Applicant M30 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 473

FEDERAL COURT OF AUSTRALIA

Applicant M30 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 473

MIGRATION – application for leave to appeal from judgment of Federal Magistrate dismissing application to set aside judgment made in default of appearance – Federal Magistrate rejected claim that Refugee Review Tribunal failed to accord procedural fairness – no error disclosed in Federal Magistrate’s judgment

Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Magistrates Court Rules 2001, r 13.03A(c)
Federal Court Rules O 52 r 12

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
SZAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 153

APPLICANT M30 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
VID 1 OF 2006

WEINBERG J
2 MAY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VID 1 OF 2006

BETWEEN:

APPLICANT M30 OF 2004
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

WEINBERGJ

DATE OF ORDER:

2 MAY 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The purported appeal, commenced by notice of appeal filed on 3 January 2006, be dismissed as incompetent.

2.        The notice of appeal be treated as an application for leave to appeal.

3.        The application for leave to appeal be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VID 1 OF 2006

BETWEEN:

APPLICANT M30 OF 2004
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	WEINBERGJ
DATE:	2 MAY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court a purported appeal from a judgment of the Federal Magistrates Court, made on 20 December 2005. Before that Court, the appellant sought to set aside an order made in his absence on 6 October 2005, which dismissed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).

2. The appellant is a citizen of Sri Lanka. He arrived in Australia on 20 October 1998 on a business visa valid until 20 January 1999. He lodged an application for a protection visa on 30 January 1998. That application was rejected by the Minister’s delegate on 3 February 1999.  On 25 February 1999, the appellant applied to the Tribunal for review of the delegate’s decision. For reasons that are not apparent, the Tribunal did not finally determine that application until 2 March 2001, when it handed down its decision affirming the earlier refusal to grant the appellant a protection visa.

3. On 17 February 2004, the appellant sought an order nisi in the High Court in relation to the Tribunal’s decision. The matter was subsequently remitted to the Federal Court, and then transferred to the Federal Magistrates Court. It was listed for hearing on 6 October 2005. On that day, the appellant failed to appear before the Federal Magistrate. Accordingly, his Honour dismissed the application, in default of appearance, pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001.  On 7 October 2005, the appellant filed an application in the Federal Magistrates Court seeking orders, inter alia, that the judgment in default be set aside, and the matter be reinstated.  That application was supported by an affidavit sworn by the appellant’s solicitor, explaining that there had been an error on the part of the appellant’s legal representatives who had assumed, wrongly, that the matter would be heard on 5 October 2005, rather than the following day.  

4. On 28 October 2005, the Federal Magistrate adjourned the application to have the judgment in default set aside so that the appellant could file proper material explaining exactly what had occurred.  A supplementary affidavit was filed on 28 November 2005.  On 5 December 2005, the Federal Magistrate heard the application, and on 20 December 2005, he ordered that it be dismissed.  In substance, his Honour found that the appellant had not attended the hearing on 6 October 2005 because of error on the part of his legal representatives.  He proceeded on the basis that he would grant leave to set aside the default judgment if the appellant satisfied him that he had an arguable case, on the merits.  He concluded that there was no arguable case.

5. It is important to appreciate that his Honour’s decision to refuse leave was both interlocutory, and discretionary in nature: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 and SZAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 153 at [12]. Accordingly, leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The appellant, being by that stage self-represented, and obviously unaware of the technical requirements associated with his application, filed a notice of appeal pursuant to O 52 r 12 of the Federal Court Rules, rather than an application for leave to appeal. The appeal is plainly incompetent, and must be dismissed for that reason alone. However, I have treated the appeal as though it was an application for leave to appeal, and I am prepared to extend time within which to file such an application. That allows me to consider the substance of the proceeding, rather than decide this case by reference to matters of form.

6. Before the Tribunal, the appellant claimed a well-founded fear of persecution on the basis of his active membership of the United National Party (UNP) and, in particular, his relationship with certain senior party figures.  He claimed that he had held the position of President of the Youth Council of that party in his constituency since 1985. 

7. He said that after 1994, he had assisted a former UNP Minister, Mr Wijepala Mendis, to help organise the party, and that he had served the party in a variety of different ways.  He said that he had worked for Mr Mendis’ son, Mr Davindra Mendis, from 1986, and described his role as that of a private security officer.  He claimed that in August 1996, a special mass had been held to mark the 50^th anniversary of the UNP.  At that mass, Mr Davindra Mendis had shot and killed a member of the opposition party, the People’s Alliance, which was a left wing coalition including members of the Sri Lanka Freedom Party (“the SLFP”), and various other political groups.  He claimed that supporters of the People’s Alliance had planned to kill supporters of Mr Mendis, and he referred to the murder of a particular UNP member on 23 September 1996.  On 17 November 1996, Mr Davindra Mendis was said to have committed suicide. 

8. The appellant claimed that in April 1998, SLFP supporters set fire to his sawmill.  He also claimed that he received threats after Mr Mendis’ death, and that two of his employees were told that they would be harmed if they continued to work for him.  He said he received anonymous letters, and threatening telephone calls in the month preceding the fire. 

9. It was after this that the appellant decided to leave Sri Lanka.  However, he did not actually leave the country until six months later, in October 1998.  That was a factor that the Tribunal considered significant in assessing his overall credibility.

