MZWXH v Minister for Immigration
[2006] FMCA 418
•16 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWXH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 418 |
| MIGRATION – Protection visa – no jurisdictional error. |
| First Applicant: | MZWXH |
| Second Applicant: | MZWXI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | MLG 88 of 2005 |
| Delivered on: | 16 March 2006 |
| Delivered at: | Melbourne |
| Hearing Date: | 16 March 2006 |
| Judgment of: | McInnis FM |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | No appearance |
| Counsel for the Respondents: | Mr. M. Felman |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The First Respondent’s name be changed by deleting the words ‘and Indigenous’.
The Applicants shall be granted leave to add the Refugee Review Tribunal as Second Respondent nunc pro tunc.
The application as amended be dismissed.
The Applicants shall pay the First Respondent's costs fixed in the sum of $6,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 88 of 2005
| MZWXH |
First Applicant
| MZWXI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
In this application, the Applicants who are husband and wife seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 December 2004. The Tribunal had affirmed a decision not to grant to the Applicants protection visas.
The Applicants have relied upon an amended application filed 10 May 2005. The First Applicant appears unrepresented, though assisted by an interpreter and in addition to relying upon the amended application has otherwise sought to rely upon contentions of fact and law also dated 10 May 2005.
By way of background, it is noted that the Applicants who, as I have indicated, are husband and wife, arrived in Australia on 1 May 2004 on a visitor's visa issued on 25 February 2005, travelling on a Thai passport. The First Applicant is a male Thai citizen born in May 1970. As indicated, the Applicants applied for a protection visa on 26 May 2004. The claim was supported by a letter accompanying the claim, and on 21 June 2004, a delegate of the First Respondent refused to grant a protection visa. An application was then made on 15 July 2004 to the Tribunal seeking review of the delegate's decision.
In this case, it is significant to note that on 9 November 2004, the Tribunal wrote to the First Applicant informing him that it was unable to make a decision in his favour on the information then before it, and invited him to attend a hearing.
The Tribunal then received from the First Applicant a response to the hearing invitation indicating that the First Applicant would attend the hearing, but then on 13 December, a further letter indicated he would not be attending, and requested the Tribunal to make a decision on the papers before it. Hence the Tribunal then subsequently affirmed the delegate's decision in its decision dated 14 December 2004.
The claims of the First Applicant included that he is an ethnic Thai who is an Engineer in Thailand with some 15 years of education, culminating in an Engineering Degree from a University of Technology in Bangkok in 1992. He lived at the same address in Rayong Province all his life. He claimed he supported the Democratic Party (“the DP”) since 1999. He claimed that because of his support, the DP came to power, and Mr. Paiboon Aroonwechsaset became President of Rayong Province.
Mr. Paiboon Aroonwechsaset then appointed the First Applicant to do election work, thus making the First Applicant very popular in the province. However, in 2001, the DP lost the election and the Thai Rak Thai Party won and formed Government. The First Applicant claimed that since that time, he has received calls threatening his life and warning him not to support the DP or he will be killed. The First Applicant claimed that he complained to the police, but no action was taken. There were then more death threats.
He claimed if he returned to Thailand, his life would not be safe, but he would be prepared to go back if the situation improved, as he has a valuable chicken farm now being apparently run by his father.
In the amended application, the Applicants refer to the decision of the Tribunal being affected by jurisdictional error. The particulars provided in the application are brief. The Applicants state:
“I say the tribunal did not take a very relevant consideration into account and that was the country information document concerning poll related violence and the way elections campaigns are organised in Thailand.
The delegate himself states given the lack of ideological differences between the parties, vested interests and financial gains which are often the main motives for running in an election I can imagine that any active canvasser for any political party or groupings would be placing himself in danger.
Therefore if this was all taken into account the Tribunal would have come to a completely different conclusion.”
It is evident to me from those particulars in the amended application and in the Applicants’ own contentions of fact and law, that there are essentially two issues giving rise to this application. One issue relates to the question of what is claimed to be country information concerning poll-related violence and the conduct of elections organised in Thailand, and the other seems to be an oblique reference to the delegate's decision which I take the First Applicant to rely upon to some extent, given what he perceived to be a somewhat favourable interpretation by the delegate of the harm or danger which may be inflicted upon an Applicant who had participated, as this First Applicant claimed to have participated in political events.
