MZXND v Minister for Immigration and Citizenship

[2007] FCA 1157

FEDERAL COURT OF AUSTRALIA

MZXND v Minister for Immigration & Citizenship
[2007] FCA 1157

MZXND v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 409 OF 2007

TRACEY  J
7 AUGUST 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 409 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXND
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY  J
DATE OF ORDER:	7 AUGUST 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused with costs fixed at $3,700.

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 409 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZXND
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY  J
DATE:	7 AUGUST 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This purports to be an appeal against a judgment of a Federal Magistrate dated 30 April 2007, dismissing an application for reinstatement of an earlier application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 September 2006: see [2007] FMCA 519 and [2007] FMCA 833. The Tribunal had affirmed a decision of a delegate of the first respondent (“the delegate”) to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of India who arrived in Australia on 13 September 2003.  He entered on a visitor’s visa.  On 9 October 2003, the applicant lodged an application for a protection visa, claiming to have a well-founded fear of persecution as a result of his support and involvement in the Muslim League political party.  The applicant claimed to fear persecution from Hindu extremists whom he claimed had previously threatened and harassed both him and his family, and had repeatedly damaged and vandalised his business in India.  On 5 November 2003, the delegate refused the applicant’s application.

3. On 2 December 2004, the applicant applied to the Tribunal for review of the delegate’s decision. This application was unsuccessful but was returned to the Tribunal to be reheard following a decision of this Court.  While the Tribunal appears to have accepted at the re-hearing that the applicant did have some involvement in the Muslim League, it did not accept his claims that he suffered continuous harassment and threats as a result of his political affiliation.  The Tribunal was not satisfied that the applicant was ever harmed, or faced serious harm because of his support for the Muslim League.  The Tribunal affirmed the decision of the delegate on 29 September 2006.

4. In the original application for review of the Tribunal’s decision, which was filed in the Federal Magistrates Court on 15 November 2006, the applicant made a number of claims challenging the findings of the Tribunal and asserting jurisdictional error. The applicant, however, failed to appear at the scheduled hearing and the matter was dismissed in his absence on 27 March 2007 pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001.   

5. On 10 April 2007, the applicant filed another application with the Federal Magistrates Court, this time seeking to have the previous decision set aside and the matter reinstated.  The applicant filed a supporting affidavit which deposed that he had intended to appear at the earlier hearing.  He had, however, lost the appropriate orders and had forgotten the time and day.

6. The Federal Magistrate dismissed the application for reinstatement on 30 April 2007: see [2007] FMCA 833. Her Honour held that the applicant did not have a reasonable explanation for failing to appear on 27 March 2007, noting that his absence was entirely his own fault. Nevertheless, her Honour did have regard to the claims of the applicant in an attempt to determine whether he had an arguable case. In concluding that the applicant did not have an arguable case, and therefore dismissing the application for reinstatement, the Federal Magistrate said, at [8], that:

   “The applicant was unable to specify what race he is.  He said that his social group was helping the poor.  In my view, the Tribunal did consider the matters that were actually raised by the applicant.  The Tribunal considered whether the fact that the applicant was a Muslim who did some work for the Muslim League meant that he was at risk … The Tribunal rejected a number of the applicant’s essential claims but in doing so, in my view, did properly consider the claims that were raised by the applicant.”

7. The decision of the Federal Magistrate to dismiss the application for reinstatement is interlocutory in nature. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976, the applicant is required to seek to obtain leave before lodging an appeal in this Court.  No such leave has been sought.  For this reason, on 23 May 2007, the first respondent filed a notice of objection to competency.

8. This morning the applicant appeared in person and was assisted by an interpreter.  I sought to explain to him the requirement that he should apply for leave to appeal and the legal principles on which any such application would be determined.  He made an oral application for leave and counsel for the Minister raised no objection to it being heard and determined instanter. 

9. The applicant made his oral submissions in support of his application

10. I have read the Federal Magistrate’s reason for decision and cannot discern any legal error in them.  The decision is not attended with sufficient doubt so as to warrant it being considered by this Court.

11. The application should be refused with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY .

Associate:

Dated:        7 August 2007

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr A Lewis
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 August 2007
Date of Judgment:	7 August 2007