MZWRW v Minister for Immigration

[2005] FMCA 1493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWRW v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1493

MIGRATION – Protection visa – Judicial review.

PRACTICE AND PROCEDURE – Application to set aside order made where no appearance – Rule 16.05 Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, Rule 13.03A(c), 16.05(2)(a)
Migration Act 1958, 424A(3)

Applicant: MZWRW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1328 of 2004

Judgment of: McInnis FM

Hearing date: 3 October 2005

Delivered at: Melbourne

Delivered on: 3 October 2005

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms M. Ngo

Solicitors for the First and Second Respondent: Australian Government Solicitor

ORDERS

1. The Application filed 7 September 2005 be dismissed.

2. The Applicant shall pay the First Respondent's costs fixed in the sum of $1,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1328 of 2004

MZWRW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed 7 September 2005 whereby the applicant applies to set aside an order of this court made on 19 August 2005. The current application is made pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (the Rules). 

2. The order made on 19 August 2005 included an order that the application filed 15 October 2004 be dismissed pursuant to Rule 13.03A(c) of the Rules. Hence the current application filed 7 September 2005 seeks to set aside that order, given it was an order made in the absence of the applicant.

3. I should note that the order made by the court on 19 August 2005 in accordance with the usual practice of this court was forwarded by mail to the applicant at the address indicated on his application.  He obviously received a copy of the order, and although there is some delay in then making this application to set aside the order, I do not draw any adverse inference against the applicant in relation to that delay.

4. The hearing date which was fixed for the original application was fixed by a Registrar on 15 December 2004.  On that date a Registrar of the Court fixed the hearing date of 19 August 2004, so the applicant accordingly had approximately eight months in which to prepare his case. 

5. In support of this application to set aside the orders made in his absence, the applicant has relied upon an affidavit sworn by him on 7 September 2005.  In that affidavit he states the following:

   “1.I was sick and I did not attend the hearing on 19^th of August 2005.

   2. I humbly request the court to set aside the decision of the 19^th August 2005 and return my case back to RRT to reconsideration.”

6. The applicant, who is unrepresented, appears with the assistance of an interpreter.  I indicated to him at the outset that in an application of this kind I would need to be satisfied that there was a proper reason or excuse for his non-attendance on the previous hearing date; that is, he would need to satisfy me that he had a reason why he failed to appear on that date.  Secondly, I indicated to him that if he was able to persuade the court that he did have an acceptable reason for his failure to attend on 19 August 2005 then he should further demonstrate that he had an arguable case.

7. Given the obvious inadequacy of the affidavit relied upon by the applicant which very simply asserts “I was sick and I did not attend the hearing on 19 August 2005”. It was clear to me that the applicant would need to provide further material to the court if indeed his application was to have any prospect of success.

8. Because the applicant is unrepresented, I decided to permit him to give evidence before the court to provide further details concerning his illness.  In his oral evidence the applicant indicated that he suffers from asthma and that he had suffered from asthma for a period of time prior to 19 August 2005, though his condition deteriorated as I understand it on the evening before the hearing. 

9. On the day of the hearing he claims that his condition had affected him adversely and he was unable to attend the court.  Although he had a telephone at his premises, he indicated that he did not contact the court or attempt to contact the court or indeed, as I understand it under cross-examination, made no attempt to contact the solicitors for the respondent.  He claimed not to know who to contact, or as I infer, how to go about the process of making contact with the court or the respondent's solicitors.

10. He claims he did not seek medical treatment, however at about 2 pm on the day of the hearing attended a pharmacist for further medication.  The medication he currently administers is Ventolin medication for his asthma.  He has provided and relied upon no further corroborative material, including any medical certificate or the like, to confirm that he suffers from the condition or that indeed on the day of the hearing he had suffered from the condition to such an extent that it prevented him from attending court.

11. Having considered the affidavit evidence and the oral evidence of the applicant this day, I am not satisfied that the illness claimed was of sufficient magnitude or seriousness to prevent the applicant from attending court or at the very least notifying the court and/or the respondent of his inability to attend.  A mere claim that "I was sick," in these circumstances where the hearing date has been fixed for approximately eight months, in my view is insufficient.

12. It normally would be expected there would be some corroborative material whether by way of affidavit evidence or at least some other correspondence by way of a medical report from a practitioner or indeed even a letter from those treating the applicant which may in some circumstances include paramedicals, including pharmacists. 

13. In this case there is no such corroborative material, and my assessment of the evidence of the applicant is that he may have been suffering from difficulties associated with an asthmatic condition, though in my view it is more likely that that condition was brought about by the stress he referred to, which clearly is a matter which would affect many applicants who appear before any court of law, including matters of this kind.

