MZWPG v Minister for Immigration

[2005] FMCA 1059

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWPG v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1059

MIGRATION – Protection visa – no jurisdictional error – decision made in absence of Applicant.

Migration Act 1958, s.474
Federal Magistrates Court Rules 2001, Rule 13.03A(d)

Applicant: MZWPG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 982 of 2004

Judgment of: McInnis FM

Hearing date: 26 July 2005

Delivered at: Melbourne

Delivered on: 26 July 2005

REPRESENTATION

Applicant: No appearance

Counsel for the Respondent: Ms G.A. Costello

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Applicant be granted leave nunc pro tunc to add a Second Respondent being the ‘Refugee Review Tribunal’.

2. The Second Respondent be granted leave to file and serve a Notice of Appearance.

3. The application filed 15 December 2004 be dismissed pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001.

4. The Applicant shall pay the First Respondent’s costs fixed in the sum of $4,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 982 of 2004

MZWPG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

(As corrected)

1. In this application the applicant who is unrepresented does not appear this day.  The respondent has sought the court's indulgence to the extent of leave being granted to the applicant to join as a second respondent Refugee Review Tribunal, which is consistent with recent High Court authority.  To the extent that that is necessary, I shall – albeit in the absence of the applicant – grant to the applicant leave to amend the application by adding as a second respondent “Refugee Review Tribunal”, and that leave is granted nunc pro tunc. 

2. The application filed on 28 July 2004 seeks review of a decision of the Refugee Review Tribunal (the RRT). That decision of the RRT had affirmed a decision of a delegate refusing the grant of a protection visa to the applicant. The decision of the RRT dated 22 June 2004 considered in some detail the claim made by the applicant and I am satisfied on a proper reading of that decision that it could not be suggested that there is indeed any jurisdictional error. Accordingly s.474 of the Migration Act 1958 (the Act) applies, and in the circumstances the appropriate order is that the application be dismissed with costs.

3. By way of background it is appropriate to set out briefly that the applicant is a 32-year old male Malaysian citizen of Indian ethnicity and Hindu religion who arrived in Australia on 9 March 2003 and he applied for a protection visa on 22 April 2003.  As indicated earlier, the visa application was refused by a delegate of the first respondent, and then on 5 April 2004 the applicant applied for review with the RRT.  The claim of the applicant was a claim based on persecution from government authorities at the time for allegedly speaking out against government policies and attitude.  During the course of an interview, however, with the respondent’s delegate and indeed at the RRT hearing, the applicant stated he did not actually speak out against the government in public.  In the interview with the respondent and again at the RRT hearing, the claim of feared persecution appears to be in relation to Muslim groups on the basis of the applicant's Tamil ethnicity and Hindu religion.  It appears during the course of the hearing at least to have abandoned any claim regarding persecution allegedly arising from speaking out against the government.

4. In any event, the decision of the RRT, whilst accepting the applicant was a Hindu of Indian ethnicity and that he worked with a temple committee in his home village, ultimately rejected the balance of the claims regarding attacks allegedly made upon him and subsequent imprisonment as implausible and incredible.  Other findings which are not necessary to recite have clearly been made by the RRT in this matter, and those findings could properly be regarded as findings adverse to the applicant's credit.  Adverse findings in relation to facts and in particular in relation to matters of credit in circumstances of this kind are matters which are indeed reasonably open to the RRT.  In this instance I cannot detect any basis upon which this court could conclude that there has been any jurisdictional error.  The RRT has simply embarked upon its fact-finding mission in an appropriate manner and drawn conclusions which I am satisfied were reasonably open to it free of any jurisdictional error.

5. I have decided to consider the merits of the application generally, and in doing so have proceeded in the absence of the applicant pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (the Rules). I am satisfied from copy correspondence provided by the respondent's solicitors that the hearing date of this day was notified to the applicant at the address set out in the application by letter dated 8 December 2004 enclosing as it did copy of an order made by the court on 18 November 2004. That order clearly indicates the date of hearing of this matter, and in the circumstances, having regard to the lack of merit in the application and notwithstanding the non-appearance of the applicant, it is my view that it is in the interests of justice to proceed to hear the matter generally and to make an order dismissing the application pursuant to Rule 13.03A(d) of the Rules.

6. I should note for the sake of completeness that the application itself is hopelessly inadequate.  It simply refers to the orders sought.  Attached to it at the time of filing was an affidavit purportedly sworn by the applicant on 28 July 2004 which again simply refers to an application for judicial review, and although it refers to errors and denial of procedural fairness and wrong application of law, there are no particulars provided, and on the face of it, the application does not in my view even disclose an arguable case in this matter.  It follows for the reasons given the application should be dismissed with costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  15 September 2005