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[2008] FCA 1323
Federal Court of Australia
2008-08-26
Ryan J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for leave to appeal from orders made by Burchardt FM on 11 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). By a decision handed down on 6 November 2006, the Tribunal had affirmed a refusal on 20 August 2002 by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), to grant a protection visa to the applicant.
Background 2 The applicant is a citizen of India who arrived in Australia on 15 January 2000. On 31 January 2002 the applicant lodged an application for a protection visa. The applicant claimed that he had suffered persecution on the grounds of political opinion or imputed political opinion due to his participation in the Congress Party. He claimed that his father was the organising secretary for the Congress Party in Dabra, and that he became an active member of the youth wing of the Congress Party in 1998. 3 The applicant further claimed that, while campaigning for the position of General Secretary at a college election members of the Congress party were attacked by members of the Bharatiya Janata Party ("BJP"), Bajhrang Dal ("BD"), and Rashtriya Swayamsevak Sangh ("RSS"). The applicant claimed that he and other Congress Party members had been injured and another had been killed. As no action was taken by the authorities, the applicant and other Congress Party members protested until the perpetrators were taken into custody. 4 The applicant asserted that, after the Congress Party had won the college election, he was attacked while travelling home by members of BD and RSS because of the election outcome and his life was threatened. The applicant escaped and took shelter in a friend's house. The applicant claimed that, on the following day, his father had informed him that his house had been searched by BD and RSS members and, when they could not find him they had damaged his property. 5 According to the applicant, on the advice of his father, he fled interstate to his aunt's house but BD and RSS members came to the house and the applicant ran out the back door before they could find him. They threatened his aunt that they would "finish the whole family" if they found him there. The applicant further claimed that he moved to his uncle's house, and, later, his father and uncle arranged, by paying a bribe, for an agent to procure a student visa for the applicant. After he arrived in Australia, his family informed him that BD and RSS members were going regularly to his house in India to search for him, and he has been warned by his family not to return. 6 On 20 August 2002 the visa application was refused by a delegate of the Minister and, on 24 September 2002, the applicant applied to the first Tribunal for a review of that decision. The review of the decision of the first Tribunal on 15 March 2004 was dismissed in the Federal Magistrates Court on 4 October 2005. However, an appeal from that decision was allowed by consent in the Federal Court on 9 June 2006 and the matter was remitted to a second Tribunal and it is the decision of that second Tribunal which is the subject of the present appeal. 7 The second Tribunal was not satisfied that the applicant was a credible witness because of inconsistencies between his statement in the protection visa application and the evidence which he gave at the hearing, particularly regarding the level of his involvement in the Congress Party, the date of the college election and the alleged subsequent incidents of violence. 8 The Tribunal, therefore, did not accept that the applicant had the political profile which he claimed or that he had been involved in elections or any related incidents of violence. The Tribunal also found that the applicant had never left his home in Dabra before departing for Australia. Accordingly, the application was dismissed. 9 On 26 July 2007 the applicant filed an application under the Migration Act 1958 (Cth), for an order to show cause in the Federal Magistrates Court. The applicant contended that the Tribunal had committed jurisdictional error in that it had; (a) misunderstood what was persecution for a Convention reason and the concept of serious harm; (b) failed to consider whether the facts led to the conclusion that the applicant had a well-founded fear of persecution; (c) "misunderstood what follows from its finding that the persecution did not have an official quality"; and (d) failed to consider whether the harm threatened was due to political opinion held by, or imputed to, the applicant. 10 The applicant did not appear at the hearing on 18 February 2008. There was sent, apparently by facsimile to the Court, a medical certificate from the Mid-town Medical Centre which stated that the applicant had a medical condition which prevented him from attending work for two days on 18 and 19 February 2008. 11 The learned Federal Magistrate dismissed the application on the basis that the applicant had not attended the hearing as required by r 13.03A of the Federal Magistrates Court Rules 2001 ("the FMC Rules"), and had not provided a sufficient reason for his failure to attend. 12 On 20 February 2008 the orders of the Court were posted to the applicant at the address given to the Court and the applicant was invited to have them set aside and the application reinstated pursuant to r 16.05(2)(a) of the FMC Rules. The applicant was informed that he was required to satisfy the Court that: (a) he had a reasonable excuse for his failure to attend Court on 18 February 2008; and (b) the application for review of the Tribunal's decision had reasonable prospects of success. 13 On 19 March 2008, the applicant filed an interim application seeking reinstatement of his application on the ground that his non-appearance had been caused by illness and that he had not received previous Court orders "due to different address and miscommunication [sic]." 14 The applicant filed an affidavit on the same day in which he deposed; 'I was sick on 18th February and following few days thats why I didn't attend my hearing. I would like to reinstate my matter and ask Federal Magistrate Burchardt to listen to my points please. As this is very important for my life. I have been sick in month of march as well and thats why got bit late [sic].' 15 On 11 April 2008 Federal Magistrate Burchardt dismissed the application, primarily on the grounds that the applicant;
13 I cannot see any basis for impugning O'Dwyer FM's decision. It is clear that his Honour has the power to dismiss an application for non-appearance of an applicant, and nothing in the notice of appeal evinces any irregularity in the exercise of that power. The applicant's non-appearance before O'Dwyer FM remains unexplained. In these circumstances, the appeal has no prospect of success.'
25 In my view, those observations can be paraphrased to apply with similar force to the present case. It is true that the applicant did make an application to the Federal Magistrates Court, apparently under r 16.05(2) of the FMC Rules, but he did not appear to prosecute that application and his non-appearance remains unexplained except for the laconic suggestion, unsupported by any medical evidence, that he was suffering from food poisoning. In addition, the applicant has failed to comply with procedural directions given by this Court and has failed to appear on the hearing today. 26 I am satisfied in the circumstances that there is nothing on the face of the record to suggest that Burchardt FM's exercise of discretion miscarried. I consider, moreover, that it was entirely open to the learned Federal Magistrate to take the view which he did that the applicant had no real prospects of successfully demonstrating that jurisdictional error had been committed by the Tribunal. In the circumstances, I conclude that it is appropriate for the application for leave to appeal to be refused with costs. That will be the order of the Court. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Associate: Dated: 28 August 2008 The applicant did not appear
APPLICANT M85/2004
MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL