FEDERAL COURT OF AUSTRALIA

MZXHI v Minister for Immigration & Multicultural Affairs [2006] FCA 1595 

MZXHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 501 OF 2006

SUNDBERG J

24 NOVEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  An extension of time within which to apply for leave to appeal be granted.

2.                  The application for leave to appeal be refused.

3.                  The applicant pay the first respondent’s costs of the applications.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 4 April 2006 Federal Magistrate Hartnett dismissed for non‑appearance the applicant’s application for a protection visa. The applicant applied for reinstatement of the dismissed application. Federal Magistrate Connolly dismissed that application. The applicant seeks leave to appeal from that interlocutory order. His application for leave is out of time. The applicant, who is unrepresented, has filed an affidavit in which he says he was not aware of the time limit. I will extend the time to the extent necessary.

2                     The applicant did not attend on the hearing of his application for an extension of time and for leave to appeal. His brother in law attended on his behalf, and said he was unwell. No medical certificate was produced. However the brother in law said the applicant was going to see a doctor in the course of the day. He sought an adjournment of the application. I refused to adjourn the matter for three reasons. First, because there was no evidence of the applicant’s illness and no medical certificate. Second, because it seemed odd that the applicant was well enough to travel to his doctor yet not well enough to attend court to explain his position. After all, one would think the proceedings were of considerable importance to the applicant. Third, the applicant has on a prior occasion failed to appear on the ground of unexplained illness. That makes me suspicious as to whether he is in truth unwell.

3                     Magistrate Connolly said, correctly, that in order to secure reinstatement of his protection visa application, the applicant had to provide a satisfactory reason for his non‑attendance before Magistrate Hartnett and show that he has an arguable case on appeal.

4                     The applicant’s explanation for his non‑attendance was that he was unwell on the day. The medical certificate he tendered stated that he was unwell and was unable to attend Court on the relevant date. It did not disclose what ailed him, except that it was a “personal illness”, or why he was unable to attend Court on the day when he was able to travel to the medical practitioner who provided the certificate. Magistrate Connolly referred to MZWMI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1876, a case with similar facts, and said he was not satisfied that there was any adequate explanation for the applicant’s non‑attendance before Magistrate Hartnett. See also NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559.

5                     No error has been shown in the course adopted by Magistrate Connolly.

6                     Notwithstanding the applicant’s failure to satisfy the first limb of the test recorded at [3], the Magistrate went on to consider whether the applicant had an arguable case. His Honour concluded he did not.

7                     The background to the application for a protection visa and the applicant’s claims and evidence are set out in the Tribunal’s decision, and need not be repeated.

8                     In the dispositive section of its reasons the Tribunal dealt with the applicant’s claimed fear of persecution at the hands of the Peoples Alliance (PA), its supporters and a Member of Parliament, Mr Nandasina. The Tribunal accepted that in 1994 the applicant campaigned in support of the United National Party (UNP) and that he was present when a PA member was shot. It went on to say:

“It is plausible that the incident led to an assault on him and other UNP young supporters by the rival PAs even though the applicant’s account in detail was unconvincing. Most unconvincing was the timing of the alleged assault in conjunction with his departure from Sri Lanka. He has alleged that although injured sufficiently to need hospitalisation, he was able to arrange for his departure to Qatar as a sponsored worker within a few days. He also was unable to provide the Tribunal with any credible account of what happened to the various other UNP supporters who were with him at that time. The Tribunal finds it implausible that he would not have some interest in their situation at the time, even if he lost touch with them later. The Tribunal also found his vagueness on the matter of documentation, his employer and his travel to Qatar suggested that this was not the case of a friend assisting him to rapidly escape from Sri Lanka.”

However the Tribunal “could not rule out” that the applicant participated in party political activities in the 1994 elections, that he was present when an opponent was shot and that this led to threats against him and even an assault.

