MZXHI v Minister for Immigration
[2006] FMCA 755
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXHI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 755 |
| MIGRATION – Application for reinstatement of the application for review of a decision of the Refugee Review Tribunal – whether the applicant’s provision of a medical certificate constitutes sufficient grounds and explanation for his non attendance at a hearing. |
| Federal Magistrates Court Rules 2001 (Cth) |
| SZCEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 389 MZWMI v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1876 NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (2003) SCA 1559 |
| Applicant: | MZXHI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 254 of 2006 |
| Judgment of: | Connolly FM |
| Hearing date: | 5 May 2006 |
| Date of Last Submission: | 5 May 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Self Represented |
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondents: | Mr G. Carroll |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for reinstatement be dismissed.
The applicant pay the respondents' costs fixed in the sum of $1000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 254 of 2006
| MZXHI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ANOTHER |
Respondents
REASONS FOR JUDGMENT
The proceedings
This is an ex tempore judgment arising from an application for reinstatement of the application for review of a decision of the Refugee Review Tribunal handed down on 11 January 2006. The judicial review application was dismissed by Hartnett FM on 4 April 2006 pursuant to an order in accord with Rule 13.03AC Federal Magistrates Court Rules 2001 (Cth) when the applicant failed to appear.
The application for reinstatement is supported by a very short affidavit sworn by the applicant and filed on 7 April 2006. The affidavit has a page missing, but in essence the applicant claims that he was unwell and says that he attaches a medical certificate. That document was not in fact attached, but it has been handed to me, and Mr Carroll for the respondent did not oppose me taking that into account. The certificate is dated 3 April 2006 and it indicates that the applicant is unwell and will be unable to attend Court from 3 April 2006 to 5 April 2006. There is no indication of what the applicant's medical condition was or why it would preclude him from attending Court on 4 April in the circumstances where he was able to travel to the doctor on the previous day.
The respondent has filed an outline of case document which contains the respondent's submissions.
The law
The law with respect to an application for reinstatement of an application for review is conveniently set out by Riethmuller FM in a case of SZCEJ v the Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 389. The Federal Magistrate held that:
‘I accept the submissions of Mr Wi that when the applicant makes this application to reinstate his judicial review application, he must demonstrate to the Court:
(a) a satisfactory reason why he's failed to comply with the orders; and
(b) that the applicant has an arguable case.’
I accept that as an accurate statement of the law.
Conclusions and findings
Mr Carroll for the respondent referred me to the decision of Sundberg J in MZWMI v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1876 which in paragraphs [3] and [4] says:
‘3. When the application for review came before Riethmuller FM, the applicant did not appear. She had sent to the court a medical certificate in the following terms:
"The applicant is suffering from a medical condition and is unfit for work from 5 April to 6 April."
4. The magistrate treated this certificate as an application for an adjournment. His Honour referred to NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (2003) SCA 1559 and said:
In that case at paragraphs [5] to [9], Lindgren J discusses the details of medical certificates relied upon which were more fulsome than the medical certificate in this case. His Honour pointed out that the certificates in that case did not address the critical question of whether, and if so why, the medical condition would prevent the applicant from travelling to the Court and participating effectively in a court hearing. The same criticism is equally valid with the medical certificate in this case. Similarly it appears that the sufferer was able to attend upon the medical practitioner, and it is therefore had to understand why he would not have been able to attend the Court.
For reasons similar to those of Lindgren J in that case, I am similarly of the view that the adjournment ought to be refused.’
The circumstances apply equally in this case, and I am not satisfied that there is any adequate explanation for the applicant's non-attendance before Hartnett FM when the matter came on for hearing.
Further, I am not satisfied that the applicant has provided any basis for his claim that the tribunal has committed a jurisdictional error in its decision. The respondent accurately summarises the background in paragraphs 7 to 14 of his case outline, and the applicant has been given a copy of that case outline, and has had the last three or four hours to digest the document with the assistance of his interpreter. I set out these paragraphs as follows:
‘Background
7. The applicant is a Sri Lankan citizen who arrived in Australia on 25 May 2001. His application for a protection (Class XA) visa was lodged on 21 June 2001 and a delegate of the Minister refused to grant the protection visa on 8 February 2002, resulting in an initial application to the RRT for review on 26 February 2002. By decision dated 25 February 2004 (handed down on 19 March 2004) the RRT affirmed the delegate’s decision not to grant a protection visa. Theis decision was remitted back to the RTT for a further review due to jurisdictional error.
