MZXFP v Minister for Immigration and Anor (No.2) - [2006] FMCA 1911

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXFP v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2006] FMCA 1911

MIGRATION – Refugee Review Tribunal – application to set aside order – no arguable case - application dismissed.

Federal Magistrates Court Rules 2001, r.16.05

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:

7 August 2006

Delivered at:

Melbourne

Delivered on:

21 December 2006

REPRESENTATION

Applicant:

In person

Solicitor for the First Respondent:

Ms K. Miller

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application filed 3 July 2006 be dismissed
The Applicant shall pay the First Respondent's costs fixed in the sum of $2,000.00

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

Introduction

The Applicant applies to set aside an order made by the court on

26 June 2006. On that date the court made the following orders:
“1.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.
2.The Applicant should pay the First Respondent's costs fixed in the sum of $2,500.00.”
The application currently before the court is presumably made pursuant to r.16.05 of the Federal Magistrates Court Rules 2001 which provides:

“16.05 Setting aside
(1)The Court may vary or set aside its judgment or order before it has been entered.
(2)The Court may vary or set aside its judgment or order after it has been entered if:
(a)the order is made in the absence of a party; or
(b)the order is obtained by fraud; or
(c)the order is interlocutory; or
(d)the order is an injunction or for the appointment of a receiver; or
(e)the order does not reflect the intention of the Court; or
(f)the party in whose favour the order is made consents.

(3)This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.”

It would appear to be argued that the orders made on 26 June 2006 should be regarded as "interlocutory" orders.
It is evident from the orders made by the court on 26 June 2006 that the Applicant did not appear on that date, although it is noted that the court did not dismiss the application due to non-appearance. In any event, the Affidavit in support of the current application sworn by the Applicant on 3 July 2006 seeks to explain the Applicant's non‑attendance, and relevantly states:
“I could not attend the court on 26/06/06 because I was sick. Medical certificate enclosed.
The court has made a mistake in saying I had no reasonable prospect of success when I have said the RRT made a mistake in talking about "more flesh to answers" and corroborating evdence and also not considering what my claim was about and if it had done the correct thing in dealing with my wife's information received after the hearing. (sic)”
The medical certificates attached include a certificate from a Dr Allan Bond dated 22 June 2006 purportedly referring to the Applicant and certifying that he “will be unfit for work, including court appearance, from 22/6 to 22/7/06 as a result of a acute prolapse L4/5 intervertebral disc." A further document provided from Central Melbourne Medical Imaging dated 29 June 2006 concludes, "Posterolateral left sided disc prolapse at the L4/5 level."
Although the application was not dismissed for non-appearance and it is therefore unnecessary for the court to consider whether the Applicant has a reasonable excuse for not attending court on 26 June 2006, I am prepared to accept that there was a reasonable excuse for not attending. However, in an application of this kind where the court has proceeded to make an order for summary dismissal pursuant to an application by the First Respondent it is only necessary for the court to determine whether the material now before the court justifies setting aside the summary dismissal order.
For present purposes I am prepared to accept that the summary dismissal order could properly be characterised as "interlocutory" and that r.16.05 applies.
The application in submissions before the court essentially repeated the claims that were made in support of his substantive application for a protection visa. In particular, I accept as submitted by the First Respondent that the Affidavit in support of this application effectively restates matters referred to in the Amended Application.
In its reasons for summary dismissal the court considered the grounds raised in the Amended Application, and relevantly stated the following:
“7.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.
8.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.
9.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 ...”
In the court's previous decision the court refers to "Attachment A1" of the Amended Application in the following terms:
“3.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.’”
In the present application the First Respondent submitted that the court's previous conclusions that the Amended Application did not have a reasonable prospect of success were correct.
I have re-considered the decision of Refugee Review Tribunal (the Tribunal) together with the grounds relied upon in the Amended Application and cannot discern any jurisdictional error by the Tribunal. I do not have any reason to change my view that there is no reasonable prospect of success in the application and accordingly the summary dismissal order should stand.
As indicated, although an explanation was given for the non-appearance of the Applicant on the previous occasion, and some time was taken with that issue and evidence given by the Applicant, together with questions of whether the Applicant had "an arguable case" it seems to me on reflection in an application to set aside a summary judgment it is not necessary for the court to consider the non-appearance of the Applicant. Further, unless the court has reached a different conclusion concerning the basis upon which it summarily dismissed the application as amended then it would be futile to set aside the earlier order.
I adopt the reasons that I provided on the earlier occasion which, after reconsideration of the material, appear to me to be correct.
I do note in passing that the Applicant was unable to advance any further detailed submissions in support of this application and expressed the desire to be legally represented by pro bono counsel. Given the chronology of this proceeding I am satisfied that the Applicant has had ample opportunity to seek and obtain legal assistance including pro bono assistance. The Tribunal decision in this matter is dated 23 November 2005 and the Applicant filed the current application on 21 December 2005. The summary dismissal orders were made by the court on 26 June 2006, which dealt with the Amended Application filed by the Applicant on 10 April 2006. The current application to set aside the summary dismissal orders was filed on 3 July 2006 and the hearing occurred on 7 August 2006.
I am satisfied that it is appropriate to proceed to dismiss the current application filed 3 July 2006 as it is not appropriate to provide any further time for the Applicant to seek legal assistance given, as I have found, that ample opportunity has already been provided for that assistance to be obtained. No evidence was provided by the Applicant as to any reasonable attempts he has made to obtain legal assistance.
It follows for the reasons given that the application filed 3 July 2006 should be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 21 December 2006