MZWNU v Minister for Immigration
[2005] FMCA 182
•28 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWNU v MINISTER FOR IMMIGRATION | [2005] FMCA 182 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
Migration Act 1958 (Cth)
Re Minister for Immigration and Multicultural Affairs; Ex parte ApplicantS20/2002 [2003] HCA 30
| Applicant: | MZWNU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 838 of 2004 |
| Delivered on: | 28 January 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 28 January 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Counsel for the Respondent: | Ms J.K. Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application be dismissed.
The applicant pay the respondent's costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 838 of 2004
| MZWNU |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment.
The applicant in this case is a citizen of India. He arrived in Australia on 27 July 2003. On 26 August 2003 he applied for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 7 November 2003 a delegate of the minister refused to grant a protection visa. The applicant then applied to the Refugee Review Tribunal (‘the RRT’) for a review of that decision on
20 November 2003. The review decision was handed down on 18 June 2004 affirming the delegate's decision to refuse a protection visa.
Unfortunately the applicant did not appear before the RRT. The RRT went to some considerable efforts to attempt to have the applicant attend before the RRT member for the purpose of recounting his version of events and the RRT member having the opportunity to ask him questions and assess his credibility.
It seems the first date that a hearing was set for was 27 April 2004 and the RRT received no response from the applicant until 26 April when he said he was not well and could not attend the following day. He sent the RRT a medical certificate which said he was unfit for work for three days from 26 to 28 April. The RRT member rescheduled the hearing to 3 May 2004. A member of the RRT’s staff telephoned the applicant to tell him of this. A letter was also sent confirming this.
A decision was made on 5 May, however on 19 May the applicant, by his agent, sent the RRT a letter requesting an extension of time because it was said that the applicant is "expecting few more documents from India". The RRT quite properly withdrew their original decision and sent the applicant a letter outlining what had gone on and providing for another hearing to take place on 28 May.
The RRT then had some difficulty contacting the registered migration agent who was apparently the agent of the applicant at the time. The applicant did not contact the RRT to explain his failure to attend on 28 May, nor to seek a further postponement of the hearing. The RRT then, not surprisingly, proceeded to make a decision.
Again the applicant contacted the RRT and the RRT again offered him another hearing, this time on 4 June. He accepted that offer but did not attend for the hearing. On 7 June the applicant's adviser contacted the RRT by telephone to say that the applicant no longer wished to attend a hearing about his application. This was confirmed in writing. The RRT then proceeded to make the decision which is before me.
In the circumstances I am not satisfied that a judicial review ground with respect to procedural fairness could be said to be made out in this case. It is clear that the RRT has gone to great lengths to attempt to have the applicant attend before it in order to discuss the application. Whilst a request for an extension, for the purpose of placing documents before the RRT, was initially accepted, on the material in the request for extension to the RRT it is difficult to conclude that the RRT's discretion over the conduct of its own proceedings (in effectively limiting the time available to obtain documents) miscarried in a way that would cause a breach of procedural fairness.
It would have been very different had the request for an extension referred to a specific document or class of document and provided some details of the requests that had been made and the processes that were in place to ensure that the document would be before the RRT in a reasonable time and that the documents would be reasonably expected to have some relevance to the proceedings. This was certainly not the quality of information that was placed before the RRT.
If the RRT were to simply accede to every request (no matter how vague the purpose of that request for an adjournment is) matters would simply be delayed for no good purpose in the cases of this type.
The applicant's main ground for review that he pursues before me is his impassioned plea that he not be returned to India as he believes that he will be persecuted in India. He says that he is likely to be killed if he returns to India. The way in which the law is framed in Australia relating to refugee claims and judicial review by this court is such that it is not open to me to make findings as to the facts of the claim. The RRT has made findings of fact as to whether or not it accepts this claim by the applicant. The RRT did not accept his claim in this regard and that is a finding of fact which I am not, at law, allowed to interfere with.
It does not appear that the RRT asked itself a wrong question. It does not appear that the RRT failed to give the applicant a fair opportunity or appropriate opportunity to participate in the process and put his case. It does not appear that the RRT has acted capriciously or in any way in bad faith. The reasoning process of the RRT is not erroneous to the extent that may give rise to a judicial review ground, as was discussed by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte ApplicantS20/2002 [2003] HCA 30. In the circumstances I see no basis for judicial review of the RRT's decision. I therefore refuse the application for judicial review and dismiss the applicant's application.
[Further argument as to costs]
The applicant was unsuccessful in this application. The applicant's application, on the face of it, never disclosed an arguable ground for judicial review. Indeed his application itself was on a pro forma application form from this court and simply sought orders that:
As my application was refused in RRT and I would like to file my application at Federal Magistrate Court of Australia.
I also have the earlier evidence of Mr Wei that he explained judicial review, or attempted to explain judicial review, to the applicant some time before the hearing and tried to encourage the applicant to properly participate in this process. In this case that applicant has not participated in a meaningful way either before the RRT or before this court, in the sense of either:
a)appearing before the RRT; or
b)filing written material or even attempting to properly identify a claim that could be considered by this court as a prima facie basis for judicial review.
The applicant has, not surprisingly, been unsuccessful in his application.
The applicant says that he is unable to afford to pay the costs. In federal matters such as these that, of itself, is not sufficient basis for denying the successful party their costs. Having regard to all of the circumstances of this matter I find that it is appropriate that the applicant pay the respondent's costs of an incidental to the proceedings.
I have regard to the Federal Magistrates Court scale of items. The respondent in this case seeks the sum of $6,000.00. The respondent has prepared a court book, has had correspondence, attended more than one directions hearing, attended today with counsel appropriately briefed, having prepared a proper outline of argument and, of course, come well prepared generally on the assumption that the matter would proceed, even though counsel did not have notice of any specific outline of argument from the applicant.
One would not want to discourage the respondent and counsel briefed by the respondent from properly preparing and attending on these matters so that they can be heard expeditiously, rather than resulting in adjournments at the last minute.
In the circumstances I find that sum sought is a reasonable sum.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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