MZWNT v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1085

FEDERAL COURT OF AUSTRALIA

MZWNT v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1085

Federal Court Rules O 52 r 15

MZWNT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 791 referred to

MZWNT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO VID 512 OF 2005

HEEREY J
21 JULY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 512 OF 2005

BETWEEN:	MZWNT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	21 JULY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.
2. The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 512 OF 2005

BETWEEN:	MZWNT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	21 JULY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file a notice of appeal against a decision of O’Dwyer FM made on 11 October 2004: MZWNT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 791. The learned magistrate dismissed an application for review of a decision of the Refugee Review Tribunal which had affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa. The prescribed time under O 52 r 15 for the filing of a notice of appeal is 21 days after the date of judgment. The application for extension of time was not filed until 27 May 2005.

2. The explanation given by the applicant in his affidavit sworn 25 May 2005 was that at the time the Magistrate dismissed his application he had no legal assistance and his command of English was poor.  A fellow detainee helped him to fill in the appeal forms and he attempted to fax a notice of appeal to the District Registrar of the Court in Western Australia on 5 November 2004.  He had been waiting to hear back from the Court since that time but had not received any correspondence.

3. If the applicant’s submissions or the material itself disclosed an arguable case I would have been inclined to grant leave.  It is possible that there was some error in the handling of his notice of appeal and in view of the importance of these matters one would be inclined to be reasonably indulgent insofar as an explanation is required.  However, the authorities make it clear that another relevant matter in the exercise of the discretion is whether there is an arguable appeal on the merits.  The applicant has not attempted to address this issue at all.  The draft notice of appeal is not particularised in any way, it simply alleges that the Tribunal exceeded its jurisdiction, that it constructively failed to exercise its jurisdiction and it failed to find the applicant's claim of persecution was well founded “given his particular circumstances at the time of the decision and into the future”. 

4. An examination of the Magistrate’s decision reveals that the claim of the applicant, an Albanian national, for refugee status was based on an allegation that he was a member of a particular social group in Albania, namely those who were subjected to blood feuds.  The Tribunal found that the applicant’s fear of persecution did not arise from any of the reasons set out in the Refugee Convention, but rather from an ongoing dispute with a neighbouring family over water usage.  He was not at any risk unless he was involved in an altercation over the use of water, and this was not related to the Convention.  In any event, he was able to relocate within Albania. 

5. Those findings appear rational on their face; there was no attack on them. There is no arguable ground of appeal shown.  So for those reasons the application will be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:            21 July 2005

Counsel for the Applicant:	Applicant appeared on his own behalf
Counsel for the Respondent:	Mr B Wee
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 July 2005
Date of Judgment:	21 July 2005