MZWZC v Minister for Immigration - [2005] FMCA 1975

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWZC v MINISTER FOR IMMIGRATION

[2005] FMCA 1975

MIGRATION – Refugee Review Tribunal – non-appearance – dismissal of claim.

MIGRATION – Refugee Review Tribunal – Tribunal considered all integers of the claim.

Abebe v Ministerfor Immigration and Multicultural Affairs (1999) 197 CLR 510
Azzi v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 24
Detsongjarus v Minister for Immigration and Multicultural and Indigenous Affairs (1990) 21 ALD 139
MLGWRN v Minister for Immigration [2005] FMCA 483
MZWMI v Minister for Immigration & Anor [2005] FMCA 810
NALM v Minister for Immigration (2004) FCAFC 17
NAKX v Minister for Immigration (2003) FCA 1559
Presad v the Minister (1985) 6 FCR 155
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80

Applicant:

MZWZC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 420 of 2005

Judgment of:

Riethmuller FM

Hearing date:

19 December 2005

Date of Last Submission:

19 December 2005

Delivered at:

Melbourne

Delivered on:

19 December 2005

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondent:

Ms Burchall

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 21 April 2005 and amended on 27 June 2005 is dismissed.
The Applicant do pay the Respondent’s costs, fixed in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 420 of 2005

