FEDERAL COURT OF AUSTRALIA

MZXNC v Minister for Immigration and Citizenship [2007] FCA 664

MZXNC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 61 OF 2007

Tracey J

7 MAY 2007

MELBOURNE

 On appeal from the Federal Magistrates Court of Australia

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs, to be taxed in the absence of agreement.

2.                  The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

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

REASONS FOR JUDGMENT

1                     This is a purported appeal against orders made by a Federal Magistrate dated 21 December 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 27 September 2006.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant.

2                     The applicant is a citizen of the Philippines.  She claimed to have a well founded fear of persecution should she return to the Philippines following alleged threats from armed members of the National People’s Army (“the NPA”).  The applicant asserted that she was the owner of a jewellery business in the Philippines.  She claimed to have been defrauded by a business agent causing her to lose money and property.  The applicant claims that she was then harassed by her unpaid creditors, and began to receive threats from the NPA who had alleged connections with her financiers.

3                     The Tribunal appears to have accepted that the applicant had operated a jewellery business until 1987, when she was the victim of a fraud and was consequently left owing a large sum of money.  However, the Tribunal did not accept that the applicant was threatened or harmed by the NPA.  In any event, I note that the Tribunal held that, had such threats been made or such harm inflicted, it did not occur by reason of her race, nationality, religious beliefs, political opinion or social group status.  Rather, the applicant’s fears were induced by threats arising from financial dealings with private individuals.

4                     The applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates’ Court.  In an application filed on 10 November 2006 she claimed that the Tribunal had erred by failing to ask the right questions when determining whether her treatment had amounted to persecution.  The applicant also asserted that she had been denied natural justice and that the Tribunal had demonstrated bias when forming its conclusions.  The applicant did not appear at the hearing of her application.

5                     The Federal Magistrate dismissed the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001, which allows for dismissal of an application if the applicant is absent from a hearing.  Such a dismissal is interlocutory in nature, and therefore the applicant is required first to seek leave before lodging an appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976.  No such leave had been sought prior to the filing of this current appeal.  The first respondent has filed a notice of objection to competency because leave to appeal has not been sought or granted.

6                     At the hearing of the appeal the applicant appeared in person.  She had read (and said she understood) the documents contained in the appeal papers and the written submissions filed on behalf of the Minister.  She accepted that it was necessary for her to apply for leave to appeal from the Federal Magistrate’s decision.  She confirmed that, if her application for leave were to be successful, she would wish to rely on the grounds appearing in her notice of appeal.  She told me that the grounds were suggested to her by “a friend” and that she had no independent understanding of them.

7                     Counsel for the Minister raised no objection to the application for leave being made instanter and ruled on.  I permitted the applicant to make an oral application for leave to appeal.

8                     The applicant said that she had not attended the Federal Magistrates’ Court on the hearing of her application because she did not have legal representation and did not know what to do.  She offered no other reason why leave to appeal should be granted.  None of the grounds in the notice of appeal alleged error on the part of the Federal Magistrate in the exercise of his discretion under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.  Some grounds attributed findings to the learned Magistrate which he did not make.  Other grounds did no more than refer to certain Court decisions which had no obvious relevance to the facts of the present case.  Still other grounds raised merits points.

9                     The applicant has failed to satisfy me that the Federal Magistrate’s decision was attended by sufficient doubt such as to warrant it being reconsidered by this Court.  No relevant error of law on the part of the Federal Magistrate is alleged.  Any appeal would, therefore, be bound to fail.

10                  Accordingly, the applicant’s application for leave to appeal must be refused.

Associate:

Dated:         7 May 2007