MZWOI v Minister for Immigration

[2005] FMCA 825

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWOI v MINISTER FOR IMMIGRATION [2005] FMCA 825

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Applicant: MZWOI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 888 of 2004

Judgment of: Riethmuller FM

Hearing date: 23 March 2005

Delivered at: Melbourne

Delivered on: 23 March 2005

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Brereton

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The applicant’s application filed 7 July 2004 be dismissed.

2. The applicant pay the respondent's costs fixed at $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 888 of 2004

MZWOI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for judicial review of a decision by the Refugee Review Tribunal (‘the RRT’) not to grant the applicant a protection visa.  The decision was handed down on 7 June 2004. 

2. The applicant first arrived in Australia on a short stay business visa on 30 April 2003 and then applied for a protection visa on 6 May 2003.  The Minister's delegate refused that application on 2 June 2003 and on 5 June the applicant lodged his application to the RRT. 

3. The applicant brought his application in this court on 7 July 2004.  The orders sought in the application are as follows:

   (1) As my application was refused in RRT, I would like to file my application in the Federal Magistrates Court.

4. The applicant appeared before Registrar Mussett on 17 November 2004 and was ordered to file and serve contentions of fact and law on or before 28 January 2005.  Other orders which were not of a mandatory nature were made, such as an order that the applicant file and serve any amended application before 15 December and file and serve a supplementary book of documents, if any, on or before 15 December.  The applicant has not done any of these things.

5. It is not possible to ascertain from the terms of the application what the grounds of the applicant's application are: that is, the application does not contain grounds set out in a form that would be acceptable to the court or lawyers, nor does it even attempt to indicate the basis for the application in lay terms. 

6. Whilst the application does not formally set out the precise relief required, the substance of the relief sought is ascertainable from the application and it would not be appropriate to strike out an application for that type of defect in this type of case.  However, the defect in failing to set out the grounds of the application coupled with the failure to provide contentions of fact and law is a significant defect in that it means that the respondent is without any indication of what is alleged to be the error, or failing on the part of the RRT.

7. The decision of the RRT is summarised well in the written submissions of the Respondent as follows:

   11. The RRT invited the applicant to a hearing to which the applicant brought a witness and two friends as observers.

   12. The RRT set out in detail [CB 80-85] and fully considered the written and oral claims made by the applicant in support of his application for a protection visa.

   12.1 He is a Hindu and was involved with the BJP for eight or nine years before he left India; he talked to people about vaccination and the importance of education, and distributed food to the poor in his district in which there were Muslim and Hindu communities; he attended party meetings at which the community development activities would be discussed; he campaigned for the BJP in the last state election in 1998.

   12.2.He was threatened six to eight times by Muslim terrorists from a group called Harkut Al-Ansari from around early 2002; he was attacked on 29 January 2003; the threats were made after his family had moved suburbs to Changar Nagar in Hyderabad in the state of Andhra Pradesh; he was with a friend when he was attacked by people with knives; he was hospitalised for two days; he was attacked because of his social work and work for the BJP.

   12.3. Threats were made to him in the three months between the attack and his coming to Australia when he passed through the area where the Muslim terrorists were located; his employer asked him to go to Australia; he saw an opportunity to escape; he had seen on the website that Australia received refugees.

   13.In the course of its hearing on 3 June 2004, the RRT questioned many aspects of the Applicant’s claims and noted his responses.

   13.1. It queried whether any other people associated with his social welfare and BJP activity had experienced similar treatment (and the Applicant’s evidence was to the effect that he had been singled out and he did not know why).

   13.2. It queried whether he had reported the alleged assault (and the Applicant’s evidence was that the police did not take a statement).

   13.3 It queried whether anything had happened since his departure (and the Applicant gave evidence of having been told of visits to his house but of no threats or harm to his family).

   13.4. It queried whether he could avoid the trouble which he claimed to fear by moving (and the Applicant claimed that he would be threatened wherever he was because of the network of the terrorist group).