MZWZC

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal of 9 March 2005. The applicant is a citizen of Lebanon. He arrived in Australia on 23 December 2003. On 17 March 2004 he lodged an application for a protection visa with the department. The delegate of the minister declined to grant a protection visa on 8 July 2004, following which the applicant sought review in the Refugee Review Tribunal by way of an application on 13 July 2004.
The applicant did not attend at the hearing set for today. The applicant did not answer when called outside of court. The only information provided to the court was a letter received by the registry on 19 December in the following terms:
Medical certificate
This is to certify that [MZWZC] of [applicant's address] is receiving medical treatment and for the period 18/12/2005 to 21/12/2005 inclusive he will be unfit to continue his usual occupation.
There is no application made to the court for an adjournment of the hearing. There was no request by the applicant that he be able to attend by telephone. There are no details as to why the applicant would have been unable to attend at court. The certificate only refers to the applicant's usual occupation and provides no details of the applicant's ailments.
It is appropriate that I consider the material provided by the applicant and that I approach it on the basis that it is an informal application for an adjournment. On the material provided by him and the circumstances of the case, I am not satisfied that this provides a proper basis for an adjournment. In this regard I note a number of authorities in similar circumstances where similar findings have been made, such as: NALM v Minister for Immigration (2004) FCAFC 17; NAKX v Minister for Immigration (2003) FCA 1559; MZWMI v Minister for Immigration & Anor [2005] FMCA 810; MLGWRN v Minister for Immigration [2005] FMCA 483.
The applicant arrived in Australia on a sponsored visitor visa, sponsored by his uncle. The visa was for a three-month stay. He is a 29-year-old male from Lebanon (a factor relevant to one of his claims).
The information that the applicant provided in his original visa application for a protection visa was relatively short. In answer to the question of why he left his country, he said as follows:
I originally came to visit relatives in Australia. Me being part of a minority ethnic group in Lebanon puts me in a position which I have being suspect to discrimination against me. Whilst I was in Lebanon I was confronted on regular basis by an outlawed group which I believe them to be part of a terror network to join them and support their cause financially. Most recently (about one week ago) whilst I was in Australia I received information that someone actually came and asked about me at my personal address in Lebanon. This person I believe has involvement with this terror outlawed network.
In answer to the question ‘what did he fear may happen if he went back to his country of origin?’, the applicant responded:
It is common in Lebanon for people to be subject to kidnapping or physical harm by outlawed terror groups. Me being from a minority groups which is not really liked by most Lebanese people leaves me vulnerable in these situations also at my age I am regarded as a person who is at the right age for any purpose I may be needed to join or support these groups or organisations.
The fact that my grandfather originally came from Egypt means that we (my family) is part of an ethnic minority group in Lebanon we have always being regarded as second class citizens by other people in Lebanon and racist discrimination/ I hope that the Australian Government accepts my refugee application because I am a member of a social group in Lebanon.
The form also requested that he set out what harm or mistreatment he may receive, to which he answered:
I think that these outlawed groups may very well harm me if I go back.
The next question asked was why did he think that this would happen if he went back, to which he said:
It has been an ongoing process in the past, and especially the fact that someone personally came and asked me at my private address. I'm in a position to fear for my wellbeing.
In answer to the question asking whether or not the authorities in Lebanon would protect him if he went back, he said:
Not really because these outlawed groups in Lebanon are powerful units who receive outside support. The authorities in Lebanon have never [been] able to really have any impact on whatever harm they may cause.
It does not appear in the form completed by the applicant for the visa application who he says the "outlawed groups" actually are or even who he suspects that they are, nor does he set out any name or description of the ethnic minority group that he says he is part of, save to indicate that it appears to be a group of persons who have mixed Lebanese and Egyptian ancestry.
Following the rejection by the minister's delegate of the protection visa application, the applicant lodged his review application. The review application contains no further material and is simply the application form which contains the details identifying the applicant, the need for an interpreter and the decision.
It is significant that in making the decision, the delegate found that:
The applicant has not submitted any information in support of a finding that he experienced serious harm or mistreatment. It amounts to persecution in Lebanon. There is no information to support a finding that he will face persecutory treatment on the basis of his Egyptian background upon return to Lebanon.
The applicant submits that he was subject to discriminatory treatment, I note information from the UNHCR handbook which states at paragraph 54:
Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution.
The applicant claims that he was confronted on a regular basis by members of an outlawed terrorist group and was pressured to join them and provide financial support to their cause. He has not provided detailed information in relation to this group or specific information as to how and when they pressured him, however he has not submitted that he experienced serious harm or mistreatments at the hands of this group. Whilst the applicant may have been approached by an outlawed terrorist group in an attempt to recruit him, I consider it highly unlikely that such an organisation would consider a "forced recruit" to be a suitably committed and mentally and physically equipped person to undertake their activities. Further, whilst I accept that such groups may make demands for financial support for their cause, I do not accept that his Egyptian background would make him more vulnerable to such requests.
It must have been apparent to the applicant from at least this part of the reasons that the material he provided to the delegate was insufficient to allow a reasonable decision-maker to accept his case as being an appropriate case for the issue of a protection visa and that he would need to provide more information and, importantly, more detailed information. He did not do so in his application for review.
On 15 July 2004 the Tribunal wrote to the applicant telling him of the process of a hearing. On 13 January he was specifically invited to attend a hearing before the Tribunal. Importantly, in the letter of 13 January 2005 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 returned the form, indicating that he would be attending at the hearing and stating he would be bringing a relative with him and that he would require an Arabic interpreter. There is nothing in the court book to indicate that the applicant had sought an alternative hearing date or any further or different hearing date. Between the response to the hearing invitation form and the decision there is only a letter acknowledging a change of address details and a letter advising the applicant of the dates, time and place for the handing down of the decision.
