MZXFP v Minister for Immigration
[2006] FMCA 958
•26 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXFP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 958 |
| MIGRATION – Protection visa – summary dismissal. |
| Federal Magistrates Court Rules 2001, rr.13.10, 13.12, 44.12 Federal Magistrates Act 1999, s.17A |
| Applicant: | MZXFP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1684 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 26 June 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2006 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Ms K Miller |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Amended Application filed 10 April 2006 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 on the grounds that the Court is not satisfied the application has a reasonable prospect of success.
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1684 of 2005
| MZXFP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for summary dismissal filed 16 June 2006 where the First Respondent seeks summary dismissal of an application as amended by the Applicant. The Amended Application filed 10 April 2006 seeks judicial review of a decision of the Refugee Review Tribunal dated 23 November 2005 which had affirmed a decision of a delegate of the First Respondent not to grant a protection visa to the Applicant.
I am satisfied that the Applicant has received notice of the hearing this day, and otherwise am satisfied that the First Respondent has forwarded under cover of a letter the First Respondent's outline of submissions, together with the application seeking summary dismissal, to the Applicant who has not appeared.
The amended application filed on 10 April 2006 provides what appears under the heading ‘Attachment A1’ a number of grounds sought to be relied upon in substitution, effectively, for grounds earlier relied upon in the original application as follows:-
“1.The tribunal acted in excess of jurisdiction in that it imposed its own views and conclusions as to what ought to be the probable course of action according to its own thinking methodology.
2. Failure to consider my claim in the light of the convention and in accordance with the country information it referred to and to which it did not give me the necessary notice in accordance with the law because this appeared to be the reason or part of the reason for its decision.
3. That I have not furnished any corroborating evidence to support my claim that I could not make a police complaint because of my political affiliations. The satisfaction of the relevant criteria does call for corroborations.
4.The country information that the Tribunal relied upon for it to say that I do not have a real chance of persecution had nothing to do with my claim of fear of the JEVP thugs. The information dealt with Muslim and LTTE and Muslim and Sinhalese relations.”
The background in this matter has been appropriately set out in the First Respondent's outline of submissions. It is noted that the Applicant is a citizen of Sri Lanka and arrived in Australia on
29 August 2005. On 29 September 2004 he applied for a protection visa which was refused by a delegate of the First Respondent on
11 July 2005.
On 8 September 2005 the Applicant applied to the Refugee Review Tribunal to review the delegate's decision. The Applicant gave evidence before the Tribunal on 4 November 2005 and the Tribunal, as indicated, ultimately, in its decision dated 23 November 2005, affirmed the delegate's decision to refuse to grant a protection visa.
The application for summary dismissal, though referring to, in the alternative, an application to dismiss the application on the grounds that it has not raised an arguable case pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 (the Rules) also includes an application for summary dismissal under Rule 13.12 of the Rules, and the First Respondent, appropriately, has sought to rely upon the summary dismissal powers of the court under the latter rule.
In support of the application for summary dismissal, it is noted that the Applicant in the amended application seeks to rely upon a number of grounds. The proper reading of those grounds, however, in my view, leads to the conclusion that essentially, save perhaps for the reliance by the Tribunal upon country information, the Applicant seeks to reagitate matters of fact which have been duly considered by the Tribunal in a manner free of jurisdictional error.
I am further satisfied that on the material before me there does not appear to be any demonstrable error in the manner in which the Tribunal relied upon country information when it found the Applicant to not have a well-founded fear of persecution based upon his ethnicity or religion.
The other complaints by the Applicant seem, in my view, to clearly address concerns the Applicant has in relation to findings of fact. It is noteworthy that the Tribunal in its decision under the heading ‘Findings and Reasons’ states in part the following:
“The Tribunal has weighed all the evidence submitted by the applicant and provided at the hearing. However, the Tribunal does not accept that he applicant or his family were threatened after the 2001 elections or robbed and threatened following the 2004 elections as he claimed ...”
The Tribunal then goes on to give reasons for that significant adverse finding:
“The Tribunal therefore does not accept that the applicant is at risk of persecution by a gang of JVP supporters.”
Again, it provides further reasons for that finding. Likewise, it provides reasons for its findings based upon the country information. On that basis I cannot see any jurisdictional error and I do not see on the grounds set out in the amended application any basis upon which the court could conclude that the Applicant in this instance has a reasonable prospect of success.
I am satisfied, accordingly, that it is appropriate, applying the relevant principles, which include s.17A of the Federal Magistrates Act 1999 as amended, that in this instance it is appropriate that the application be summarily dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 26 June 2006
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