10. The Tribunal found that the appellant had a local profile as a UNP supporter, but did not accept that he had a high profile among UNP leaders. It concluded that his evidence was unconvincing.  It was particularly troubled by his claim that he had remained President of the Youth Council, even after his arrival in Australia.  It did not accept his claim to have been a security adviser to Mr Mendis.  Nor did it accept his claim that his sawmill had been destroyed by SLFP supporters, which it regarded as speculative.  It concluded that there was no more than a remote chance that he would face harm of a type that might amount to persecution, in the relevant sense, by reason of his political opinions if required to return to Sri Lanka.  It found that any fear of persecution that the appellant might have was not well-founded, and that he was not a person to whom Australia had protection obligations under the Refugees Convention.

11. The grounds of review in the amended application to the Federal Magistrates Court included, amongst others, a claim that the Tribunal had denied the appellant natural justice.  He claimed that the Tribunal had failed to provide him with an opportunity to make submissions regarding its view of whether he had a subjective fear of persecution, and also its view of his role as President of the Youth Council.

12. The Federal Magistrate found that the Tribunal had thoroughly explored, by question and answer, all issues critical to the application. He considered that it would have been plain to the appellant that his profile within the UNP was a key issue, and that the Tribunal had not been required to provide further details regarding that matter because it would then simply be indicating its “thought processes”. The Tribunal was not required to undertake this task. His Honour found that the Tribunal had arrived at a series of findings that were adverse to the appellant only after a detailed and thorough analysis of his claims, and that it had accorded the appellant adequate opportunity to respond to the doubts raised in its key findings of fact. He concluded that there was no information in the material before the Tribunal that attracted the operation of section 424A of the Migration Act 1958 (Cth). He therefore determined that the appellant did not have an arguable case, and dismissed the application to set aside the default judgment.

13. In a notice of appeal dated 3 January 2006, the appellant relies upon two grounds of appeal.  He claims that the Federal Magistrate erred in law by failing to hold that the appellant was denied procedural fairness. The particulars provided in relation to that first ground assert that the Federal Magistrate erred in rejecting the appellant’s claim that he was not given an opportunity by the Tribunal to be heard on the issue of his subjective fear of persecution. He referred to documents and affidavits from members of his family in Sri Lanka, and his past employees, who had been threatened to provide information as to his whereabouts after he left that country. The second ground of appeal also raises an allegation of denial of procedural fairness.  The particulars provided are not altogether clear.  However, they seem to attribute to his Honour a finding that the Tribunal’s conclusions regarding the appellant’s role “as a Youth Club President [sic]” were sufficient grounds to warrant the dismissal of his claim to protection. 

14. At the hearing this application, the appellant was unrepresented.  However, he filed written submissions that were prepared with the assistance of a friend.  Those submissions did not advance his case.  His oral submissions were essentially confined to challenging the findings of fact made by the Tribunal.  In effect, he sought to have this Court engage in merits review. 

15. I have read the judgment of the Federal Magistrates Court with some care.  I have also read the Tribunal’s reasons for decision.  There is nothing to suggest that his Honour acted upon any erroneous principle.  His Honour was satisfied that the Tribunal afforded the appellant an adequate opportunity to be heard in relation to both the question of the appellant’s subjective fear of persecution, and his role as President of the Youth Council.  I can discern no error on his Honour’s part in arriving at that conclusion.  The Tribunal’s findings were purely findings of fact, and its conclusions regarding the appellant’s credibility were open on the material before it.  The Tribunal made plain to the appellant the areas that it had concerns about, and he was given an adequate opportunity to respond to those concerns.

16. One example will suffice to illustrate this.  When the Tribunal dealt with the issue of the appellant’s “Presidency of the local UNP Youth League”, it stated, in its reasons for decision:

    “I asked the applicant how long he remained President of the Youth League and he said that he still held the position and had been re-elected to it every two years, the last time in 1997.  I found this surprising given that the applicant is now thirty-seven and he explained that one did not need to be a young person to have such a role in the Youth League.  He had been content to remain in the youth branch because it left him time to manage his business affairs.  I asked the applicant that if he was last elected in 1997 and elections appeared to have been held every two years how he knew that he was still the President.  He said that the branch receives letters and that these are addressed to him as President and that he was asked to do things because he was the President.  I asked the applicant how he could be President when he had lived in Australia for more than two years and he said that it was not known that he was here although it was known that he was away from Sri Lanka.  I said to the applicant that I found it difficult to accept that he had [a] meaningful and active role in the UNP given that he lived here and he responded by telling me that a person who was a Minister and another person who was a police inspector had lived outside Sri Lanka and no-one knew and that only recently the President of Sri Lanka had gone away and no-one had known.  The applicant said too that at present his branch of the Party is powerless and that even if a letter comes there is no-one to respond to it.”

17. This passage provides no support whatever for the appellant’s claim that he was denied procedural fairness in relation to the Tribunal’s treatment of the issue of his Presidency of the Youth Council.  Indeed, it directly contradicts that claim.  The Tribunal signalled to the appellant, in clear and unmistakable terms, its doubts regarding this aspect of his claim.  There was no denial of procedural fairness.

18. In my opinion, the Federal Magistrate correctly declined to set aside the default judgment.  I would refuse leave to appeal from that decision.  The application for leave to appeal must be dismissed, with costs. 

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             2 May 2006

The Appellant appeared in person.
Counsel for the Respondent:	Mr M. Felman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 May 2006
Date of Judgment:	2 May 2006