MZWNT v Minister for Immigration
[2004] FMCA 1110
•11 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWNT v MINISTER FOR IMMIGRATION | [2004] FMCA 1110 |
| MIGRATION – Persecution not related to Convention – no nexus – refusal to partake in hearing – no jurisdictional error. |
| Judiciary Act 1903, s.9B Migration Act 1958, ss.91S, 475A |
SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301
NANI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1082
Paramasivan v Minister for Immigration & Multicultural Affairs [1998] FCA 874
| Applicant: | MZWNT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG830 of 2004 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 11 October 2004 |
| Delivered at: | Melbourne |
| Delivered on: | 11 October 2004 |
REPRESENTATION
| Applicant: | In person (assisted by interpreter, Ms Flloro) |
| Counsel for the Respondent: | Mr W. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application filed 17 June 2004 is dismissed.
The Applicant shall pay the costs of the Respondent fixed in the sum of $6,500.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG830 of 2004
| MZWNT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
This comes before the court on an application under the Judiciary Act 1903 and the Migration Act 1958, ss.9B and 475A respectively of those two Acts. In it the Applicant seeks to set aside the order of the Refugee Review Tribunal (the Tribunal) made on 21 May 2004.
The application that comes before me today was lodged on
17 June 2004 and the Respondent takes no issue to the late filing of it. The Applicant has indicated to the court that since the Tribunal’s decision on 21 May 2004 he has received correspondence from the Court. He also agrees that on 21 July 2004 he partook in a directions hearing with the assistance of an interpreter.
He denies that he was made aware on 21 July 2004 of today's hearing, but I find that would be highly improbable. He states that he collected the correspondence that he has received, but thereafter has done nothing to attempt to have that correspondence translated. He states that there is no-one at Baxter who speaks Albanian and English.
He made no attempt to further progress his application listed today by seeking legal assistance or, indeed, assistance in general.
The Applicant requested an adjournment today, which was refused; in part, because I find that he was aware of today's hearing but chose to sit on his hands and do nothing to prepare for it; and further, in part, that the situation is unlikely to change if an adjournment was granted to allow him to obtain legal aid because legal aid had previously been denied him. In the circumstances I declined his request for an adjournment.
When invited to present his case the Applicant took the view that he did not wish to partake in the proceedings. I informed him that I would go through his application as filed at the court and invite him to expand on the issues raised. I further informed him that I have an obligation, albeit a limited one, to try to assist him to ensure no injustice is done to him because he was unrepresented. Despite all of that, he chose not to partake in the hearing.
I have had the benefit of reading the Tribunal’s decision, and the application together with the supporting affidavit provided by the Applicant. On the face of those documents there is nothing to persuade me that there has been a jurisdictional error in the Tribunal's decision. I have read the Respondent’s contentions of fact and law and accept them as reflecting a proper analysis of the law and the facts of his case. [Annexed is the Respondent’s relevant Contentions of Fact and Law.]
As I am now limited to only those documents to consider the application because the Applicant has decided to be mute at this hearing, I make a formal finding that there is no jurisdictional error in respect to the Tribunal’s decision made on 21 May 2004. Accordingly I intend to dismiss the application.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 11 October 2004
ANNEXURE TO FM O’DWYER’S EX TEMPORE DECISION
GIVEN ON 11 OCTOBER 2004
D.RESPONDENT’S CONTENTIONS
The applicant has not served contentions of fact and law. In the application dated 17 June 2004, apart from stating that he considers he is a genuine applicant for protection under the Convention, the applicant asserts that the Tribunal failed to take into account relevant considerations, took account of irrelevant considerations and he felt that he was denied natural justice. There is no material to support any of these unsubstantiated assertions.
The applicant claimed to have a well-founded fear of persecution in Albania for reasons of his membership of a particular social group, participants in blood feuds, and or on account of an adverse political opinion imputed to him by the police (CB 55.5).[1]
[1] The applicant did not claim to fear persecution simply by reason of membership of a particular social group being his family, such a claim being precluded by s9lS of the Act: SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCABC 301 (Carr, Finn and Sundberg JJ, 18 December 2003).
The Tribunal accepted the applicant’s account of the history of killings between his family and the Roci family, and that there was a tradition of blood feuds in Albania However, it rejected the applicant’s claim that his family was engaged in a blood feud with the Roci family, over ownership of a dam located on the boarders of the two family properties. It found as a fact that the characteristics of the dispute were not those of a blood feud (CB 56.3). It accordingly did not accept that the applicant was a member of a particular social group comprised of the participants in blood feuds and there was not a real chance that he would be persecuted for reason of membership of such a group
(CB 56.8). It noted that even if the dispute was a blood feud, the applicant would not be in danger for this reason, because it was his own family’s turn, to take revenge (CB 56.7).
The Tribunal further found that the applicant’s fear did not arise for any Convention reason, but because of an ongoing dispute over water usage (CB 57.3). He was not at any risk unless he was involved in an altercation over the use of water and this was not Convention related. He did not face a real chance of serious harm by the Roci family for a Convention reason (CB 57.8).
The Tribunal did not accept that any past failure of the police to pursue crimes by both families was the result of political influence by the Roci family and a consequent imputation of an adverse political profile to the applicant’s family (CB 58.2). Further, the Tribunal did not accept that if there were a failure to protect the applicant it would be for any Convention reason, including the imputation of an adverse political opinion (CB 58.6).
The Tribunal finally found that if the applicant continued to hold a subjective fear of persecution from the Roci family, it was open to him to relocate in Albania. Moreover, even if the applicant’s whereabouts in Albania came to the attention of the Roci family, the Tribunal was satisfied that there was not a real chance they would try to harm him (CB 58.7). The question of relocation was one of fact for the Tribunal.[2] The Tribunal’s finding that it was open to the applicant to relocate, stands as an independent and dispositive basis for the delegate’s refusal of the application: NANI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1082 (Jacobson J, 10 October 2003).
[2] In Paramasivan v Minister for Immigration & Multicultural Affairs [1998] FCA 874 (Heerey, Whitlam and Kiefel JJ, 30 June 1998) the Court said:
“In our view the learned trial judge was correct in holding that the attacks on the Tribunal’s reasons amounted to no more than an attempt to re-agitate questions of fact. Such matters are, as a matter of law, solely within the province of the Tribunal, in our opinion, the Tribunal fulfilled quite adequately its task of assessing the evidence before it. The overriding issue was whether, having regard to the applicant’s ethnicity as a Tamil, it would be unreasonable to expect him to relocate to Colombo or some other area of Sri Lanka not under LTTE control.
The Tribunal discussed the evidence in a rational way. It was not obliged as a matter of law to refer expressly to every piece of evidence which might have supported the appellant’s contentions. If the Tribunal did make any errors of fact, which is by no means clear to us, such errors did not amount to an error of law.” (An application for special leave to appeal was dismissed on 10 September 1999).
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