MZWOT v Minister for Immigration (No.2)
[2005] FMCA 726
•10 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWOT v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 726 |
| MIGRATION – Review of decision by Refugee Review Tribunal – failure by applicant to file proper particulars or contentions – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 91R, 426A, 474 |
| Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 |
| Applicant: | MZWOT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 943 of 2004 |
| Judgment of: | Connolly FM |
| Hearing dates: | 5 & 24 May 2005 |
| Date of Last Submission: | 24 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Mr S. Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs of 24 May 2005 fixed in the sum of $1,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 943 of 2004
| MZWOT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This judgment arises from an application filed by the applicant on
20 July 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 31 May 2004 to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant a protection (class XA) visa.
I also incorporate herein my reasons for judgment delivered this day in the matter between the same parties and involving Mr Belbruno, the applicant’s former solicitor.
The history
The applicant is a citizen of Fiji. He came to Australia on
20 September 2003 and lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs on 20 October 2003, under the Migration Act 1958 (Cth) (“the Migration Act”).
The applicant is of Indian ethnic background and is a Muslim. The applicant claimed that he could not return to Fiji because of his fear of discrimination as a result of his involvement with the Fijian Labor Party. The applicant claimed to have suffered discrimination in the year prior to his arrival in Australia, which was after a change of government in Fiji. Following the change of government, the applicant was engaged in political activities with the object to return the previous government to office. He claimed that he was harassed as a result of these activities. The applicant claimed that he would be killed or persecuted if he returned to Fiji. The applicant also stated that he was against human rights abuse in Fiji and that he also left Fiji due to his ethnic background.
On 4 February 2004, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant the protection visa; the applicant applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 11 March 2004.
The Tribunal invited the applicant to give oral evidence and present argument at a hearing on 2 June 2004. The applicant declined this offer in writing to the Tribunal, and consented to the Tribunal making a decision based on the material before it.
In the decision made by the Tribunal on 31 May 2004, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found there to be insufficient evidence before it in respect to the applicant’s activities and what he had personally experienced in Fiji. The information provided by the applicant was mostly general in nature. The Tribunal found that the applicant did not have a well-founded fear of persecution and was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act for the purposes of a protection visa.
On 20 July 2004, the applicant lodged an application in this Court, being MLG 943 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant asserted that the Tribunal had committed jurisdictional error.
On 17 November 2004, Registrar Mussett made procedural orders which set the matter down for hearing, and inter alia required the applicant to file any amended application and contentions of fact and law by 2 February 2005. To date no further material has been filed in support of the applicant’s application. A Notice of Ceasing to Act was filed by the applicant’s solicitor, Mr Joseph Belbruno, on 23 March 2005.
The respondent filed contentions of fact and law on 23 April 2005, which rebutted the applicant’s claims, and denied that there had been any jurisdictional error committed. The respondent submitted that the applicant had been given an opportunity but had elected not to attend a hearing before the Tribunal, and that the Tribunal complied with all its obligations under Migration Act. The respondent argued that the application was groundless and an abuse of process.
On 5 May 2005, the applicant appeared unrepresented at the hearing of this application. The respondent was represented by Counsel. The applicant sought an adjournment on the basis that he had only recently been notified that his solicitor had withdrawn, and therefore was not ready to proceed with the hearing. The hearing was adjourned on the basis that the respondent would subpoena the applicant’s former solicitor, Mr Belbruno, to attend on the adjourned date of 24 May 2005 to explain the circumstances of the application to the Court.
The Law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
When the matter resumed before the Court on 24 May 2005, the applicant remained unrepresented and sought a further adjournment to enable him to obtain legal representation. That application was refused on the basis that he had already been given an adjournment to enable him to obtain legal representation and in circumstances where it had been made abundantly clear that the matter would proceed on the adjourned date.
The applicant still had not provided any application for review which contained proper particulars of the grounds relied upon. It is important to note in this case that the Tribunal invited the applicant to attend at a hearing for the purposes of giving further evidence and presenting argument in support of his claim for a protection visa. That indication was sent to the applicant in a letter dated 13 April 2004. On 28 May 2004, the Tribunal received a written response from the applicant indicating that he did not wish to attend the Tribunal hearing [CB 60]. Accordingly, I am satisfied that the applicant knew the Tribunal required further information from him before it could accept his claims and yet chose not to supply any further information.
Essentially, the Tribunal rejected the applicant’s claims because of a lack of sufficient evidence [CB 76]. The applicant stated that he left Fiji for reasons connected to his ethnicity and his political opinion. The information provided by the applicant about the circumstances of Indian Fijians is general. He wrote of mistreatment, lack of political rights and freedoms, and about land issues. There is no information about his own experiences as a consequence of his Indian ethnicity.
The Tribunal rejected the applicant’s claim only after affording him the opportunity to provide further material. This opportunity was not taken up, and the Tribunal proceeded to make a determination based on the information that had been given, pursuant to section 426A of the Migration Act. The Tribunal was not satisfied on the facts and matters necessary for the grant of a protection visa. The Tribunal complied with its obligations as specified by the Migration Act before making its decision. It committed no reviewable error in doing so. Accordingly, I dismiss the application and order that the applicant pay the respondent’s costs of 24 May 2005 fixed in the sum of $1,750.00.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 10 June 2005
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