MZWVX v Minister for Immigration
[2005] FMCA 1157
•8 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWVX & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 1157 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – whether translation of Tamil newspaper articles should be provided – summary dismissal – no arguable case. |
| Migration Act 1958, ss.424, 424A |
| MZWVW v Minister for Immigration [2005] FMCA 1156 |
| Applicants: | MZWVX, MZWWT, MZWWU, MZWWV, MZWWW & MZWWX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 52 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr D. Cheung |
| Solicitors for the Applicants: | David K Kin Cheung |
| Counsel for the Respondent: | Ms T. Veschetti |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application as amended be dismissed.
The applicants shall pay the respondent's costs fixed in the sum of $4,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 52 of 2005
| MZWVX, MZWWT, MZWWU, MZWWV, MZWWW & MZWWX |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the applicants are husband, wife and four dependant children. I take the submissions made for and on behalf of the primary applicant to be submissions made for and on behalf of all applicants and for convenience will simply refer to the primary applicant throughout in this decision. It is noted that the parties are represented by legal representatives who have this day previously appeared for the applicant and respondents respectively in application MLG 51 of 2005 (MZWVW v Minister for Immigration [2005] FMCA1156). I do so in circumstances where both parties have effectively adopted submissions made in the earlier matter for reasons which are evident, namely, that there are significant similarities between this application and the previous application which the court heard and determined.
The application in this case is, as I indicated, an application by the primary applicant, who is the husband, his wife and four dependant children. The application was filed on 17 January 2005 and sought review of a decision made by the Refugee Review Tribunal (the RRT) on 10 December 2004 affirming a decision of a delegate not to grant a protection visa to the applicants. The applicants claim to be citizens of Malaysia. They arrived in Australia on 23 February 2004. On 6 April 2004 they lodged an application for protection (class XA) visas with the department and a delegate of the Minister refused the application for protection visas by a decision on 26 May 2004. On 1 July 2004 the applicants applied to the RRT for review of that decision. The RRT, as I indicated earlier, affirmed the delegate's decision not to grant a protection visa by a decision dated 10 December 2004.
In this case it is important to note the procedure followed by the RRT by inviting the applicants to attend a hearing. It did so by letter dated 10 September 2004 (court book page 95). At that time the hearing was scheduled for 27 October 2004. A response to the invitation was forwarded indicating that the applicants did wish to attend and required the services of an interpreter. Relevantly it is noted in the present case that the letter of invitation to which I have referred in requesting the applicant to send any new documents, including written arguments which the applicant would wish the RRT to consider, contains the following reference:
“Please note any documents or arguments you sent should be in English or translated by a qualified translator.”
The RRT then rescheduled the hearing date from 27 October to 28 October 2004 and notified the applicants of the rescheduled date by letter dated 21 October 2004. That generated correspondence which appears to be incorrectly dated 26 September 2004, which I note was received on 26 October 2004 (see court book page 101), where the primary applicant states that:
“I am not attending the hearing on 28 October 2004. I am faxing my written submissions.”
Written submissions were forwarded by facsimile transmission to the RRT (court book 102 to 109). The written submissions, as indicated by the respondent's representative, appear to be identical to the claims made by the applicant in the application for a protection visa (court book pages 36 to 39). However, apart from the material by way of submission that was forwarded by facsimile transmission prior to the hearing date, it is further noted that there are a number of newspaper articles forwarded in support of the application. Most of those newspaper articles are in English. Two appear to be in Tamil and it appears to be common ground that those two articles were not translated and a translated version was not provided by the applicant to the RRT.
In the present case the respondent was granted leave to make an oral application for summary dismissal and that leave was granted by order of the court on 22 July 2005. On that day there was no appearance for the applicant and issues had been raised concerning noncompliance with earlier orders made by the court on 2 March 2005. For present purposes the noncompliance with those orders in terms of dates is not a matter of concern to the court and in this matter, as in the previous matter heard and determined this day to which reference was made earlier, the primary issue raised for and on behalf of the respondent in support of the application for summary dismissal is that there is no arguable case or that indeed in this case no reasonable cause of action disclosed. For reasons given in MZWVW I am satisfied the RRT has discharged its obligations in issuing the invitation to the applicants to attend a hearing and that as a matter of law there is no error in the way in which the RRT has conducted the process.
My only concern in the present application, having regard to the amended application filed 19 July 2005 in the contentions of fact and law, is the issue of the way in which the RRT has dealt with the newspaper articles relied upon by the applicant in the submissions made in writing. In this case it cannot be claimed that the applicant has shown no interest in attending the proceeding or in making submissions to be relied upon by the RRT but instead at the very least has provided written submissions. In support of those written submissions, albeit identical to the submissions relied upon in the original application, the applicant has at least provided newspaper articles claimed to be articles in support of the application. Having referred to the several newspaper articles, the RRT under the heading ‘Findings and Reasons’ makes significant findings in this instance in support of the applicant in the following terms (court book page 121):
I accept the applicant is a national of Malaysia, who travelled to Australia on a Malaysian passport. I accept that he has no other nationality and no right to reside in any country other than Malaysia.
