MZWQW v Minister for Immigration - [2005] FMCA 1428

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWQW v MINISTER FOR IMMIGRATION

[2005] FMCA 1428

MIGRATION – Review of Refugee Review Tribunal decision – adjournment application – adjournment refused.
MIGRATION – Review of Refugee Review Tribunal decision – procedural fairness – failure by applicant to attend Refugee Review Tribunal hearing – no jurisdictional error.

Migration Act (1958) Cth

MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185
NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
SZDNZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 208
MZWMT v Minister for Immigration [2005] FMCA 826
MZWMI v Minister for Immigration [2005] FMCA 810

Applicant:

MZWQW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1160 of 2004

Judgment of:

Riethmuller FM

Hearing date:

17 August 2005

Delivered at:

Melbourne

Delivered on:

17 August 2005

REPRESENTATION

Counsel for the Applicant:

In person (by telephone)

Counsel for the Respondent:

Mr W.S. Mosely

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Refugee Review Tribunal be joined as a second respondent, such an order consented to by the RRT through the Australian Government Solicitor who appears today.
That the applicant’s application be dismissed.
That the applicant pay the respondent's costs fixed at $6500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1160 of 2004

MZWQW

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT). The application was filed on 7 September 2004, some 11 months ago. The matter was the subject of directions by myself on 19 November 2004 for the filing of contentions of fact and law by 1 February 2005 on the part of the applicant and listing the matter for hearing today at 10.15 am. The applicant did not comply with those directions, only filing his contentions of fact and law on 30 May 2005. Nonetheless the Minister, as a model litigant, has accepted that as sufficient compliance and not opposed the matter proceeding to hearing.
The applicant did not attend today at Court but sent a very brief letter stating that he was unable to attend the hearing today due to ill health as he was suffering gastric and stomach pain. He enclosed a medical certificate. The medical certificate simply says:
“This is to certify that MZWQW is suffering from a medical condition gastroenteritis and was/is unfit for work from 15 August 2005.”
The certificate does not explain why it is that the condition is such as to preclude him from attending at Court, nor how severe it is said the condition is, nor when it might be that the condition will abate.
I note from the Court book that the claim of such a condition has been relied upon by the applicant in the past to seek adjournments of the hearing. In a letter of 23 June 2004 he said he was unable to attend a hearing before the RRT on 25 June 2004 because he was suffering from severe stomach ache, diarrhoea and vomiting and could not get up from the bed.
Out of an abundance of caution today I had my associate bring the conference phone into Court and telephone the applicant on the mobile telephone number he listed in the proceedings. The applicant answered the telephone and did not sound as though he was suffering from any condition that impeded his capacity to participate in the proceedings.
During the call he sought an adjournment on numerous occasions which I declined as the matter is listed for hearing today.
He has lodged his written material and he has certainly been capable of engaging in discussion over the telephone about the proceedings.

It is not appropriate that proceedings be adjourned indefinitely and these proceedings have already been in the Court lists for some

11 months, which is a lengthy period for judicial review proceedings (although I note that the volume of migration work in this Court and in the Federal Court has meant that there has been extensive delays, that should not be seen as an indication that such delays are appropriate or countenanced by the Courts).
I have had regard to a number of decisions of the Court with respect to similar medical certificates and requests for adjournment or delay. I refer to MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185; NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 17; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 and SZDNZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 208 and two previous decisions of my own: MZWMT v. Minister for Immigration [2005] FMCA 826 and MZWMI v. Minister for Immigration [2005] FMCA 810.
Ultimately I must determine what is the most appropriate order in the interests of justice, bearing in mind the needs of litigants and the Court. Having regard to the nature of the evidence put before me and the appearance of the applicant by telephone - and by that I mean his ability to engage in conversation on the phone and nature of his voice - and the facts and circumstances of this case, I have come to the conclusion that it is not in the interests of justice for the matter to be adjourned. I had advised the applicant earlier in the hearing that I declined to make an adjournment order and these are the reasons for that.
I now proceed to determine the substantive matter.
The applicant sought a protection visa which was refused by a delegate of the Minister on 29 March 2004. The applicant claims to be a citizen of India and arrived in Australia on 8 November 2003. He applied for review of the delegate's decision to the Refugee Review Tribunal, which made a decision on 13 August 2004.
The argument that he advanced today was that there had, in substance, been jurisdictional error as a result of procedural unfairness due to the failure of the Tribunal to give him adequate time to present his case.

