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MIGRATION - Application for review of decision of the Refugee Review Tribunal - application summarily dismissed by reason of non-compliance with procedural orders - appealing dismissal of proceedings - real chance of persecution.

MZWCI v Minister for Immigration [2004] FMCA 584 (20 September 2004)

MZWCI v Minister for Immigration [2004] FMCA 584 (20 September 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWCI v MINISTER FOR IMMIGRATION
[2004] FMCA 584




MIGRATION - Application for review of decision of the Refugee Review Tribunal - application summarily dismissed by reason of non-compliance with procedural orders - appealing dismissal of proceedings - real chance of persecution.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.36, 424A

Applicant:
MZWCI




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 60 of 2004




Delivered on:


20 September 2004




Delivered at:


Sydney




Hearing date:


8 September 2004




Judgment of:


Nicholls FM




REPRESENTATION

Counsel for the Applicant:


Mr J. Belbruno




Solicitors for the Applicant:


Mr Joseph Belbruno, Solicitor




Counsel for the Respondent:


Ms M. Ngo




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) THAT the application be dismissed.

(2) THAT the applicant is to pay the Respondent costs set in the amount of $2,850.00 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 60 of 2004

MZWCI



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This judgment arises from an application filed by the applicant on

27 August 2004 seeking judicial review of the decision of this Court dated 6 August 2004 to dismiss the applicant's application filed on

27 January 2004.

2. The applicant is a citizen of Vietnam, and arrived in Australia in the mid-1990s. She lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) in the early 2000s.

3. The applicant claimed that she left Vietnam because she feared persecution and death, by reason of acts of violence perpetrated on her family members in Vietnam. The applicant's father, who she claims was mayor of her town, was killed for his political beliefs in the 1970s. She further claims that her elder brother was killed by the government. The applicant's family was dispersed and their properties destroyed. The applicant claims that she fears being persecuted or killed if she returns to Vietnam due to her political beliefs which differ from those of the current regime in that country, and due to her membership in her family group.

4. A delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant the protection visa; the applicant applied for review of that decision by the Refugee Review Tribunal ("the Tribunal").

5. In the decision made by the Refugee Review Tribunal on 8 May 2003, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol); consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) ("the Migration Act") for the purposes of a protection visa. Specifically, the Tribunal found:

a) there was no evidence to suggest that the applicant herself would face a real chance of persecution;

b) it was not satisfied that the applicant or her family had ever been of adverse interest to the Vietnamese authorities.

6. On 27 January 2004, the applicant lodged an application in this Court, being MLG 60 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal's decision. The applicant claimed that the Tribunal had erred in law and exceeded its jurisdiction.

7. On 17 March 2004 Registrar Efthim, acting as a Registrar of this Court, made orders by consent that, amongst others, the applicant file and serve an amended application with proper particulars by 16 April 2004.

8. The respondent filed a notice of motion on 9 June 2004 seeking the dismissal of the applicant's application on the basis that the applicant disclosed no reasonable cause of action pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules. This was supported by an affidavit sworn by Ms Maria Ngo, the respondent's solicitor.

9. On 9 July 2004 Registrar Connard, acting as a Registrar of this Court, made orders that:

i) The application for summary dismissal be adjourned to 6 August 2004 at 9.15am.

ii) The applicant file and serve by 16 July 2004 an amended application, including fully particularised grounds of review together with fully particularised contentions of fact and law.

iii) In the event that the applicant does not comply with the requirements of paragraph 2 by 16 July 2004, the respondent is at liberty to apply on 6 August 2004 to dismiss the application pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules.

10. On 5 August 2004 the respondent filed a notice objecting to the competency of this Court to hear the matter, by reason that the application was not lodged within 28 days of notification of the Refugee Review Tribunal's decision.

11. On 6 August 2004, Registrar Connard of this Court ordered that the application be dismissed "by reason of non-compliance with paragraph 2 of the orders made on 9 July 2004", and that the applicant pay the respondent's costs. A notation on the Court file identified the non-compliance as "inadequate particularisation".

12. The orders in full were:

i) The application is dismissed by reason of non-compliance with paragraph 2 of the orders made on 9 July 2004.

ii) The applicant pay the respondent's costs of the application fixed in the sum of $2,070.00.

iii) The applicant's solicitor pay the respondent's costs of the motion for summary dismissal fixed at $1,135.00.

13. On 27 August 2004, the applicant filed an application for review of Registrar Connard's decision. The applicant sought orders that:

i) Orders 1 and 2 made by Registrar Connard on 6 August 2004 be quashed;

ii) The matter be set down for a hearing to a date to be fixed;

iii) The respondent pay the applicant's costs.

The application was unsupported by affidavit or any other material.

14. The time for making such an application is governed by Part 20, Rule 20.01 of the Federal Magistrates Court Rules. The time limited by Rule 20.01(1)(c) is seven (7) days. This means that the applicant should have filed her notice seeking review on or before 13 August 2004. She did not file the document until 27 August 2004. The document was served on the respondent's solicitors on 7 September 2004.

15. At the hearing on 8 September 2004 Mr J. Belbruno appearing for the applicant sought leave to extend the time for the making of this application.

16. In giving consideration as to whether or not I should exercise my discretion to extend the time for review and then conduct a further hearing, I must have regard to the following:

i) the applicant's reasons for not filing the notice for review within the time limited;

ii) whether a reasonable opportunity was given to the applicant to fully particularise her contentions (the key to the matter being dismissed); and

iii) the utility of permitting the application to continue.

17. In regard to the first matter, Mr Belbruno acting for the applicant did not make any application for the extension of time prior to 8 September 2004. There was therefore no affidavit or other material before me to explain the reason for the delay. The reason that he gave at hearing for the delay was that he had difficulty in contacting his client as she constantly moved around and changed telephone numbers. In the circumstances I do not accept this as an adequate excuse, particularly as once he had made contact with his client the appropriate action would have been for him to make the appropriate application, identify that it was out of time with a supporting affidavit fully setting out the difficulties that he had encountered.

18. The second issue is whether the applicant has had an appropriate opportunity to fully particularise her application and contentions. The application for review of the Tribunal's decision was made on 27 January 2004. Orders were made on 22 March 2004 for the applicant to file and serve an amended application with proper particulars, a supplementary book of documents, if any, and contentions of fact and law, all by 16 April 2004. These orders were made by consent. The applicant did file, alone, contentions of fact and law on 31 March 2004.

19. The respondent by notice of motion (with supporting affidavit) on 9 June 2004, sought dismissal of the application on the basis that no reasonable cause of action had been made out. This had been preceded by a letter from the respondent's solicitor to the applicant's solicitor on 8 April 2004 putting them on notice that in their view the application and contentions did not raise an arguable case.

20. On 9 July 2004 Registrar Connard made further orders, inter alia, requiring the applicant to set out fully particularised grounds of review together with fully particularised contentions of fact and law.

21. The order dismissing the application was made on 6 August 2004. I note that an amended application and contentions of fact and law were also filed in Court on that day.

22. When I asked Mr Belbruno at the hearing of 8 September 2004 for reasons as to the difficulty in fully particularising the contentions, his response was that there were time and financial limits on practitioners. He submitted that in an ideal situation practitioners would have more time to fully set out their claims.

23. Taking into account the sequence of times above, the periods of time, the notice as to the inadequacy of the contentions given first by way of letter by the respondent's solicitor dated 8 April 2004, and then by way of orders made by Registrar Connard on 9 July 2004, I find that the applicant had ample opportunity to fully particularise her claims.

24. The third matter that I must consider brings me to the decision of the Tribunal. I have read the decision which is contained between (CB 92) and (CB 100), and the contentions made by both parties before the Court. Mr Belbruno took me to contention number 6 in the applicant's contentions of fact and law dated 12 July 2004 and filed in Court on

6 August 2004, as a particular example of where a reasonable cause of action had been made out.

25. Paragraph 6 of the applicant's contentions alleges a breach of section 424A of the Migration Act in that the Tribunal failed to inform the applicant of adverse information referred to by the Minister's delegate in her decision and that allegedly prior or inconsistent statements made by the applicant were available to the Tribunal and the Tribunal may have considered it in making its decision. At hearing, Mr Belbruno contended that this information was before the Tribunal in the Departmental files and that this may have influenced the Tribunal against the applicant. When pressed as to the evidence to support this contention, Mr Belbruno claimed in his submissions that the Tribunal could have been influenced by this material. He referred me to page 99 of Court Book, and in particular the paragraph:

Based on the evidence before it the Tribunal is not satisfied that the applicant or her family have ever been of serious, adverse interest to Vietnamese authorities and finds that she does not face a real chance of persecution because of her family background or for any other reason.

as supporting his contention.

26. The applicant's claims of fear of persecution are at page 84 of the Court Book, which is part of the application to the Tribunal for review. Her claims centre around her family's opposition to the Communist regime and her claim that her father was killed in 1975.

27. The applicant was given an opportunity to further expand on these claims by way of a letter that the Tribunal sent to her advising that it had before it the Department's file, the protection visa application, written submissions in support of the application, and other relevant material. The Tribunal advised that on the material before it, it was unable to make a favourable decision and invited the applicant to give oral evidence and present arguments at a hearing (see CB 86-87). The applicant did not take up this offer.

28. The Tribunal considered the claims made by the applicant so far as it was able to and then proceeded to list a number of questions that it would have asked the applicant had she taken up the invitation to attend the hearing. The Tribunal then went on to look at relevant country information and to enumerate issues that it would have put to the applicant had she made herself available. The Tribunal stated at page 98 of the Court Book that:

Without an opportunity to obtain evidence from the applicant in relation to the above issues, the Tribunal does not accept that (i) the applicant's father was a high ranking official in her town who was killed for his political beliefs; (ii) that the applicant attended political meetings as a high school student; (iii) that her family was dispersed and her brother was killed by the government; (iv) that her family's properties were destroyed; (v) that the applicant and her brother escaped from anyone; (vi) that she lived with another family in another village and then went into hiding with her lost brother; (vii) and that the applicant had any problems departing Vietnam.

In this regard the Tribunal notes that in her claims the applicant has not identified anything of a serious, adverse nature which has ever happened to her personally in the past, Convention-related or otherwise. Even if she was brought up in a different political system in Vietnam to the current one and even if her political beliefs are different to that of the current government, there is no credible evidence before the Tribunal that she would express those beliefs in such a way to draw attention to herself. Based on the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of persecution for reason of her political opinion or her family background.

29. It seems to me that the Tribunal was entitled to make these findings on the basis of the material before it. There is nothing to show that the alleged prior inconsistent statements influenced the Tribunal. To the contrary, the Tribunal clearly reached its decision on the claims of the applicant. It was the lack of further information and particulars which led to the finding against the applicant. Further, I cannot see how the passage referred to by Mr Belbruno is directly linked to the alleged prior inconsistent statements. In the absence of an opportunity of discussing these matters with the applicant, the Tribunal was entitled to reach the conclusion that it did. The responsibility of satisfying the Tribunal lies with the applicant.

30. In looking at the utility of allowing the application to proceed, I turn now to the other contentions of fact and law made by the applicant:

a) The applicant's contention is that the Tribunal erred in that it wrongly applied on "onus of proof" test to the applicant although it purported to reject the application of such a test as inappropriate in these proceedings. I accept the respondent's contention that there are no particulars as to what onus of proof test had been applied. I also note at page 97 of the Court Book that the Tribunal explicitly states that the concept of onus of proof is not appropriate to administrative enquiries and decision making. When read in context, what I understand the Tribunal was saying is that it is a matter for the applicant to supply relevant facts in as much detail as necessary.

b) Contention 2 essentially asserts that the Tribunal should have reached a favourable decision on the evidence before it. In the absence of any opportunity to discuss this with the applicant, the Tribunal was entitled to come to the view that it did.

c) Contention 3 can be dealt with in the same way as Contention 2.

d) Contention 4 contends that the Tribunal failed to take into account a relevant consideration (namely the high level of official corruption), when assessing how the applicant obtained a passport to travel out of Vietnam. At page 98 of the Court Book it is clear that the Tribunal knew of the circumstances of her departure from Vietnam without a passport, and of her brother's involvement. The Tribunal stated that had the applicant attended the hearing it would have discussed with her relevant country information which indicates that the capacity to obtain passports or to depart legally from Vietnam indicates that the person concerned is not of adverse interest to the Vietnamese authorities. Since the applicant had elected not to attend the Tribunal hearing, it was open to the Tribunal to conclude on the evidence before it in the manner that it did.

e) Contention 5 contends that the Tribunal failed to consider country information favourable to the applicant regarding treatment of supporters of the pre-Communist regime in Vietnam, even when the Minister's delegate had already accepted that it is possible that the applicant's family may have been supporters of a pre-Communist regime. I accept the respondent's contention (filed

5 August 2004) that the Tribunal conducts a de novo review of an application and is not bound in any way by the findings of the Minister's delegate.

31. I have taken all these matters into consideration and have come to the view that there would be no utility in allowing the applicant to proceed in this matter. The possibility of success in her claim is negligible. She has not indicated any detailed grounds as to why the Tribunal may have fallen into jurisdictional error in the way in which it came to its conclusions. The applicant provided minimal information to the Tribunal, and took up the option of not attending the hearing and therefore declined the opportunity to provide further information. The Tribunal, I am satisfied, considered all the relevant information before it. She was advised that it was minded to come to an unfavourable decision to her. She declined the opportunity to comment. The Tribunal then went on to make a decision that in my view it was entitled to do.

32. I decline to grant the applicant leave to file her application for review out of time. I dismiss the application for review. The orders of Registrar Connard will stand.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: J. O'Brien

Date:
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