MZXNW v Minister for Immigration - [2007] FMCA 934

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXNW v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 934

MIGRATION – Application for judicial review – application lacking in merit – dismissed accordingly.

Migration Act 1958, s.424A

Applicant:

MZXNW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1602 of 2006

Judgment of:

Burchardt FM

Hearing date:

12 June 2007

Date of last submission:

12 June 2007

Delivered at:

Melbourne

Delivered on:

12 June 2007

REPRESENTATION

The Applicant:

No Appearance

Counsel for the First Respondent:

Mr D. Brown

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant shall pay the First Respondent's costs, fixed at $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1602 of 2006

MZXNW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

By an application filed on 18 December 2006, the Applicant sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 11 December 2006. In that decision, the Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicant a protection (class XA) visa.
The relevant facts can be taken from the First Respondent's contentions of fact and law as follows: the Applicant is a male Fijian national, born on 8 May 1967, who arrived in Australia on 24 June 2006. He applied to the Department of Immigration & Multicultural Affairs, as it was then known, for a protection visa on 7 July 2006. A delegate refused to grant the visa on 11 August 2006 on the basis that the Applicant was not a person to whom Australia had protection obligations under the 1951 Convention relating to the status of refugees and the 1967 Protocol relating to the status of refugees.
The Applicant applied to the Tribunal on 11 September 2006 for review of the delegate's decision. On 19 September 2006, the Tribunal wrote to the Applicant, advising that having considered all the material before it, the Tribunal was unable to make a favourable decision on that information alone and inviting him to give oral evidence and present arguments at a hearing on 24 October 2006.
The day before the hearing, the Applicant requested an adjournment on account of sickness and indicated that he needed further time to gather documentation. The Tribunal agreed to postpone the hearing and rescheduled a further hearing for 9 November 2006. The Applicant was advised of this adjournment by letter from the Tribunal dated 25 October 2006. The Applicant did not appear at the rescheduled hearing on 9 November 2006 and the Tribunal in due course made the decision in December 2006 to which I have earlier referred which has given rise to this application.
On 7 February 2007, Registrar Mussett made interlocutory orders in the proceeding. It is not plain from the decision record whether both parties were represented on that date but the Applicant must have been aware of the orders made because he complied, at least in part, with them. On a date which is not clear from the copy that counsel for the First Respondent has handed to the Court but which appears to have been in March 2007, the Applicant served upon the First Respondent contentions of fact and law, together with an amended application. The Applicant did not, however, at any stage file those documents and they have been brought to the Court's attention only this morning. The First Respondent complied with those directions that he was required to comply with.
The contentions of fact and law set out in effect as grounds what are in fact substantially the grounds set out in the amended application. All of these are in generalised terms. It should be noted that the Tribunal, when it gave its decision last year, dealt with the matter on the basis that the Applicant had not attended. The Tribunal set out at some length, under the heading “Findings and Reasons”, a number of observations about the character of the application before it. The Tribunal found, correctly so far as I can see from the papers and the court book, that "the Applicant's claims are very general and lacking in detail in all significant respects". The Tribunal went on to examine each of the various factual matters advanced by the Applicant and set out in some considerable detail the sort of questions that the Tribunal would have sought to put to the Applicant had he in fact attended the hearing.
The Tribunal referred on more than one occasion to what it described as the very limited evidence before it when dealing with the Applicant's various assertions. The Tribunal, in the last paragraph before the heading “Conclusions”, stated:
“On the basis of the available limited evidence and the lack of details regarding all the claims made, the Tribunal is not satisfied that the Applicant faces a real chance of persecution in Fiji for any Convention reason. Looking to the reasonably foreseeable future, it is not satisfied that the Applicant's claimed fear of Convention-related persecution is well founded.”
The grounds set out in the application which are also the only relevant matters advanced in the contentions of fact and law are as follows:
(1)The Respondent failed to observe the proper procedures with regard to the Applicant and to act in accordance with substantial justice;
(2)The Respondent exceeded its jurisdiction, failed to exercise its jurisdiction in that it adopted an incorrect or inadequate definition of     "real chance of persecution".
(3)
In breach of s.424A of the Migration Act 1958 (Cth)

(“the Act”), the Tribunal failed to inform the Applicant of information that would be part of the reason for refusing the application;
(4)The Tribunal erred in law in applying the ‘real chance of persecution’ test to the Applicant merely by stating that discriminatory policies by governments are not necessarily persecutory. The Tribunal failed to make a finding based on fact with regard to the personal circumstances of the Applicant.
(5)There is no evidence in the record that the decision of the Tribunal even raised with the Applicant the possibility that the threats against him and his family had arisen from Convention grounds or even been made more credible by Convention grounds such as race, religion or      social grouping;
(6)In the premises, it is pleaded that the Applicant is entitled to the relief sought in this application.
In my view, the same criticisms that were made by the Tribunal of the Applicant's case apply here. While each of the grounds 1 to 5, at least in outline, refer to the sort of matters that have been held in appropriate cases to constitute jurisdictional error, nothing is put by way of particulars, with the possible exception of ground 4, which would enable this Court to assume that jurisdictional error has been identified, let alone established.
The reference to the real chance of persecution test may have arisen from an observation made by the delegate (see CB 38 – last full paragraph). That observation was not adopted in any way by the Tribunal.
Furthermore, it is quite apparent in my view that the Tribunal was well seized of the task before it. The Tribunal's reasons for decision show that it was keenly alert to the fact that the Applicant's case was one that he was a person to whom Convention obligations applied. The Tribunal set out the definition of "refugee" in some detail. The Tribunal then proceeded to examine the Applicant's claims and evidence against that statutory background.
There is nothing in my view to suggest that the Tribunal misconceived its task, paid attention to any material to which it should not have paid attention or otherwise in any way conducted itself in such a fashion as to give rise to jurisdictional error.
Likewise, the natural justice point, to the extent that it can be said to be discerned from the materials, is wholly without merit. The Tribunal wrote to the Applicant on several occasions, inviting him to appear at the hearing and emphasising the importance of his doing so. The only reason he did not receive the benefit of giving evidence was his failure to attend.
In my view, the application is totally lacking in merit and must be dismissed. I should say further that the matter was called after

10.15 am and I then stood the matter down until 25 to 11 to make sure that the Applicant was given every opportunity to be here. He has not appeared. I have been informed by counsel for the First Respondent from the bar table and I accept that he spoke to the Applicant as recently as last Friday and I accept that counsel very properly drew to the Applicant's attention the importance of his attendance today. I could have proceeded on the basis of the Applicant's non-attendance, but I was requested by counsel for the First Respondent to deal with the matter on what might be otherwise described as the merits, and in the circumstances, it seemed to me proper to accede to that request.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 12 June 2007