MZXPW v Minister for Immigration
[2008] FMCA 480
•3 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXPW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 480 |
| MIGRATION – Review of Refugee Review Tribunal decision – set aside previous orders – failure to appear. COSTS – Circumstances justifying order. |
| Migration Act 1958 Federal Magistrates Court Rules 2001, r.16 |
| Applicant: | MZXPW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 448 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 3 March 2008 |
| Date of last submission: | 3 March 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 3 March 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the First Respondent: | Ms M. Ngo |
| Solicitor for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant to pay the First Respondent’s costs fixed at $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 448 of 2007
| MZXPW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The Applicant seeks the reinstatement of his application for judicial review of a decision under the Migration Act 1958 with regard to his application for a protection visa. His original review application was filed in the Federal Magistrates Court on 13 April 2007. The matter was originally placed in McInnis FM's docket after orders made by Registrars in June and July of 2007.
The matter was originally listed for hearing on 21 November 2007. However, a relisting notice was sent out by the Associate to McInnis FM on 8 November 2007 notifying the parties that the matter would be heard on 29 November 2007 at 2.15 pm. At that time, the Applicant did not appear. His Honour proceeded to determine the matter in the applicant’s absence and dismissed the application. His Honour's reasons are set out in his judgment of that date.
The Applicant has subsequently filed an application on 18 December 2007, seeking to set aside His Honour's orders. Power to set aside the orders of His Honour made in the absence of the Applicant are under r.16 of the Federal Magistrates Court Rules 2001. It appears to me that the relevant considerations are the explanation, if any, for failing to attend and the nature of the case that the Applicant seeks to agitate and is so, any prejudice that may be suffered.
In this case, the Applicant was given notice of the date and time of the hearing. On 12 November 2007, he wrote to the solicitors for the First Respondent, asking for an adjournment so that he could have more time for his application and pursue his desire to seek more evidence. This adjournment request was considered by McInnis FM in his judgment delivered on 29 November 2007. Not surprisingly, His Honour did not grant an adjournment based on the limited form of the request and in light of the application itself (it was one that failed to disclose any ground for the application for judicial review and one where a reading of the decision of the Tribunal does not indicate that there are aspects of it which show some form of error on its face).
The Applicant today says that he was working night shift and overslept, arriving at the court around 3 or 4 pm but says that he did not go to the Registry or come to level 6. He simply realised he had arrived too late. He had made submissions earlier on that he was confused about the date; however, that cannot be the case as he had written a letter seeking an adjournment and did in fact come after he woke up. He also made submissions that the situation in Pakistan is very unsafe and seeks to have orders made so that he can stay in Australia at least until things are safer in Pakistan.
On the material before me, I do not accept that he has a reasonable explanation for failing to attend. However, it also appears to me that the lack of a satisfactory explanation would not, of itself, bar a person from relief if they otherwise had an apparently arguable case with reasonable prospects. I therefore turn to the nature of the case that the Applicant seeks to argue.
The Applicant has not identified any specific ground in his application for review. When asked today, he stated that he wanted more time within which to provide further evidence to the Tribunal. However, it appears on the face of the Tribunal's decision that in November 2006, he had made a request for an extension of time and that on
24 November, the Tribunal gave him an extension until 11 December 2006.
On 6 December 2006 he provided a number of untranslated documents to the Tribunal. Those documents were translated and considered. On the face of the material, this does not appear to be the basis for judicial review. He also said that he was hoping that a person in Pakistan would send him some more documents but that that person had died or been murdered. However, no further details were provided, nor copies of any documents are provided today to show what they were and what impact they may have had on the hearing.
He stated at the bar table that he felt that the Tribunal were just trying to "keep people out" of Australia. However, there is nothing to show that this claim of bias or apprehended bias has any evidentiary foundation.
He refers to recent events in Pakistan and says that the Australian cricket team has elected not to go to Pakistan due to safety concerns. This is not a basis for judicial review of the decision.
