MZWJM v Minister for Immigration
[2005] FMCA 723
•1 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWJM v MINISTER FOR IMMIGRATION | [2005] FMCA 723 |
| MIGRATION – Protection visa – whether jurisdictional error. PRACTICE AND PROCEDURE – Audio link hearing to applicant in New South Wales – no prejudice - interpreter available in court. |
| Federal Magistrates Act 1999, ss.67, 68, 69 |
| S1775/2003 v Refugee Review Tribunal (2004) FCA 872 NACV v Minister for Immigration and Multicultural Affairs (2002) FCA 411 |
| Applicant: | MZWJM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 589 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 13 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 1 June 2005 |
REPRESENTATION
| Applicant: | In person by audio link |
| Counsel for the Respondent: | Ms S 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 $6,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 589 of 2004
| MZWJM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
By an application filed on 24 May 2004 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) delivered on 17 July 2001. The RRT affirmed a decision of a delegate of the respondent that the applicant was not entitled to the grant of a protection visa.
In the proceedings before this Court the applicant is unrepresented. Prior to the hearing date the Court received from the applicant a medical certificate dated 5 May 2005. That certificate referred to the applicant having been seen at the Griffith Base Hospital on 28 April 2005 for a medical condition. The certificate claimed that the applicant is "unfit for work from 28/04/05 to 15/05/05". Upon receipt of that certificate, I instructed my associate to forward correspondence to the parties notifying each party that the matter was listed for hearing at 10.15 am on 13 May 2005 in accordance with the notice of listing which was dated 24 November 2004. The correspondence further noted the Court had received the medical certificate referred to earlier in this decision. In addition, the letter provided a notice to the parties that in the absence of any further evidence in support of an application for adjournment, the application "shall proceed as listed on 13 May 2005 ..."
As a result of further telephone communications with the applicant assisted by a friend who spoke English, it was determined that the applicant would be assisted by a video‑link hearing which would then save him the expense and inconvenience of travelling from Griffith to Melbourne for the hearing. In the short time available, the Court was only able to arrange an audio‑link hearing with the applicant present at the Griffith Magistrates Court and the audio‑link being made available to this Court. I determined in the absence of any objection from the respondent that the applicant should be permitted to appear by audio‑link and note that the appearance was with the assistance of an interpreter in Melbourne. Accordingly, I directed pursuant to s.67 of the Federal Magistrates Act 1999 (the Act) that the applicant be permitted or allowed to appear before this Court by way of audio‑link. I am satisfied that the audio‑link provided an appropriate means by which the applicant could appear and to the extent that it is necessary, I further directed pursuant to s.68 of the Act that the applicant be allowed to make submissions to this Court by way of audio‑link. I was satisfied that in the circumstances the conditions required in s.69 of the Act had been satisfied, given that the audio‑link took place between this Court and the Griffith Court and it was clear during the course of this hearing that the applicant was able to hear the proceedings in this Court and, more importantly, able to take advantage of the interpreter and present submissions in support of his application. The matter proceeded accordingly.
By way of background, it is noted that the applicant is a 25‑year‑old citizen of Punjab, India, who arrived in Australia on 9 July 1999 on a student visa granted on 4 June 1999. He claims to be of Sikh ethnicity. He claims because his life was in danger in India and because he feared that a passport would be refused in his name, he obtained a passport in a different name with a different date of birth. The applicant lodged an application for a protection visa on 3 August 1999. He lodged certain documents in support of that application and on 7 December 1999 a delegate of the respondent refused to grant the applicant a protection visa. The applicant then applied on 4 January 2000 to the RRT for review of the delegate's decision. The RRT conducted a hearing on
15 May 2001. The applicant and another witness gave oral evidence in support of the application. As indicated earlier, the RRT handed down its decision on 17 July 2001.
On 17 September 2001 the applicant joined the Muin and Lie proceedings in the High Court of Australia. On 8 August 2002 the High Court made orders in favour of the plaintiffs in those proceedings and following that judgment Gaudron J made further orders in each proceeding which, amongst other things, granted the named represented parties leave to file an application seeking an order nisi in relation to the decision of the RRT. On 16 June 2003 the applicant filed with the High Court an affidavit, his then solicitor annexing a draft order nisi and a copy of the reasons of decision of the RRT. Having been allocated a proceeding title of S1839/2003 v Refugee Review Tribunal v Anor in the High Court, orders then made by Gaudron J on 20 May 2002 resulted in a remittal of the application to the Federal Court of Australia. In that Court the case continued to be entitled S1839/2003 v Refugee Review Tribunal and Anor and was allocated proceeding number N2643/2003. Those proceedings came before Emmett J of the Federal Court on 30 April 2004 and orders were made in this matter and others in the following terms:-
“1.Order 51A rule (1) of the Federal Court Rules does not apply.
2.The application for an order nisi be refused.”
Emmett J published a brief judgment in relation to the orders (see S1775/2003 v Refugee Review Tribunal (2004) FCA 872). As indicated earlier, on 24 May 2004 the applicant filed an application for judicial review with this Court. In brief terms, that course seemed to be following the decision of Emmett J who had indicated that any delay in making an application could be explained by the proceedings being commenced in the High Court by this and other applicants. Ultimately, the matter was transferred to the Federal Magistrates Court. Procedural orders were made in this Court including orders that the applicant file an amended application and contentions of fact and law. Further orders were made in relation to the matter on 17 November 2004 and inquiries were made by the respondent of the applicant in relation to further material. The applicant has not filed any further material, including any statement of facts and contentions or any amended application.
