MZXDS v Minister for Immigration
[2006] FMCA 497
•29 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXDS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 497 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – humanitarian concerns a matter for the Minister – application dismissed. |
| First Applicant: | MZXDS |
| Second Applicant: | MZXDT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1324 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 29 March 2006 |
REPRESENTATION
| The First Applicant: | In person and on behalf of the Second Applicant |
| Counsel for the Respondents: | Mr. A. Lewis |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The First Respondent’s name be changed by deleting the words ‘and Indigenous’.
The Application as amended be dismissed.
The Applicants shall pay the First Respondent's costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1324 of 2005
| MZXDS |
First Applicant
| MZXDT |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application before the Court judicial review is sought in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated
3 March 2003. In its decision the Tribunal affirmed a decision of the delegate of the First Respondent to refuse to grant to the Applicants protection visas.
The Applicants are wife, husband and two children who are citizens of Fiji. The Applicants arrived in Australia on 11 December 1997. The Applicant wife appears this day before this Court unrepresented. There is no other appearance for the other Applicants. She appears with the assistance of an interpreter, although it is noted during the course of submissions that she has a clear understanding of the English language.
The Applicants have relied upon an amended application filed 1 March 2006 and otherwise relied upon contentions of fact and law filed 15 February 2006. The First Respondent relies upon contentions of fact and law filed 22 March 2006. In addition to the contentions, the Applicant wife was asked to make any further submissions to the Court in support of the application and I shall deal with those submissions presently.
By way of background it is noted that on 10 October 2002 the Applicants lodged an application for a protection visa with the First Respondent. As indicated earlier, the Applicant's husband and her two children were included in the application (Court Book pages 1 to 39). On 28 October 2002 a delegate of the First Respondent refused the application on the basis that the Applicants did not have a well-founded fear of persecution for a Convention based reason. On 25 November 2002 the Applicants applied to the Tribunal for review of the delegate's decision. On 3 March 2003 the Tribunal conducted the hearing. The Applicant wife attended the hearing. On 21 March 2003 the Tribunal handed down its decision dated 3 March 2003 affirming the delegate's decision to refuse the grant of a protection visa.
The application in this Court was filed on 25 October 2005. The application included the Applicant's husband as an Applicant. The claim in support of a protection visa included reference to the arrival on 11 December 1997 of the Applicant wife and her children and it is noted she has been in Australia ever since that time. She had applied to stay in Australia on the grounds that she was a special-need relative for her sister-in-law who was suffering from post-natal depression and it was indicated at times was suicidal. The sister-in-law did not have any other relatives in Australia and needed support. The circumstances had changed since arrival in Australia and, it is significant to note, one of her sons had been diagnosed with muscular dystrophy, which is a serious condition affecting the muscles and can lead to premature death. The son has been receiving treatment for the illness in Australia. It would appear from the material that the treatment for that condition is not available in Fiji.
The Applicant wife has indicated in clear terms in the material, both before the Tribunal and this Court, of the family's desire to remain in Australia and significantly to allow for their son to continue the treatment for muscular dystrophy.
The Tribunal in its decision made a number of significant findings.
It found that the Applicant wife was a 44 year old woman of Indian ethnicity and a Fijian citizen. It further found that she and her two children had travelled to Australia on valid Fijian passports issued in their own names and Australian visitor visas for three-months validity. The Applicant's husband joined them in Australia some two months later.
The Tribunal then, in its findings, went on to state the following (Court Book page 74):
“It is clear to the Tribunal and understood by the applicant that the claims by her are not related to the Refugee Convention and the Tribunal so finds. It follows that there is no real chance that the applicant would face persecution for a Convention reason should she return to Fiji.
The applicant has asked the Tribunal to consider this application on humanitarian grounds; however the Tribunal's role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. A consideration of her circumstances on other grounds is a matter solely within the Minister's discretion.”
Before this Court in the facts and contentions filed on behalf of the Applicants on 15 February 2006, after reciting the background material the Applicant wife significantly states the following in paragraph 8:
“I fully realise that this is not a Convention reason for applying for a protection visa, however I am hoping that I will be able to provide the ongoing treatment to my son so that he has a comfortable life.”
It is clear to me on the material currently provided that there is no error of law demonstrated in the Tribunal's reasoning in relation to the claims made before it. Before this Court the Applicant wife had indicated that she does not agree with the decision, that it is wrong that the Tribunal did not apply the law correctly and otherwise raised concerns that she had not had enough time to properly consider the First Respondent's contentions of fact and law filed 22 March 2006, which I note is just seven days prior to this hearing. It was suggested that the Applicants had not had time to either consider the submissions or to seek legal advice.
In matters of this kind, had there been any substantive issue on the face of the material which the Court would need to consider in detail or if on a proper reading of the decision it appeared that there was any ground to be relied upon to establish an error of a kind which would attract judicial intervention in this application for review, then I may have been minded to allow further time for the Applicants to consider the written submissions of the First Respondent.
In this instance, however, it will be evident from the extract from the Tribunal's decision, together with paragraph 8 in the Applicants contentions, that indeed the substantive reason which underlines the desire on the part of the Applicants to remain in Australia is a reason which could not properly be characterised as a Convention reason. It is otherwise properly and, for my part I agree, fairly characterised by the Tribunal as being a humanitarian reason and one might also add, a humanitarian reason which has a significant degree of seriousness in relation to the welfare of the child. In my view, there may well be in this case compelling humanitarian grounds upon which further consideration may be given to the plight of this family, and in particular the need for medical treatment to be afforded to the Applicant’s son.
However, in making those comments it is not for the Court to in any way seek to do anything other than make a comment on the material before it. Ultimately, the further determination of this matter as indicated by the Tribunal is a matter solely within the discretion of the First Respondent.
For my part, however, having regard to the contentions made by the Applicant wife herself and having read and considered the material on file, including the Court Book and the Tribunal's reasons, and otherwise considering the contentions made by the First Respondent which, in my view are clearly correct, it must follow that in this instance the application should be dismissed with costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 29 March 2006
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