MZXNJ v Minister for Immigration

[2007] FMCA 846

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXNJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 846

MIGRATION – Refugee Review Tribunal – protection visa – no jurisdictional error.

Applicant: MZXNJ

First Respondent: MINISTER FOR IMMIGRATION & CITZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1483 of 2006

Judgment of: McInnis FM

Hearing date: 22 May 2007

Delivered at: Melbourne

Delivered on: 22 May 2007

REPRESENTATION

Applicant: In person (assisted by an interpreter)

Counsel for the First Respondent: Mr G. Gilbert

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. The Application be dismissed.

2. 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 1483 of 2006

MZXNJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application, judicial review is sought of a decision of the Refugee Review Tribunal (the Tribunal) dated 13 October 2006.  In its decision, the Tribunal had affirmed a decision of a delegate of the First Respondent not to grant protection visas to the Applicants.  The application relied upon in this matter was filed on 23 November 2006.  In that application the Applicant claims that the Tribunal decision is affected by a jurisdictional error and then relevantly states as follows:

   “2.Further grounds and particulars to be provided upon provision of legal advice which is pending.”

2. It appears from the Court file that orders were made on 31 January 2007 by a Registrar of the Court who made orders, amongst others, which include an order that the Applicant file and serve an amended application including supplementary documents on or before 14 March 2007.  In addition, the Applicant was ordered to file and serve written contentions of fact and law on or before 28 March 2007.  The application was otherwise fixed for hearing this day.

3. The Applicant, who is self-represented though appears with the assistance of an interpreter, has not provided any further material as ordered by the Registrar and has otherwise not sought to make any further oral submissions in support of the application.  The Court has, however, received the Court Book including a copy of the Tribunal's written decision and has also received from the First Respondent an outline of submissions filed 30 April 2007.  Not surprisingly, the First Respondent submits that there is no jurisdictional error and notes that there are no grounds or particulars set out in the application.  It is further noted, as revealed earlier in this judgment, that no further material has been provided by the Applicant. 

4. For convenience it is appropriate that I incorporate in this judgment the background in this matter which I accept has been accurately set out in paragraphs 3 to 6 of The First Respondent's outline of submissions. 

   “3.The applicant is a male citizen of India born on 20 March 1966.  He arrived in Australia on 11 February 2006 with his wife and young child (who is now almost 2 years old).

   4.The applicant applied for a Protection (Class XA) visa (the protection visa) on 22 March 2006.  His claims were set out in a statement accompanying the application [CB 46-53].  The applicant’s wife made claims in a separate application [CB 27-40], but these were not independent, in the sense that they relied on those made by her husband.  On 15 Mary 2006, a delegate of the first respondent refused the protection visa application [CB 100-107].

   5.The applicant applied to the RRT for review of the original decision, on 1 June 2006.  In the course of the review, the applicant submitted further material.  This is set out in the RRT decision at CB 336 to 337.

   6.The applicant gave oral evidence before the RRT on 25 August 2006.  At the hearing, the applicant submitted further documents.  These are set out in the decision at CB 337 to 338.  The RRT handed down its decision on 25 October 2006.” (sic)

5. An accurate summary of the Applicant's claims appears in the First Respondent's outline of submissions as follows:

   “7.The applicant claimed to be involved with the Khalistan movement in the Punjab.  He said that he was the joint secretary, and then vice president of All Indian Sikh Students’ Federation (AISSF).  The applicant claimed that his father, brother, and he, were all active members of Akali Dal.

   8.The applicant claimed that he was detained by police in August 1995, along with his father and brother, and they were tortured while in custody.  He said that they were arrested because police suspected them of supporting the terrorist Babbar Khalsa group.

   9.The applicant also claimed that he was attacked by Congress Party supporters in 1992 and 1995, where he was beaten and hospitalised.

   10.In addition, the applicant claimed that in 1998 his father and brother were arrested and tortured.  As a result this incident, his father died from his injuries, and his brother suffered a mental breakdown.

   11.The applicant claimed that if he returned to India he would face persecution from Congress Party supporters, and the police and security forces who were associated with the Congress Party.

   12.The applicant travelled to Thailand in February 1996 for work, and has lived there until coming to Australia.  While the applicant was living in Thailand, he regularly returned to India, in 1997, 1998, 2000, 2002, 2003 and 2005, for trips of between ten days and six weeks.

   13.On a trip in April 2005, the applicant claimed that he was beaten by Congress Party supporters and hospitalised.  The applicant claimed that the attack was organised by the former Sarpanch (village leader) of his village because the applicant was ‘of a lower class’ and did not support that Sarpanch in a local election.  The applicant conceded that the new village Sarpanch is an Akali Dal supporter.

   14.Finally, the applicant claimed that it was unsafe for him in Thailand because there was discrimination and harassment of migrant workers.  He claimed that he regularly bribed officials and that two work colleagues were beaten by police when they did not pay.  The applicant submitted numerous documents to support his claims.”(sic)

6. It is clear to me that on a proper reading of the Tribunal decision, it has noted and in fact deliberated upon the Applicant's claims.  It has accepted to some extent significant claims of detention and mistreatment of the Applicant by police and members of the Congress Party in 1992 and 1995.  It has then, however, proceeded to specifically consider the role of the Applicant.  It otherwise accepted country information relevant to the situation in the Punjab. 

7. It is clear to me that what the Tribunal has ultimately determined is that the Applicant is not a person of high profile and therefore not at risk in the Punjab, and has reached that conclusion having considered the material and, in particular, having considered country information.  In my view the Tribunal has embarked upon its fact-finding task in a manner free of jurisdictional error. 

8. The First Respondent, consistent with the obligations to act as a model litigant, has drawn to the attention of the Court a possible claim which may be made on behalf of the Applicant's child.  Reference was made to material before the Tribunal which the First Respondent submits may arguably amount to a claim.  The First Respondent relevantly refers to the following paragraph in the statutory declaration dated 16 June 2006:

   “My young son will not have a bright future if something happens to me in India.  He will not have the same level of education in India.  My wife would be forced to support him alone if something happens to me when I returned to India (emphasis added).”

9. It is noted that the Tribunal in its decision, rather than specifically considering whether the Applicant's son might face some educational disadvantage, stated instead:

   “No claims are made on behalf of the applicant son and he relies on the claims of the first named applicant.”

   (Court Book p.345)

10. I accept, as submitted by the First Respondent, however, that the Tribunal was correct in that assessment and that there was not squarely raised before the Tribunal a separate claim in relation to the infant son and I further accept that in any event the claim would fail, as does the primary Applicant's claim fail, for the reasons which have been appropriately set out in the Tribunal decision.

11. It is clear to me that although the First Respondent has properly drawn to the attention this possible argument, in fact the argument is not an argument of a kind which would constitute a basis upon which this Court could find jurisdictional error, albeit perhaps only in relation to the Applicant's son.  In the circumstances, that is the only possible error that might emerge on a proper reading of the Tribunal's decision.

12. In the absence of any particulars relied upon, supporting grounds for the application for judicial review, and having regard to my conclusion that there is in any event no judicial error, it follows for the reasons given that the application should be dismissed with costs.  I shall direct that the reasons that I have just given be transcribed and upon review shall constitute my reasons for judgment in this matter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  22 May 2007