However, the applicant had forwarded to the respondent an undated letter together with attachments. The respondent appropriately brought that matter to the attention of the Court both in written submissions and before the Court this day. The material relied upon by the applicant includes, as I have indicated, an undated letter and attachments. The undated letter provides as follows:-
“The due respect I tell you I receive your phone call from court ask me for RRT decision. I tell you I am not happy about the decision RRT made. I think that RRT didn't check my documents proply and also didn't check my medical certificate.
Dr Mark Cherny, ophthalmologist for my left eye operation was 1998 but when Dr Mark Cherny asked me last I said 1996 because I was really worried about it so I don't know what was I am doing, so I had operation in 1998 not in 1996. i had mistake so I request to RRT to check my all documents again and than let me know. [sic]”
The attachments to that letter include a bank account and a school certificate purportedly indicating the correct name of the applicant.
The respondent relied upon contentions of fact and law filed on 10 May 2005. The applicant acknowledged he had received those facts and contentions, understood them and was content for them to be adopted for the purpose of this hearing by the respondent.
The applicant before this Court again expressed his concern about the way in which the RRT reached its decision and in particular claimed that there were two significant issues which he sought to rely upon in relation to material before the RRT, one included a date of an operation being 1998 rather than as indicated to the Tribunal 1996, and another business activity which was conducted in 1997 rather than 1995.
I shall deal with those issues presently.
The application itself simply seeks an order setting aside the decision and remitting the matter back for further consideration. The Tribunal decision dealt with the claims made before it by the applicant in a statutory declaration and other material. In its decision the RRT summarises that material in some detail (see court book page 55‑58).
By way of summary, I note that the applicant had claimed that he was wanted by police in relation to a shooting of a merchant of Sikh militants in Punjab. He claimed that in October 1998 the bus he was driving was commandeered by Sikh militants who later shot the merchant. It is this incident in relation to the bus which is claimed to have occurred in 1997 rather than 1995 which the applicant referred to in submissions before the Court. In any event, he claimed before the Tribunal that he was detained by police on two occasions but was released each time after a bribe was paid by his parents. He claimed he was beaten by police while detained resulting in an injury to his eye and that after his second release he fled to another region where he stayed for five months before departing for Australia on a false passport.
The Tribunal made a decision on the material before it and that included an assessment of the evidence of the applicant. It was not satisfied the applicant's fears were well founded. It certainly referred to the period since 1996 when it found that the Sikh separatists' campaign was "virtually over" and that there was a virtual cessation of militant activity and that in light of that evidence it was implausible that the applicant was ever involved in the incidents he claimed. The Tribunal otherwise analysed the material in some detail. It further considered independent country information about the current country situation in Punjab. It concluded the applicant's fear of persecution was not well founded.
The application for review clearly contains no grounds for review and no particulars. The correspondence forwarded by the applicant to the respondent to which I referred earlier, whilst expressing unhappiness about the decision and although referring to the discrepancy in dates, does not on the face of it, in my view, provide any or any proper basis upon which this Court should conclude that there has been any error or indeed any jurisdictional error of a kind which would allow judicial review of the RRT decision.
In my view, the correspondence from the applicant and the matters raised by him in person before the Court may properly be characterised as an attempt to re‑agitate facts or correct the factual material then before the RRT. However, it should be noted that the RRT had in fact contacted Dr Cherny and spoke to the doctor by phone during the hearing and asked specifically if the injury to the applicant's eye was consistent with an assault. It is relevant to note the following extract from the RRT decision:-
“Dr Cherny consulted his notes and said that the applicant had attended the surgery on 13 February 2001 and the applicant had stated that he thought that chemicals were affecting his eye and stated that he worked as an agricultural labourer in Australia. He had stated that he had had surgery for his eye in 1996 and the case notes indicated that the applicant had "conjunctival lesions". Dr Cherny said the applicant again attended on 23 April 2001 and was using eye lubricants and had said that he did not want to wear glasses. ... He said that the applicant again attended on 4 May 2001 for a consultation about laser eyesight correction and stated that such treatment was designed purely to correct myopia. Dr Cherny was adamant that there had been no mention in the case notes of any assault on the applicant and said that in his examination he detected no trauma to the applicant's left eye, a matter that he would have recorded in the case notes had he seen any sign of this. The applicant was invited to comment on the evidence of Dr Cherny and the applicant was adamant that he had mentioned that he had been assaulted by the police. He also stated that perhaps his friend who had been interpreting for him had wrongly said 1996 rather than 1998 when referring to the surgery he had had in India. The applicant was adamant that he had an operation in India. The applicant said that he had noticed last year that his eyesight was "not good because of those injuries" and that is why he had gone to see an eye doctor.”
It is clear from that extract that the issues now sought to be re‑agitated by the applicant were properly before the RRT and it made findings of fact reasonably open to it. I accept the respondent's submissions that in this case the Tribunal's refusal to accept the claims made by the applicant involved a clear finding of credibility adverse to the applicant. The issue of credibility I accept is very much within the domain of the Tribunal (see NACV v Minister for Immigration and Multicultural Affairs (2002) FCA 411 at paragraph 2). On a proper analysis of the RRT decision and having regard to the lack of specific grounds of particulars in the application for review, it is my conclusion that the appropriate order in this case is that the application filed 24 May 2004 be dismissed with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 1 June 2005
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