MZWLS v Minister for Immigration
[2005] FMCA 1973
•27 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWLS v MINISTER FOR IMMIGRATION | [2005] FMCA 1973 |
| MIGRATION – Refugee visa – dismissal on merits when applicant did not appear. |
| Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) |
| Applicant: | MZWLS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 738 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 27 July 2005 |
| Date of Last Submission: | 27 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2005 |
REPRESENTATION
| No appearance for the Applicant |
| Counsel for the Respondent: | Mr Felman |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to rule 13.03A(d) of the Federal Magistrates Court Rules 2001.
The applicant pay the first respondent's costs fixed at $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 738 of 2004
| MZWLS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 for the review of a decision of the Refugee Review Tribunal which is dated 30 April 2004. The applicant has not appeared. I am satisfied that he is aware of today's hearing date. The applicant is a citizen of India who arrived in Australia on 15 April 2003 on a business visa. On 8 May 2003, he lodged an application for a protection visa. On 22 August 2003, a delegate of the first respondent refused to grant the protection visa. On 26 September 2003, the applicant applied to the Refugee Review Tribunal for review of that decision. Following the affirmation of the delegate's decision by the Tribunal on 30 April 2004, the applicant filed an application in this Court on 11 June 2004. At one stage, the applicant was represented by a solicitor and signed contentions of fact and law were filed.
The applicant claimed that between January 1993 and May 1994 he lived in Cargill in the Kashmir region of India where he operated a small cloth merchant business. He claimed that on 13 March 1994, two terrorists from the Lashkar Terrorist Group were killed in the applicant's store by Indian Border Security. He claimed that following that incident, he was on Lashkar's hit list as they suspected him of notifying the police about their members. He claimed that on 28 March 1994, he went to a nearby town on business. When he returned he discovered all his family had been killed by militants. He moved to Punjab and married. He had two children. He heard that the Lashkar were still looking for him. He sought protection from the authorities but that was refused. He claimed that on 12 January 1999, a group of militants came to his house while he was away and killed his wife and two children. He left the area and spent the next four years living with relatives. He was issued with an Indian passport and then obtained a business visa to enter Australia. He claimed that if he returned to India he would be targeted by Lashkar because they hold him responsible for the deaths of two of their members.
The Tribunal conducted a hearing and concluded that the applicant was not a credible witness. The information in the applicant's business visa application was inconsistent with the information in his protection visa application. It said that he was a film producer from Mumbai, clearly inconsistent with his visa application. He claimed that the information on the business visa application was fabricated by the agent he employed. The Tribunal asked the applicant some basic questions about Cargill, the nature of the town, its climate, its physical features, the crops produced in the area, the names of local places and features. The Tribunal relied on country information it had obtained. The applicant's responses were wrong. The Tribunal rejected the applicant's claim that he travelled by bus from Cargill to Srinagar in March which was the time when he said his relatives were killed. The information available to the Tribunal showed that the road was closed from November to May due to snow. There were other matters where the Tribunal found that the applicant's evidence was unconvincing. Consequently, the Tribunal rejected the applicant's evidence, found it not to be credible and therefore found that he was not a person to whom Australia owed protection under the Refugees Convention.
The contentions of fact and law that have been filed allege firstly that the Tribunal erred in law in failing properly to interpret or apply the law, including s.36(2), sub-s.91R and Part VII of the Migration Act 1958 in determining whether the applicant had a well‑founded fear of persecution. There is no substance in that claim. The Tribunal's decision was based on its rejection of the applicant's evidence, which has nothing to do with the proper interpretation of the relevant sections of the Migration Act 1958. The second ground which is alleged is that the Tribunal failed to inform the applicant of all information used by it to arrive at its conclusions and in particular, the Web site information about Cargill. There is an allegation that that is a breach of natural justice.
The Tribunal was not required to provide any information unless it was information to which sub-s.424(a)(i) of the Migration Act applied. The information used by the Tribunal fell within the exception contained in sub-s.424(a)(iii), that is, it was information that was not specifically about the applicant or another person. It was about a class of persons of which the applicant or other person is a member. The authorities on that subsection show that the second part of the subsection, that is, about a class of persons of whom the applicant or another person is a member, it is not a separate classification. If the information is not specifically about the applicant or another person, then it falls within the subsection, and the information about Cargill falls within that subsection.
The third matter which is alleged is that the Tribunal erred in law in considering the 4 year delay in the applicant leaving India to be relevant in assessing the truth of the applicant's claims for refugee status. I have not mentioned that, but it was a matter which the Tribunal took into account in assessing the applicant's credibility. There is no error of law involved. It is a question of fact.
The fourth matter alleged is that the Tribunal failed to assess the applicant's claims with regard to his relatives and family being killed. These claims could have been checked easily by the Tribunal or it could have required the applicant to provide proof of these murders to substantiate his claims. The Tribunal is not required to make the applicant's case. There are a number of authorities to that effect. Again, it is simply a matter that the Tribunal rejected the applicant's evidence. If the applicant had wished to bolster his credibility, or bolster his evidence with documentary proof or other evidence of the death of his relatives and family, it was for the applicant to provide that material.
The decision of the Tribunal was based on questions of fact. It rejected all of the applicant's evidence which was relevant to the question of whether or not he was entitled to refugee status. The Tribunal gave it’s reasons for rejecting that evidence. There is no basis at all for the applicant to allege that there has been any error of law amounting to a jurisdictional error. In the circumstances, I propose dismissing the application on the merits. Order 13.03A of the Federal Magistrates Court Rules 2001 deals with what a Court may do when a party does not appear. One of the options is to proceed with the hearing generally or in relation to any claim for relief in the proceeding. Another is to dismiss the claim for non-appearance. This being a clear case, I consider it is appropriate to proceed with the hearing generally, or in relation to any claim for relief of the proceeding, which is what I have done.
I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of Phipps FM
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