   14. The RRT heard evidence from the Applicant’s witness to whom the Applicant and his family had spoken of his difficulties.

   15. The RRT addressed at CB 86-89:

   15.1. the Applicant’s claims;

   15.2. the three affidavits received by the RRT from the Applicant on 29 April2004;

   15.3. a medical certificate and a letter from the BJP to the Applicant produced by him at the hearing.

   16. The RRT accepted that the Applicant was a supporter of the BJP and was involved in practical social welfare activities as he described, and that he canvassed for the BJP in the last state election. It also accepted that he had been injured on 29 January 2003.

   17. The RRT made, and gave very detailed reasons for the following adverse findings of fact.

   17.1. It did not accept that Muslim terrorists or Muslim extremists in Hyderabad would have been so concerned about his activity to threaten him and assault him.

   17.2. The evidence that the people were with the terrorist group Harkut Al-Ansari was very unconvincing.

   17.3 If the Applicant was assaulted, it was an isolated criminal act unrelated to his social welfare activity or his support for the BJP.

   17.4. If people had sought to intimidate and frighten the Applicant by saying that they were terrorists, the harassment and intimidation which he described did not involve serious harm which could reasonably be regarded as persecution and the evidence showed that the persons did not have a serious intent to inflict such harm

   17.5. There was not a real chance that the Applicant would face serious harm for reason of his social welfare work or political activity if he were to return to the Changar Nagar district of Hyderabad in the reasonably foreseeable future.

   17.6. The Applicant did not have a well-founded fear of persecution for a Convention reason if he were to return to Sri Lanka now or in the reasonably foreseeable future.

   18.The RRT also found that if the Applicant remained concerned about his safety, he could move to live in another area of Hyderabad or in another city in Andhra Pradesh.

   19. Having considered the evidence as a whole, the RRT was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   20. The RRT affirmed the decision because the Applicant did not satisfy the criterion in s36(2) of the Act for a protection visa.

8. It appears that the applicant's complaint is that the RRT did not accept his version of events and he seeks a merits review of their decision; that is, the applicant is aggrieved that the RRT did not accept his case and now wishes to have this court look at his case again.

9. The current law with respect to these issues in Australia is such that I do not have jurisdiction to conduct a merits review of the decision by the RRT.  It is not the situation that it is permissible for me to look at the case afresh and hear all of the evidence and form my own views.  It is only appropriate for me to consider whether or not the RRT has made a jurisdictional error and if so, to then consider the exercise of the discretion to issue a writ of certiorari quashing the decision and a further order to the tribunal to proceed to hear the matter according to law. 

10. A jurisdictional error can arise in a number of different circumstances as is apparent from the case law which is now extensive in this area.  The nature of jurisdictional error was discussed in some detail in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.

11. In this case I am not able to identify any jurisdictional error in the material.  The applicant does not point to any facts or circumstances, either in legal or lay terms, that would indicate an arguable case of jurisdictional error.  The applicant is also in breach of directions of the court with respect to the conduct of the matter. 

12. I am therefore satisfied that the application ought to be dismissed as a result of the failure of the applicant to comply with orders of the court, and secondly, I am satisfied that the application ought to be dismissed on the basis that the applicant has not shown an arguable case and that there is no reasonable cause of action demonstrated on the material. 

    
    

    I am not satisfied on the limited material available before me at present on the conduct of the matter that it would amount to an abuse of process of the court in this case. 

13. In the circumstances, I therefore make orders dismissing the application.

14. The question of costs arises.  The Minister seeks costs.  In this case the applicant submits that costs ought not to be ordered as he is not in a position to pay costs.  That of itself is not a sufficient basis for denying a successful litigant their costs.

15. In this case it appears that the litigation was doomed to failure from the outset, having regard to the nature of the terms of the application and the failure of the applicant to articulate anything on which a jurisdictional error could be argued or inferred. 

16. I therefore order that the applicant pay the respondent's costs.  Having regard to the current scales, I am satisfied that the costs order of $4,500.00 is a reasonable figure.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  Peter Smith

Date:  16 June 2005