MZXPN v Minister for Immigration
[2007] FMCA 984
•8 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXPN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 984 |
| MIGRATION – Application for summary dismissal – no reasonable cause of action disclosed – application an abuse of process – non-attendance at court by applicant – application dismissed accordingly. |
| Migration Act 1958, s.417 Federal Magistrates Court Rules 2001, r.13.03A |
| Applicant: | MZXPN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 280 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 8 June 2007 |
| Date of last submission: | 8 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 8 June 2007 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the First Respondent: | Ms M. Ngo |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent's costs fixed at $2,500.00.
A sealed copy of the Court's orders and a copy of the reasons for decision be served by post to the Applicant at his address for service.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 280 of 2007
| MZXPN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The matter before the Court is an application for summary dismissal of the Applicant's application which itself was filed on 9 March 2007. In that application the Applicant sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 December 2003 and handed down on 9 January 2004, which the application asserted was received by the Applicant on 11 January 2004. The grounds asserted in the application were that the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction under which ground was put the heading Particulars, underneath which was put:
I have read the decision of the tribunal and I say the tribunal was wrong in that it has misinterpreted the definition of persecution as under section 91R and S of the act.
The application was accompanied by an affidavit filed likewise on 9 March 2007. The Applicant deposed that he was from Sri Lanka and was a national of that country, and that he was the Applicant in the present proceedings appealing the decision of the Refugee Review Tribunal handed down on 9 January 2004. He stated that he relied upon the evidence submitted with his application for refugee status. Really the only two things that arise out of the affidavit that are in any way additional to what I have already referred to in the application were, first, an assertion in paragraph 6 to the effect that the Applicant's family were strong SLFP and then PA supporters, a matter well known in the area, that the Applicant had taken an active interest in politics since the 1994 general elections and received threats and harassment from UNP supporters as a result, and that it was on the basis of his political opinion that he feared persecution.
He also said at paragraph 8 that he sought an extension of time to lodge his application as he had applied to the minister and the minister had refused his discretion under s.417 of the Act. In fact, the gender of the minister was misdescribed, because it was Senator Amanda Vanstone, it would appear from materials on the Court file (which I presume were filed by the Applicant), who by letter dated 16 January 2007 informed the Applicant that she did not propose to substitute another decision for that of the Tribunal. Appended to that letter is what clearly is a decision of the Tribunal made on 5 December 2003, which affirmed the decision of the delegate not to grant a protection visa.
I have read the Tribunal’s reasons for decision. It should be noted that the legislative scheme is traversed in terms under a heading “Definition of “Refugee” ” at pages 2 and following of the decision. I note also that the Tribunal formed an adverse credit view of the Applicant. Although this is not a merits review matter I would go so far as to say, if I might, that the Tribunal's observations about the definition of a refugee seemed to me to be wholly correct, and the findings as to credit unassailable.
Relevantly, the Tribunal found that the Applicant had spent most of the period of some six or so years, from 1995 until mid-2001 overseas as a student. It was found by the Tribunal that it was not satisfied that the Applicant had engaged in any political activities in relation to the 2000 elections because he was not in Sri Lanka at the time, and that his presence in 2001 was so short and of such a character that he could not otherwise have become involved in political activities in the way that he claimed. I repeat this is not a merits review application, but I am bound to say that the Tribunal's findings on the face of the materials were not only plainly open to it but, to my mind, absolutely inevitable in those circumstances.
From the affidavit material filed by the first respondent, pursuant to orders of Registrar Mussett made on 4 April 2007 it is quite apparent that the Applicant had failed to reveal to this Court a number of interlocutory legal applications that he had made following the decision of the Tribunal. First, in February 2004 the Applicant sought constitutional relief in the High Court. That matter was then referred to the Federal Court, which subsequently referred it to this Court. On
27 October 2005 McInnis FM dismissed the Applicant's application because of non-attendance at the hearing, and on 16 November 2005 the Applicant applied to the Federal Court for leave to appeal, which application was dismissed by Finkelstein J on 16 December 2005. None of that was revealed by the Applicant.
In these circumstances the application can be and will be dismissed on a number of bases, any one of which would be sufficient to justify the dismissal of the application. First, the Applicant has presented no materials which in my view would go to properly justify an extension of time. To the contrary, the Applicant's failure to reveal the interlocutory steps to which I have referred would count strongly against him.
Second, the application does not disclose, in my view, any arguable grounds. This is an application for summary dismissal. The rules now provide that a matter may be dismissed on the basis that no reasonable cause of action is disclosed. In my view, in light of the way the rules now stand, or indeed even as they were prior to the recent amendments that affected this Court's rules and those of the Federal Court, there is no reasonable prospect of success for the Applicant in this case because the decision of the Tribunal seems to me on its face to be unassailable. In any event, the application discloses no grounds of proper criticism of that decision.
Furthermore, one might say that there is some ground to support the proposition that the application is an abuse of process. The Applicant has exhausted all legal grounds of appeal up to and including the full Federal Court. He has thereafter contacted the Minister, who has declined his application pursuant to s.417. Simply to file an application in this Court failing to disclose all of those matters is, in my view, an abuse of process. So on all those grounds the application can and must be dismissed.
If that were not enough, the Applicant has not attended. The orders of Registrar Mussett required that the orders made by Registrar Mussett be served in sealed form by post on the Applicant at his address for service. Counsel for the First Respondent has assured me, and I accept, that that has been done. So the matter could also be dismissed under 13.03A of the Court's rules.
The case for the dismissal of this application is overwhelming and the order of the Court will be that the application be dismissed. I note that the matter was brought on for decision after 3 o'clock. The Applicant had already been called at 2:15pm and did not appear. I will, as a matter of form, have the matter called now so that if the Applicant appears the matter can be revisited. He can exercise his right to set the decision aside. I have no doubt, however, that he will not attend.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Deputy Associate: Ann Pretty
Date: 8 June 2007
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