MZXDS v Minister for Immigration and Multicultural Affairs

[2006] FCA 972

FEDERAL COURT OF AUSTRALIA

MZXDS v Minister for Immigration and Multicultural Affairs [2006] FCA 972

MIGRATION – claim for protection visa based upon humanitarian rather than Refugees Convention grounds – applicants’ contentions of fact and law filed late – as a consequence, first respondent’s contentions of fact and law also filed late – no appealable error by Federal Magistrate in refusing adjournment – futility of remitting matter

Held:  application for leave to appeal dismissed

MZXDS and MZXDT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 389 OF 2006

WEINBERG J
1 AUGUST 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 389 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXDS
First Applicant

MZXDT
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG J
DATE OF ORDER:	1 AUGUST 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicants pay the first respondent’s costs, fixed in the sum of $3,864.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 389 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXDS
First Applicant

MZXDT
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG J
DATE:	1 AUGUST 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicants are a wife, husband, and their two children.  They are citizens of Fiji.  The applicant wife and children arrived in Australia on 11 December 1997, and her husband followed shortly thereafter on 22 February 1998.  On 10 October 2002, they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs.  On 28 October 2002, a delegate of the respondent Minister rejected that application, and on 25 November 2002, the applicants applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 3 March 2003, the Tribunal affirmed the delegate’s decision.

2. The background to this proceeding can be briefly summarised.  Initially, the applicant wife sought to remain in Australia on the ground that she was a special need relative for her sister-in-law who was suffering from post natal depression, and at times suicidal.  The sister-in-law had no other relatives in Australia, and needed support.  However, at some stage circumstances changed, and there was no longer any basis for the special need relative visa. 

3. The applicant wife stated in her protection visa application that she wished to apply for a protection visa on humanitarian and compassionate grounds.  Her son has muscular dystrophy, and is undergoing treatment for that condition.  Such treatment is not available in Fiji.  The applicant wife said that she was being supported by the Fijian community and by her relatives.  She said that she realised that her son’s condition was not a reason recognised by the Refugees Convention for protection, and re-iterated that she was applying for a protection visa on humanitarian grounds.

4. The applicant wife gave evidence before the Tribunal on 3 March 2003.  She acknowledged, as she had done all along, that her claim was not based upon any of the Refugees Convention grounds, and accepted that she would not face persecution for a Convention reason if she were required to return to Fiji.  She asked the Tribunal to consider her application on humanitarian grounds.  The Tribunal noted that it had no power to do so.  A consideration of her circumstances on grounds other than Convention grounds was a matter for the Minister, and not for the Tribunal.  Accordingly, the Tribunal affirmed the delegate’s decision not to grant protection visas.

5. On 11 April 2003, the applicant wife made an application to the respondent Minister under s 417 of the Migration Act 1958 (Cth) (“the Act”). By letter dated 25 May 2005, the Minister rejected that application.

6. On 25 October 2005, the applicant wife filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  A directions hearing was held on 21 November 2005.  The applicant wife was ordered to file and serve her contentions of fact and law by 25 January 2006.  The respondent Minister was to file and serve contentions of fact and law by 15 February 2006.  The matter was listed for hearing on 27 March 2006. 

7. The applicant wife did not file and serve contentions of fact and law in accordance with the directions made by the Registrar.  On 31 January 2006, the solicitors acting for the respondent wrote to the applicant enclosing a copy of the sealed orders of the Registrar and allowing her until 15 February 2006 to file her contentions.  On 13 February 2006, she served on the solicitors a document headed “Contentions of Fact and Law”.  At par 8 of that document, she stated that she fully realised that her reason for applying for a protection visa did not fall within the Refugees Convention, but expressed the hope that she would be able to provide for ongoing treatment to her son so that he could have a comfortable life.  The contentions of fact and law did not raise any arguable grounds of review.

8. On 23 February 2006, the respondent’s solicitors wrote again to the applicant wife pointing out that the contentions filed by her did not develop any of the grounds asserted in her application for judicial review, and suggesting that she should provide a new set of contentions, demonstrating an arguable case.  On 2 March 2006, the applicant wife filed and served an amended application for judicial review.  However, this simply re-stated the matters set out in her earlier contentions dated 13 February 2006.  Finally, on 21 March 2006, a copy of the respondent’s contentions of fact and law were served upon the applicant wife. 

9. On 29 March 2006, a hearing was held and McInnis FM delivered judgment, dismissing the application with costs: MZXDS v Minister for Immigration [2006] FMCA 497. His Honour observed that on the material provided by the applicant wife, no error of law in the Tribunal’s reasoning had been demonstrated. The only point of any substance raised by the applicant wife was that she had not had enough time properly to consider the respondent’s contentions of fact and law filed on 22 March 2006 which, as his Honour noted was just seven days prior to the hearing. She claimed that she had not had sufficient time to either consider the contentions or to seek legal advice.

10. McInnis FM said, in relation to this claim:

    “11.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.

    12.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.

    13.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.

    14.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.”

11. On 20 April 2006, the applicant wife filed an application for leave to appeal together with a draft notice of appeal from the judgment of McInnis FM.  Leave to appeal was required because no appeal was lodged within the twenty-one day period from the date on which judgment was delivered.  The application was only one day out of time and, in the ordinary course, time would be extended. 

12. However, the present case is unusual having regard to the candour with which the applicant wife has approached the entire proceeding.  The draft notice of appeal replicates that candour.  The only error on the part of McInnis FM that is alleged is his Honour’s failure to adjourn the hearing of the application for judicial review so that the applicant wife could have more time to consider the respondent’s contentions.  The applicant wife’s contentions of fact and law rely on the same matters as were set out in her initial application for a protection visa, and in her application for review in the Tribunal.  She states simply that she was hoping that the Tribunal would take into account her son’s condition, and that the only available treatment for that condition was in Australia, and not in Fiji. 

13. However sympathetic one may be to the applicant wife’s situation, and that of her son, the Federal Magistrate did not err in rejecting her application for an adjournment so that she could consider more fully the respondent’s contentions.  The simple fact is that neither the applicant wife, nor any of the other members of her family, qualify for protection under the Refugees Convention.  That is, and always has been, understood by her. 

14. In these circumstances, it would be futile to allow this appeal and either remit the matter to the Federal Magistrates Court, or to the Tribunal.  The application for leave to appeal must be dismissed, with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:        1 August 2006

The Applicant appeared in person
Counsel for the Respondent:	Mr M Felman
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	1 August 2006
Date of Judgment:	1 August 2006