MZWIW v Minister for Immigration - [2005] FMCA 486

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWIW v MINISTER FOR IMMIGRATION

[2005] FMCA 486

MIGRATION – Protection visa – no error.

Judiciary Act 1903, s.39B
Migration Act 1958, s.91S

S1775/2003 v Refugee Review Tribunal (2004) FCA 872

Applicant:

MZWIW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 588 of 2004

Judgment of:

McInnis FM

Hearing date:

31 March 2005

Delivered at:

Melbourne

Delivered on:

31 March 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms H.M. Riley

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 588 of 2004

MZWIW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application filed on 24 May 2004 the applicant seeks review of a decision made by the Refugee Review Tribunal (the RRT) which had affirmed a decision of a delegate refusing an application for a protection visa. The delegate's decision was made on 21 December 1998 and on 8 January 1999 the applicant applied to the RRT for review of that decision. The RRT itself, as I indicated, decided to affirm the decision of the delegate and did so by a decision dated

20 July 2001.
The applicant appears unrepresented. He has, however, relied upon contentions of fact and law filed on 10 November 2004. He has otherwise relied upon a submission which I have received this day comprising a one‑page brief submission. That submission states the following:
“The Applicant, a citizen of Nepal applied for a Protection visa because of fears for his safety at the hands of Maoist rebels. His fears arise out of his membership of the Nepal Congress Party. He was a Leader of the Nepali Student Sunga (Youth Wing of Nepali Congress Party). He suffered beatings and imprisonment because of his membership of the organization. Details are set out in the Court Book. 1998 State Department Report on Human Rights confirmed the situation in Nepal.
The Tribunal failed to adequately consider his fear of persecution and to consider his circumstances.
He relies on the Contentions of Fact and Law filed herein.”
In many respects that submission summarises the main thrust of the applicant's claim before the RRT. He has further added that in his view the situation since the RRT hearing in Nepal in relation to the Maoist groups has become worse and that the significant threat to him in particular and the basis upon which he has a fear of persecution remains in a sense the fear of the Maoist groups who he claimed would target the applicant amongst others.
It is clear to me that the application, though not subject to privative clause, needs to be considered as an application for judicial review applying the principles which should be applied under s.39B of the Judiciary Act 1903. It is perhaps understandable that the applicant in his contentions has sought to effectively argue the issue based upon the facts rather than demonstrate in precise terms by way of particulars any error of law.
It is appropriate to consider by way of background the issues affecting the applicant which go beyond the brief statement I referred to earlier set out in the submission filed this day. It is noted that on 19 September 2001 the applicant was included in the proceedings known as the Lie v Refugee Review Tribunal proceedings and it is further noted that on 27 May 2003 the applicant had filed an application for an order nisi in the High Court of Australia. The ground relied upon was that the tribunal had taken into account submissions made by the Secretary of the respondent's department without bringing them to the attention of the applicant or giving him an opportunity to comment on them. Those proceedings were remitted from the High Court to the Federal Court and dealt with by his Honour Emmett J together with a large number of other applications in identical terms in the proceedings known as S1775/2003 v Refugee Review Tribunal (2004) FCA 872. The applicant's application and others were refused on 30 April 2004 on the basis that the applicants had adduced no evidence that any submissions were made by the secretary as alleged or that the RRT had taken it into account.
As indicated, the applicant subsequently lodged the present application in this court on 24 May 2004. The respondent does not reply upon estoppel in this application and has conceded that the privative clause does not apply to this application and that it is an application under s.39B of the Judiciary Act as indicated earlier. It is not necessary for me to consider those issues but rather it is appropriate to note that in the RRT the applicant had raised a number of claims. Those claims, which appear under the heading ‘Claims and Evidence’ at page 119 of the court book, have been appropriately and accurately summarised in the respondent's submissions as follows where the applicant claimed:
a)he was a leading member of the youth wing of the Nepali Congress Party;
b)while at school, the applicant was attacked by the Communist students;
c)on one occasion, a rock was thrown at his head and on another occasion he was stabbed;
d)when he went to University, he was prominent in student politics but experienced nothing untoward as the Nepali Congress Party was in power;
e)when the applicant returned to his village, he took up a prominent political position and threats of violence followed;
f)in 1994, the Congress Party lost government to the Communists;
g)late in 1994, the applicant was detained for a month;
h)after his release, the applicant went into hiding until he came to Australia;
i)the Communists have since killed people who were less politically active than the applicant.
The applicant arrived in Australia on 26 October 1995 on a visitor visa which was then valid until 26 January 1996. He applied for a permanent residence ‘special need’ relative visa on 25 January 1996. That application was refused after the applicant advised the department that his relative's health had improved. His bridging visa was due to expire on 26 October 1998 and on that day he lodged the application for a protection visa referred to earlier in this judgment.
At the RRT hearing the applicant, who was then unrepresented, gave oral evidence. The hearing was conducted on 18 July 2001. The RRT otherwise summarises the background as indicated earlier in this judgment. It is perhaps significant to note that under the heading ‘Claims and Evidence’ the RRT states the following:
