Applicant M130 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from a decision of the Chief Federal Magistrate given on 24 May 2004 which dismissed an application to set aside orders made in that court on 19 February 2004 pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001. That dismissal was on the basis that the applicant did not appear. 2 I accept that the Chief Federal Magistrate's order of 24 May 2004 was interlocutory and that therefore leave is required: NACA v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 659 at par [15]. 3 The applicant is a citizen of Sri Lanka who arrived in Australia on 1 November 2000. On 23 November 2000 he lodged an application for a protection visa. On 29 December 2000 a delegate of the Minister refused to grant the visa. He then applied for a review of that decision. On 29 May 2002 the Refugee Review Tribunal affirmed the delegate's decision. The applicant declined to attend the hearing of the Tribunal, although invited to do so. The only evidence before the Tribunal was the departmental file. The applicant applied to the High Court for an order nisi requiring the respondent to show cause why writs of prohibition and certiorari should not be issued. That matter was remitted to the Federal Court and then transferred to the Magistrates Court. 4 When the matter came on for hearing on 19 February 2004, the applicant did not appear and the application was dismissed. The order the subject of the present application was made when the applicant sought to invoke r 16.05(2)(a) of the Federal Magistrates Court Rules which enables the court to vary or set aside a judgment or order if it is made in the absence of the party. 5 The Chief Federal Magistrate accepted the applicant's explanation that he did not attend the earlier hearing because he was unwell. However, she dismissed the application because no arguable case for reviewing the decision of the Tribunal had been shown. 6 The Chief Federal Magistrate summarised the decision of the Tribunal. The claim for refugee status was put by the applicant on the basis of fear of persecution by reason of the fact that he was a strong and active supporter of the UNP party in Sri Lanka. He claimed that he was harassed and threatened by opposition supporters of the rival PA party before the general election in 1994 and the authorities took no action to protect him despite making complaints. He has also claimed that he was harassed and attacked by PA supporters after the October 2000 general election. 7 The Tribunal noted country information that confirmed that there were high levels of political violence often associated with elections in Sri Lanka. The Tribunal understood that it was not required to consider whether the authorities in Sri Lanka could guarantee the applicant would not suffer harm for a Convention reason, but whether that country had effective law and law enforcement agencies, was governed by the rule of law and had an infrastructure of laws designed to protect its nationals against harm of the sort feared by the applicant. 8 The Tribunal found on the basis of the country information before it that adequate or effective state protection was available to the applicant from the authorities in Sri Lanka and would continue to be available for the reasonably foreseeable future. Accordingly, it found that the applicant did not have a well-founded fear of persecution for a Convention reason. 9 The Chief Federal Magistrate referred to contentions of fact and law filed by the applicant on 1 July 2003. In his application for an order nisi the applicant alleged the standard grounds for judicial review, including jurisdictional error, failure to take account of relevant considerations, unreasonableness and breach of the rules of natural justice. No particulars of any of those grounds were provided. In the applicant's contentions, again there are no particulars provided, other than that the applicant said he would be persecuted on return to Sri Lanka because of his political profile as a strong UNP supporter which he contended was not taken into account by the Tribunal. 10 The Chief Federal Magistrate said at par [13]: "As the Tribunal, in my view, correctly noted, it is not for the Tribunal to make out the case for the applicant. The onus remains upon the applicant to present a case to the Tribunal for determination. The Tribunal were entitled to rely upon the information in the departmental file and the country information. In light of there being no other available evidence before the Tribunal, it is difficult to see how it can reasonably be argued that the Tribunal erred in any manner which might lead to a conclusion that there was any error, let alone a jurisdictional error. The Tribunal considered the claims as they were put and considered the country information. They did not fail to have regard to the claims of the applicant regarding his harassment and about his complaints to the authorities which he said the authorities did not act on." 11 In light of there being no other available evidence before the Tribunal, it is difficult to see how it can reasonably be argued that the Tribunal erred in any manner which might lead to the conclusion that there was any error, let alone jurisdictional error. The Tribunal considered the claims as they were put and considered the country information. It did not fail to have regard to the claims of the applicant regarding his harassment and about his complaints to the authorities, allegedly not acted on. 12 To the contrary, the Tribunal considered those claims but considered them in the light of the country information which indicated that there was a reasonable level of efficiency of the police, judicial and related services in Sri Lanka. 13 The Tribunal also noted that whilst violence had occurred around elections, that violence had not been condoned in the relatively recent past by either the former UNP or PA governments and that it had affected both parties' supporters. It also noted that the UNP now held a majority in the Sri Lankan parliament. 14 The Federal Magistrate concluded that in effect the applicant was really seeking merits review regarding the matter in which he did not appear before the Tribunal, having declined their invitation to do so. Her Honour thought it was difficult to see how the application could possibly succeed and accordingly found there was no arguable case. 15 On the present application, the applicant submitted some detailed written submissions in support of his general contention that his case had "not been looked at properly". These submissions however only amounted to a repetition of his claims of persecution as a supporter of the UNP. They also referred to present violence in Sri Lanka and in particular an incident where two Buddhist monks who were members of the Sri Lankan parliament were assaulted and beaten up by opposition PA supporters. 16 The applicant really did not make any attempt to demonstrate any arguable error in the reasons of the Chief Magistrate. I certainly cannot discern any appellable ground. An appeal would have, in my opinion, no prospects of success. 17 I therefore order that leave to appeal is refused and the applicant pay the respondent's costs.