MZWPC v Minister for Immigration
[2005] FMCA 80
•24 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWPC v MINISTER FOR IMMIGRATION | [2005] FMCA 80 |
| MIGRATION – Review of decision of Refugee Review Tribunal – refusal of protection visa – default of appearance of applicant – not a privative clause decision – no jurisdictional error committed – application dismissed. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
SZAWW, SZAWX, SZAWY v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 479
Subramaniam v MIMA, unreported, FCA, 10 March 1998
| Applicant: | MZWPC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 979 of 2004 |
| Delivered on: | 24 January 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 24 January 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondent: | Mr W.G. Gilbert |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $6,500.00.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 979 of 2004
| MZWPC |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Ex tempore
An application for an order to review pursuant to section 39B of the Judiciary Act 1903 (Cth) was filed by the applicant on the 27th day of July 2004. The decision sought to be reviewed is that of the Refugee Review Tribunal dated the 11th day of January 2001 and handed down on 2 February 2001 which affirmed a decision of the respondent's delegate to refuse the applicant a protection visa.
On the 10th day of September 2004 Registrar Mussett ordered the applicant to file and serve an amended application by 20 October 2004. Various other procedural orders were made on that date. The applicant did not comply with those orders. On the 19th day of November 2004 this court made further procedural orders with which the applicant did comply by the filing of an amended application and the applicant's contentions of fact and law. However, the applicant did not serve the respondent with those documents and the respondent saw the applicant's amended application and contentions for the first time at the commencement of the hearing this day. The respondent was able to peruse those documents and proceed with the matter. The matter proceeded in the absence of the applicant who was called outside the court and who failed to make an appearance this day. In submissions from the bar table by counsel for the respondent the Court was informed that the respondent had, on 21 December last, corresponded with the applicant but that there had been no communication had by the applicant with the respondent in response to that correspondence or since that time.
The amended application was filed on the 10th day of December 2004. The application made application in addition pursuant to sections 475A, 477, 478 and 479 of the Migration Act 1958 (Cth) and claimed the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal asked the wrong question; identified the wrong issue; failed to take account of relevant material; and took into account irrelevant material as set out in the particulars referred to in paragraph 3.
The respondent filed a notice of objection to competency on 24 November 2004 but that is not pursued by the respondent this day for reasons which I shall detail below.
History
The applicant was born on the 15th day of August 1981. He is a national of India, born in Calcutta in West Bengal. He follows the Sikh religion. He arrived in Australia on 8 October 1999 travelling on a student visa. He arrived on a passport issued some months before his departure from India and issued in his own name. He lodged an application for a protection visa on 21 March 2000. A delegate of the respondent refused the application on 12 April 2000. Application for review of this decision was then made to the Tribunal on 1 May 2000. The applicant attended a hearing at the Tribunal on 4 December 2000 and gave oral evidence.
In the proceedings before the Tribunal the applicant claimed that he had a well‑founded fear of persecution for two reasons. Firstly, that he came from a family who were strong supporters of the Communist Party of India‑Marxist (CPI-M). His father had given significant donations to this party. The applicant and his friends attended rallies and distributed leaflets and stuck posters on walls. As a result of his activities the applicant was subjected to threats, harassment and both his and his family's property was damaged. The principal source of the antagonism towards him were supporters of the Congress One Party but also local Bengalis. Secondly, the applicant claimed to fear persecution on the basis of his Sikh religion.
Legislation
The source of power for granting or refusing a protection visa is section 65 of the Migration Act 1958 (Cth) (“the Act”). The criteria for the grant of a Protection (Class XA) visa are set out in Subclass 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth) respectively and in section 36 of the Act. Subsection 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Refugees Convention and Refugees Protocol are defined to mean the 1951 Convention relating to the Status of Refugees and the 1967 protocol relating to the Status of Refugees respectively. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Convention defines a refugee as any 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, is unable or, owing to such fear, is unwilling to return to it.
