MZWXG v Minister for Immigration - [2006] FMCA 1794

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWXG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1794

MIGRATION – Refugee Review Tribunal – protection visa – application for reinstatement refused.

Federal Magistrates Court Rules 2001, r.13.03A(c)

Applicant:

MZWXG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 87 of 2005

Judgment of:

McInnis FM

Hearing date:

27 November 2006

Delivered at:

Melbourne

Delivered on:

27 November 2006

REPRESENTATION

Applicant:

In Person

Solicitor for the First Respondent:

Ms M. Ngo

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application seeking reinstatement be refused.
The Applicant shall pay the First Respondent's costs fixed in the sum of $1,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 87 of 2005

MZWXG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application seeking to effectively reinstate a substantive application for judicial review which the court had dismissed on 3 March 2006. The application before this court seeking to reinstate the substantive application arises in circumstances where on 3 March 2006 the court had dismissed the substantive application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001.
The chronology of events in this matter have been accurately set out in an Outline of Submissions of the First Respondent. It is clear that the substantive application seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 March 2004 which had affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
The chronology of events may briefly be stated in the following terms:
a)On 30 November 2003 the Applicant arrived in Australia on a visitor visa.
b)On 22 December 2003 he applied for a protection visa.
c)On 30 December 2003 a delegate of the First Respondent refused to grant the protection visa and the Applicant then applied on 7 January 2004 to the Tribunal seeking review of the delegate's decision.
d)The Tribunal conducted a hearing on 30 March 2004.
On 31 March 2004 the Tribunal affirmed the delegate's decision and on 24 January 2005 the Applicant filed an application for judicial review. Ultimately the matter was listed for hearing before this court on 3 March 2006, and, as indicated, the court then dismissed the application due to the non‑appearance of the Applicant on that day.

On 28 March 2006 the Applicant filed an application to show cause and a summons in the High Court of Australia.
On 4 August 2006 the First Respondent filed a Summons in the High Court seeking dismissal on the basis that the application had been filed out of time. Ultimately on 22 August 2006 the Applicant signed minutes of consent orders dismissing the High Court application and orders to that effect were made by the High Court on 23 August 2006. The Applicant then applied to this court on 11 September 2006 to reinstate the application for judicial review.
The Applicant who appears before this court is self‑represented, though appears with the assistance of an interpreter. He has relied upon a document entitled “Submissions” and has further, as I understand it, relied upon earlier Contentions of Fact and Law filed in the substantive application on 31 May 2005. Further, the Applicant has relied upon an Affidavit in support of the application for review.
The Affidavit sworn 17 November 2006 provides some details concerning the grounds now relied upon by the Applicant for reinstatement. It should be noted in passing that the Applicant had also filed on 11 September 2006 a shorter Affidavit in support of his application. That Affidavit sworn the same day it was filed is very brief and simply states as follows:
“I am the Applicant in this matter. I wish to have this matter reinstated because I did not appear on the hearing day due to illness.”
In the Affidavit sworn 17 November 2006 the Applicant provides some further details, though it should be added does not provide further details concerning his illness. In that Affidavit, however, he states as follows:
“1.I am the Applicant in this proceeding. The matter was dismissed on 3 March 2006 when I failed to attend the hearing set for that day.
2.I did not attend at the hearing because I was sick on that day. I had no‑one to assist me because I could not afford to pay a lawyer to represent me at the hearing and make submissions on my behalf.
3.After the matter was dismissed I appealed to the High Court because I felt I had a better chance of success in that Court. But when the Respondents told me that they were willing to have the matter remitted to this Honourable Court I agreed to do so.”
The Applicant then attaches a copy of relevant High Court documents and goes on to express a view that he believes very strongly that the respondents are wrong in denying him a protection visa, because the facts that he had put to them are true and that he has a genuine fear of persecution.
In the present application the First Respondent has submitted that on the material before the court the court should not be satisfied that the Applicant has provided any or any adequate explanation for his non‑appearance before the court on 3 March 2006; or, in the alternative, that in any event the Applicant does not have an arguable case.
In relation to the question of providing any or any adequate reason for failure to appear, the court notes that the Applicant in his Affidavit material has simply stated that he was "sick on that day". Before this court I have not required the Applicant to give further evidence, though accept for present purposes what he has stated from the bar table that on the day he was suffering from diarrhoea and did not attend a doctor and did not obtain a certificate. He also states from the bar table that he did not make any attempt to contact either the court or the respondent on the previous day of hearing.
For reasons which will become apparent, it is not necessary for me to explore in further detail the adequacy of the explanation for the Applicant's failure to appear, though to the extent that I am required to make a finding I am not satisfied that there is indeed on the material before me an adequate explanation provided. In my view, the Affidavit material is deficient as it merely asserts that the Applicant was sick on that day.
The assertion from the bar table, which, as I have indicated, even if I accept, provides some material to at least indicate the type of illness suffered by the Applicant, is not of itself sufficiently persuasive for the court to conclude that the Applicant had no ability to make either any contact with the court and/or to attempt to attend that day, even if only to excuse himself after making application for an adjournment or to arrange for another person to attend on his behalf to at least indicate to the court that an adjournment was required.
Further, the Applicant, I am satisfied, could at least have sought some medical treatment or attention at a point when he had recovered sufficiently to arrange for an attendance with a medical practitioner. In any event, despite the finding that the material in my view does not provide an adequate explanation, I am otherwise satisfied on the material before me that in this instance the Applicant does not have an arguable case.
In circumstances where the court finds that there is not an arguable case then, to the extent that I may be wrong or in error in finding that there is not a satisfactory explanation for non‑appearance, the lack of an arguable case, in my view, is fatal to the application for reinstatement. The failure to demonstrate an arguable case needs to be considered against the background of the Applicant's claims and to them further consider the way in which the Tribunal has dealt with those claims.
It is perhaps noteworthy though at the outset that the Applicant in his application, which was the original application in the substantive matter, had simply referred to the grounds as follows:
“1. The Respondent failed to observe the proper procedures with regard to the Applicant and to act in accordance with substantial justice.
2. The Respondent exceeded its jurisdiction.”
In the material before the court that is, the Applicant's Contentions of Fact and Law, further details were given in support of those grounds and it was claimed by the Applicant that the Tribunal failed to consider whether the police and government authorities in Fiji were in fact able to protect the Applicant and his family from private actions directed against him as a member of a particular social group, despite their willingness to assist him.
Further, it is asserted that the Tribunal erroneously failed to consider the overall economic and social situation of Indo‑Fijians, particularly having regard to their inability to own and sell land, which puts them at considerable present and future risk of being dispossessed and therefore being discriminated against economically.
The contentions of the Applicant then refer to the Tribunal exceeding its jurisdiction by:
“… taking into account irrelevant considerations in that it determined that the mere fact that wealthy indigenous Fijians are also the object of a rising crime wave suggests that Indo‑Fijians are not singled out for persecutory activities from private individuals as well as by Fijian authorities who are almost exclusively indigenous.”
The Applicant in the submissions filed this day then further states, in addition to those matters set out in the earlier contentions, the following:
“My main submission is that the Tribunal failed to explain adequately or at all why the discrimination and harassment that I have claimed in my applications does not amount to persecution.”
In that document the Applicant then effectively re‑states the matters which appeared in the earlier contentions.
To understand the grounds relied upon by the Applicant it is necessary to consider the background which includes a claim by the Applicant of a well‑founded fear of persecution in Fiji due to his ethnicity as an Indo‑Fijian and due to his religion as a Muslim.
He claimed that his fear was well‑founded as a member of a particular social group based on his Indo ethnicity together with his demographic that he occupies in the village system, specifically particular claims were related to harassment of unknown indigenous Fijians when the Applicant was walking from a bus stop in his village on his return from work and arson and stone‑throwing at a mosque that he attended in his village.
He also referred to the burning of a cane field on land in his village, apparently including some land leased by his family. I should pause at that point to note that the Applicant before this court has re‑stated some of those matters in support of the application for reinstatement.
In its decision the Tribunal considered the claims made by the Applicant. Under the heading Claims and Evidence the Tribunal set out the various claims, including the claims summarised earlier in this judgment. It notes that:
“No details of his circumstances or claims were provided in the Applicant's protection visa application form, but a covering submission dated 15 December 2003 it was provided by his adviser.”
The Tribunal then goes on to consider the contents of that document.

It is noted from the chronology set out earlier in this judgment that a hearing was conducted by the Tribunal on 30 March 2004. In its decision the Tribunal then refers to material raised by the Applicant at that hearing in the following terms:
“At the hearing on 30 March 2004 the Tribunal asked the Applicant about his experiences and concerns. The Applicant stated that he has problems in Fiji because the mosque had been set on fire and when he goes to the mosque the indigenous people throw stones. In response to questions, the Applicant clarified that he attends one of the mosques in …. He did not go every day but attended regularly on Fridays and during Ramadan. On two occasions last year he had been present when Fijians threw stones at the mosque and stole shoes, and worshippers had told him this had also happened on other occasions. The police had come and made a report and said to let them know if it happened again. The incidents had not stopped him attending the mosque.
The Applicant also stated that the sugar cane fields have been burned. Asked when, the Applicant was vague but stated that it was last year in his village. The Applicant stated that it had been on land leased by his grandfather and left to his father but which is not in his father's name. The Applicant also stated that he himself had worked in the fields before he was in employment but that he had been employed at the same place in … since 1992. The land was still leased but not as much cane is grown there as previously.”
(Court Book pp.57-58)
The Tribunal then goes on to consider other claims made by the Applicant and country information. Under the heading Findings and Reasons it is clear that the Tribunal considered the claims in the context of the independent country information. It was not satisfied that the claims of the Applicant amounted to persecution and was not satisfied that the claimed harassment on return to work amounted to anything very serious, and further concluded it did not amount to persecution.
Specifically, the Tribunal states the following:
“The Tribunal has carefully considered the independent information cited concerning the presence situation in Fiji and, in particular, whether the situation is such (having regard both to the country information and the Applicant's own particular circumstances) that he would face a real chance of persecution for a Convention reason on return to Fiji now or in the reasonably foreseeable future.”
The Tribunal then goes on to consider country information and proceeds with its findings as follows:
“It is generally accepted that crime has been a serious problem in Fiji and that the police do not always respond quickly or effectively. The police have often been ineffective as they are under‑resourced and poorly trained. However, this is clearly a problem for Fijians generally and the country material does not indicate that the authorities condone (or specifically refuse to provide protection in relation to) crimes against Indo‑Fijians. The Tribunal is not satisfied that the authorities provide ineffective protection to Indo‑Fijians for a Convention reason rather than because of systemic inefficiency or under‑resourcing. Nor is the Tribunal satisfied that the Applicant has been or would be denied protection for a Convention reasons.
It is in this context relevant to consider evidence that ethnic Fijians, as well as ethnic Indians, are victims of crimes of violence and robbery, and that ethnic Fijians who commit such crimes (whether against ethnic Fijians or against Indians) may find themselves charged, convicted and sentenced-including with the involvement of ethnic Indian police prosecutors and ethnic Indian magistrates”.
The Tribunal then goes on to consider other material and concludes that the Tribunal:
“… is satisfied that there is not a deferential response by authorities on the basis of ethnicity amounting to persecution for a Convention reason.”
The Tribunal then considers specific claims and makes findings in relation to those claims and ultimately then concludes as follows:
“The Tribunal is satisfied that the Applicant's recent experiences as he has described them do not amount to persecution. The Tribunal is not satisfied that the Applicant faces a real chance of persecution by reason of his ethnicity or religion or particular social group or for any other Convention reason, on return to Fiji.”
It is clear from a proper reading of the Tribunal's findings, in my view, that it has carefully considered the claims made by the Applicant and it has done so in a manner free of jurisdictional error. The consideration by the Tribunal of the treatment of Fijians, including indigenous Fijians is not, in my view, a matter could properly be regarded as irrelevant to the effective disposition of the application before the Tribunal.
In my view, the grounds sought to be relied upon in this application, which are expressed in what might be described as somewhat vague terms, albeit the subject of further particulars in the Applicant's contentions and more recent submissions, do not of themselves provide any or any proper basis upon which this court could conclude that there is an arguable case. I am satisfied that on the material before me there is not an arguable case, as the Tribunal has considered the claims before it in a manner free of any jurisdictional error and has made conclusions of fact reasonably open to it.
Accordingly, in considering this application for reinstatement, it is my view that on the material before me the application should be refused, first, on the ground that I am not satisfied that an adequate explanation has been given for the non‑appearance of the Applicant before the court when it made its orders on 3 March 2006 and in the alternative, in the event that the court is in error in making that finding, I am otherwise not satisfied, for the reasons given, that there is indeed an arguable case. It follows, for the reasons given, that the application should be refused, with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 27 November 2006