MZWMH v Minister for Immigration
[2005] FMCA 1033
•5 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWMH v MINISTER FOR IMMIGRATION | [2005] FMCA 1033 |
| MIGRATION – Review of Refugee Review Tribunal decision – non-appearance. |
| Migration Act 1958 (Cth) |
| Applicant: | MZWMH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 768 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 5 May 2005 |
| Date of Last Submission: | N/A |
| Delivered at: | Melbourne |
| Delivered on: | 5 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay the respondent's costs in the sum of $4900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 768 of 2004
| MZWMH |
Applicant
And
| MINISTER FOR MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant in this matter did not appear today when the matter was called on.
The applicant came to Australia from Syria in October 2001, travelling on a Syrian passport. On 30 October 2001 the applicant lodged an application for a protection visa which was refused by a delegate of the minister on 22 March 2002. On 15 December 2002 the applicant applied for a review of that visa decision by the Refugee Review Tribunal, which made a decision on 5 May 2004. The applicant then brought an application in the Federal Magistrates Court of Australia on 16 June 2004.
The substance of the applicant's claims are that he was politically active as a student at university from 1997 to 2001, including holding a position as president of the student union, as a result of which he was responsible for voicing students' demands for better educational facilities, concessions, textbooks, public transport concessions, health and other services. He also pursued claims for the abolition of compulsory military service. He said that he was also a member of the Baath Party. He claims that this activity by him led him into conflict with the government, and thereby he was persecuted. The tribunal considered his claims and did not consider that he faced a real risk of persecution.
The contentions of fact and law upon which he relies are as follows:
1. The Tribunal exceeded its jurisdiction in that it committed jurisdictional error by failing to consider the applicant’s original claims for fearing persecution in Syria, that is, his activities as a student eras a member of his student union. Whilst these claims were canvassed by the delegate of the Minister, there is no evidence that the Tribunal itself considered them at the hearing.
2. The Tribunal erred in law and exceeded its jurisdiction in that it quoted approvingly or without demur from the delegate’s decision to the effect that the simple fact that the applicant had not been arrested or harassed by Syrian authorities for his alleged political utterances and activities showed that he was not to be believed about them.
3. Similarly, with regard to the applicant being able to leave Syria without major problems, the Tribunal was not entitled to draw the conclusion that the applicant was not of interest to Syrian authorities. There is no reason why any country authorities would wish to prevent the exit of a troublesome citizen.
4. The Tribunal also exceeded its jurisdiction in that it failed to consider the applicant’s evident opposition to military service not just on career grounds, but also because of his political opposition to the Syrian regime. Had the Tribunal considered this part of the applicant’s grounds for seeking refugee status, it might have considered that the applicant could be considered to be a conscientious objector and as such be entitled to refugee status in Australia.
5. Both the delegate and the Tribunal also failed to inform the applicant, contrary to s.424A of the Act, of the fact that the absence of a police or other records would be used against him to reach an adverse conclusion in his application.
They are particularly brief, and if they do substantially comply with the direction with respect to the filing of contentions of fact and law, they only do so in the barest of terms. In the meantime it appears that the solicitor withdrew from continuing to act in the matter.
The submissions or contentions of fact and law are answered by the respondent in a very detailed contentions of fact and law in the following terms:
4.3 Firstly, the Tribunal did not fail to consider the applicant’s “original claims” about his student union activities. The Tribunal had before it the Department’s file, which included the applicant’s protection visa application, the decision of the respondent’s delegate, and the country information referred to in the delegate’s decision [CB 74.9]. In its decision, the Tribunal thoroughly set out all of the applicant’s claims, including the claims described in his protection visa application and at interview with the respondent’s delegate [CB 74.1] In doing so, the Tribunal expressly referred to the applicant’s claims arising out of his student union activities [ 75.1-4, 75.9 and 76.4-5]. The Tribunal then made findings in respect of these claims [ 76.7-79.10]. These findings were clearly open to the Tribunal on the basis of the material before it. As such, this complaint lacks any factual foundation.
4.4 The Tribunal did not “quote approvingly or without demur from the delegate’s decision”. In its decision, the Tribunal referred to the delegate’s decision under the heading “Claims and evidence” [CB 75.4-7] In doing so, the Tribunal was simply setting out the applicant’s claims and the history of his protection visa application. Nothing in the nature of jurisdictional error is disclosed by this aspect of the Tribunal’s decision. The Tribunal was perfectly entitled to have regard to the decision of the respondent’s delegate in its consideration of all the material before it. There is no basis to suggest that the Tribunal somehow fettered its discretion or otherwise acted unlawfully. The fact that the Tribunal arrived at the same conclusion as the delegate in respect of the applicant’s claims in no way indicates any lack of independent consideration by the Tribunal of the applicant’s case. This complaint is without merit
4.5 The applicant claims that “the Tribunal was not entitled to draw the conclusion that the applicant was not of interest to Syrian authorities” on the basis of his lawful departure from Syria. This complaint impermissibly seeks to review the merits of the Tribunal’s fact-finding. The applicant has not otherwise made out any argument that the Tribunal’s decision was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds”.
