MZWQJ v Minister for Immigration
[2005] FMCA 1151
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWQJ v MINISTER FOR IMMIGRATION | [2005] FMCA 1151 |
| MIGRATION – Protection visa – no error – application dismissed – non-appearance of Applicant – Rule 13.03A(d) of the Federal Magistrates Court Rules 2001. PRACTICE AND PROCEDURE – Non-appearance of Applicant – whether Applicant notified of hearing – Court Order deficient – no reference to appearance – incorrect Court heading on order – no evidence on file that sealed order forwarded by Court to Applicant – relevance of evidence of Respondent regarding attendance of Applicant – service of sealed order by Respondent – Proceeding pursuant to Rule 13.03A(d) of the Rules preferred. |
| Federal Magistrates Court Rules 2001, Rule 13.03A |
| Applicant: | MZWQJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1123 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 29 July 2005 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Mr G Gilbert |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the Respondent's costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1123 of 2004
| MZWQJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the applicant by an application filed on 30 August 2004 seeks review of a decision of the Refugee Review Tribunal ("the tribunal") dated 9 July 2004 whereby the tribunal had affirmed a decision of the delegate of the respondent to refuse to grant the applicant a protection visa. The matter was fixed for hearing this day by order of the court made on 19 November 2004. The order on the court file unfortunately does not contain the appropriate court heading, nor does it refer to the appearances on that date.
The applicant has not attended this day and I express some concern about whether the applicant had indeed received notice of this hearing date. I am informed by counsel for the respondent that according to his instructing solicitor's notes the applicant did in fact attend court on 19 November 2004. Hence, on that basis alone I am satisfied that he would have been present when the order was made, amongst others, fixing the hearing for this day.
Unfortunately a sealed copy of the order does not appear on the court file to have been forwarded by the court. There is no record by way of a covering letter, which is the usual practice. Nevertheless, the court is assisted by the information provided by the respondent's instructing solicitor that the applicant did attend court on 19 November 2004 and, lest there be any doubt, the court is also satisfied that the respondent's solicitor acting appropriately has in fact by letter dated 30 November 2004 forwarded a sealed copy of the orders made by the court on 19 November 2004. Other documents were also forwarded, including the respondent's contentions of fact and law which I note were forwarded by correspondence dated 17 June 2005.
It is further noted that the applicant filed contentions of fact and law on 4 April 2005 and out of an abundance of caution the court notes further correspondence dated 15 July 2005 from the respondent's solicitors to the applicant confirming the matter is listed for hearing this day. All the correspondence has been addressed to the applicant care of the address which appears on the application. I am satisfied the applicant has received proper notice of this hearing day and for reasons which are not advanced to this court, has not appeared when the matter was called for hearing.
The option available to the court is to consider making orders in default of appearance under Rule 13.03A of the Federal Magistrates Court Rules 2001. Having considered the material, it is my view that it is appropriate for the court to consider the merits of the application, that is, to proceed with the hearing generally pursuant to Rule 13.03A(d) of the rules. In matters of this kind, that is the preferred approach, particularly where on the face of the material there does not appear to be what I would regard as any arguable case or any basis upon which this court could conclude that there has been jurisdictional error.
I make that conclusion based upon the material to which I shall refer presently.
The background has been set out appropriately in the respondent's contentions of fact and law which includes a reference to the applicant being a citizen of India who followed the Hindu faith. He is a single man now aged 30 years who has a tertiary qualification in computer science. The applicant arrived in Australia on 10 March 2003 and launched an application for a protection visa on 22 April 2003.
A delegate of the respondent refused the application on 3 June 2003. Application was then made by the applicant to the tribunal for review of the delegate's decision on 26 June 2003. Significantly in the present case in my view is that the tribunal forwarded to the applicant a response to hearing invitation with a hearing date listed as 25 June 2004. That correspondence, which appears at the court book page 50, quite clearly sets out the hearing date, and tribunal states the following:
“The tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”
The documentation further includes a response to the hearing invitation (court book 52). In that document the applicant has marked the box that he does not wish to come to the hearing and further consents to the tribunal proceeding to make a decision on the review without taking further action to allow or enable him to appear before it. In brief terms, it is clear therefore that the tribunal made its decision on the basis of material then before it, though in the absence of the applicant. It set out under the heading Claims and Evidence the material it then considered. In brief terms, the applicant's claim related to his father's political candidacy for the presidency of the Congress Party in his family's home village. There was claimed to be local factionalism which had existed for three generations. During campaigning for the election the applicant's father and party members were allegedly attacked by a rival from the Telegu Desam Party.
It is not necessary for me to further recite the claims which were before the tribunal. It is sufficient to note that having considered the claims on the material then available to it, the tribunal was not satisfied as to the cause of the village factionalism and was not satisfied as to the motivation of those who allegedly wished to harm the applicant or whether indeed the harm he feared was for a convention reason. It notes that it was unable to explore with the applicant how and in what way his family had been in hiding and other issues which would properly be the subject of inquiry at a hearing attended by the applicant. Having regard to the lack of information and/or clarification of issues raised by the applicant, it is perhaps not surprising that on the evidence before it the tribunal was not satisfied the applicant had a well‑founded fear of persecution within the meaning of the convention.
Although grounds are raised in the applicant's contentions asserting jurisdictional error, I have considered each and every one of those grounds and in my view for the reasons advanced for and on behalf of the respondent each ground should fail. It is clear to me that the grounds do not raise on the material before me any or any proper basis upon which this court could conclude there has been jurisdictional error. The fact is that the RRT considered the claim as presented. It properly embarked upon its fact‑finding process, albeit in the absence of the applicant, and reached a conclusion which was reasonably open to it. There can be no error in a case of this kind in circumstances where the tribunal, having complied with the appropriate requirements of inviting the applicant to attend the hearing, then proceeded without the hearing in the presence of the applicant; that is, it proceeded to make a decision in the absence of the applicant and relied on the material then available to it. In those circumstances there is no error in my view identified in the reasoning of the tribunal. It has not in any sense made into what could be described as jurisdictional error and it follows for those reasons that the application should be dismissed with costs.
I certify that the preceding nine (nine) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 29 July 2005
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