I accept that 4 members of the applicant's extended family were killed in 1998. The applicant has provided several newspaper articles reporting the incident. However, I do not accept that the applicant faces a real chance of persecution now or in the foreseeable future for any Convention reason.
The applicant claimed that his relatives were murdered by Muslim militants in 1998, and that he was threatened because he sought to have law enforcement authorities pursue the murderers. The information supplied by the applicant in relation to these events is however vague, lacking in detail, and inconsistent. For example, the applicant states that his relatives were murdered by Muslim militants, however the newspaper articles he submitted that reported the incident make no mention of any racial basis for the attacks; a member of the family is quoted as stating that the family had 'no enemies' and the police described the attack as having been carried out 'gangland style'. The applicant did not explain why he believed the murders were racially motivated. The newspaper reports also do not support the applicant's claim that the police took no meaningful action to investigate the murders and bring the perpetrators to justice. The news reports include a request by police for anyone with information to come forward, and also offer a reward for information that leads to the arrest of those responsible.
I do not accept that it is plausible that the applicant would be threatened with harm by anyone connected with the incident some 6 years after the incident occurred. The applicant referred to an incident of ethnic conflict that occurred in his birthplace in 2003, which he said again drew attention to him and led to further threats by Muslim militants. However again this seems implausible. It appears that the applicant was not living in his village at that time, but was living and working in Kuala Lumpur, the capital city of Malaysia. It is not clear where the applicant's wife and children were living at this time. He states that a relative was present when this incident occurred and recognised one of the participants as having been involved in the 1998 incident. There is no explanation as to why the applicant would take this issue up with law enforcement authorities rather than his relative who was actually present, and why Muslim militants would then target the applicant. There is no suggestion that his relative came to any harm himself as a result of this incident. It seems implausible that the applicant's wife would give strangers who are of a different ethnic group the means to contact the applicant if they had feared harm from Muslim militants.”
In its reasons, after reciting accurately the principles to be applied in relation to consideration of a claim to fear persecution, the RRT goes on to state the following:
“By declining the invitation to attend a hearing, the applicant has not given the Tribunal the opportunity to further explore his claims. Had the applicant attended the hearing I would have sought further information in relation to the issues set out above. For example, I would have asked the applicant in what way he believed the police had failed their duty to investigate the killing of his relatives in 1998, and what connection this had to his race or religion. I would have requested detailed information regarding the incident in 2003, and how this was connected with the applicant and/or his family and what if any protection could be provided by the authorities against threats of the kind he described. However, as I have not had the opportunity to seek this further information from the applicant, a number of relevant questions are left unanswered.”
The RRT then goes on to summarise its findings and states:
“Based on the limited, vague and inconsistent evidence before it the Tribunal cannot be satisfied that
·The murder of the applicant's relatives in 1998 was racially motivated;
·The applicant pressured the authorities to pursue the perpetrators in either 1998 or 2003, and that the authorities were unwilling to do so;
·The applicant has ever been harmed by Muslim militants for a Convention reason;
·In the event that the applicant was threatened with harm in the future, the authorities would be unable or unwilling to afford him adequate protection;
·The applicant faces a real chance of harm by Muslim militants for any Convention reason if he were to return to Malaysia now or in the foreseeable future.”
I have deliberately recited the findings in some detail as it is clear from those findings in my view that the RRT has reached conclusions reasonably open to it and perhaps more significantly in this case has indeed made relevant and appropriate observations concerning difficulties confronted by a tribunal by the non‑appearance of an applicant. In this case the applicant has provided some written submissions, albeit identical to the original submissions in the claim, and, as indicated earlier, has further provided newspaper articles.
A concern expressed by the court during the course of submissions related to those two articles which appear to be in the Tamil language and not translated. However, in the circumstances where articles not in the English language are to be relied upon by an applicant, in my view it is reasonable to expect, having regard to the correspondence to which I have referred, that those articles be translated. In the event that those articles contain different information from the contemporaneous articles written in the English language, then in normal circumstances it is reasonable to expect the applicant to draw attention to that difference by providing a translation. In the absence of a translation or further submissions concerning any difference that may exist in the articles then in my view this case is a clear case of the kind where the principles relating to summary dismissal should apply. I cannot see on the basis of the decision of the RRT or the amended application and contentions prepared in support of this application any jurisdictional error or error of a kind which would allow judicial review.
It is proper in my view to conclude that there is no arguable case, or to put it another way, I am satisfied there is no reasonable cause of action for the reasons given. It follows therefore that it is appropriate that the application as amended be dismissed and that the applicants be required to pay the respondent's costs.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 August 2005
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