The decision of the Tribunal is not a privative clause decision as defined in section 474 of the Act because it predates the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which came into force on the 2nd day of October 2001. The applicant had commenced his initial proceedings in the High Court on 16 February 2001 joining the Muin and Lie class action. Those proceedings were dismissed on 1 June 2003. The present application postdates 2 October 2001 however, being filed on 27 July 2004. Neither the new nor the old Part 8 of the Act applies to these proceedings. As a consequence there are no relevant time limitations preventing this application being made and nor does the Court lack jurisdiction to determine the application pursuant to section 39B of the Judiciary Act 1903 (Cth). Thus the notice of objection to competency is not pressed (SZAWW & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 479 at [4]).
Refugee Review Tribunal Reasons
The Tribunal made the following findings as succinctly set out in the respondent's contentions of fact and law, save that I shall enlarge upon subparagraph (h) as set out in those contentions:
a)The applicant may be a supporter of the CPI-M party;
b)Given his description of his activities and his lack of political knowledge generally, including his lack of knowledge of what the acronym CPI-M stood for, he was a person with a low political profile;
c)The CPI-M party had been in power in the West Bengal for 23 years and was clearly in control of the apparatus of the State, including law enforcement officers;
d)Although having some doubt whether the applicant had been harassed as claimed, the harassment was not sufficient to amount to persecution within the meaning of the Convention;
e)Because the applicant supported the party which was in government in West Bengal, he would have been able to access adequate State protection from the authorities;
f)It was implausible that the authorities would ignore any harassment of its supporters that was ongoing or of a serious nature;
g)It did not accept that there had been any change in the political environment which would cause the applicant or Sikhs in general to fear that the State would be unwilling or unable to protect them;
h)…had the applicant indeed been in need of protection from the Congress Party or Bengalis, he would have departed the country much earlier, on his passport which was issued about four months previously, and sought protection in Australia much earlier than he did. He came to Australia on a student visa, quickly changed it to a more flexible student visa which permitted work, and applied for refugee status only when he could not meet further college fees. I do not accept that a person who considered he needed protection from his own country would have waited this long before making such claims, if he were indeed in need of Convention protection. I consider that if the applicant had indeed been concerned for his safety in his own state and in his own country generally, he would have applied for refugee status much earlier. In Subramaniam v MIMA, unreported, FC, 10 March 1998, Carr J stated that as a matter of principle, the period of time which elapses between an applicant's arrival in Australia and the time when they claim refugee status is a legitimate matter which the Tribunal is entitled to take into account when assessing the genuineness or at least depth of an applicant's fear of persecution.
i)Considering all of the information, both individually and cumulatively, the applicant did not face a real chance of persecution for reasons of either his political opinion or his ethnicity.
Consideration
I accept the respondent's submissions that there is no basis for disturbing the findings of the Tribunal which were essentially findings of fact open to it on the material that was before it. No error in the decision‑making process is apparent and on a fair reading of the Tribunal's reasons it is clear that those claims made by the applicant were dealt with in each particular by the Tribunal.
There is no basis for concluding that the Tribunal misapplied the test for persecution. It set out in usual terms a correct summary of the applicable principles and set out its inability to find any independent evidence or support in the country information before it for the claims made by the applicant to the events at or around 1996. As put by the respondent, it was a matter for the Tribunal to consider whether the limited harassment that it accepted may have occurred amounted to persecution in the sense of "serious punishment or penalty or some significant detriment or disadvantage", noting that the decision predated section 91R of the Act which came into force on 1 October 2001. The findings of the Tribunal effectively disposed of the applicant's claims as to discrimination and harassment.
The Tribunal specifically considered the foreseeable future in its reasons. There was nothing in the material before it to support the applicant's claim that the Indian authorities were in any way responsible for his claimed harassment or discrimination. The Tribunal referred to country information about the extensive presence of Sikhs throughout India and their positions of relative prominence. It also referred to the applicant's position in West Bengal in particular. It took into account his failure to depart the country at around the time he obtained his passport and his delay in seeking protection in Australia following his arrival on a student visa as being contrary to his claimed need for protection. No jurisdictional error has been committed by the Tribunal and thus the applicant's application must be dismissed and costs should follow that event.
The respondent invited the court in the alternative to conclude that the present application coming nearly three and a half years after the decision of the Tribunal is an abuse of process. Clearly the applicant should not be permitted to agitate proceedings in this court when he has had a fair opportunity to previously agitate proceedings well before this time. In any event, there is no jurisdictional error apparent that attends the reasons of the Tribunal and the matter shall be dismissed on that basis. I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 24 January 2005
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