MZWJA v Minister for Immigration
[2005] FMCA 380
•2 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWJA v MINISTER FOR IMMIGRATION | [2005] FMCA 380 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
Migration Act 1958 (Cth)
| Applicant: | MZWJA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 593 of 2004 |
| Delivered on: | 2 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 March 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Counsel for the Respondent: | Mr Brereton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application filed 25 May 2004 be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 593 of 2004
| MZWJA |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to judicially review a decision of the Refugee Review Tribunal (‘the RRT’) made on 11 June 1996, around eight and a half years ago. The original application for judicial review was in the High Court of Australia and unfortunately got caught up in the class action which ultimately resulted in the High Court decision in the matter of Muin. This particular case was proceeding by way of an order nisi which was dealt with by Emmett J in the Federal Court on
30 April 2004 when his Honour dismissed the order nisi, although leaving open to the applicant (as specifically set out in his Honour's reasons) the possibility of proceeding on grounds different to those dealt with in the Muin decision.
The applicant has filed the current application setting out his grounds as follows:
1The RRT erred in law and thereby did not act within jurisdiction in making the decision because
(a)The RRT erred in law in failing properly to interpret or apply the law including section 36(2), section 91R(1) and Part 7 of the Act in determining whether the applicant had well-founded fear of future persecution, and thereby the tribunal failed to consider and determine relevant material being the substantive issues raised by the evidence presented by the applicant in support of his fear of future persecution.
(b)The RRT erred in interpreting the term “for reasons of…membership of a particular social group” in the definition of a refugee under the Refugees Convention incorporated by section 36(2) of the Act, and as a consequence by not giving any or any proper consideration to the applicant’s contention that he suffered harassment, detention and maltreatment at the hands of Indian security forces. Nor did the RRT give proper consideration to past instances of threats or intimidation and valence directed towards the applicant.
(c)The RRT erred in interpreting section 91S of the Act, as a result of which it erroneously considered it “must find that the Applicant was not a person who has a well-founded fear of persecution for reasons stated in the Refugees Convention.”
(d)The RRT considered submissions made by the secretary of DIMIA made pursuant to S4232(2) of the Migration Act 1958.
(e)The RRT failed to put to the Applicants country information in its possession or available to it.
(f)The RRT denied the applicants procedural fairness in its decision of the 11th June 1996.
(g)These submissions were not brought to the applicants’ attention nor were they invited to comment on them.
Whilst the grounds appear lengthy, there is little or nothing in them to identify a specific error on the part of the RRT in this particular case. Nonetheless directions were made by Registrar Connard on 20 August 2004 with respect to the preparation of the matter for hearing and listing it for trial on 10 March 2005. Those directions included a direction for the applicant to file an amended application with proper particulars on or before 12 January 2005 and contentions of fact and law on or before 26 January 2005. Neither of those steps have been taken.
The respondent, acting prudently, having regard to the fact that the applicant is self‑represented, wrote to the applicant on 11 November 2004 at his address for service enclosing a copy of the orders made by Registrar Connard and then later on 17 January 2005 wrote reminding the applicant that the documents he had to file had not been received and asked that he file them and serve them without further delay. As a result of his failure to do so, the applicant brought the current application for dismissal which was also served upon him at his address for service. The applicant says that he did not receive the earlier letters from the minister, although does appear to have received the application for summary dismissal.
The applicant appears to understand little of the proceedings and states that he has done what was asked of him, by which he appears to be referring to the provision of some bank statements to Victoria Legal Aid with respect to an application for legal aid. It seems from his appearance today without legal assistance that he did not receive legal aid. I am advised from the bar table by Mr Brereton that Mr Fisher from Victoria Legal Aid did appear on behalf of the applicant before Registrar Connard, at which time his application form for legal aid was at least commenced.
In the circumstances it is difficult to see why the matter should be allowed to continue given the extended noncompliance and the lengthy delay. I also see very difficult hurdles for the applicant in the substantive proceedings if the matter did proceed given that the application relates to a decision that was made back in 1996. I also have regard to the fact that the grounds in the application do not appear to provide particulars specific to this decision, which is a lengthy decision of the RRT running for some 22 pages.
During the course of the hearing today I attempted to elicit from the applicant his complaints with respect to the determination. It seems clear that the substance of his complaint is that the RRT did not accept his case. He does not make a complaint that he was not given a hearing or that he was not treated reasonably in the hearing process, nor does he attempt to point to any evidence that has been overlooked or misused, although there is a lengthy discussion of the evidence by the RRT member.
The crux of the RRT member's decision is that they accepted the applicant had a subjective fear of persecution because of past experiences and that the atmosphere in Punjab up until 1992 was characterised by intense violence and insecurity. However, the RRT accepted that since 1992 there was a dramatic and continuing improvement in the situation in the Punjab and concluded that there was no real chance of persecution at present. The RRT did not accept that the applicant was in the past persecuted for his activities, but rather he was simply caught up in general sweeps of suspects with respect to civil unrest in the Punjab. The RRT also concluded that it would have been open to the applicant to relocate to another part of India, having regard to the fact that he had relocated on one occasion and he stopped his farming work and moved to a larger town where he obtained factory work.
In the circumstances I am not able to identify any prima facie case or arguable ground that the applicant has to pursue. The applicant has not complied with any directions. The length of time between the original decision and the current proceedings is large. Having considered all of these factors, I find that the appropriate course is to dismiss the application. I therefore order that the application be dismissed.
In the circumstances the minister has been successful and is entitled to his costs. Proceedings remain at an early stage. I propose to fix costs at $2,500.00 having regard to the relevant scales.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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