MZXPQ v Minister for Immigration - [2007] FMCA 851

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXPQ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 851

MIGRATION – Refugee Review Tribunal – no point of principle.

Migration Act 1958, s.424A
Federal Magistrates Court Rule 44.12

Applicant:

MZXPQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 329 of 2007

Judgment of:

Riethmuller FM

Hearing date:

3 May 2007

Date of last submission:

3 May 2007

Delivered at:

Melbourne

Delivered on:

3 May 2007

REPRESENTATION

The Applicant appearing in person

Counsel for the First Respondent:

Ms Ngo

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the first respondent's costs, fixed at $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 329 of 2007

MZXPQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for judicial review of a decision of the Refugee Review Tribunal ("the tribunal") signed on 14 February 2007.
Before the tribunal the applicant had the assistance of an adviser. The Tribunal had sent to the applicant a letter under s.424A of the Federal Magistrates Court Rules which set out in considerable detail a large number of matters in which there appeared to the Tribunal to be discrepancies in the evidence and alerted the applicant to the Tribunal's concerns regarding the genuineness of documents that she relied upon (including the reasons for those concerns).
The body of this letter is set out at pages 16 to 17 of the Tribunal's decision. The applicant's adviser provided a lengthy response, which appears at pages 17 to 20 of the decision. There does not appear to be anything on the face of the decision, in the application or in the comments of the applicant from the bar table to indicate that there was any error on the part of the tribunal in the way in which it conducted its proceedings or complied with s.424A.
The issue before the Tribunal was whether or not the applicant could establish that she had a ground for a protection visa on the basis of fears that she held that she may be gaoled in an attempt to silence her about corruption at a company at which she said she worked. She was also concerned that she would be falsely accused of being a Falun Gong member and suffer harm as a result of this. The Tribunal canvassed the claims in some detail.
At pages 20 to 25 of the decision the Tribunal analyses the evidence. The Tribunal commenced this analysis by referring to authorities with respect to the care to be taken in reviewing the evidence and to not take an "overstringent approach". The Tribunal then went on to set out in some detail the reasons why the Tribunal member did not accept that the applicant worked for the company, as claimed, and did not accept that she was involved in exposing any corrupt activities of the managers of the company or was demoted or made redundant.
The Tribunal did not accept that she had a role in exposing corruption. It did not accept that the subsequent divorce involving the applicant was in part or wholly because of her alleged actions with respect to the company. The Tribunal dealt with a late claim with respect to her daughter, discrimination on the basis of various policies in China, which the Tribunal rejected. The Tribunal ultimately stated:
The tribunal is satisfied the applicant's claims are not credible based on the discrepancies between the evidence she provided in the hearing and the evidence she had previously provided in submissions to the department and the first tribunal.
The earlier material was the subject of a s.424A letter, as referred to above.
The applicant's grounds of application are as follows:
1. The truth provided about previous employment provider.
2.I will lose my job if I am going back to China. There is no doubt I have no source of income.
3.The officers from RRT are lack of knowledge of Chinese government, they don't know losing job is such a huge problem.
4.I have official documents to prove that I have lost my job. However, RRT officers don't even believe me, they said the proof I provided is not true. I refuse to accept the previous results from RRT. I apply for re‑checking all my proof.
The orders sought by the applicant are: "Re‑check the proof."
The application was lodged on 22 March 2007. The matter came before me on a first return date on 24 April 2007. Prior to that the Minister has sent a letter to the applicant on 19 April, enclosing by way of service the Minister's response which clearly states on the face of it that the Minister seeks to have the matter dismissed pursuant to Rule 44.12 of the Federal Magistrates Court Rules.
The body of the letter states that the Minister's solicitors are of the view that the application did not contain any proper grounds and the letter stated that they were going to seek to have the application dismissed at the show cause hearing on 24 April on the basis that the applicant had not raised an arguable case for the relief claimed.
The lawyers for the Minister had also posted a letter in a standard format referring to providers of free legal assistance; however, the applicant stated that she did not receive that letter. There was no proof of it being sent, in a formal sense, and therefore I proceed on the basis that the applicant did not receive the letter and do not take it into account.
When the matter came before me on 24 April I adjourned it to today to enable the applicant to attend upon Legal Aid or Migrant Resource Centre or such other provider as she might choose. I ensured that she was given the details of the Legal Aid office. She says that she attended and spoke to a receptionist. She left none of the documents with the Legal Aid office. She says that somebody telephoned her, but she is unable to say who.
The applicant said that she was told to simply ask for an adjournment and that she would be better to turn up without a lawyer from Legal Aid to ask for the adjournment. She has no information as to how long she needs for an adjournment, whether Legal Aid is actually considering her case, who the lawyer is she says she spoke to, or any documents from Legal Aid.
On the material before me, I am not satisfied that a further adjournment is warranted. It appears that the applicant, despite having an adviser at the time of the tribunal hearing, had done nothing until the last court date and it does not appear that anything has happened since then to actually progress the matter, other than her attending at the Legal Aid office. There is no detail of any actual grant of aid or formal application.
I provided the applicant further opportunity today to explain why she believed that she did not have a fair hearing or thought that the decision was inappropriate. She again reiterated effectively the substantive grounds that she had listed in her application - that is, that she complains the Tribunal did not accept her version of events and that she believes they were unreasonable in taking such a negative view about times and dates when she may have made some errors through failing memory.
There is nothing about this case to indicate that it is anything but an attempt at merits review of the Tribunal decision. I can see nothing in the text of the decision to indicate either a ground for judicial review or a matter that would require serious consideration or exploration as a potential ground for judicial review. There is nothing in the submissions made by the applicant or her application to indicate either an arguable ground or something that would merit investigation towards identifying an arguable ground.
In these circumstances it is appropriate that I dismiss the application under Rule 44.12 on the basis that the applicant has not raised an arguable case.
In this matter, the Minister seeks costs in the sum of $2,000 on the basis that it is less than the scale fee but a sum that will be exceeded by the actual costs that the Minister will incur with his solicitors. The full scale fee was not sought, as the solicitor for the Minister quite property took the view that she could not be confident that the actual costs of the Minister would be the full scale fee. The court appreciates her frankness and honesty on that issue.
In the circumstances, it seems to me an appropriate amounts for costs is $2,000, given the scale amount is more but through proper handling of the matter the solicitor concerned has managed to keep the costs below the scale figure. The question of whether or not the applicant should pay the costs is determined in the usual way. Ordinarily the successful party in civil litigation ought receive their costs. The applicant raises as an issue that she is impecunious and does not expect to be able to meet the costs. That of itself is not sufficient reason for the court not to order costs.
There is nothing else about this case that would take it outside the ordinary situation where costs ought follow the event. Indeed in cases were the application appears to be obviously lacking any prospects of success from the outset, it is even more likely that the courts would ordinarily order the applicant to pay the first respondent's costs. In the circumstances I order that the applicant pay the first respondent's costs, fixed at $2000.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: J. McLean

Date: 21 May 2007