MLGWRN v Minister for Immigration
[2005] FMCA 483
•10 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MLGWRN v MINISTER FOR IMMIGRATION | [2005] FMCA 483 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) |
| Applicant: | MLGWRN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1273 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 10 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 10 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Ms S.E. Moore |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application filed 4 October 2004 be dismissed.
The applicant do pay the respondent's costs fixed in the sum of $5,800.00.
The applicant have liberty to apply within 14 days if her illness was significant/sufficient to prevent her attendance today.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1273 of 2004
| MLGWRN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review with respect to a decision of the Refugee Review Tribunal. The application sets out grounds as follows:
1.The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction.
2.The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act as amended applies.
3.The decision of the Tribunal is affected by jurisdictional error in that the Tribunal asked the wrong question, identified the wrong issue, failed to take account of the relevant material and took into account irrelevant material.
The applicant was represented by a solicitor until 30 November when the solicitor ceased to act as a result of a letter from the applicant informing the solicitor that due to financial difficulties the applicant decided to pursue their own case and therefore terminated the solicitor's retainer.
An outline of contentions of fact and law was filed in the matter in January along with the amended application. A reading of the brief outline, which only runs to six paragraphs, indicates that the substance of the complaints by the applicant appear to largely be matters of fact. That outline provides as follows:
1. I lodged an application for a protection visa with the Department of Immigration on 2 September 2003 and the application was refused on 12 January 2004.
2. I lodged an application to the RRT on 10 February 2004.
3. On 23 August 2004 the RRT decided it was not satisfied that I was a refugee and affirmed the decision not to grant me a protection visa.
4. I have claimed that I will be persecuted due to my political profile as a supporter of the SLFP and because of my father’s political profile with the SLFP. Both my parents were active in the SLFP and I became a member in 1996, joining the Chilaw branch. Initially, I was involved in handing out and pasting posters, attending meetings and raising money for the party. But with time, I became more involved and I accompanied my father and party dignitaries to meetings and village visits in 2000 when there was an election campaign. At this time, I was targeted by opposition UNP supporters and I received threatening letters and phone calls. In December 2001, I was active in helping the SLFP member Mr. Dassanayaka in his election campaign. As a result I had a number of confrontations with UNP supporters, my brother and father and my home were attacked, our property was damaged my shop was damaged as the windows and equipment was smashed, I was kidnapped and sexually assaulted.
5. The Tribunal states that it does not accept that I was an active member of the SLFP, for the following reasons. First, it states my evidence on the political geography of my district was unsatisfactory and then states “she did not explain why as a member of the Chilaw branch of the SLFP, she campaigned for an MP who was the organiser in another electorate (Anamaduwa).” The Tribunal is wrong, as I did give an answer and told the tribunal that Mr. Dissanayaka was a very close friend of my father and had helped him in his business and because of this association, both I and my family were keen to help him in his election campaign. The fact I got a letter from him would support our connection to him.
6. The Tribunal also states that “the evidence from Dissanayaka was weak, given the false information it contained, and the country information cited above concerning such documents from Sri Lanka.’ I agree he was not a close relative and uncle, but it should be noted that in Sri Lankan culture we often refer to older people who are close acquaintances as “uncle’ or “auntie’ when biologically they are not related to us in any way. Therefore the remainder of the letter should not be tainted. The tribunal also states that high level fraudulent (i.e.false ) endorsements of immigration applications could be obtained easily in Sri Lanka. This is an irrelevant factor and it could very well be the case, but how is that fact relevant to my case. The tribunal does not say the letter is a forgery, but says the evidence from Dissanayaka was weak. So why does it need to highlight about such documents from Sri Lanka.
The matter was called on this morning for hearing. The respondent attended with counsel ready to argue the matter. The applicant did not attend today but had faxed a note to the Federal Court Registry stating:
Dear Sirs, I can't attaind to court today. Due to my sickness. My medical is enclose.(sic)
A medical certificate from James Street Medical Centre was provided which provides as follows:
This is to certify that [the applicant] attended this clinic on 10/3/2005 because of medical condition and is/was unable to attend work from 10/3/2005 to 11/3/2005 inclusive.
This does not appear to me to be an adequate explanation for the applicant's non-attendance. The applicant has not provided a telephone number to the court upon which the applicant can be contacted. It appears from the face of the medical certificate that the applicant was at least sufficiently well to attend at the medical centre.
I must balance the need for this application to have a hearing with the need to ensure that matters are not delayed for inappropriate reasons. The material presently before me does not satisfy me that the applicant has an appropriate reason for not attending today. Such a certificate would often be issued for such minor matters as colds and flues and there is no detail from which I can assess the extent of the illness.
In taking this approach I am mindful of the decision by the Federal Court in NAKX v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1559, and later by the Full Federal Court in NALM v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 17 where (at [6]) Lindgren J required the medical certificates to explain why the particular medical conditions claimed would prevent attendance at court.
In the circumstances I propose to dismiss the application as a result of the non-attendance of the applicant, but provide that the applicant be granted liberty to apply to reinstate the matter at any time within the next 14 days so as to enable the applicant an opportunity to apply to reinstate the matter if in fact the illness was a significant one that prevented the applicant from attending and pursuing this claim today.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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