The basis of the Tribunal decision was a finding that the Applicant lacked credibility. A good summary is set out in the First Respondent's outline that was filed for the substantive hearing, as following:
12. The applicant’s claims varied over the course of the application. However in summary he claimed that he had a well-founded fear of persecution in Pakistan for reasons of religion, as a result of having converted from being a Sunni Muslim to a Shi’a Muslim. As a consequence of his conversion he claimed he was threatened by his cousins who were strict Sunnis. He was beaten 14 times by members of a Sunni extremist group, Sipah-e-Sahaba. He further claimed he had a relationship with his Uncle’s wife’s sister and that as a result, his parents locked him up and mistreated him as did his cousins and he was forced to leave home. He claimed that his family wanted to kill him. He was forced into hiding. After he came to Australia, his employer took his passport and belongings when the employer found out about his conversion and had told persons in Pakistan, who could arrange to have him killed in Australia. After the Tribunal hearing he provided documents that showed he was a member of a Shi’a extremist group, Tehrik-e-Jafria.
13. The applicant’s evidence to the Tribunal was inconsistent with the claims he had originally made in his protection visa application. As a consequence, the Tribunal invited the applicant to comment on the inconsistencies and discrepancies in an invitation pursuant to s424A of the Act (CB 115-117). The information upon which comment was invited included:
1) The claim about the time the applicant had converted from Sunni to Shi'a, which varied from a few months to 5-6 years and with subsequent documents lodged, it suggested some 12 years;
2) At hearing the reason given for leaving the family home was a relationship with his uncle's wife's sister, which was not raised in the protection visa application.
3) At hearing claims were first made about being shot at by cousins and being hit with a large stick on his legs.
4) In the protection visa application it was claimed that hardline Sunni’s might harm the applicant. At hearing it was claimed that the Sunni extremist group had in fact beaten him 14 times.
5) In the protection visa application the applicant listed only one address prior to his departure, however at hearing he recounted a number of different addresses and hiding places and further claimed that a person he had been staying with had been killed as a consequence of his having stayed there.
6) Subsequent to the hearing the applicant had provided numerous documents showing him to be a member of an extremist Shi’a group, the Tehrik-e-Jafria in 1994 and 1996. This group was never mentioned at hearing despite repeated questions on the subject from the Tribunal, or in his protection visa application.
14. The Tribunal rejected all the applicant’s substantive claims finding that he was not credible. It found that he had never experienced any problems in Pakistan for reasons of his religion or for any other Convention reason. He had not converted, nor suffered the harm claimed, nor gone into hiding, nor was he a member of the claimed group. He had not had the relationship as claimed nor had any problems with his family. The Tribunal’s findings included inter alia the following general summary or conclusion, as follows (CB 136-137):
‘Based on the above, the Tribunal finds the applicant is not a credible witness. The Tribunal does not accept the applicant has converted his religion. As such, the Tribunal does not accept when the applicant came to Australia his employer took his passport and belongings because he disclosed his alleged conversion to a Shi'a Muslim. It also does not accept the applicant's employer returned to Pakistan and told people his home address in Australia and advised them if they paid some money they could get him killed here or that his mobile phone in Pakistan had messages on it which indicated people would finish him anytime. The Tribunal is satisfied the applicant has never experienced any problems in Pakistan in the past because of his religion, including having his family deprive him of a share of the family property. The Tribunal notes the applicant did not elaborate any further in the hearing about this particular claim but as it is satisfied the applicant has not converted his religion. [T]he Tribunal does not accept the applicant has experienced any difficulties from his family, cousins, extremist groups or any others in the past. Nor does the Tribunal accept the applicant has faced any difficulties from his family or others because of an alleged relationship with his uncle's wife's sister. The Tribunal therefore does not accept the applicant faces any real chance of persecution if he returned to Pakistan, now or in the reasonably foreseeable future, for reasons of his religion or any other Convention reason. The Tribunal finds the applicant's fear of persecution is not well-founded.’
In the circumstances, it does not appear that there is an arguable ground for review in this case. That, coupled with the lack of any proper explanation for failing to appear, leads me to the conclusion that it would not be appropriate to set aside the orders of McInnis FM and reinstate the application. I therefore dismiss the application filed 18 December 2007.
In this matter, the Applicant has been wholly unsuccessful. Ordinarily, costs would follow the event. The Applicant has not put forward any facts and circumstances which would show that a different order was required. The Applicant points out that he is on a very low income and that the costs of the proceedings would be substantial for him. That, of itself, is not a sufficient reason not to order costs. The amount sought by the First Respondent of $1,000.00 is an appropriate figure for the nature of the application, having regard to the Federal Magistrates Court scale. In the circumstances, I find it is appropriate that the Applicant pay the First Respondent's costs fixed at $1,000.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 15 April 2008
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