In the Tribunal's decision, it is clear that the Tribunal considered in my view the claims put by the First Applicant. I note in passing that before this Court, the First Applicant has claimed that he was not satisfied with the decision of the Tribunal and that it was not a fair decision. He otherwise sought to recite in some detail the basis of the claim which appeared to me to be almost identical to the claim recited by the Tribunal in its decision. The only exception to that claim was that the First Applicant sought to raise new material before this Court concerning the current situation in Thailand which I regard as impermissible. It is not for this Court to make a current assessment of the situation in Thailand, but rather to determine whether jurisdictional error has occurred in the Tribunal's reasons on the material before it at the relevant time.
In any event, after reciting the “Claims and Evidence”, the Tribunal then drew what I regard as fundamental and significant conclusions adverse to the First Applicant's claim. They are set out in the following passages which appear at page 50 of the Court Book:
“The Tribunal does not accept that the applicant is an active supporter of, and/or campaign worker for, the DP as claimed. In the hearing, the Tribunal would have asked the applicant a number of factual questions about the DP, its history and organisational structure, key personalities, and provincial politics, in order to test the credibility of that claim.
It follows that the Tribunal does not accept that the applicant was threatened as he claimed. There are other problems with that claim. In the hearing, the Tribunal would have asked the applicant why he was only threatened after the election, when the Thai Rak Thai had won power and would have no immediate reason to be concerned about the applicant. Furthermore, the Tribunal would have invited the applicant to provide more information about what happened in the three years since the 2001 election, that caused him to finally flee in 2004, three years later. Also, the applicant has not provided any information about who was (or who might be) threatening him.
The Tribunal does not accept, on the limited information available to it, that the applicant faces a real chance of persecution due to his political opinion or for any other Convention reason.”
The Tribunal in its conclusion was not satisfied that the First Applicant is a person to whom Australia has protection obligations.
It is clear to me on a proper reading of the Tribunal's decision and conclusions that to some extent it was hampered by the non-attendance of the First Applicant at the hearing. I am satisfied that the invitation, however, to attend the hearing was properly extended according to law, and that ultimately, although indicating initially he may attend, the First Applicant indicated he would not attend.
By doing so to a large extent, the First Applicant has denied himself the opportunity of perhaps expanding upon the claim or responding to queries from the Tribunal. That however does not provide any or any proper basis in this instance upon which the Court could determine that the Tribunal has fallen into error.
In this case, it is submitted for and on behalf of the First Respondent that the allegation concerning country information made by the Applicants before this Court relates to country information that was in fact taken into account by the Tribunal. In the alternative, even if it did not take into account country information, it was not bound or required to do so.
Reference is made to the claims and evidence and also within that part of the Tribunal's decision it makes reference to the material referred to in the delegate's decision. Country information is set out in detail and length in the delegate's decision, and it is submitted, and I accept, by the First Respondent that it is open to infer that the Tribunal had regard to and considered the country information recited in the delegate's decision.
Although it is not necessary to decide the issue, it seems clear to me that in any event in this instance, the fact that country information was not specifically referred to does not diminish that inference. In the alternative I accept that in this instance, even if the Tribunal did not consider the country information, it was not bound to do so, and I shall include reference to relevant authorities appropriately relied upon by the First Respondent.
The essential issue decided by the Tribunal adversely to the Applicants was its challenge to the Applicants claim of being at risk of violence. It concluded it was not the case. It also did not accept and this was a crucial finding that the First Applicant was an active supporter of the DP or that he had been threatened in the manner he had claimed. I came to that conclusion, as is evident from the extracts referred to earlier in this judgment, based upon what can only be described as inadequate material then before it relied upon by the First Applicant.
In those circumstances, having analysed the available material, it has made a decision which in my view is reasonably open to it and free of jurisdictional error. It follows for the reasons given that the application as amended should be dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 16 March 2006
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