14. On balance, on the evidence before me and in the absence of corroborative material of a kind which the court should reasonably expect, I am not satisfied that the applicant has provided an adequate reason for his failure to attend court on 19 August 2005.  In the absence of that evidence, providing an appropriate explanation as to the reason why the applicant failed to appear on that date, in my view it is appropriate to dismiss the application to set aside the order made on 19 August 2005.

15. In the event, however, that I am incorrect in making that finding, in my view on the material before me that in fact the applicant does not in this instance have an arguable case.  To understand the nature of the applicant's case it is important to note in brief terms the relevant chronology of events. 

16. The applicant has sought to make application for review of a decision of the Refugee Review Tribunal (the Tribunal) which had affirmed a delegate's decision to refuse the applicant a protection visa.  The decision of the Tribunal is dated 23 August 2004.  By way of background it is noted that the applicant is a male person in his 30s who is a Sri Lankan citizen of Sinhalese ethnicity.  He first arrived in Australia on 27 May 1997 as the holder of a student visa.  He returned to Sri Lanka for a period between 29 January 1999 and 1 March 1999 due to the illness of his father.

17. On 12 November 2003 he applied for a protection visa.  On 10 March 2004 the delegate of the first respondent determined the applicant was not a person to whom Australia had protection obligations and refused the application.  The applicant then applied for review of that decision to the RRT on 13 April 2004.  The Tribunal conducted a hearing on 20 August 2004 and as indicated made a decision dated 23 August 2004, which was the subject of the application before this court for judicial review filed 15 October 2004.

18. Before this court, in support of his claim that there is an arguable case, the applicant has contended that the Tribunal did not consider his case properly, had not applied the proper laws or considered the definition of refugee, and had not given him an opportunity to comment on country information. 

19. In my view, on a proper reading of the Tribunal decision, it seems clear to me that upon hearing the matter the Tribunal had made a decision on the facts reasonably open to it, free of any jurisdiction error.

20. Although the decision was a decision adverse to the applicant, it seems clear to me that the applicant now seeks to effectively re-agitate the facts, and to that extent impermissibly seeks merits review.  The claims that had been before the Tribunal included a claim of a well-founded fear of persecution in Sri Lanka for reasons of the applicant's political opinion as a member and supporter of the Sri Lankan political party, the People's Alliance (PA).

21. He had supported a PA Member of Parliament in the 1997 elections and had organised rallies in correspondence.  He claimed to have received threats from unidentified persons who he believed were supporters of the main opposition party, the United National Party (the UNP).  The threats began after the 1994 election and continued up until he left in 1997.  He claimed to be further threatened when he returned in 1999 by either the UNP or the Liberation Tigers of Tamil Eelam (the LTTE).

22. He further feared persecution from the LTTE due to his failure to cooperate in providing over the limit foreign currency transactions while working as a banker at the Colombo airport.  He feared persecution from the authorities as a result of perceived support for the LTTE.  It is clear that in its reasons, the RRT rejected the applicant's claim that he was an active PA supporter.  It otherwise rejected the claims of threats by UNP opponents.

23. Those findings were reinforced by the further finding that the applicant was not harmed despite the claimed length of the threats.  The tribunal otherwise accepted that he may be a passive supporter of the PA, but did not accept that people with that political profile faced a real chance of persecution.  The tribunal further found that the state could control political violence and rejected claims regarding the currency transactions.

24. It otherwise concluded, after making findings which were reasonably open it and free of error, that the applicant did not have a well-founded fear of persecution within the meaning of the convention.  I cannot detect in the tribunal's reasons any error of law in the way in which it applied the law, and in particular the way it considered the definition of refugee.

25. The other complaint concerning the failure to put country information in my view is appropriately dealt with by the operation of s.424A(3) of the Migration Act 1958.  The information that was referred to was not specifically about the applicant.  In the alternative I accept, as submitted by the respondent's representative, that it is clear on a proper reading of the Tribunal's reasons that it did in fact put available country information to the applicant which indicated that the SLFP was not a persecuted group.  To that extent, that information relied upon was indeed put to the applicant, and so much is evidence on page 75 of the Court Book.

26. It follows that in my view, on the material before me there is indeed no apparent error in the Tribunal's reasoning process.  I am satisfied it is free of jurisdictional error, and in my view, on a proper assessment of the material, I conclude there is no arguable case.  Hence, even if I am incorrect in rejecting the applicant's explanation for his failure to attend court on 19 August 2005, I further find that in any event there is no arguable case.  It follows for the reasons given, therefore, that the application filed 7 September 2005 should be dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  3 October 2005