MZXGR v Minister for Immigration

[2006] FMCA 409

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXGR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 409

MIGRATION – Application for review of RRT decision – first court date – show cause application by first respondent pursuant to rule 44.12(1)(a) – discrete finding – no arguable case to overcome discrete finding – application for review dismissed under rule 44.12(1)(a).

Migration Act 1975, ss.424A, 441A
Federal Magistrate Court Rules 2001, rr.44, 44.11, 44.12

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

Applicant: MZXGR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 143 of 2006

Judgment of: O'Dwyer FM

Hearing date: 1 March 2006

Delivered at: Melbourne

Delivered on: 1 March 2006

REPRESENTATION

Counsel for the Applicant: Mr A.F.L. Krohn

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the Respondents: Ms. L. Miller

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (the Rules) the Respondents application pursuant to rule 44.12 shall proceed to an immediate hearing.

2. Pursuant to rule 44.12(1)(a) of the rules I dismiss the application that was filed on 30 January 2006.

3. The applicant pay the respondents’ costs of $1,000..00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 143 of 2006

MZXGR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me as a first hearing in respect of an application filed on 30 January 2006 to review a decision of the Refugee Review Tribunal made on 15 November 2004 and handed down on 3 December 2004.  That decision affirmed a determination by the first respondent's delegate to refuse a protection visa to the applicant.

2. Because this matter was issued under r.44 of the Federal Magistrates Court Rules 2001, the first respondent has sought to have the matter dismissed pursuant to r.44.12(1)(a) on the basis that the application, on the face of it, fails to disclose an arguable case.

3. The ground set out in the application for review in that application are centres on the application of s.424A of the Migration Act 1958 (the Act) in relation to information that the applicant says was required to be given to him under s.424A, and which was not properly given to him as required by s.441A of the Act.

4. The scope and application of s.424A have recently been considered in five decisions of the Full Court of the Federal Court (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2).

5. The s.424A raised issue in this application is very significant. On the basis of that decision of the Full Court it would appear that the tribunal may have committed error in its failure to properly apply s.424A.

   
   

   If that was the only ground challenged by the first respondent, then, of course, there is no question that there is an arguable case and the matter should go to a full hearing.

6. However, the tribunal made a number of discrete findings.  The most significant one, in my view, is the question of the relocation of the applicant and the capability to the applicant to relocate within India, notwithstanding any issues that the applicant may have had concerning police persecution in the Punjab.

7. Mr Krohn for the applicant has argued that, as I understand his argument, the errors in relation to s.424A and particularly as to how they affect certain findings of the tribunal concerning the applicant's activities between 1993 and 1997 are so significant that it has infected every other aspect of the tribunal's findings, including the finding about relocation.

8. In respect of the relocation finding, the tribunal did not take issue with the evidence of the applicant.  The tribunal accepted what was said, accepted and applied the country information to the issue of whether there was a need for this country, Australia, to provide protection. 

   
   

   The tribunal and came to the conclusion that because of the past experiences of the applicant in moving about India without any manifest concern for his welfare, that it was open to him to relocate. That is a finding, I think, that was open to the tribunal on the evidence presented. It is a finding, in my view, not infected by any failures to properly apply s.424A, and it stands alone, and notwithstanding the arguable case raised on s.424A issues, if this matter proceeded to a full hearing, it would be dismissed.

9. In those circumstances it would be appropriate not to proceed to a hearing because, in my view, there is no arguable case that would overcome the discrete finding about relocation. Accordingly I intend to make an order pursuant to r.44.12(1)(a) of the rules and dismiss the application that was filed on 30 January 2006.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate: 

Date:  1 March 2006