MZXBX v Minister For Immigration and Anor (No.2) - [2005] FMCA 1855

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXBX v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2005] FMCA 1855

MIGRATION – Protection visa.

PRACTICE AND PROCEDURE – Application to set aside order – whether arguable case.

Migration Act 1958, ss.425, 426A

MZXBX v Minister for Immigration & Anor [2005] FMCA 1550
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293

Applicant:

MZXBX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 795 of 2005

Judgment of:

McInnis FM

Hearing date:

30 November 2005

Delivered at:

Melbourne

Delivered on:

20 December 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr. S. Hay

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

The application to set aside the decision of 2 March 2005 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 795 of 2005

MZXBX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this matter, the Court is further considering an application filed by the Applicant, effectively seeking to set aside Orders made in the absence of the Applicant, by the Court on 2 March 2005, whereby the Court dismissed a substantive application by this Applicant to judicially review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision dated 29 January 2004 had affirmed the First Respondent's delegate's decision to refuse the Applicant a protection visa.
The application to set aside the Order made on 2 March 2005, has already been the subject of a preliminary judgment confined to the issue of whether or not the Applicant demonstrated that he had a reasonable cause or explanation for non-appearance on 2 March 2005. In the earlier decision MZXBX v Minister for Immigration & Anor [2005] FMCA 1550) the Court concluded that there was a reasonable explanation for the Applicant's non‑attendance on 2 March 2005.
When that matter was heard on 12 October 2005, and again when the judgment was delivered on 28 October 2005, it was indicated to the Applicant through an interpreter that the issue of a reason for non‑attendance on 2 March 2005 was one matter to be considered by the Court but that the Applicant, if successful in relation to that issue, would need to address the further significant consideration as to whether or not in any event he has an arguable case.
It was made clear to him on the previous occasions that he would need to provide further material in support of the application to set aside the Order, referring specifically to the issue of whether he had an arguable case. In particular, a very discrete issue was raised as to the non‑attendance of the Applicant at the Tribunal hearing, which had been scheduled for 28 January 2004.
When the Court delivered its judgment on 28 October 2005, it made further Orders, which significantly included that the Applicant "shall file and serve any affidavits and/or submissions in support of the application to set aside the Orders made on 2 March 2005 on or before 11 November 2005".
On the date those Orders were made, through the interpreter, the Court made it perfectly clear to the Applicant and he acknowledged that he understood, what was required of him to provide and that further affidavit material or submissions to the specific issue of his non‑attendance before the Tribunal was clearly raised. As I indicated earlier this had been otherwise raised when the matter first came before this Court on 12 October 2005.
When the application was called on before the Court on 30 November 2005, the Applicant with the assistance of an interpreter, explained he had failed to file any further material and explained to the Court and that the reason for his failure to do so was because he had forwarded documentation to a person he referred to as a lawyer some two weeks ago and was still waiting for that lawyer to provide the material.
When asked why the lawyer did not attend this day, the Applicant replied that the lawyer was "too busy". When asked when he last contacted the lawyer, he explained to the Court that it was "a week ago".
The name given of the lawyer was Michael Kuperman. It is noted from the Court Book that the same representative is referred to in an appointment of Migration Agent form dated 19 February 2004 (Court Book page 104).
In my view, it would not be reasonable to further delay this matter, as I am satisfied that the Applicant has had adequate opportunity to seek and obtain appropriate legal advice and assistance, and indeed has had an adequate opportunity to provide further material in support of his application to set aside Orders made in his absence on 2 March 2005.
