MZXFP v Minister for Immigration and Citizenship

[2007] FCA 660

FEDERAL COURT OF AUSTRALIA

MZXFP v Minister for Immigration and Citizenship
[2007] FCA 660

Migration Act 1958 (Cth) ss 48B, 417, 424A(3)(a), 422B

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Jarrett v Seymour (1993) 46 FCR 557

MZXFP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 1429 OF 2006

NICHOLSON J
3 MAY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1429 OF 2006

BETWEEN:

MZXFP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	3 MAY 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The description of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2.The application for leave to appeal from the decision of Federal Magistrate McInnis given on 26 December 2006 be refused.

3.The applicant pay the first respondent’s costs of the application.

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 1429 OF 2006

BETWEEN:

MZXFP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON J
DATE:	3 MAY 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from orders made by a Federal Magistrate (McInnis FM) on 21 December 2006.  The application before the Federal Magistrate requested that an earlier order of the Federal Magistrates Court dated 26 June 2006 be set aside.  The initial application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 28 November 2005.  The Tribunal had affirmed the decision of a delegate of the first respondent to refuse to grant a protection (class XA) visa to the applicant.  These are the reasons why the application for leave to appeal was dismissed at the conclusion of the hearing.

   Applicant’s claims

2. The applicant is a citizen of Sri Lanka.  He arrived in Australia on 29 August 2004.  On 29 September 2004 the applicant applied for a protection visa on the grounds that he had suffered persecution in Sri Lanka as a Muslim and as a result of his financial support for the United National Party (the UNP) and the Sri Lanka Muslim Congress (the SLMC).

3. Before the Tribunal, the applicant claimed that he had been persecuted for his political opinions by a group containing members of the Janatha Vimukthi Peramuna political party (the JVP).  The applicant claimed to have been physically attacked and had his jewellery business robbed before travelling to Australia where he intended to develop his business with the intention of returning to Sri Lanka once the problems had lessened.  However, once in this country the applicant claimed to have been informed by his wife that a group had been looking for him back in Sri Lanka and had been threatening his family.

   Tribunal’s reasons

4. The Tribunal found that there was inconsistent evidence supplied by the applicant and did not accept that the he was at risk of persecution from the JVP.  As a jewellery store owner, the Tribunal noted that the applicant will always be susceptible to robberies.  However, it found the motive for this is likely to be financial rather than political.  Additionally, the country information did not support a contention that merely financially supporting certain political parties generated a risk of persecution.  The Tribunal could therefore not accept that the applicant faced a real chance of persecution in Sri Lanka due to his political opinion.

   Federal Magistrate’s decision

5. The applicant filed an application for review of the Tribunal’s decision in the Federal Magistrates Court on 10 April 2006. At the time of hearing, the applicant failed to appear and on 26 June 2006 the Federal Magistrate summarily dismissed the application pursuant to r 13.10 of the Federal Magistrates Court Rules 2001 (Cth). In reaching this conclusion, his Honour held that the application had no reasonable prospect of success, finding that the applicant had sought to challenge matters of fact which had been duly considered by the Tribunal in a manner free of jurisdictional error.

6. On 3 July 2006, the applicant again applied to the Federal Magistrates Court to have the decision set aside, bringing evidence that he was unwell at the time of hearing and unable to attend.  The Federal Magistrate accepted that the applicant may have indeed had a reasonable excuse for non-attendance.  However, he noted that the absence of the applicant was not the reason for the summary dismissal.  His Honour therefore proceeded to reconsider the decision of the Tribunal on the basis it was necessary for the Court to determine whether the material before the Court justified the order being set aside.  His Honour could not discern any jurisdictional error and found that the applicant had not advanced any further submissions in support of the application.  On 21 December 2006 the application was accordingly dismissed.

   Leave to appeal

7. In this Court, the applicant has filed an application for leave to appeal together with an affidavit and a draft amended notice of appeal.  The applicant alleges that the Federal Magistrate committed jurisdictional error and had not properly reconsidered the case following acceptance of the applicant’s non-attendance at the first hearing.

8. In determining whether to grant leave to appeal, the relevant considerations for this Court to consider are, firstly, whether in all the circumstances the judgment of the Court was attended by sufficient doubt to warrant it being reconsidered and, secondly, whether substantial injustice would result if leave were refused, supposing the decision was wrong:  Jarrett v Seymour (1993) 46 FCR 557 at 559-560, adopting the test outlined by Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

9. The first matter identified by the applicant in his draft amended notice of appeal was that as the learned Federal Magistrate had accepted that he had a reasonable excuse for not attending court on 26 June 2006 that should have been sufficient for the Court to set aside its order.  That, however, is not the case.  Before setting aside an order, it is proper and appropriate for the Court to satisfy itself whether the material before the Court justifies setting aside the summary dismissal order.  That is, to avoid any issues of futility arising if the order were set aside and then it became apparent that there was no basis upon which the proceeding could be continued.

