save and except that in this case, as with a number of other cases that I have had cause to deal with, ultimately the matter upon remittal to the Federal Court have been the subject of a decision by Emmett J of the Federal Court of Australia. Certain orders refusing order nisi were made by his Honour and this matter was included amongst a significant number of applications which were dealt with by his Honour on 30 April 2004.
In this matter the claims by this applicant would appear to be based, as correctly submitted by the respondent entirely on the actions of her husband who was active in the pro‑Khalistan movement in the Punjab with a warrant issued for his arrest (See MZWJF v Minister forImmigration [2005] FMCA 517).
It seems to me that in this instance the RRT has considered the application as put by this applicant and as it is entitled to do, considered other evidence relied upon for and on behalf of the applicant in support of her application. Understandably, given the way the application was put to the RRT, significant reliance was placed upon the evidence of her husband. Again, understandably and appropriately, an assessment was made of the credibility of the husband or the creditworthiness of the husband in the earlier decision. It would be artificial and inappropriate for the RRT to ignore that credibility finding, though of course it can further consider to the extent that it is necessary what weight, if any, it would place upon evidence of a witness whose creditworthiness it had earlier found wanting. So much is clear from the RRT decision in this matter. Indeed, it should be stressed, however, that any credibility finding has not been a finding made personally against the applicant herself in this application. In its decision at page 92 of the court book, the RRT states the following:
Although the tribunal found against the creditworthiness of the evidence of the applicant's husband in the earlier decision, no finding was made on the credibility of the applicant herself in that instance. As the applicant's husband wished to give evidence on this occasion in support of the applicant's claims at the hearing of her review application, the above matters were reviewed with the applicant and her husband at the commencement of the hearing. They were each then asked in the light of the earlier findings whether they wished to proceed with the hearing before the tribunal as currently constituted. The same question was put to the applicant's adviser. All agreed to proceed.
In its decision the RRT in considering the situation of the applicant states the following at page 104 of the court book:
The tribunal as currently constituted has already assessed Applicant MZWJF's situation - claims to refugee status in its decision of 14 May 1996 and found that he had not satisfied the criterion for a protection visa, which requires the applicant to be a non‑citizen of Australia to whom Australia has protection obligations. It did not accept Applicant MZWJF to be a credible witness and adopted a positive state of disbelief with regard to his evidence on material issues. Neither the applicant nor her husband have introduced any new evidence which would lead me to vary the conclusions which were reached in the tribunal's earlier decision. Although I accept that Applicant MZWJF has a subjective fear of return to India, I am unable to find that he is a credible witness in respect of material issues relating to his claims. I have noted that information which is contained in the department's file relating to the applicant's claims at the primary stage serve to compound serious reservations regarding the creditworthiness of Applicant MZWJF's assertions of well‑founded fear of harm on return for a convention reason.
This application contains grounds similar to the grounds relied upon by the applicant's husband in the application which the court has dealt with separately. The applicant's contentions of fact and law again appear to be copied from other applications and include irrelevant, unhelpful material which do not advance the application any further.

It seems to me that it would be inconsistent and artificial for this court to reach a different conclusion in this application to the earlier application given the dependence upon this applicant of both the evidence of her husband and the matters raised by him in his application as the basis upon which he sought a protection visa.
I cannot see in the reasoning of the RRT in this application any error of a kind which would attract judicial review. No particulars of grounds have been provided and whilst I am prepared in general to consider issues of procedural fairness if they be raised, it seems difficult in the absence of particulars to permit those grounds to be considered in further detail. It is difficult in circumstances of this kind for applicants to understand and appreciate the role of the court, but in my view it is clear that in an application of this kind at the very least there should be some particulars upon which a court can be guided in order to assess whether or not there should indeed be judicial review of the RRT decision.
For reasons which I have referred to in the application of the husband (see MZWJF v Minister for Immigration [2005] FMCA 517), it seems to me that there is no possible basis upon which I can conclude that there is any denial of procedural fairness, any failure by the RRT to properly consider the claim as put or indeed any other criticism which could be made of the RRT decision as set out in the somewhat inadequate contentions of fact and law relied upon by the applicant. The RRT has considered the claim. It had indeed given the parties an opportunity to consider whether or not it should continue as the same constituted RRT to consider this application and proceeded to do so only after the consent was given. It has otherwise dealt with the claims in an appropriate manner reasonably open to it.
Consideration of the creditworthiness of a witness called on behalf of an applicant is a matter entirely for the RRT, as it is indeed in considering the credit of an applicant himself or herself. Whilst I note in this case that no adverse finding has been found of the credit of the applicant herself in this application, it is appropriate that the RRT considers and draws conclusions about all the evidence, including creditworthiness of any witness called for and on behalf of the applicant, which in this case happened to be her husband, about which significant adverse credit findings have been made in an earlier decision. I see nothing wrong with that process and certainly see no error of a kind which would attract judicial review as a result of that process in this application. It follows for the reasons given that this application should be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 8 April 2005