VQAA v Minister for Immigration - [2004] FMCA 1061

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VQAA v MINISTER FOR IMMIGRATION

[2004] FMCA 1061

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth)

Applicant:

VQAA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 719 of 2003

Delivered on:

6 December 2004

Delivered at:

Melbourne

Hearing Date:

6 December 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

VQAA appeared on his own behalf

Counsel for the Respondent:

Mr Hay

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 719 of 2003

VQAA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment.
The applicant in this matter arrived in Australia on 25 February 2002. On 21 November 2002 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act. The applicant had been here on different visas before that time. The applicant was refused a protection visa on 20 December 2002 by a delegate of the Minister.
On 17 January 2003 the applicant applied for a review of that decision. The review was conducted by the Refugee Review Tribunal (‘the RRT’) who made a decision on 24 April 2003, a copy of which was forwarded to the applicant and appears in the court book from pages 127 to 146. The RRT decision runs for a little over 19 pages. The applicant seeks a review of that decision through proceedings filed in the Federal Court on 6 June 2003 that has been remitted to this Court for hearing.
The application appears on the face of it to have been a pro forma application in that it is set out with largely content‑free grounds for review which raise all manner of possible legal bases for judicial review without referring to the specific facts or circumstances of this case. The first page of the application has boxes printed on it in which the applicant has written in his pseudonym, address and contact details.
Unfortunately the application provides little assistance in determining the true nature of the complaint by the applicant with respect to the decision of the RRT. The applicant, however, later filed a document of very short compass setting out his case in the following terms:
·The judge at the time does not believe that I am a citizen of Cyprus.
· At middle school in overseas that we had compulsory religious subjects.
·The judge at the time does not believe what I’ve been through however, the judge believes that she has learned about Cyprus yet decides on my behalf.
·I believe the court case is not fair because I do not have working visa. Therefore I cannot afford to hire a lawyer.
·At the time of my court case I was going through some tough time, which had an effect on my decisions. Hence I believe I could not answer the questions efficiently and effectively.
The matter was transferred to the Federal Magistrates Court on 3 July 2003 and it came on for hearing today. The applicant appeared on his own behalf through an experienced Turkish interpreter. As a result, I conducted the hearing by having the Minister outline through her Counsel the response to each of the dot points that the applicant had raised and then seeking the applicant's comment on each of those matters. It is appropriate that I consider each of those dot points in this application.
The first is a complaint that the RRT did not accept that the applicant was a citizen of Cyprus. The RRT made a finding that the applicant was a citizen of Turkey and based this upon the proposition that under a Republic of Cyprus citizenship law, as recounted in the UK Home Office information, the applicant would not fulfil the relevant criteria for being a citizen of the Republic of Cyprus. It appears that the Turkish Republic of Northern Cyprus, of which he specifically claims to be a citizen, is not a sovereign country recognised at international law. It is difficult to conclude that there is a judicially reviewable error on the part of the RRT with respect to this finding. Indeed, the finding of the RRT that the applicant was a citizen of Turkey may have provided him with some benefit in the determination being made in the sense that his complaint with respect to the convention related to the conduct of the Turkish authorities or the failure of the Turkish authorities to intervene in his situation. He would have failed in his refugee application if he were a citizen of a different state because the simple answer would have been that he would return to that separate state rather than to Turkey. I therefore find that there is no judicially reviewable error in respect of this ground or contention.
The second ground of contention is the applicant's claim that there were compulsory religious subjects at middle school. The RRT member rejected the applicant's evidence and relied instead upon evidence contained in a State Department report. This is a finding of fact which is open to the RRT member. It is not a judicially reviewable error.
The third contention by the applicant was a more general complaint that the RRT member was prepared to rely upon country information in preference to the evidence of the applicant. It is open to the RRT to do so. The RRT member heard the applicant and discussed a great deal of the detail concerning his case with him directly. The RRT member also recounts a number of reasons for concern with respect to the veracity of the applicant's evidence before ultimately rejecting his evidence on a number of points and accepting the evidence contained in country information. I do not find that this gives rise to a judicially reviewable error.
The fourth ground that the applicant raises is that he believes that the court case is not fair because he does not have a working visa and therefore cannot afford to hire a lawyer. It is not clear whether he is referring to this court case or the appearance before the RRT. On either proposition, it is not a ground for judicial review that someone is not able to be represented. Indeed, it is common for people to be unrepresented when appearing before the RRT and it is not uncommon for applicants in this court to be unrepresented.
The final ground or contention raised by the applicant is that he was suffering mental anguish or illness at the time of the RRT decision and hearings and therefore could not answer efficiently and effectively. It appears that this is effectively a complaint that the RRT hearing miscarried and was therefore procedurally unfair as the applicant was not in a condition sufficient to properly participate in that hearing. This does not sit well with the recounting of the discussions that took place in that hearing by the RRT member in the RRT decision. It is difficult to accept that the applicant was not lucid and responsive when one reads the summary of the hearing evidence and the discussion of it by the RRT member. There is no evidence put forward by the applicant from any other person and, most importantly, no evidence from any medical practitioner, to prove that he was suffering some form of illness or other affliction that would have meant that the hearing before the RRT was unfair in a sense that would give rise to judicial review.
I have taken the opportunity to read the decision as a whole in case there were some other error contained therein that seemed apparent on the face of the decision that might give rise to judicial review or at least an arguable case for judicial review. I am not able to identify such an error on the face of the decision. It appears clear that the substance of the decision is a rejection by the RRT of the claim by the applicant that he is a Jehovah's Witness and consequently rejection of the proposition that he has been the subject of persecution on that basis. The RRT also rejects the proposition that a Jehovah's Witness is likely to have been persecuted in Turkey. In the circumstances I do not find that a judicially reviewable error has been established and therefore I dismiss the current application.
In this case the applicant has failed in the application. The application itself was commenced by what appears to have been a pro forma document that could apply to or be relied upon with respect to any decision and goes to no particularity relating to this actual decision. The points raised by the applicant did not give rise to an arguable case for judicial review. The respondent has been put to expense in responding to the application. The respondent has been successful. It is appropriate that costs follow the event in a case such as this.
The respondent seeks the sum of $5,400.00. Having regard to the appropriate court scales, I find that this is a reasonable sum. I therefore dismiss the application and order that the applicant pay the respondent's costs fixed in the sum of $5,400.00.

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

Associate:

Date: