MZWPN v Minister for Immigration

[2005] FMCA 1413

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWPN v MINISTER FOR IMMIGRATION [2005] FMCA 1413

MIGRATION – Application for protection visa – no error by Tribunal.

Judiciary Act 1908, s.39B
Federal Magistrates Court Rules 2001

Applicant: MZWPN

Respondent: MINISTER FOR IMMIGRATION AND MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1060 of 2004

Judgment of: Phipps FM

Hearing date: 27 July 2005

Delivered at: Melbourne

Delivered on: 27 July 2005

REPRESENTATION

Applicant No appearance

Counsel for the Respondent: Ms Costello

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 13 August 2005 is dismissed pursuant to rule 13.03A(d) of the Federal Magistrates Court Rules 2001.

2. The applicant pay the first respondent's costs fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1060 of 2004

MZWPN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the applicant has not appeared. It is an application under s.39B of the Judiciary Act 1908 to review a decision of the Refugee Review Tribunal dated 28 June 2004. The applicant is a citizen of Nepal. He arrived in Australia on 11 December 1998, and on 11 September 2003, he lodged an application for a protection visa. He arrived in Australia on a temporary business entry visa first on 13 June 1996. He was participating in the 11th Asian Tae Kwon Do championships. He departed Australia on 17 June 1996 and returned on 11 December 1998. Since then he has resided in Australia except for periods in March, June and July 1999 where he returned to Nepal. The application was refused by a delegate of the Minister on 11 November 2003. He lodged his application to the tribunal on 15 December 2003 and the tribunal affirmed the decision not to grant a protection visa on 28 June 2004. The application to this court was filed on 13 August 2004.

2. The claim which the applicant made was that when he returned to Nepal from Australia after the Tae Kwon Do championships, he commenced training students in Tae Kwon Do schools.  During the two years following his return to Nepal, the political situation deteriorated and a party who called themselves Maoists started terrorising the population.  He said that one of the tactics employed by the Maoists was to recruit younger members of the community, and refusal to join the party was met with threats of assassination that were often carried out.  Because of his recognition in the field of Marshall combat, he was approached by people unknown to him asking him to become a member of the party.  Initially, the requests were vague but then they became more persistent and explicit.  He became alarmed realising that his life, he said, may be in danger.  He was advised by a government official to take the matter quite seriously.  He is opposed to the political ideology of the Maoists and would not have joined them in any circumstances so he decided to go abroad.

3. The tribunal then sets out communications with the applicant inviting him to attend a hearing, the tribunal having decided that it could not determine the application on the papers. A hearing was originally scheduled for 17 June 2004. On 7 June 2004, the applicant contacted the tribunal and confirmed that he would attend and required an interpreter. This was confirmed by the applicant's then adviser by facsimile dated 11 June 2004. The applicant did not attend the hearing on 17 June 2004. The adviser sent a facsimile that day, a request for an adjournment on the basis that the applicant was suffering from food poisoning. A medical certificate was attached. The hearing was postponed to 24 June 2004. On 18 June 2004, the applicant's adviser, again by facsimile, confirmed the applicant's intention to attend on 21 June 2004. The applicant did not attend on 21 June 2004. On that day, he contacted the tribunal to say that he was no longer represented by the adviser who had been representing him and wished to obtain the services of another adviser, and he sought a postponement to later in the day. That was not possible, but the hearing was postponed to 28 June 2004 and the applicant was advised of that by letter dated 21 June 2004. On 24 June 2004, the applicant sent a letter saying he would not be able to attend the scheduled hearing on 28 June 2004. He said his reason was that his previous migration agent was unhelpful. He had decided to change his representation, find a new lawyer, but due to lack of time he had not been successful in finding anyone. He then said this:

   Since I find myself unready for the hearing due to lack of legal consultation, I have decided not to attend the hearing.  I implore you to carry out the hearing in my absence and make whatever decision you feel right.

4. The tribunal then records in its reasons that the applicant had requested that the matter be determined on the papers. The tribunal noted that the applicant had been assisted by an adviser right up to the first date on which the hearing had been appointed. The tribunal then reviewed the applicant's claims and set out a number of matters about which it would have wanted to ask the applicant questions, for instance, what he had to say about his opposition to the political ideology of the Maoists. The tribunal said it would have asked the applicant about the approaches that had been made to him to join the Maoists party. It would have asked him to identify the persons and about the persons connected with the Maoist party about the contents of the demands, whether any threats of harm were made and what connection, if any, there was between those demands and the applicant's skill. There were other matters on which the tribunal said that it would not have wanted to question the applicant. The tribunal came to the conclusion that because it could not question the applicant about the various constituent parts of its claim, it was unable to be satisfied that the applicant had suffered any persecution in the past or that there was a real chance that he would be persecuted by reason of his political opinion, and consequently the tribunal affirmed the decision not to grant a visa.

Contentions

1. The application sets out general grounds which allege applying the wrong test, failing to consider the case properly and breach of natural justice, but without any particulars. Then an amended application was filed, and it alleges lack of jurisdiction. It claims that the tribunal asked the wrong question or identified the wrong issue. It then refers to the tribunal saying that it noted that the applicant had been assisted by an adviser right up to the first date and that the applicant had apparently not retained another adviser. The particulars say that the tribunal should have taken into account the circumstances which were described and it refers to the principles of natural justice.

2. The contentions of fact and law which were filed contain a similar complaint. Therefore, the one issue which is raised is natural justice based on the circumstances set out in the tribunal's reasons leading up to there not being a hearing conducted and the tribunal deciding the matter on the papers. The breach of natural justice which is apparently alleged is that the applicant was not given the opportunity of a hearing, or perhaps in some way associated with that, that the tribunal did not properly take into account the fact that there had not been a hearing.

3. The applicant was given more than adequate notice of the hearing. The tribunal adjourned the hearing, or postponed the hearing on short notice from the applicant some three or four times and eventually proceeded after receiving a letter from the applicant saying that the applicant did not intend coming and asking that the hearing be carried out in the applicant's absence. There is no breach of the rules of natural justice in those circumstances. The applicant had more than adequate opportunity to attend the hearing and present his case. There is no ground for any other criticism of the tribunal's decision. It set out the applicant's claims, set out why it would have wanted to question the applicant, and in the absence of evidence or information or answers from the applicant, while it was unable to make a decision on the applicant's claim, the inevitable result is that the claim must fail.

4. The applicant has not appeared. Rule 13.03A of the Federal Magistrates Court Rules2001 permits the court to dismiss the application or to proceed with the hearing generally. In the circumstances of this case, where there is no merit in the application in any event, I consider it appropriate to proceed with the hearing. The application filed 13 August 2004 is dismissed pursuant to r.13.03A(d) of the Federal Magistrates Court Rules2001.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:     Sherryn Kwong

Date:              27^th September 2005`