“In the hearing the applicant repeated his claims of past involvement in the youth wing of the Nepali Congress Party. He stated that many times he was stoned and on one occasion in a group fight he was stabbed. He stated that the communists were in power when he came here but then there was a coalition between the Congress Party and other small parties. He stated that now the Nepali Congress Party is in power in its own right.
The applicant stated that after his arrival in Australia the Maoists started to kill people. He stated that this is the risk he faces now. …”
It is clear from what the applicant has said to this court that that passage to which I have referred would appear to be an accurate summation of the situation with the applicant now asserting that it is not the issue of which party is now currently in power, that is, the Nepali Congress Party, or indeed whether previously there was a coalition but rather the risk posed to people like the applicant from the Maoists. It seems fairly clear to me on the material before me that the RRT has considered the issues as raised by the applicant in his application. He had set out in his application significant detail concerning the circumstances where he left Nepal and has otherwise set out in detail which has been recited accurately, as indicated earlier, the circumstances which clearly would be relevant for the RRT's consideration of the application. Those details appear in the court book pages 24 to 27 inclusive.
When it came to consider the claim of the applicant, the RRT in its findings and reasons had indeed accepted that the applicant is at least a supporter of the Nepali Congress Party. It states:
“… He may even have been involved in the youth wing in the past. However the Nepali Congress Party apart from a brief period in late 1994 and 1995 was in power for much of the 1990s and remains in power today. Indeed since the elections of May 1999 the Nepali Congress Party has been in power in its own right.
It may be the case that prior to his departure the applicant was involved in fighting between rival groups and was at times in a situation where he was stoned and on one occasion stabbed. He may even have spent a month in detention as a result of such activities although this was not something he emphasised at the hearing. However the Nepali Congress is now in power. In the Tribunal's view if he engages in legitimate political activity, he does not face being detained by the authorities. In relation to violence by members of opposition groups, given the Nepali Congress Party is in power and given that Nepal has a functioning police force, the applicant has in the Tribunal's view, the protection of the State.”
In its findings the RRT goes on to state relevantly the following:
“In the hearing the applicant emphasised that it was the Maoists that are the problem now. It may of course be the case that the Maoists target important members of the Nepali Congress Party, as indicated by the recent targeting of the Prime Minister. However the applicant has not been in Nepal since 1995 and in the Tribunal's view he would not be considered an important member of this party even if he had a greater role in the past. Even if the Maoists do target important members of this party, given the applicant's six‑year absence from Nepal, the Tribunal considers there is no real chance the applicant will be targeted if he returned now because of any involvement in this party. Further having listened to the applicant give evidence the Tribunal concludes that he does not have any particular interest in politics. He appeared vague for example as to when the last election was. Given this the Tribunal concludes that the applicant if he returns to Nepal is not going to become a major figure in the party. As a result, if he returns now the Tribunal concludes that there is no real chance he will face persecution either from the Maoists or others because of his support for this party or for any previous activities in this party.”
At the hearing it was also apparent to the tribunal that it is the violence being perpetrated by the Maoists the applicant fears. There is no doubt merit in this. The Maoist have, as is apparent from the articles the applicant provided, continued their violent campaign. This appears to have been spurred on by the recent tragedy amongst the royal family. However, whilst it is apparent that the Maoists are planting bombs and have also recently targeted a policeman, the tribunal does not accept that there is anything in the applicant's situation that would lead to him being targeted.
It is clear to me from the passage which I have just included in this judgment that the issues agitated by the applicant were dealt with appropriately by the RRT, and although in his contentions the applicant seeks to assert that the RRT erred in construing the definition of "refugee" and had otherwise failed to consider adequately the applicant's past political position and profile, I cannot see anything in the material which would disclose any error either in the interpretation of the definition of "refugee", which appears to be accurately and appropriately set out in the RRT decision, and nor am I able to determine any basis upon which it could properly be said, if it were to be a basis upon which judicial review could apply, that the RRT has misconceived its role in considering the case as put by the applicant.

It seems to me to the contrary, that it has properly and appropriately considered the claim of the applicant as put and has paid due regard to the claims and evidence of the applicant and reached a conclusion which was a conclusion open to it on the material before it in the exercise appropriately of its decision‑making powers.
I am not satisfied that there is any other ground upon which this court could entertain this application or intervene. In particular I note in passing reference has been made to s.91S of the Migration Act 1958, which in this case, as indeed in other cases that I have dealt with, is irrelevant as that section was not in force at the time of the RRT decision.
There are no other grounds or particulars set out in the application or the contentions of fact and law and the written submission of the applicant which would otherwise encourage me to find that there has been an error of a kind which would attract judicial review of this decision. For those reasons it follows the application should be dismissed with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 31 March 2005