I am strengthened in that conclusion by brief reference to the chronology in this matter, which includes the filing of an application on 2 September 2004. It appears from the file that Orders were made by the Court, fixing the matter for hearing, amongst other Orders, that occurred on 19 November 2004. The substantive application was in fact listed for hearing on 27 June 2005, and the Applicant has indicated he attended Court on that day.
Regardless of the earlier decision made by this Court in relation to the application to set aside Orders made in the absence of the Applicant in March 2005, it is apparent that he has had at least since September 2004 to make appropriate arrangements to present material in support of his substantive application, which must of its nature have addressed the issue as to why he had not attended the Tribunal hearing. It is obvious that that was a key issue, from the reasons of the Tribunal itself, when it raises a number of questions it would have asked the Applicant had he attended the hearing.
In the circumstances, given that brief chronology, I am satisfied that it is not appropriate and would not be in the interests of justice to allow the matter to be further adjourned, as I am satisfied the Applicant has had more than an adequate opportunity to present material to this Court.
To simply assert that a lawyer had been appointed, if indeed the person referred to is a lawyer and not simply a Migration Agent, is insufficient. It is certainly not appropriate for that person to indicate that he is too busy to attend Court, if indeed that has been indicated, and this Court makes no finding about that without further evidence. Nevertheless, it is for the Applicant to assume some responsibility, when given the opportunity, to either seek an extension of time for the filing of material or to otherwise on an earlier date seek an adjournment.
In the circumstances of this case, I conclude that it is not reasonable in the exercise of my discretion, to grant any further adjournment.
The application now before the Court requires the Court to further consider the issue of whether it should set aside the Order made on 2 March 2005. The Applicant was asked to address the question of why he did not attend the Tribunal hearing. Although he has not provided affidavit evidence, I am prepared to accept what he has told the Court from the bar table for the purpose of this application, and Counsel for the First Respondent has fairly, in the circumstances, not required the Applicant to give evidence on oath in support of those assertions.
Essentially, the issue raised by the Applicant, is that he did not receive from the Tribunal notification of the scheduled hearing date. It is evident to me from the material in the Court Book that that assertion is correct. So much is clear from the fact that in the Court Book a letter dated 11 December 2003, addressed to the Applicant at an address in Rathmines Road, Hawthorn East (the Hawthorn East address) notifying the Applicant of a hearing date of 28 January 2004, was apparently returned to sender (Court Book page 99). It was received, according to a date stamp, on 28 January 2004. That is the date of the scheduled hearing.
It further appears from the file that a letter dated 29 January 2004, again addressed to the Hawthorn East address, notifying the Applicant of the date or handing down of the Tribunal decision, was likewise returned to sender (Court Book page 102).
The Hawthorn East address is the address provided by the Applicant in his application for review dated 4 May 2002. The Applicant has stated to this Court that he changed address in 2003, to an address in Golf Road, Oakleigh South (the Oakleigh South address).
There is no dispute that the Applicant failed to notify the Tribunal of his change of address, until the application of Migration Agent form was filed with the Tribunal. That form, dated 19 February 2004, refers to the Oakleigh South address, though it is noted that the form was received by the Tribunal on 19 February 2004 that is after the Tribunal had delivered its decision.
It is clear to me therefore, that the Tribunal as at the date of receiving that notification of the new address, was indeed functus officio, having already conducted a hearing and having prepared its decision, which