I note from the Court book that on 24 May 2004 the Tribunal wrote to the applicant offering him a hearing on 25 June 2004. In that letter the Tribunal stated:
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 applicant wrote back to the Tribunal stating:
I [MZWQW] do hereby inform you that I am unable to attend the hearing on 25 June 2004 because I am suffering from severe stomach ache, diarrhoea and vomiting, I can't get up from bed.

I request you please decide my application as per the information I give you.
There is a note in handwriting on the bottom of the letter which appears to be by an officer of the department to the effect that the applicant should be telephoned to see if he wants a postponement or a decision on the papers and a request to reschedule for the date. There is a memorandum from an officer of the Minister on the file which states:
I called the AR [Applicant’s Representative] to find if the applicant wanted to postpone the hearing for another date or whether he wanted a decision on paper. The AR informed me that the applicant would like to have his decision made on the material already provided to the Tribunal.
A further telephone call occurred on 28 June which is noted as follows:
I called the applicant's AR regarding the hearing response form the Tribunal received on 25 June 2004. The form had been marked in both the 'no' and the 'yes' box. The AR informs me that the applicant would now like to attend a hearing. I told him that a new letter would be sent to him when the Tribunal makes a new hearing date.
On 2 July there was a further telephone call to him during which he told the officer of the department that he could not come to the first scheduled hearing as he was suffering from gastro, but he does now wish to have his case heard before the Tribunal, not a decision on the papers.
The Tribunal then quite properly set another hearing date, on this occasion 10 August 2004. The Tribunal also sent the applicant another letter on 12 July again stating:
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 response to this letter notifying of the hearing was a letter by the applicant on 5 August 2004 stating:
I [MZWQW] do hereby inform you that I am not attending the hearing on 10 August 2004.
A separate letter of the same date was also sent enclosing a variety of pieces of information and some brief submissions. That letter was in the following terms:
I, the Applicant, wish to inform, that submitting few documents, which are my country profile.
As you can go through my country profile
1. Summary of a survey on atrocities against Dalits,
2. Discrimination holding back Dalit school children: report
3. Atrocities Act being misused in Vishali
- From TIMES NEWS NETWORK
4. Film school dream means demolition for tribal homes
5. Forest staff strip tribal women
6. Ban VHP and arrest its leaders: Udit Raj
7. GMC Balayogi: India’s first dalit speaker died
8. Violence and Atrocities against Dahis
- Requested action
- Contact address
- Sample Letter
- Details of the incident
9. Murder of three Dulls in Cuddalore
These are some incidents happened there in India. Even the constitution and the government of India says all are equal, it’s only in papers. But all lower caste peoples are suffering.
All the highly influenced persons are working for the upper caste peoples like killing the persons, filing false case. I know the same will happen to me if I go back to India. So I kindly request you to grant me the protection visa.
The Tribunal proceeded to hear and determine the application, recounting the nature of the application by the applicant and noting that the applicant was put on notice that the Tribunal was not able to make a favourable decision upon the evidence he provided in support of his initial application and that he had had ample opportunity to provide more information.
The Tribunal concluded that they did not accept his material and they did not accept that he had a well-founded fear of persecution and refused his application.
On the basis of that material I do not accept that there has been procedural unfairness by the Tribunal in the way in which it dealt with the applicant. It clearly gave him appropriate opportunity to attend and appear before the Tribunal to press his case. He chose not to do so. The result would have been entirely expected, particularly given the terms of the letters that the Tribunal had sent to the applicant.

