MZXPF v Minister for Immigration - [2007] FMCA 1343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXPF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1343

MIGRATION – Protection visa – non-appearance – no arguable case – adjournment refused – application dismissed.

Migration Act 1958, s.424A
Federal Magistrates Court Rules 2001, r.13.03A

Applicant:

MZXPF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 241 of 2007

Judgment of:

McInnis FM

Hearing date:

2 August 2007

Delivered at:

Melbourne

Delivered on:

2 August 2007

REPRESENTATION

Applicant:

No appearance

Solicitor for the First Respondent:

Mr D. Brown

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed pursuant to r.13.03A of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent's costs fixed in the sum of $3,200.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 241 of 2007

MZXPF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

In this application the Applicant, according to the contentions of the First Respondent which I accept are an accurate reflection of the relevant background, is referred to as a 24 year-old Thai national. He arrived in Australia on 16 August 2006 on a visitor visa together with his 27 year-old brother who I note for present purposes is the Applicant MZXPJ in proceedings MLG 260 of 2007 which have been listed for hearing this day.
I mention the other proceedings as the background in this application is very similar, if not almost identical, to the background in the other application. In this application it is clear that both the Applicant and his brother applied for protection visas on 22 September 2006. Those applications were rejected by a delegate of the First Respondent on 3 October 2006. The Applicant then filed an application for review of that decision with the Refugee Review Tribunal (the Tribunal) on 23 October 2006.
The Applicant in this application claimed that he left Thailand because he had been charged with a murder which he had not committed and had fled whilst on bail as a result of fear of adverse treatment from the relatives of the deceased woman's parents who he claimed to be very influential and who he believed would obtain preferential treatment from the Thai police with the end result that he would not be afforded a fair trial.
It is noted in this application that the Applicant did not provide any written submissions or documentary evidence in support of the application before the Tribunal held on 28 November 2006. Instead the Applicant attended that hearing and requested an adjournment in order that he might consult a lawyer. It is clear from the Tribunal's decision that it sought information from the Applicant as to whether he had taken steps to obtain legal advice and was told that no steps had been taken. The Tribunal then refused the request for an adjournment. It did so in part on the basis that the Applicant had been in possession of the delegate's decision record for seven weeks and had filed an application for review five weeks prior to the Tribunal hearing.
The Tribunal then conducted a hearing with the assistance of a Thai interpreter. It is not relevant to then recite in further detail the Tribunal hearing. It is relevant in the present case, for reasons which will become apparent, to further note, however, that pursuant to s.424A of the Migration Act 1958 (the Migration Act), the Tribunal wrote to the Applicant on 30 November 2006 and brought to the attention of the Applicant perceived inconsistencies of evidence in the application and further noted that Tribunal research was unable to locate any media report about a murder of a young woman in the district referred to by the Applicant.
No response was provided to the Tribunal to the s.424A letter. The Tribunal proceeded to then affirm the delegate's decision on 22 January 2007 and published the reasons for decision on 9 February 2007. It was not satisfied that the Applicant's fear of persecution was held for reason of any of the five grounds set out in the convention relating to the status of refugees and the protocol relating to the status of refugees namely, race, religion, political opinion, nationality or membership of a particular social group.
The Tribunal further, as a matter of fact-finding, did not accept on the available evidence the claim by the Applicant that the alleged murder had occurred or that he had been charged with murder or that he was vulnerable to unjust treatment by the Thai police. The Tribunal then rejected the claim that the Applicant had a well-founded fear of persecution upon return to Thailand. The Tribunal, in reaching its decision, referred to other parts of the evidence which I do not need to recite in this decision.
In the application and contentions relied upon by the Applicant, it would appear that the Applicant claims that the Tribunal erred by denying the request for an adjournment. The claims are otherwise repeated which were before the Tribunal in relation to the claimed fear of harm upon return to Thailand. This matter was listed this day at 10 am. Out of an abundance of caution, the Court stood the matter down until midday.
Further out of an abundance of caution, the Court not only arranged for the hearing in Melbourne but, having regard to the relocation of this Applicant and his brother to Queensland, also made available a video-link facility in the Courtroom at Brisbane. It did so in circumstances where the Court received a copy of correspondence dated 26 July 2007 from the solicitors for the First Respondent which in part refers to not having received a response to the three earlier letters sent on 11 May, 19 June and 17 July 2007 requesting confirmation that the Applicant wished to have the application for review of the delegate's decision to refuse the grant of a protection visa to be heard in the Commonwealth Law Courts in Brisbane by video-link on 2 August 2007. I am satisfied that the letter otherwise brings to the attention of the Applicant the option of at least seeking to make an arrangement for the application before this Court to be conducted by video-link hearing.
Yesterday the Court received by facsimile transmission a facsimile purporting to be from the Applicant, dated 1 August 2007. It appears to have been received by the Court at or about 1 pm on 1 August 2007. The facsimile letter simply states, "I am sick and unable to attend the hearing on 2 August 2007." It is significant to note that the facsimile transmission contains the same address to which correspondence was forwarded by the First Respondent and the same Queensland address which is relied upon by the Court in its correspondence with this Applicant and his brother.
I have taken the facsimile letter to be effectively an application for an adjournment of this application. In my view the letter, which appears to be in identical terms to a letter provided by the Applicant's brother in the other proceedings to which I have referred, is hopelessly inadequate. It does not have attached to it any indication of the nature of the illness, nor is there attached to it any medical certification relating to that illness and referring to any inability of the Applicant, as a result of any illness, to attend Court. It is in my view an inappropriate request made with insufficient evidence. It is not, in my view, sufficient to provide this Court with any or any reasonable basis upon which it should grant the adjournment.
I should further add that having considered the Tribunal decision in this matter and having regard to the brief outline set out earlier in this judgment, I am satisfied that the submissions of the respondent in relation to the substantive issues in this matter are correct and that on the material before me, I can see no basis upon which this Court could otherwise conclude that there has been jurisdictional error on the part of the Tribunal. I make that observation having regard to the matters raised in the Court file by the Applicant and note that I have made that observation and drawn that preliminary view in the absence of any further contentions on the part of the Applicant.
Nevertheless, on the material before me, I am satisfied that in this case there appears to be no basis upon which the Court is able to draw a conclusion that there has been jurisdictional error on the part of the Tribunal in this matter. In my view, in those circumstances, where there is no appearance on behalf of the Applicant and where there is an insufficient basis upon which the Court ought properly to grant an adjournment and in particular where the Court, on the material before it, can see little or no merit in the application, it is appropriate in my view to refuse any purported application for an adjournment. In the event of non-appearance, it is my view that it is appropriate, pursuant to r.13.03A of the Federal Magistrates Court Rules 2001, that the application should be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 2 August 2007