WZARA v Minister for Immigration

[2012] FMCA 722

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZARA v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 722

MIGRATION – Protection visa – review of decision of Refugee Review Tribunal to affirm decision of delegate not to grant the applicant a protection visa – application specifies no grounds – applicant does not attend hearing – dismissed.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001, r.13.03C(1)(c)

Craig v The State of South Australia [1995] HCA 58
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476

Applicant: WZARA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 68 of 2012

Judgment of: Lindsay FM

Hearing date: 6 August 2012

Date of Last Submission: 6 August 2012

Delivered at: Perth

Delivered on: 6 August 2012

REPRESENTATION

Applicant: No appearance

Counsel for the First Respondent: Mr M. Alderton

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed on 21 March 2012 is dismissed pursuant to Rule 13.03(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant to pay the first respondent’s costs fixed in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 68 of 2012

WZARA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before me today is an application pursuant to s.476 of the Migration Act 1958 (“the Act”), in which the applicant seeks orders quashing the decision of the Refugee Review Tribunal (“the Tribunal”) in relation to his claim to be entitled to a protection visa.  The Refugee Review Tribunal was itself an appeal from a delegate of the Minister, which had rejected the applicant’s claims to entitlement to that protection visa.

2. The application filed in this Court did not specify any grounds.  It simply said he was unhappy with the decision of the Refugee Review Tribunal and, for that reason, Lucev FM, when the matter came before him for directions, made orders that the applicant file and serve an amended application giving complete particulars of each ground of review.  That was to be done by 4 June 2012.  The applicant did not do that.  The letter which has been provided to me today from the respondent’s legal representatives indicates that they followed that obligation up with the applicant on 25 July 2012.  The amended application has not been filed and, consequently, we have no grounds articulated at all.  Then, to compound matters, the applicant is simply not in attendance today.

3. Given the nature of the jurisdiction the Court is exercising, it is probably appropriate for me to say something about the decision of the Refugee Review Tribunal, notwithstanding that the applicant has not accepted the most fundamental of his obligations as a litigant in the Court to provide particulars of his claim.  The applicant claimed to have a fear of persecution, on account of his membership of a political party in Nepal and, to some extent, his family membership – which, ostensibly, at the outset of the application, at least, was suggestive of him being close to the King, who had been deposed in that country.  But it was essentially a claim on the basis of his political opinion and membership of a political party that said he was at risk of persecution for a Convention reason if he were to return to Nepal.

4. He had been in Australia two and a half years before he made this application.  That was a telling matter from the Tribunal’s perspective.  They did not find that he had provided any explanation for that delay and rejected his contention that he was unaware of his entitlement to make application for a protection visa.  The applicant, in his evidence before the Tribunal and in material provided to it and to the delegate, suggested that he had been the subject of persecution by Maoists in Nepal.  The high-water mark of his application is probably that which is set out at [103] of the Reasons of the Tribunal, where the Tribunal accepts that in 2007, he was threatened and taken to the forest, had his clothes removed and was made to clean toilets and to carry things for the Maoists.

5. The Tribunal accepted that account of past mistreatment, that instance of past mistreatment, notwithstanding reservations it had as to a whole range of aspects of the applicant’s claim in other respects.  It said that that mistreatment may have amounted to serious harm, but was persuaded by the country information that there was no real risk of the applicant being seriously harmed in the future for his political opinion;  that is, presently or in the reasonably foreseeable future.

6. But that was one of the rare occasions in which the material or arguments or accounts given by the applicant were accepted by the Tribunal.  Overwhelmingly, the Tribunal rejected the particulars of his claim on credibility grounds.  It had to do in some instances with the lack of detail he provided in relation to some arguments.  It had to do with inherent improbability in respect of other matters.  It had to do with the delay between the period of what he said were the receipt of threatening letters in Nepal in 2006 and his departing the country in 2008.  It had to do with him having already, within that period, as it were, voluntarily, internally relocated to Kathmandu, which was a location that the country information suggested was available as a place of relative safety within the country.

7. Read all in all, the Tribunal’s reasons are cogent. They appear to be based upon a proper and fair and balanced analysis of the claims of the applicant. They appear to me to apply the appropriate criteria that the Act requires in relation to the assessment of such claims. It is because of the nature of the jurisdiction we are exercising on occasions like this that we have to be careful to ensure that applicants who do have credible claims of a fear of persecution on account of their return to their country of origin are not overlooked simply because of procedural difficulties, albeit the very grave procedural difficulties such as the applicant has here. I propose to dismiss the claim pursuant to the power in the Rules on account of the applicant’s non attendance in any event. But a reading of the Tribunal’s reasons is indicative of a Tribunal that went about its task conscientiously.

8. I am unable to identify any error in the way in which the Tribunal went about its decision making, let alone any jurisdictional error. And I should have indicated at the outset that, of course, given the nature of the jurisdiction this Court exercises under s.476 of the Act and given the fact that the Tribunal’s decision would otherwise have been a privative-clause decision under the Migration Act, it would have been necessary for the applicant to have established before me that the decision of the Tribunal was vitiated by jurisdictional error. Jurisdictional error is a concept best explained by High Court decisions such as Craig v The State of South Australia [1995] HCA 58 and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.

9. Acknowledging there is no one here to promote arguments to the contrary, there is no material that has been filed that directs us towards any deficiencies in the way the Tribunal went about its task, but nevertheless having read the Tribunal’s decision carefully, I am satisfied that it went about its tasks properly.  And as I have indicated, it went about its tasks without falling into any jurisdictional error.

10. In those circumstances, there is no reason why I should not dismiss the application.

11. The Application filed on 21 March 2012 is, pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001, dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date:  20 August 2012