MZXCV v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT BACKGROUND 1 This is an application for leave to appeal against a judgment of a Federal Magistrate dated 21 May 2007. His Honour refused an application by the applicant to review a decision of a Registrar of the Federal Magistrates' Court. The Registrar had refused to accept for filing an application by the applicant for review of a decision of the Refugee Review Tribunal ("the Tribunal"): see [2007] FMCA 844. 2 The applicant is a citizen of Sri Lanka. He first entered Australia on 7 June 2004. On 28 June 2004, the applicant lodged an application for a protection visa, claiming to have a well-founded fear of persecution following his involvement in and political support for the United National Party ("the UNP"). In particular, the applicant claimed to fear persecution from members of a rival political party in Sri Lanka, the People's Alliance ("the PA"). 3 In refusing the application for a protection visa on 14 December 2004, the Minister's delegate did not accept that the applicant faced any real risk of harm as a result of his political support for the UNP. REFUGEE REVIEW TRIBUNAL 4 The applicant sought review by the Tribunal of the delegate's decision. The applicant made a number of claims to support his visa application, including providing further details on his involvement with the UNP and previous threats he claimed to have received from supporters of the PA. Specifically, the applicant claimed to have been involved in the distribution of pamphlets in support of the UNP and to have attended many rallies in the lead-up to the 2004 elections. Following those elections, the applicant claimed that he and his family were threatened and attacked. Furthermore, the applicant asserted that local authorities refused to assist him, and did not take any action when he reported the incidents of threats and assaults against his family. 5 The Tribunal appears to have accepted that the applicant was a supporter of the UNP, and had an active role in distributing material and attending UNP rallies. However, it identified several inconsistencies in the evidence provided by the applicant, together with evidence to suggest that the applicant did not have a fear of persecution prior to his departure for Australia. The Tribunal did not accept that the experiences of the applicant amounted to serious harm. 6 Moreover, the Tribunal did not accept that there was inadequate police protection in Sri Lanka, and held that the applicant could rely upon the local authorities to provide protection in the event of future problems with PA supporters. The Tribunal held that there was no real chance of persecution by reason of the applicant's political opinion or any other Convention reason. It affirmed the decision of the Minister's delegate on 12 August 2005. PREVIOUS JUDICIAL REVIEW 7 The applicant applied to the Federal Magistrates' Court for judicial review of the Tribunal's decision. The applicant and his family sought to challenge the conclusions drawn by the Tribunal and its interpretation of the term 'persecution'. On 23 February 2006, this application was dismissed by a Federal Magistrate. 8 On 15 March 2006, the applicant filed a notice of appeal in this Court, against the decision of the Federal Magistrate. Middleton J dismissed the appeal: see [2006] FCA 1271. His Honour observed at [18] that: "The Tribunal simply did not accept the appellant's claims concerning the incidents following the elections in April 2004. It was not satisfied that he was ever harmed as he alleged. The appellant also submitted the Tribunal failed to consider whether the facts as it found them to have occurred led to the conclusion that the appellants had a well-founded fear of persecution for a Refugees Convention reason. However, it is clear to me that the Tribunal did consider the findings of fact and addressed the proper question whether the appellants had a well-founded fear of persecution. The appellant also submitted that the Tribunal misunderstood what follows from its finding that the persecution did not have an 'official' quality. But, as was noted by the Federal Magistrate, this submission did not appear to relate to any findings of the Tribunal in the present case." The High Court subsequently refused to grant the applicant special leave to appeal from his Honour's decision. REFUSAL BY REGISTRAR TO ACCEPT APPLICATION 9 Notwithstanding the decisions of the High Court, this Court and the Federal Magistrates' Court, the applicant attempted again to file an application with the Federal Magistrates' Court for review of the Tribunal's decision. This occurred on 15 May 2007. The application was refused for filing by the Registrar, who recorded the following reasons: "Application considered and refused for filing pursuant to Rule 2.06 Federal Magistrates Court Rules. Application cannot be accepted for filing as out of time pursuant to s 477 Migration Act 1958."