4.6 The applicant also asserts that the Tribunal failed to consider “the applicant’s evident opposition to military service not just on career grounds, but also because of his political opposition to the Syrian regime”. No such claim was advanced by the applicant. There was simply no evidence before the Tribunal to support any claim that the applicant opposed military service on political or religious grounds giving rise to a conscientious objection. Furthermore, the Tribunal was not required to make the applicant’s case for him. There was no general duty on the Tribunal to seek additional material from the applicant to remedy deficiencies in his evidence.
4.7 The applicant told the delegate that military service “would be a waste of time” [CB 75.6] and told the Tribunal that it “would be a complete waste of time to do basic military training and then hang around a hospital for two more years” [CB 77.9]. The Tribunal also observed that “he talked to the Tribunal about military service, he did not raise religious objections nor objections of conscience” [CB 78.8]. In the circumstances, it was open to the Tribunal on the evidence before it to find [CB 78.4] that:
… the Applicant’s reasons for wishing to avoid military service are not of the kind embraced by international understanding and Australian case law on conscientious objection. it was clear from his answers to the Tribunal that he regarded military service as a misuse of his time. … While his misgivings are understandable, his objections to the service are not because he fears mistreatment or punishment for a Convention reason but rather because he is anxious about an interruption to his career.
4.8 In any event, the Tribunal did consider “whether his dislike of aspects of the government of his country is the or a basis for his objections to military service” and found that it was not [CB 78.6]. The applicant’s complaint must therefore fail. The Tribunal clearly considered whether or not the applicant’s “political opposition to the Syrian regime” motivated his desire to avoid military service. The applicant ultimately seeks to revisit the merits of the Tribunal’s decision. This it cannot do.
4.9 Finally, the applicant argues that the Tribunal failed to comply with section 424A of the Act because it did not inform the applicant that “an absence of a police or other records would be used against him to reach an adverse conclusion”. This argument is misconceived for the following reasons.
4.10 Firstly, the word “information” in subsection 424A (1) does not encompass the Tribunal’s subjective appraisals, thought processes or determinations; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, defects or lack of detail. The Tribunal was not obliged to notify the applicant of its mental processes or to provide him with an opportunity to comment on its preliminary findings before making its decision. The Tribunal’s formation of a view about the evidence was not “information” of the kind contemplated by subsection 424A (J)
4.11 Secondly, even if the Tribunal’s assessment of the applicant’s evidence was “information” for the purposes of subsection 424A (1) of the Act (which the respondent does not concede), section 424A does not apply to such information because it falls within the terms of paragraph 424A (3) (b). It was the applicant’s own evidence to the delegate and the Tribunal that lie had not been arrested or detained by the Syrian authorities. It is difficult to see how any issue of natural justice could arise in the circumstances. The applicant was clearly aware of the information and its obvious significance. At the very least, the applicant was made well aware by file decision of the respondent’s delegate that, in the absence of any mistreatment by the authorities, it was difficult to conclude that the applicant had had a profile with the authorities or was of any interest to them.
4.12 Irrespective of the application of section 424A, the applicant suffered no procedural unfairness and no jurisdictional error arises. Any failure by the Tribunal to observe the procedural requirements of section 424A (which the respondent does not concede) would not constitute “an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction”. Where, prior to the Tribunal’s decision, the applicant was independently aware of the substance of adverse information, any failure by the Tribunal to put the information to the applicant could not result in a denial of natural justice. The substance of the relevant information was well known to the applicant at all relevant times. The rules of natural justice do not require the Tribunal to reveal to an applicant that it intends to act on information that is in the public domain or of which the applicant is or should be aware. In the circumstances, the applicant lost no opportunity to advance his case. No practical injustice has occurred and no denial of natural justice arises.’
4.13 In the circumstances, no denial of natural justice, whether at common law or pursuant to section 424A of the Act, arises in this case.
In this case I accept the contentions of the respondent. They answer each of the contentions of the applicant. None of the applicant's grounds appear to me to have any substance, for the reasons very clearly articulated in the respondent's contentions. In the circumstances I therefore refuse the application presently before the court.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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