M130 v Minister for Immigration - [2004] FMCA 329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M130 v MINISTER FOR IMMIGRATION

[2004] FMCA 329

MIGRATION – Application to set aside order of the Court dismissing the application for review of a decision of the Refugee Review Tribunal for non appearance – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.474
Federal Magistrates Court Rules 2001, Rules 13.03AC, 16.05(2)(a)

Applicant:

APPLICANT M130/2002

Respondent:

THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 347 of 2003

Delivered on:

24 May 2004

Delivered at:

Melbourne

Hearing Date:

24 May 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr Gilbert

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application to set aside the orders of 19 February 2004 be dismissed.
That the applicant pay the respondent's costs fixed in the sum of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 347 of 2003

APPLICANT M130/2002

Applicant

and

THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

Introduction

This matter involves an application by the applicant to set aside orders that I made on 19 February 2004 dismissing his application for a review of a decision of the Refugee Review Tribunal (the Tribunal). The relevant order that I made on 19 February 2004 was:
That the application be dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 -
That dismissal was made on the basis that the applicant did not appear to prosecute his application.

Background

The applicant is a citizen of Sri Lanka who arrived in Australia on

1 November 2000. On 23 November 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). On 29 December 2000 a delegate of the minister refused to grant a protection visa and on 20 December 2000 the applicant applied for a review of that decision. On 29 May 2002 the Tribunal affirmed the delegate's decision.
The applicant was invited by the Tribunal to attend the hearing, but he declined to do so and there was no further evidence produced to the Tribunal beyond that which was in the departmental file when it made its decision. The applicant applied to the High Court for an order nisi requiring the respondent to show cause why writs of prohibition and certiorari should not be issued in respect of the decision. The matter was remitted to the Federal Court of Australia and then transferred from the Federal Court to this court. When the matter came on for hearing on 19 February, as I have indicated, the applicant did not appear and thus an order dismissing his application was made.
Upon notification of the order the applicant has now applied under Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001. That rule provides that:
The court may vary or set aside a judgment or order after it has been entered if:
(a) the order is made in the absence of the party.
It is on that basis that the applicant now seeks that the court set aside the order and list the matter for hearing. That application is opposed by the respondent.
The respondent contends, and I accept, that in considering a matter of this nature there are really two matters in the main about which I should be concerned. The first is the reason why the applicant did not appear at the hearing which is in essence a question of his bona fides, and secondly, whether there is, in any event, an arguable case. For reasons that I have enunciated during argument I have accepted the applicant's evidence as to why he did not appear at the hearing; however because he was unwell. Hence, my decision now turns upon the second limb, which is whether there is, in any event, an arguable case if I exercise my discretion to set aside the order.
In coming to its decision the Tribunal considered the applicant's claim which was fear of persecution by reason of the fact that he was a strong and active supporter of the UNP party. That party was in power for a long period of time up until the 1994 elections. The applicant claimed that he was harassed and threatened by an opposition supporter of the rival PA party before the general election in 1994 and that the authorities took no action to protect him despite making complaints. He also claimed to have been harassed and attacked by PA supporters after the October 2000 general election.
The Tribunal noted country information that confirmed that there were high levels of political violence often associated with elections in Sri Lanka. It noted that on 5 December 2001 the UNP had defeated the PA in parliamentary elections and that it now held a majority in the Sri Lankan parliament. The Tribunal referred in considering the application, to established principles. It noted that there was an onus of proof on the applicant and that it was not for the Tribunal to make the applicant's case for him. The Tribunal understood that it was not required to consider whether the authorities in Sri Lanka could guarantee the applicant would not suffer harm for a convention reason, but whether Sri Lanka had effective law and law enforcement agencies, was governed by the rule of law and had an infrastructure of laws designed to protect its nationals against harm of a sort feared by the applicant.
On the basis of the country information before it and in the absence of further information from the applicant, the Tribunal found that adequate or effective state protection was available to the applicant from the Sri Lankan authorities and that it would continue to be available for the reasonably foreseeable future. Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution for a convention reason.
In its reasons for decision the Tribunal pointed out that had the applicant attended the Tribunal hearing the Tribunal would have questioned him about the threats and assaults against him at the time of the general elections in 2000 and the complaints he made to the Sri Lankan authorities and why he feared continuing persecution. But the Tribunal noted that in the absence of information about these matters and the country information there was a reasonable level of efficiency of the police, judicial and related services in Sri Lanka.
The Contentions of Fact and Law were filed by the applicant on 1 July 2003. In the application for the order nisi the applicant alleges standard grounds of judicial review, including jurisdictional error, failure to take account of relevant consideration, unreasonableness and breaches of the rules of natural justice. No particulars of any of those grounds of review are provided. Those matters are essentially repeated in the applicant's contentions and again no further particularisation is made. The only particularisation in the contentions is that the applicant says that he will be persecuted on return to Sri Lanka because of his political profile as a strong UNP supporter which he contends was not taken into account by the Tribunal. That is essentially the basis of his present claim for a review and his claim that the Tribunal has made an error outside its jurisdiction which would bring the matter outside the purview of s.474 of the Act.
The applicant was invited to attend the hearing before the Tribunal and declined that invitation. The Tribunal therefore had only the material which was in the departmental file, together with the country information, on which to assess the applicant's claims and it did so. It correctly pointed out that there was no other evidence before it from which it could come to any different conclusion, although it noted that further information might have been available had the applicant chosen to attend the hearing.
As the Tribunal, in my view, correctly noted, it is not for the Tribunal to make out the case for the applicant. The onus remains upon the applicant to present a case to the Tribunal for determination. The Tribunal were entitled to rely upon the information in the departmental file and the country information. In light of there being no other available evidence before the Tribunal, it is difficult to see how it can reasonably be argued that the Tribunal erred in any manner which might lead to a conclusion that there was any error, let alone a jurisdictional error. The Tribunal considered the claims as they were put and considered the country information. They did not fail to have regard to the claims of the applicant regarding his harassment and about his complaints to the authorities which he said the authorities did not act on.
To the contrary, they considered those claims, but they considered them in the light of the country information which indicated that there was a reasonable level of efficiency of the police, judicial and related services in Sri Lanka. They also noted that whilst violence had occurred around elections, that violence had not been condoned in the relatively recent past by either the former UNP or PA governments and that it had affected both parties' supporters. It also noted, as I have said, that the UNP now held a majority in the Sri Lankan parliament.
What in effect the applicant is therefore really seeking now is a merits review regarding the matter in which he did not appear before the Tribunal having declined their invitation to do so. It is difficult to see how the application therefore could possibly succeed. I am satisfied in accordance with the submissions of the respondent that in all the circumstances there is no arguable case by reason of which the applicant could succeed even if I were to set aside the order I previously made and list the matter for hearing. Thus, in the circumstances the applicant's application to set aside the orders of 19 February will be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 28 May 2004