9                     The Tribunal then considered whether the 1994 incident and its alleged consequences were such as to place the applicant in the way of harm in 2006 or in the foreseeable future. It concluded that they did not. It said:

“It has considered the applicant’s allegation that after a two year period in Qatar, on his return to Sri Lanka, he kept such a low profile that the hostile PA supporters did not know for some five months that he had returned to his house. The Tribunal found his account of this period and indeed of his alleged attempt to hide himself from various enemies from 1996 until he came to Australia in 2001 to be highly exaggerated. It is satisfied that he was a minor participant in party politics in 1994, that he took some minor part in the campaign of 2000 but that he does not have a profile of political activism which made him or makes him a target of the major opposition party. It is satisfied that since 1994 he has done nothing in Sri Lanka or outside it to attract the negative attention of the PA.”

10                  The Tribunal went on to deal with and reject other claims that are not the subject of the notice of appeal. It concluded its reasons as follows:

“The applicant has tied together allegations that he fears the PA, the LTTE and the security forces of his country. While the LTTE and security forces incidents are linked there is nothing to indicate that his 1994 problems with PA members and supporters was connected. The Tribunal finds that whatever fears he retains relating to the PA incident are no longer capable of giving rise to persecution of him for reasons of his political opinion. … It is satisfied that he can return to Sri Lanka without facing a real chance of harm for the reasons he has claimed.”

11                  In his notice of appeal the applicant makes two complaints. The first is that despite the favourable findings recorded at [7],

“the Tribunal then seems to place emphasis on the fact that I was unable to provide the tribunal with any credible account of what happened to the various other UNP supporters who were with me at the time and the tribunal finds it implausible that I would not have some interest in their situation at the time even if I lost touch with them later. I had told the tribunal that I left Sri Lanka 10 days after being injured and needing hospitalisation, worrying about the situation of the other UNP supporters who were with me is an irrelevant consideration for the tribunal to take into account and a more important consideration was the fact that I departed Sri Lanka 10 days after being injured.”

12                  This complaint does not give rise to an arguable appeal point. The Tribunal accepts parts of the applicant’s claim: his participation in party political activities in 1994, his presence when an opponent was shot, his receipt of threats as a consequence, and that he was assaulted. What it did not find convincing was his details of the assault and the timing of the assault in conjunction with his departure from Sri Lanka. It was also surprised that he could not provide a credible account of the fate of other UNP supporters who were with him at the time. It also referred to his vagueness about his documentation, his employer and his travel to Qatar.

13                  It may be doubted whether these doubts led anywhere. From what appears at [8], including the passage there quoted, it is clear that the Tribunal accepted the 1994 incident and the consequences the applicant alleged flowed from it, and that he had travelled to Qatar and back. In any event the Tribunal was entitled to accept parts of the applicant’s account and reject others. The Tribunal heard him give evidence at the hearing, and its rejection of parts of his evidence, if that is what it did, was based on the vagueness of parts of his evidence and on his demeanour. These are matters for the Tribunal and not for a Court which does not have the advantage of having heard and seen him give evidence.

14                  The applicant’s second complaint is an attack on what is recorded at [8]. He says:

“the tribunal is wrong when it concludes that I do not have a profile of political activism which made me the target of the major opposition party. The tribunal have addressed a wrong issue and should have considered whether there was a real chance of me being persecuted by the MP for Kalinya Mr Nandasina and given that the UNP are still in opposition and the PA still in power were very relevant considerations when considering the situation in 2006.”

15                  The applicant does not address the reasons given by the Tribunal for the conclusion recorded at [8] – that his account about the period after his return from Qatar and his attempts to hide himself from his enemies for five years were “highly exaggerated”. The applicant has not established that the Tribunal addressed the wrong issue in what is recorded at [8]. It was plainly aware that the PA was still in power and the UNP in opposition. That was the essential background of the applicant’s case as to the situation in Sri Lanka. The Tribunal did not fail to take those considerations into account. This complaint is not made out. It is not an arguable appeal point.

16                  The applicant has neither explained his non‑attendance at the hearing nor shown that he has an arguable case if leave to appeal were granted. The application for leave is dismissed.

Associate:

Dated:         24 November 2006