I note is dated 29 January 2004, though handed down on 20 February 2004.
It is submitted by the Respondent that the Migration Act 1958 (“the Act”) sets out obligations for the Tribunal to issue what is described as a real and meaningful invitation to the Applicant for review to attend a hearing (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at [33]).
The Respondent submits the Tribunal carried out its duties in accordance with the Act, in proceeding with the hearing in the absence of the Applicant, having given the Applicant a reasonable opportunity to attend to provide any new documents or written arguments to the Tribunal. Reliance is placed upon the letter dated 11 December 2003 (Court Book page 97) addressed to the Applicant care of his Hawthorn East address.
In my view, given the absence of any notification as at that date of change of address, which is the responsibility of the Applicant, the Tribunal can do no more than forward the appropriate correspondence, in the discharge of its duties under the Act, to the last known address of the Applicant, which in this case is the address provided in the application for review. By doing so, despite the fact that the letter was returned to sender, that does not mean that the Tribunal has not discharged its duty.
It has, in my view, complied with the obligations pursuant to s.425 of the Act and has otherwise then proceeded to determine the matter, as it is entitled to do, in the circumstances provided in the notice given under s.425 of the Act.
Further, pursuant to s.426A of the Act, it is clear that if the Applicant does not appear on the day on which or at the time and place at which the Applicant is scheduled to appear, then the Tribunal is entitled to make a decision, as it has done in this case, on the review without taking any further action to allow or enable the Applicant to appear before it.
Perhaps in this case, the only matter of some concern is that the handing down of the decision did not occur until 20 February 2004. By that date, at the very least, the Tribunal would have received the notice appointing an agent and reference to the Oakleigh South address had been made.
Clearly, it is perhaps of some further concern that the Tribunal then had forwarded a second letter to the Applicant, dated 29 January 2004, when it was known that the earlier 11 December 2003 letter had been returned to sender.
However, between those two dates there is no obligation on the Tribunal to then seek to determine the whereabouts of the Applicant. To impose that obligation on the Tribunal, in my view, would be unreasonable, given that the Applicant himself, on his own material, has failed to notify the Tribunal of the change of address and has only notified the Tribunal the day before the scheduled date for the handing down of the decision.
By that time, of course, the decision had already been made, although not handed down. Whilst I accept that there is significance in the handing down of a decision as distinct from the mere preparation of a decision, it seems to me that the Tribunal was entitled to proceed in the absence of the Applicant, to make its decision as it has done in the present case.
I am satisfied that the Tribunal has complied with its obligations in issuing the invitation and sending it to the then known address of the Applicant. I do not find that there is a further obligation to delay handing down of the decision, even though a more up-to-date and recent address may have been received the day before the scheduled handing down date.
Even if I am wrong in relation to any alleged transgression by the Tribunal, I am further satisfied, having considered the material and having heard the Applicant, that in any event there is no arguable case.
The Applicant indicated that he accepted that a reasonable summary of the claim made by him, as set out in the delegate's record and indeed in the Tribunal decision, included general issues concerning mafia threats to the Applicant and his family, and further included reference by the Applicant to significant events which had allegedly occurred, including threats that the Applicant was beaten and tied up, that his wife was raped in front of the children, property stolen and his son kidnapped.
The Applicant before this Court has not referred to any possible police protection which may be afforded to him upon return to Lithuania. In brief terms, it is common ground that the Applicant is a Lithuanian male and applied for a protection visa on 8 November 2001. That application was incomplete, and the Applicant provided a complete application on 7 February 2002.
It is noted, that in the completed application (Court Book page 46) the Applicant does provide some further material in support of his application, which essentially arose from mafia threats in connection with a business the Applicant had conducted in Lithuania. The threats were what might be described in colloquial terms as threats arising from a failure of the Applicant to pay 'protection money' to the mafia.
The key finding by the Tribunal in this matter was that it did not accept the Applicant's claims, and specifically it states,
“…
Under the circumstances, the Tribunal does not accept that the applicant was targeted for extortion as claimed, that he was threatened, beaten up and tied up, that his wife was raped in front of the children, property stolen, or that his son kidnapped. It does not accept that the applicant faces a real chance of serious harm on return to Lithuania in connection with these claims.
The Tribunal's findings are reinforced by the fact that the applicant first applied for a protection visa more than a year after arriving in Australia. Yet according to his claims he had been persecuted by the mafia since the middle of 1998. As Carr J observed in Subramaniam v MIMIA (unreported, Federal Court, 10 March 1998), the period of time elapsing between an applicant's arrival in Australia and the making of the application for refugee status is a legitimate matter to take into account when assessing the genuineness, or at least the depth, of the applicant's fear of persecution. The Tribunal would have put this to the applicant in the hearing, for his comment. In a similar vein, the applicant did not take advantage of his Schengen States visa to go to Europe and seek asylum in late 1998.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the convention.
…”
It is evident from the Tribunal's reasoning that upon the Applicant not appearing before it, there were a number of questions which it would have asked the Applicant had he attended the hearing, and they include, though are not limited to, the following:-
·the identities of the people trying to extract money from the applicant
·why or how the applicant's son was released after the alleged kidnapping, even though the applicant had only produced a third of the amount of money claimed, and
·whether the applicant ever went to the police or other authorities to seek protection from the mafia raconteurs
Before this Court, the Applicant has elaborated upon the threats and referred to his brother, who apparently has achieved permanent residence status in Canada and apparently that has been achieved relying upon the same facts and circumstances, given that his Brother was in business with the Applicant.
Although, again that is not evidence, I am prepared to accept the statement from the Applicant that that is another factor he may have sought to rely upon. He does not, however, mention anything in relation to the crucial issue of attempts he made to go to the police or other authorities to seek protection, and has otherwise not in any significant manner identified any convention reason which might provide a basis upon which the Tribunal could further have considered the matter.
In my view, on the material before me, I conclude that in this instance there is no arguable case. I do so primarily upon my finding that the Tribunal has discharged its obligations of issuing an appropriate invitation to the Applicant to attend the Tribunal hearing, and that of itself is conclusive as to whether there is an arguable case.
Further and in the alternative, even considering the further material and making significant concessions for the Applicant, in terms of the lack of evidence, I further conclude in any event that there is no arguable case, and in this instance I am further satisfied that the Tribunal in any event does not appear to have made any error, let alone any jurisdictional error, in its consideration of the application then before it.
It follows in the circumstances that the application by this Applicant, which I have deemed to be an application to set aside the decision of 2 March 2005 should be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of McInnis FM

Deputy Associate: Brooke Evans

Date: 20 December 2005