MZXNU v Minister for Immigration and Anor (No.2)
[2007] FMCA 1487
•22 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXNU v MINISTER FOR IMMIGRATION & ANOR (No2) | [2007] FMCA 1487 |
| MIGRATION – Application in a case to set aside an order – whether reasonable excuse for non-appearance – whether arguable case – application dismissed. |
| Federal Magistrates Court Rules 2001, rr.13.03A(c),16.05 |
| MZXNU v Minister for Immigration & Anor [2007] FMCA 845 |
| Applicant: | MZXNU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1579 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 22 August 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 22 August 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
| Counsel for the First Respondent: | Mr D Brown appearing with Mr J Forsaith |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application in a Case filed 7 August 2007 be dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1579 of 2006
| MZXNU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The application before the Court is an Application in a Case which appears to be an application pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 (the Rules). It seeks to set aside an order made by this Court on 23 May 2007. On that occasion the Court refused an application for adjournment by the Applicant and otherwise dismissed the Amended Application pursuant to r.13.03A(c) of the Rules. The Court otherwise made an order in relation to costs. On that occasion the Court produced reasons for its decision (see MZXNU v Minister for Immigration & Anor [2007] FMCA 845).
It is apparent from the nature of those orders that the order was made in the absence of the Applicant who then has an entitlement to make this application in a case pursuant to r.16.05 of the Rules. It was also noted that the Applicant had filed a Notice of Appeal in the Federal Court of Australia seeking to appeal from this Court's decision of 23 May 2007 and that she did that on 12 June 2007 in proceedings VID 513 of 2007. I note from the file in those proceedings that Her Honour Gordon J on 7 August 2007 made orders as follows:
“1. Appeal was withdrawn.
2. No order as to costs.”
The Applicant has indicated from the bar table, with the assistance of an interpreter today, that on that day she was advised to actually commence a proceeding in this Court which she has done by way of Application in a Case pursuant to r.16.05 of the Rules. I gathered from submissions made by the Applicant that she was somewhat reluctant to do that and indeed reluctant to pursue the matter in this Court.
However, lest there be any doubt about it, it is perfectly clear to me that an application of this kind is appropriate before the Applicant were to consider any further applications in the superior Court. Rule 16.03 is clearly available to the Applicant and it is appropriate in my view for an Applicant in circumstances of this kind to exhaust the remedies that may be available in this Court before seeking either leave for appeal or lodging an appeal in the Federal Court.
The Applicant, in support of her application before this Court to set aside its earlier order, has relied upon an affidavit sworn by her on 7 August 2007. It became apparent that that affidavit merely exhibited a medical certificate which this Court had considered on a previous occasion and found to be inadequate. Hence the Applicant was invited to consider giving evidence on oath before the Court. It was explained to the Applicant that by doing so, she may be cross‑examined by the lawyers for the First Respondent and/or by the Court. She gave oral evidence which has indeed assisted the Court in determining the first issue; namely, whether or not she is able to persuade the Court that she had a reasonable excuse for not attending Court on 23 May 2007.
Had the material remained in its present form, then it would have been subject to the same criticism I made of it namely, the certificate, as I did make in my earlier judgment to which reference was made earlier in this judgment. The medical certificate simply referred to the Applicant being treated for a medical condition and was unable to attend "work/school". In her evidence on oath, however, the Applicant has indicated that on 22 May 2007, she had attended the doctor as a result of suffering from an injury to her left ankle and foot. She claimed the left ankle and foot was badly swollen and she also claimed that she was suffering from a fever and was otherwise unwell.
She received a referral for an x-ray that day but has not attended the x‑ray as a result of her not being able to afford the costs of an x-ray. She showed the Court the left ankle which on my observation appeared to be slightly discoloured and she did appear to have difficulty in walking. She has yet to receive further medical treatment and/or obtain the benefit of an x-ray which clearly, one would have thought, would be desirable, based as it was on medical advice. Nevertheless, the Applicant has told the Court that she otherwise took pain-killing medication and that after a period of time the swelling subsided and she was able to walk but was not able to return to her employment for a period, as I understood it, of approximately one week.
In the circumstances, having regard to the fact that the Applicant is self‑represented, albeit with the assistance of an interpreter, and despite the inadequacy of the material initially before the Court and indeed the material that was before the Court on 23 May 2007, I am prepared to find on the evidence in this instance that the Applicant did have a disability which prevented her from attending Court on the day of the hearing namely, 23 May 2007 and hence to that extent I am satisfied that the Applicant has established a reasonable excuse for not attending Court on 23 May 2007.