8. On 11 January2006 the RRT again affirmant the decision not to grant a protection visa, which decision was handed down on 20 January 2006.
9. The applicant’s claims of persecution were consequential upon his claims of political support for the UNP and imputed political support of the LTTE, which gave rise to his fear of PA supporters. He also claimed a fear of the army. His is a forty-three year old, of Sinhalese ethnicity who was born in Colombo. Between 1994 and 1996 he lived and was employed in Qatar.
10. The RRT accepted that:
10.1 The applicant campaigned in 1994 for the UNP, and was present when a member of the opposition PA supporters was shot. That the shot person’s father was a local and sometime national politician who “was angry at the incident”;
10.2 The applicant was questioned but not charged and briefly continued his political activities; and
10.3 It was plausible the incident led to an assault on the applicant.
11. However it was a finding by the RRT that the failure of the applicant to have any real knowledge of what happened to the other supporters and his account of arranging to leave for Qatar whilst hospitalised was unconvincing. Further, the oral evidence of the applicant about his time from returning to Sri Lanka to leaving for Australia was “highly exaggerated”.
12. The applicant’s account of a business venture with his brother, that of running a bus route, bringing him into contact with the LTTE which led to threats against him, were sceptical and unconvincing. The applicant was vague as to the names of individuals and there was no convincing or suggestive evidence that the applicant would be of interest to the LTTE, some seven or eight years after the supposed events.
13. Similarly the applicant’s claim of a brush with security forces and the details given of that incident were implausible. The RRT was satisfied that the applicant could return to Sri Lanka without facing a real chance of harm for the reasons claimed, and he would not be placed in the way of harm in 2006 or in the foreseeable future.
14. Essentially, the oral evidence given by the applicant was accept in the most general terms but his credit was in question on the specifics and the reasoning adopted by the RRT in the circumstances was open to it.
The respondent further sets out in that document his submissions with respect to the application for reinstatement in paragraph 15 to 21 as follows:
‘Amended Application
15. An amended application dated 16 March sets out only generalised claims. That is, the applicant takes issue with the RRT accepting the basic factual background and claims his lack of knowledge about the other supports was an irrelevant consideration. Secondly, that the RRT reached the wrong conclusion no the “real chance” test.
16. It is not considered however there is error in the RRT reasoning process. It was open to it to reach such conclusions and does not disclose reviewable error. Effectively, there was not a real chance that the applicant would be persecuted if he returned to his country of nationality.
Reasonable Conclusion given weight applied to evidence.
17. As Kirby J said in Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259 at 291-292, the weight to be given to material before the decision maker is reserved for that person so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.
Kirby J continued with the following remarks at 292:-
“The decision maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any attempt to turn a case of judicial review into, effectively, a reconsideration of the merits. Often, the decision maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts.”
Findings Open and Logical.
18. The findings that the Tribunal made in relation to the political involvement, the bus business venture and brush with security forces were open to it. There was no illogicality or irrationality in the manner in which the Tribunal came to its findings. It was also a matter for the Tribunal whether or not to accept the evidence put forward. (eg. See WAKK v MIMIA [2005] FCAFC 225 at [74]).
No failure to adequately apply the real chance test.
19. There is no evidence that the RRT had failed to apply the “real chance” test of persecution, and it is noted the Tribunal referred inter alia to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 196 CLR 379.
No failure to apply the proper test for “persecution”
20. Further, there is no evidence that the RRT did not apply the broad concept of “persecution” found in cases such as Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra) at 429-431; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; The RRT directed itself correctly on the concept of “persecution” and it is submitted applied the relevant principals in applying the concept of “persecution” to the facts before it.
Conclusion
21. In our view, the RRT correctly identified and undertook its mandated jurisdictional task of reaching a state of satisfaction about whether the applicant could sustain at law claims that he met the criteria under the Refugees Convention. Having considered the evidence as a whole, it was open for the RRT not to be satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. We do not consider that the RRT’s approach discloses any legal error which demonstrates jurisdictional error.
I accept and adopt those submissions, and I am satisfied that there is no arguable case that the tribunal committed a jurisdictional error, and accordingly I dismiss the application for reinstatement.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: James Naughton
Date: 24 May 2006
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