10. The next matter raised by the applicant in his draft amended notice of appeal was that ‘the grounds of review in my application raise several issues of law in relation to relevant country information and whether the Tribunal should have given me a notice and did not’.  The applicant was himself unable to identify what issues arose in relation to country information, save that he said there were some that were raised before the Tribunal and some which had arisen as a result of developments in Sri Lanka subsequent to the decision of the Tribunal.  Such subsequent issues cannot be a basis to find a jurisdictional error in the decision of the Tribunal.  The applicant asked for time to obtain legal advice on these issues.  However, as the Federal Magistrate had previously found, it was not appropriate to provide him any further time as ample opportunity had already been provided for such assistance to be obtained and no evidence was provided by the applicant as to any reasonable attempts he had made to obtain such assistance.

11. Additionally, the country information on which the Tribunal relied in reaching its decision was not information upon which there was any obligation on the Tribunal to give notice to the applicant: s 424A(3)(a) and s 422B of the Migration Act 1958 (Cth) (the Act).

12. Additionally, in oral submissions the applicant identified as a source of alleged jurisdictional error by the Tribunal, that it had not given consideration to an affidavit from his wife which was before it.  In its reasons the Tribunal said:

    ‘However, on 21 November, the Tribunal received an affidavit from the applicant’s wife in Sri Lanka, stating that an underworld gang connected to the JVP is still coming after them to find and kill her husband.  She recounted how the gang came to their house after the applicant had left, in September 2004 verbally abused her and demanded 500,000 rupees.  The next month they broke [sic] brandishing weapons and asking for the applicant, and blaming him for the murder of one of their colleagues.  They searched the house, damaged furniture and assaulted her son.  They went away, threatening to come again.  This was the fourth time the gang had broken into the house to kill her husband.  Consequently she had now moved to another home.  She believed the robbery at her husband’s office in July 2004 was politically motivated and not merely a robbery.  They dared not complain to the police because the police were infiltrated by JVP sympathisers and informers.  To go to the police was to invite more trouble.’

    In reaching its ‘findings and reasons’ the Tribunal said it had weighed all the evidence submitted by the applicant and provided at the hearing but, for two reasons which it gave, it did not accept that the applicant or his family were threatened after the 2001 elections or robbed and threatened following the 2004 elections as he claimed.  While no specific reference is made to the affidavit of his wife in the section headed ‘findings and reasons’, it is apparent that the Tribunal did give consideration to the affidavit as its previous extensive quotation from it makes apparent.  There is, therefore, no foundation for jurisdictional error in relation to the wife’s affidavit.

13. In oral submissions the applicant also raised two matters arising from what he said were recent developments in Sri Lanka.  These involved the JVP having left the government and the Muslim parties having joined the government.  His submission was that these changes in circumstances made his position even more perilous and provided a foundation for Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (the Convention) fears by him because of his political opinions.  He therefore in effect submitted that the recent developments should be taken into account and that he needed the opportunity to get more crucial evidence from his country. 

14. It is clear that it was within the province of the Tribunal to weigh the evidence and decide the merits of an application.  Provided it does so without any error of law, it is not for the Court to interfere in that function.  Furthermore, the Tribunal must decide the application on the evidence before it at the time it makes its decision.  The function of the appellate process, whether in the Federal Magistrates Court or in this Court, is to examine the reasons of the Tribunal and to determine whether any error of law was committed.  It is not the function of the appellate process to reengage in making a decision on the merits.  Accordingly, it is not the function of the appellate process generally to engage in receipt of fresh evidence or to re-decide the matter because of recent developments.  The applicant has not raised any circumstances that would invoke any rules applicable to receipt of fresh evidence. 

15. Counsel for the first respondent drew attention to two provisions in the Act which might enable the applicant to bring to the attention of the first respondent developments that have adversely effected his position and are arguably supportive of his holding a Convention based fear of persecution. The first arises under s 417 of the Act and the second under s 48B of the Act.

16. It is patent that any change of circumstances in Sri Lanka were not before the Tribunal at the time of its decision and could not logically have been considered by it.  No jurisdictional error can therefore be found in the Tribunal not having turned its attention to such matters.

17. I was therefore at the hearing satisfied that the applicant had not pointed to any error in the reasons for judgment of the Court given on 21 December 2006.

    Conclusion

18. Accordingly, I made orders that the application for leave to appeal be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:        4 May 2007

The Applicant represented himself
Counsel for the Respondent:	K Miller
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 May 2007
Date of Judgment:	3 May 2007