To the extent that the applicant relies upon a claim of procedural unfairness in this regard, I refuse his application.
The applicant also provided written contentions in the following terms:
I am a citizen of India who arrived in Australia and then lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act.
A delegate of the Minister then refused to grant a protection visa to me and I then applied to the Refugee Review Tribunal for review of that decision.
I am a doctor and have clinics in Bangalore and in Coimbatore.
I come from the schedule Tribe which is the lowest cast in India. We have been harassed physically, mentally and verbally.
Also I states that the law states in India that everyone is equal when it comes to justice my caste are despised. I have been in love with a girl for the past three years and she is from an upper caste. Once her father came to know of this he sent some people to my clinic and they beat me and destroyed my clinic.
I continued the relationship and had problems with the girl’s family. One day without their knowledge, I arranged my travel documents and left the country. The authorities are very supportive of the upper caste community as they take their statement to be truthful and the lower caste community statements as false. Several instances, we have been falsely implicated in cases in which we are not been involved. I can not return to India because the upper class community suppresses us. There is no chance that I would be helped or protected if I went back to India.
I wanted to marry the upper caste girl but her father is wealthy, has political influence and networks with police. I fears that if I returns to India, I will be captured and my life will be threatened. I fears that I will be killed. So I requests to be granted protection.
I believe that the girl’s father and associates will harm me as they are against me to marrying the girl. Also in some incidents happen, where boys in my community were beaten and the issue was raised publicly but till this day there has not been any investigation. Again, the upper caste community has well established networks with government officials. So if I go to the police or any officials, no action would be taken against them.
I believe that the police would file false charges against me.
The Tribunal has failed to take my facts into consideration. They have not looked into my facts in detailed and have taken irrelevant facts into consideration and refused my application. The Tribunal failed to take my facts into consideration and not had made a decision in good faith. The decision is an error because they failed to take relevant facts into consideration and gave an unreasonable decision.
Therefore the decision of RRT be setaside and my application may be remitted to RRT for consideration of my facts in detail I have already produced facts of my ease which the Tribunal failed to go through hence it is a decision with a error of Law.
The substance of the contentions are that the Tribunal failed to take these facts and circumstances into account, did not act in good faith, and acted unreasonably.
It is difficult to conclude that the Tribunal did not take the applicant's circumstances into account. In the decision the member recounts the claims and evidence of the applicant over three pages (from pages 4 to 6 of the decision). Pages 6 to 8 of the Tribunal’s decision further set out, in some detail, the applicant’s claims and the Tribunal member's views of those claims. I am not satisfied that this amounts to a basis for judicial review in this case.
There is nothing to support an allegation that the Tribunal member was not acting in good faith. It is a bare claim which has no support and ought to be rejected.
The final claim was that the decision was unreasonable. I see nothing unreasonable about the conduct of the Tribunal member.

The RRT only had written material that was not particularly detailed. The RRT had given the applicant notice, on at least two occasions, that the Tribunal was not able to make a favourable decision and the applicant did not choose to attend and participate in the hearing process. It’s quite reasonable that a Tribunal member may not be satisfied on such written material that the claim had been made out and would desire to see the applicant at a hearing.
I therefore find against the applicant on this ground.
I therefore refuse the applicant's application.
In this case the applicant was wholly unsuccessful. I note that the initially drawn application did not provide any identification of the actual grounds relied upon and minimal contentions of fact and law were filed. The applicant resists a costs order on the basis that he is not a man of means and is not working at present. Penury alone is not a proper basis for refusing to order costs.
In this matter the applicant was unsuccessful, the Minister was entirely successful.
There is in my view, appropriate circumstances for the applicant to pay the Minister's costs.
Having regard to the nature of the file and the scales in the Federal Magistrates Court and the Federal Court I find that the sum of $6500 is reasonable and therefore order that the Applicant pay the Respondent's costs fixed at $6500.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: