FEDERAL COURT OF AUSTRALIA

MZXER v Minister for Immigration and Multicultural Affairs [2006] FCA 1812

MZXER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 433 OF 2006

BESANKO J

31 OCTOBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal fixed in the amount of $4,088.48.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from orders made by a Federal Magistrate on 11 April 2006. In hearing and determining the appeal I am exercising the appellate jurisdiction of this Court under s 25(1AA) Federal Court of Australia Act 1976 (Cth).

2                     The Magistrate had before him an application under s 39B of the Judiciary Act 1903 (Cth) for constitutional writs directed to the Refugee Review Tribunal (‘the Tribunal’). The appellant challenged the Magistrate’s order that the application for review brought by him be dismissed.

3                     Both before the Magistrate and before me the appellant was unrepresented. The submissions he put to the Magistrate were repeated before me. He submitted that the Magistrate erred in not accepting his submissions.

The facts

4                     The appellant is a citizen of India and he arrived in Australia in November 2002. He held a temporary business visa. In December 2002 he lodged an application for a protection (Class XA) visa. In its subsequent decision the Tribunal summarised the appellant’s claim in a way which is sufficient for present purposes:

‘He claims to being a member of a particular social group that being, “young men without a future due to family reasons and without protection liable to be placed in great poverty”.  The applicant’s father and mother are to leave for Italy with their other children and he cannot go with them because he cannot get a visa.  He has few job prospects.  With no close family members being left in India he is powerless against the corrupt forces of Punjab politics who will deny him a future.  Apart from the localised political forces there are adverse geopolitical circumstances in that there are continuing tensions between India and Pakistan, hence the concern which he and his family has for the future in such a politically unstable situation.’

5                     On 29 January 2003, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application. On 26 February 2003 the appellant applied to the Tribunal for a review of the decision. On 2 October 2003 the appellant was advised by the Tribunal that it could not make a decision in his favour on the information it had and he was invited to attend a hearing of the Tribunal. The appellant chose not to attend the hearing and the Tribunal decided to proceed to determine his application for review. The Tribunal decided to affirm the decision not to grant the appellant a protection visa.

6                     The essence of the Tribunal’s reasons for deciding to dismiss the application for review is contained in the following passage:

‘The evidence available to the Tribunal lacks the detail necessary for the Tribunal to make specific findings on each aspect.  The Tribunal would have liked to explore with the applicant his view of the particular social group of which he speaks; on the face of it the Tribunal does not accept that the group postulated is a social group within the terms of the Refugee Convention.  The harm which he claims would be inflicted upon him is not clear to the Tribunal and the Tribunal would also have liked to explore with the applicant what exactly he fears.  Nor is the Tribunal able to discern any claim arising out of the applicant’s statement that there is some corruption within the ranks of the Punjabi police.  The Tribunal would have liked to explore this issue to determine what part this aspect played in the applicant’s formulation of the claims.  The applicant has not taken the opportunity afforded to him to give evidence to the Tribunal and to clarify the above matters nor have written submissions been received by the Tribunal since the review application.

Given the above, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.’

7                     The Tribunal’s decision was handed down on 28 November 2003. On 22 December 2003 the appellant lodged an application for constitutional writs in the Sydney Registry of the Federal Magistrates Court. On 7 December 2004 that application was discontinued.

8                     On 24 November 2005, the present application for constitutional writs was lodged in the Melbourne Registry of the Federal Magistrates Court. The application before the Magistrate was issued some two years after the Tribunal’s decision and had been preceded by an earlier application which had been discontinued. The Magistrate held that the Tribunal’s decision was a privative clause decision within s 474 of the Migration Act 1958 (Cth) (‘the Act’). He held that the application was ‘out of time’. The respondent suggested that the Magistrate may have found that the appeal was incompetent and that that was an interlocutory order and therefore leave to appeal was required. It is not clear that he did proceed in that way and he did make an order dismissing the application after fully considering the merits of the application. In any event, even if I assume in the appellant’s favour that he has a right of appeal, the appeal is without merit and must be dismissed.

The grounds of appeal

9                     The appellant advanced three submissions. First, he submitted that the Tribunal failed to address his claim that he belonged to a particular social group, namely, ‘young men without a future and protection and liable to be placed in great poverty’. As the passage from the Tribunal’s reasons set out above indicates, the Tribunal did note the appellant’s claim that he belonged to a social group that could be so described. The Tribunal said that on the face of it, the Tribunal could not accept that the group postulated is a social group within the terms of the Refugees Convention as amended by the Refugees Protocol (‘the Convention’). In essence, it rejected the appellant’s case on this point because it did not have information which suggested that a finding in favour of the appellant should be made. The Magistrate said such an approach did not involve error and, with respect, he was correct.

10                  Secondly, the appellant submitted that the Tribunal erred because it failed to comply with s 424A of the Act. It was said that it had failed to provide to the appellant –

‘… particulars of any information that [it] considers would be the reason or part of the reason for affirming the decision that is under review’.

11                  The answer to this submission is that the Tribunal decided the review adversely to the appellant because on the information it had it could not be satisfied that he was a person to whom Australia owed protection obligations under the Convention. It was the Tribunal’s judgment or assessment that there was a paucity of information which led to this result not ‘information’ within s 424A of the Act. That was the approach of the Magistrate and he referred to the following observations of Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195:

‘… The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited.  It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision.  It was the lack of the requested further assistance and explanation that was the reason.’ 

12                  The Magistrate did not err in taking this approach.

13                  Thirdly, the appellant submitted that the Tribunal’s decision was unreasonable or that the Tribunal took into account irrelevant considerations. As the Magistrate said, there was nothing presented by the appellant which could sensibly support those contentions and he did not err in so concluding.

Conclusion

14                  For these reasons, the appeal must be dismissed.

Associate:

Dated:         22 December 2006