MZWYK v Minister for Immigration
[2005] FMCA 1212
•4 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWYK v MINISTER FOR IMMIGRATION | [2005] FMCA 1212 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) |
| Applicant: | MZWYK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 334 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 May 2005 |
| Date of Last Submission: | 4 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr Carroll |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to Rules 13.10 and 13.03A of the Federal Magistrates Court Rules the application filed on 5 April 2005 be dismissed.
The applicant not file any further application in relation to the Refugee Review Tribunal decision dated 7 October 2003 without first obtaining leave of the Court.
The applicant pay the respondent’s costs fixed in the sum of $2,010.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 334 of 2005
| MZWYK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application seeking judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 7 October 2003.
The applicant claims to be a citizen of South Korea. The applicant arrived in Australia on 2 February 1997. He did not lodge an application for a protection visa until 29 November 2002.
On 20 March 2003 a delegate of the Minister refused the application for a protection visa. On 15 April 2003 he applied for review in the Refugee Review Tribunal. The Tribunal member refused his application on 7 October 2003.
The Tribunal member, in his discussion of evidence and findings, said as follows:
The applicant has not availed himself of the opportunity of a hearing. In the absence of oral evidence from the applicant at a hearing where his claims could be tested the Tribunal does not accept that he ever faced consequences amounting to persecution for any Convention reason.
Even if the Tribunal were to accept that the applicant was engaged in political activity no evidence has been adduced to indicate, especially in light of the limited degree of his activity and the passage of time, that he would now face a real chance of persecution as a consequence. In that regard the Tribunal also notes and gives weight to an absence of reports of persecution of supporters of the political party to which the applicant claims allegiance and to any reports of persecution by the ruling party of any political opponents with a profile similar to that of the applicant.
The Tribunal concludes that even if the applicant’s claims were true they do not indicate, now or in the foreseeable future, a real chance of persecution for any Convention reason.
In reaching its ultimate conclusion that the applicant is not a refugee the Tribunal also notes that he made two voluntary return visits to South Korea, each of about two months duration, after the election of a new government in late 1997. Such visits are entirely inconsistent with the existence of a subjective fear of persecution.
The Tribunal also notes the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai and The Minister for Immigration and Ethnic Affairs, 34 ALD 349 where His Honour states:
“(v) The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicants alleged fear of persecution.”
In the present case the applicant’s significant delay in applying for asylum, some six years after his initial arrival in Australia and eight months after the expiration of his last visa, indicates to the Tribunal that he did not have a strong or lasting fear for his personal safety or future well-being when he left South Korea, and the Tribunal finds accordingly.
In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.
It appears from the face of the decision that the Tribunal member found against the applicant on the merits. Significant in that finding was the absence of any oral evidence from the applicant to enable the Tribunal to test his claims, and the very lengthy period that passed between his application for a protection visa and the time that he first arrived in Australia. In addition, he has voluntarily returned to South Korea on two occasions after the election of a new government in 1997. The applicant's application is the second application that he has brought. The matter has a lengthy history which is well set out in the affidavit of Mr Carroll at paragraph 3, where he states:
1996-Feb 1997 Applicant claims to be politically active distributing information, recruiting students, going to meetings, putting up posters; father claimed to be a strong financial backer of the Min Ja Dang Party (formerly the Han Na La Dang Party)
February 1997 Applicant Left South Korea and arrived in Australia
December 1997 Elections in South Korea - Hea Ea Dang led by Kim Dea Jung come to power
1998South Korean passport issued to applicant valid between 5.06.98-3 .8.98
December 1999 Applicant returned to South Korea due to father’s Death
September 2000 Applicant returned to South Korea
26 November 2002 Applicant applied for protection visa
20 March 2003 Delegate’s decision
15 April 2003 Application to the Refugee Review Tribunal (“RRT”)
7 October 2003 RRT affirms delegate’s decision
24 November 2003 Application for Order Nisi - identified address for service/residential address as 7/716 Burwood Road, Hawthorn East, Victoria 3123
18 Feb 200Letter to applicant advising same of listing of application in the High Court
26 February 2004 Parties attend the mention
28 April 2004 Notice of Proceeding
28 May 2004 Crennan J orders matter be transferred to the Federal Magistrates Court
1 June 2004Federal Magistrates Court informs parties that matter is listed for mention on 18 August 2004
15 June 2004 Federal Magistrates Court informs AGS that mail has been returned as undeliverable
18 August 2004 Applicant attends the directions hearing before Federal Magistrates Court Timetable set in place for filing of contentions - due 24 September 2004; matter listed for further directions hearing on 20 October 2004
23 August 2004 Sealed orders made on 18 August 2004 sent to the applicant by AGS by mail
24 September 2004 Applicant’s contentions fall due
8 October 2004 Letter to applicant noting non-compliance with court orders and advising that failure to rectify by 15 October 2004 would result in respondent making dismissal application for failure to comply with court orders
20 October 2004 Registrar Connard dismisses application under r 13.03A due to the applicant’s failure to appear at the directions hearing
16 November 2004 Applicant files application for leave and draft notice of appeal - treated as an application for re-instatement – same address for service identified
17 December 2004 Application for review was dismissed pursuant to r13.03A of the Federal Magistrates Court Rules. The applicant failed to attend Court
5 April 2005 Applicant files a fresh application in the Federal Magistrates Court
In this case the applicant has not appeared today and has not provided any grounds as the basis for the orders that he seeks by way of judicial review. He has provided a brief hand written affidavit in the following terms:
1. I was born in South Korea and I am the national of the country.
2. I applied to the first respondent for the ground of protection visa on 29th/Nov/2002 and the delicated of the respondent refuge me the ground of protection visa on 20th/May/2003.
3. I applied to the refugee review tribunal on 15th/Apr/2003 and also rejected on the 21st/Oct/2003.
4. I disagree with the decision of the RRT because, I believe that they have failed to consider my claims properly & made the decision against me which I believe to be an error of law. And bridge of Nature justice.
5. I humbly request the court to setting aside the decision of the RRT and return the case back to RRT for re-consideration.
6. I also request the court to accept my this late application.
On the previous court date he provided a pro forma order nisi which does not appear to contain any references that are drawn specifically to refer to the facts and circumstances of his case.
On the material before me I can see no prima facie case for judicial review of this particular decision. In addition, the applicant has failed to attend. The applicant has failed to attend proceedings in the past, leading to them being dismissed.
Having regard to these circumstances, together with the conduct of the applicant in the making of this application (that is, the significant delay and the failure to attend at the hearing before the Tribunal member or today) I am satisfied that this application is frivolous or vexatious within the meaning of rule 13.10. I am also satisfied that it is appropriate to dismiss the application under rule 13.03A.
In the circumstances I therefore dismiss the application.
There is no reason that the respondent should be denied her costs. The respondent seeks the sum of $2,010.00. I find that this is a reasonable sum, having regard to the nature of the matter and the relevant scale.
Given the conduct of the applicant, it appears to me to be appropriate to make an order that the applicant not file further judicial review proceedings with respect to the decision of the Refugee Review Tribunal without first obtaining the leave of the court.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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