VWQK v Minister for Immigration
[2005] FMCA 1074
•9 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWQK v MINISTER FOR IMMIGRATION | [2005] FMCA 1074 |
| MIGRATION – Review of Refugee Review Tribunal decision – medical certificate – no arguable case – summary dismissal. |
| Migration Act 1958 (Cth) |
| Applicant: | VWQK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1253 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 9 June 2005 |
| Date of Last Submission: | N/A |
| Delivered at: | Melbourne |
| Delivered on: | 9 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared on his own behalf |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms Costello |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the applicant’s application be dismissed.
That the applicant pay the respondent's costs fixed in the sum of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1253 of 2004
| VWQK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by the applicant for judicial review of a decision of the Refugee Review Tribunal. The applicant is a citizen of India and came to Australia on 28 January 2003. On 11 March 2003 he applied for a protection visa. On 27 May 2003 a delegate of the Minister refused to give him a protection visa. He then applied for a review of that decision by the Refugee Review Tribunal. On 30 January 2004 the Refugee Review Tribunal refused his application. The Tribunal said:
Taking into account the above, the tribunal finds that it is unable to be satisfied that the applicant was persecuted in the past for reason of his political opinion and finds that if he were to return to India now or in the reasonably foreseeable future, there is not a real chance he would be persecuted for reason of his political opinion or for any other convention reason. The tribunal finds the applicant's fears are not well-founded.
The Tribunal made that finding on the material presented to it in written form. The applicant did not attend for a hearing before the Tribunal. This was despite the applicant having received the Tribunal's invitation and responding that he wished to attend to give evidence. The applicant did not raise in his application any complaint that he was not given proper notice of the hearing, nor does it appear that the applicant raised any issue with the Tribunal at around the time that he received the decision. The notice of the hearing was sent to the address the Tribunal had for the applicant. It was sent by registered post and I note from the court book that a registered post letter was unclaimed by the applicant.
It appears to me that the applicant was given adequate notice of the hearing and did not participate in the process. There is nothing in the material by the applicant to indicate any complaint on his behalf in this regard. The first time that such an issue was raised at all was his interjections during this judgment. I am not satisfied that this amounts to a basis for judicial review. During the course of this hearing I had struck out the respondent's contentions because they were not served upon the applicant, nor have I heard submissions from the Minister in the circumstances.
The applicant sought an adjournment on the basis that he was ill and may have to undergo surgery in the future for neck and shoulder pain. His medical certificate simply says that he is unfit for work. At the time that the applicant was telephoned for the hearing in this court he said he was at the Shepparton railway station. I am not satisfied that he is sufficiently unfit that a hearing could not have continued. If he is fit enough to attend at Shepparton train station, it is difficult to see why he would not be fit enough to attend at the court. In any event I have given the applicant leave to appear by telephone.
The applicant had nothing to say as to why the case should be allowed, save for his interjection during judgment that he had not received a letter notifying him of the hearing.
I note from the court book at pages 68 to 69 that shortly before the hearing a letter was sent to the applicant, he had written to the Tribunal advising the Tribunal of his address at Shepparton, being a post office box. I note that whilst there is an unclaimed registered post copy of the letter, that was a copy sent to his home address. The original of the letter was sent to the PO box that the applicant had referred to in his last letter to the Tribunal. There is nothing on the file to indicate that it was returned unclaimed. This was the same address that he had given the Tribunal as his mailing address when he said that he would have a hearing, and the same address at which the notification of his opportunity to have a hearing was sent. On the material before me, I am not satisfied that he did not receive notice.
The other material of the applicant does not appear to me to raise any arguable case for judicial review. In the circumstances I refuse the applicant's application.
In the circumstances I order that the Minister receive the costs from the applicant as the Minister has been successful and the applicant entirely unsuccessful and fix those costs at $4500, having regard to the relevant court scales and the work undertaken in this case.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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