However, as I indicated to the Applicant on a number of occasions this day, the Court needs to also be satisfied in any event that there is an arguable case on the material which would justify setting aside the order made by the Court on 23 May 2007. Not surprisingly, the Applicant has relied upon the grounds set out in her Amended Application filed 13 February 2007 which I shall incorporate in this judgment. Those grounds are relied upon by the Applicant in seeking judicial review of a decision of the Refugee Review Tribunal dated 16 February 2006 where the Tribunal had affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
The background to this application has been accurately set out in the First Respondent's contentions of fact and law at paras.2 and 3 as follows:
“2.The applicant was born in Malaysia on 5 June 1966 and is a female citizen of Malaysia. She is of Tamil ethnicity and Hindu religion. The applicant arrived in Australia on
11 June 2006, travelling on a class UD subclass 976 Electronic Travel Authority visa [CB 47]. On 24 July 2006, she lodged an application for Protection (Class XA) Visa with the then Department of Immigration and Multicultural and Indigenous Affairs (the Department) [CB 11-36]. The Asylum Seekers Resource Centre (the ASRC) assisted the applicant in completing her application [CB 19]. On 24 August 2006, a delegate of the first respondent refused to grant a protection visa to the applicant [CB 47-57]. On
4 September 2006, the applicant sought review of the decision of the delegate’s decision [CB 58-61].
3.On 18 October 2006, the applicant attended the hearing before the Tribunal and gave oral evidence with the assistance of an interpreter. On 16 November 2006, the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant filed the present application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 14 December 2006. The application is within the time limits under s.477 of the Act.”
The Applicant's claim which was before the Tribunal has also been accurately set out in the contentions filed on behalf of the First Respondent. The claim is really a claim, although based on statutory declaration material, which is of somewhat narrow compass. In para.10 of the First Respondent's contentions it is referred to in the following terms:
“… the applicant claimed that she would be persecuted because she is a Tamil Hindu and her boyfriend is a Malay Muslim. The applicant claimed that this relationship brought her into conflict with the Malay authorities.”
In its findings, the Tribunal found that if the Applicant returned to Malaysia there would be no real chance, now or in the reasonably foreseeable future, that she would face harm for any convention reason. The Tribunal made a number of significant findings. Those findings, I accept, are accurately set out in para.12 of the First Respondent's contentions as follows:
“12.The Tribunal, relevantly, made the following findings:
(1) The Tribunal accepted that:
(a) the applicant was a Tamil Hindu born in Malaysia and that she was in a relationship with a Muslim man [CB 77.5];
(b) it was plausible that her boyfriend’s parents spoke to her in February 2006 and asked her to convert to Islam or leave their son alone
[CB 77.6];
(c) her boyfriend’s parents contacted her in April 2006 and threatened to report her to the police in the hope that she would leave their son alone [CB 77.7];
(d) her boyfriend’s parents may have gone to the applicant’s mother’s house with two Islamic Sharia police and a government policeman and threatened her and that the policeman was a family friend [CB 77.8].
(2)The Tribunal found that there was conflicting independent country information about whether the applicant could marry her boyfriend under Malay and Sharia law without converting but accepted her claim that she could not marry unless she converted to Islam [CB 77.9].
(3)The Tribunal rejected the applicant’s claim that if she did not convert to Islam, the police would take her into custody, jail her, lash her and she would be executed [CB 77.10].
(4)The Tribunal relied on country information that stated that Sharia law does not apply to the applicant because she is not a Muslim [CB 77.10].
(5)The Tribunal did not accept:
(a) that she would put into jail or otherwise seriously harmed if she returned to Malaysia because of any relationship she may have had with her boyfriend [CB 78.3];
(b) the applicant’s evidence that all of the police involved in her case in Malaysia would be looking for her [CB 78.4]
(c) that she suffered any serious harm for reasons of having a Muslim boyfriend in Malaysia and based on the country information would not suffer any serious harm in the future [CB 78.10];
(d) that the applicant was a person who was of adverse interest to the authorities [CB 78.10].
(6)The Tribunal was satisfied from country information that the State would be wiling and able to offer the applicant effective protection and the authorities would be able to provider her with an adequate level of state protection should she seek it [CB 78.7-78.8].
Before this Court the Applicant has further sought to challenge the findings of fact by the Tribunal. Not surprisingly, she had some difficulty in making submissions as to the nature of any jurisdictional error of the Tribunal. She has otherwise made statements from the bar table concerning her predicament and indeed the present circumstances in Malaysia as conveyed to her by her boyfriend. She has otherwise made statements concerning the relative safety of Australia compared with Malaysia. She has clearly challenged what she regards as unacceptable findings of fact by the Tribunal.
However, as submitted by the First Respondent in the contentions filed on 17 May 2007, the Applicant, on the grounds set out earlier in this judgment, is effectively seeking to challenge the Tribunal's findings of fact and, I accept, is seeking to have the Court engage in a merits review. It is clear that that is not permissible and does not of itself provide a proper basis upon which this Court on judicial review can be satisfied that the Tribunal has committed jurisdictional error.
I have carefully read the Tribunal's decision. In my view, the Tribunal has made the findings of fact referred to earlier in this judgment in a manner free of error. I can discern no jurisdictional error. It has made specific findings in relation to the allegations made by the Applicant. They are serious allegations and indeed no doubt serious and genuine concerns held by the Applicant. Nevertheless, in its fact‑finding mission, I am satisfied that the Tribunal has made findings, albeit adverse findings to the Applicant, which were reasonably open to it on the evidence. It has done so in a manner free of error.
The application for judicial review before this Court in my view does impermissibly seek merit review of that decision and I am satisfied does not disclose any material which would support the contention that there has been jurisdictional error. It is my conclusion therefore that on the material before me there is no arguable case. Having found there is no arguable case, it is appropriate in those circumstances, despite having accepted that the Applicant had a reasonable excuse for not attending Court on 23 May 2007, to now refuse this application in a case and indeed to dismiss the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 August 2007
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