FEDERAL COURT OF AUSTRALIA

MZXCV v Minister for Immigration & Citizenship

[2007] FCA 1158

MZXCV v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 479 OF 2007

TRACEY J

7 AUGUST 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused with costs.

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

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.”

10                  The applicant sought an order to set aside the decision of the Registrar, claiming that the situation in Sri Lanka had worsened and that he had new grounds to support a review of the Tribunal’s decision.

11                  The Federal Magistrate noted that the applicant’s case had been considered by both the Federal Magistrates’ Court and the Federal Court, and had failed in both instances.  His Honour held that the latest application for review was an abuse of process or at least frivolous, and agreed with the Registrar’s decision to refuse the application.  His Honour stated at [10]:

“In my view the Registrar is entitled to refuse to accept for filing an application of this kind where it clearly appears on the face to be an abuse of process, frivolous, scandalous or vexatious in circumstances where this Court has already heard and determined an application for judicial review of the same Tribunal decision which is now sought to be the subject of an application for judicial review.  I am satisfied that that is properly construed as an abuse of process or at least frivolous.”

12                  The Federal Magistrate also considered the operation of s 48B(1) of the Act, which prohibits further visa applications being lodged once a protection visa has been refused.  This prohibition is subject to a public interest proviso.  His Honour noted that the exercise of the discretion under s 48B(1) rests with the Minister, and held that the Court is unable, under s 48B(1), to permit a further application for judicial review.

THE CURRENT APPLICATION

13                  The applicant appeared in person in this Court this afternoon.  He had the assistance of an interpreter.  I sought to explain to him the legal principles which apply to applications for leave to appeal against interlocutory decisions.

14                  I have examined the reasons for decision of the Federal Magistrate and cannot discern any legal error in them.  The decision is not attended with sufficient doubt so as to warrant it being considered by this Court.  Indeed, there are strong policy reasons why repetitive attempts to pursue judicial review applications relating to the same Tribunal decision should be discouraged.

15                  The application will be refused with costs.

Associate:

Dated:         7 August 2007