MZXPH v Minister for Immigration and Citizenship

[2008] FCA 297

FEDERAL COURT OF AUSTRALIA

MZXPH v Minister for Immigration and Citizenship [2008] FCA 297

MIGRATION – application to extend time to file notice of appeal

Held: application dismissed

Federal Court Rules, O 52 r 15

MZXPH v Minister for Immigration and Citizenship (2007) FMCA 1620 affirmed

MZXPH v MINISTER FOR IMMIGRATION & ANOR
VID 1059 OF 2007

HEEREY J
5 MARCH 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1059 OF 2007

BETWEEN:

MZXPH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	5 MARCH 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application to extend time be dismissed with costs.

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 1059 OF 2007

BETWEEN:

MZXPH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE:	5 MARCH 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for an extension to time to file and serve a notice of appeal from the judgment of a Federal Magistrate: MZXPH v Minister for Immigration and Citizenship [2007] FMCA 1620, delivered on 12 October 2007. The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal dated 22 January 2007. The Tribunal had affirmed a decision of the delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant claimed to have a well-founded fear of persecution on the basis of membership of a particular social group and actual or imputed political opinion.  He claimed to fear persecution from one Anuradda Ratwatte, the Defence Adviser to the Sri Lankan president.  He claimed his grandfather, who was a police officer, had allegedly been threatened by Ratwatte during Sri Lankan elections and later murdered.  He claimed his father, a former assistant superintendent of police, had previously arrested a number of members of the SLFP, Ratwatte’s party.  His father had been imprisoned on false charges but later acquitted on appeal.  Since 1995 when Ratwatte’s party gained power the appellant and his family have been harassed and threatened by Ratwatte’s henchmen.

3. The applicant also claimed that fresh warrants for murder had been issued against his father, who now lives overseas, and that if he returned to Sri Lanka he would be detained until his father handed himself in.  The applicant further claimed that he feared persecution because he was a United National Party supporter and former employee, and shared a close relationship with a number of UNP politicians.

4. The application for leave to extend time under O 52 r 15 of the Federal Court Rules was filed in this court on 21 November 2007.  Under the Rules, the last day for filing the notice of appeal was 2 November 2007, so the applicant is just under three weeks out of time.

5. Counsel for the Minister properly pointed to the unsatisfactory nature of the applicant’s explanation for the delay.  He did not explain why he was not present when the judgment was handed down on 12 October.  He received the judgment in the mail on 22 October and thus had at least nine days to file a notice of appeal.  The medical certificates he provided were vague and did not really go towards explaining the delay.

6. While these points are valid, nevertheless the time was short; were there a reasonably arguable prospect of success in the appeal I would be inclined to grant leave.  However, I am not satisfied that the applicant has made out a case that there is a reasonably arguable prospect of success on the appeal. 

7. The draft notice of appeal raises two grounds: 

   1.  (The Magistrate) erred in finding that the Tribunal did not misapply the law relating to the definition of refugees.  Though the Tribunal clearly set out the case law and elements of the definition of persecution in the convention, [it] failed to analyse the possibility of the arrest and persecution of the applicant if he returned to Sri Lanka.  It is evident from the Summons served (Annexure 3) of the affidavit of the applicant that the applicant will be arrested if he returns to Sri Lanka.

   2.  (The Magistrate) erred in finding that the Tribunal did give proper consideration to the Applicant’s claim that if he returned to Sri Lanka, he would be taken into custody by the authorities of [sic] false charges.  The fact that a Summon[s] was served for the arrest of the Applicant many months after the Applicant’s father departed Sri Lanka indicate the intention of the Authorities to persecute the applicant on his return to Sri Lanka.

8. The Summons referred to in both grounds of the draft notice of appeal is dated 7 September 2007.  The warrant is issued against the applicant for “failure to appear and supply information, being the surety for (the applicant’s father)”.

9. It is clear this Summons is central to the applicant’s proposed appeal but the basic problem is that it was issued long after the Tribunal’s decision, and the Tribunal obviously could not be criticised for not taking into account something which did not exist.

10. As to the remaining case emerging from the draft notice of appeal, I find no arguable error in the way that the Magistrate dealt with the criticisms of the Tribunal’s decision.  The Magistrate said at [15]-[16]:

    [15]  The Tribunal did give proper consideration to the applicant’s claim that if he returned to Sri Lanka, he would be taken into custody by the authorities on false charges.  The Tribunal expressly dealt with these matters in its reasoning at CB126 to 130.  The applicant has not identified any alleged jurisdictional error in that process...

    [16]  The Tribunal was not obliged to speculate about the possibility of the applicant being arrested by Mr Ratwatte.  The Tribunal found that the prosecution of the Applicant’s father in relation to robbery and abduction charges was not in any way politically motivated and, accordingly, that the Applicant and his family had not been harassed or threatened by Mr Ratwatte or his henchmen.  Given that finding, there was no requirement for the Tribunal to speculate in the fashion that the applicant seeks...

11. Any appeal would, in my opinion, be no more than an attempt to revisit the merits of the facts found by the Tribunal.  As such, it would have no reasonable prospects of success.  For that reason the application to extend time will be dismissed 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 Heerey.

Associate:

Dated:        5 March 2008

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	K Miller
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 2008
Date of Judgment:	5 March 2008