It appears from documents in the court book (see court book 79) that the applicant and his cousin attended for the handing down of the decision and that he signed a document acknowledging receipt of the decision from the Tribunal. The Tribunal in its decision set out the details of the applicant's claim, as can be obtained from his original visa application. A full summary or restatement of these claims is set out at pages 4 to 5 of the tribunal's decision.
In his application for protection the applicant claimed that he originally came to Australia to visit relatives. He claimed that because he was part of a minority ethnic group in Lebanon he was in a position where he had been subject to discrimination. He stated that whilst he was in Lebanon he was confronted on a regular basis by an outlawed group, which he believed to be part of a terror network, who wanted him to join them and support their cause financially.
The applicant claimed that about a week ago, whilst he was in Australia, he received information that someone actually came and asked about him at his personal address in Lebanon. The applicant stated that he believed this person had an involvement with this “terror outlawed network.”
The applicant stated that it was common in Lebanon for people to be subject to kidnapping or physical harm by outlawed terror groups. He claimed that because he was from a minority group, which was not really liked by most of the Lebanese people, left him vulnerable to these situations. He stated that he was also at an age where he was regarded as a person who was at the right age for any purpose that he may be needed to join or support these groups or organisations.
The applicant in his application to this court says that the Tribunal has not considered all of his claims. It appears to me that the Tribunal has indeed considered the applicant's claims and has recounted them and then dealt with them at pages 6 and 7 of its decision. This is not a case where the Tribunal has failed to consider an integer of the applicant's claims or indeed any identifiable specific feature of the claims that the applicant has made.
In its findings and reasons the Tribunal, like the delegate before it, sets out that the applicant has provided so few details concerning his claim in relation to what he describes as an "outlaw group" that the Tribunal could not be satisfied that he was ever targeted by the group because of his ethnicity or because of his age. Similarly, there were so few details relating to his claim that someone had to come to his family home looking for him that the Tribunal were not able to be satisfied that this event ever occurred.
On the material before the Tribunal at the time of making the decision it is difficult to see how any decision-maker reasonably considering the applicant's material could have been satisfied that he has made out grounds for the issue of a visa. That, however, is not the test that I must apply in judicial review proceedings. The appropriate test is whether or not the Tribunal has properly considered the material in forming its views. The Tribunal has considered what material was before it.
The applicant complains that the Tribunal did not find out if there was a terror network operating in Lebanon which attacked people from his social group. It is not the function of the Tribunal trying to take investigations in order to make out an applicant's case. As the High Court set out in Abebe v Ministerfor Immigration and Multicultural Affairs (1999) 197 CLR 510 at 576:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a convention reason. The tribunal must then decide whether that claim is made out.
There have been a large number of decisions confirming that a Tribunal does not have an obligation to investigate or make out the case of the applicant. For example, comments of Wilcox J in Presad v the Minister (1985) 6 FCR 155 at 170:
Equally, [the power is] exercised in an improper manner if the decision-maker makes his decision — which perhaps in itself, reasonably reflects the material before him — in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.
Similarly see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-3 per Merkel J; SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80, Detsongjarus v Minister for Immigration and Multicultural and Indigenous Affairs (1990) 21 ALD 139 at 143 and Azzi v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 24 per Allsop J at [104].
The next ground for review that the applicant puts forward is that the Tribunal had come to all of its findings without any independent information and just on its own thinking. Whilst this may well be an appropriate ground where the Tribunal has failed to accept expert evidence or other information without contrary evidence before it, in this case the Tribunal had absolutely minimal material before it. The Tribunal has done nothing more than state that it could not be satisfied to the requisite level on the minimal information before it. I find no error in the Tribunal's reasoning in this regard.
The applicant also complains that the Tribunal has made a mistake in not considering what the applicant said. The Tribunal clearly considered the information that the applicant did provide, as it recounts in its decision. The final ground is:
The tribunal has made a mistake in not fixing another hearing date as I requested, in spite of it not handing down its decision before the request was made.
It seems from reading this ground that the applicant's case is that he had requested a hearing before the Tribunal before the tribunal made its decision and that the Tribunal had not taken any steps to provide him with such a hearing. There is no evidence of such a request. There is nothing in the court book to indicate any request being made to the tribunal to convene a further hearing or to accept any further material. There is no affidavit filed in court setting out any evidentiary basis for the claim. The applicant has not attended today to provide any oral submissions or written submissions in this regard.
The applicant did file a very brief statement of contentions in the following terms:
My protection visa application which I gave the Department of Immigration on 17 March 2004 was refused on 8 July 2004. The Tribunal which received my review application on 13 July 2004 refused it on 1 April 2005.
As I have said in my application, had the Tribunal looked at any information about my country it would have been in a position to at least consider my claim, for what is happening in Lebanon is very much in the news. Instead the Tribunal says that I provided few details and therefore it was unable to find I was subject to racial discrimination and then says it finds that on the evidence before the Tribunal that I was not subject to racial discrimination. This contradicts what is said earlier. Had the Tribunal checked on any information about Lebanon, the way in which it considered my application could have been different and at least would have led to my claims being considered.
Further before the Tribunal can draw its decision I requested the Tribunal to hold a hearing, this was refused although the Tribunal had not handed down its decision I realise this is not the right thing to do.
However, these contentions do not provide any details upon which further inquiries could have been made by the respondent or any evidentiary foundation upon which the court could rely in order to make a finding that the applicant had been denied an opportunity to be heard. In these circumstances I find that this ground is not made out. In the circumstances I therefore dismiss the application and order that the applicant pay the respondent's costs.
In the circumstances of the case I find that the costs sought by the minister in the sum of $5,500.00 are reasonable having regard to the material before me and the relevant court scales. I note the earlier formal order that the tribunal be added as the second respondent.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: