FEDERAL COURT OF AUSTRALIA

MZYCQ v Minister for Immigration & Citizenship [2009] FCA 1286

Migration Act 1958 (Cth) s 91R

SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 applied

Sun v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 applied

MZYCQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 590 of 2009

SUNDBERG J

11 NOVEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for an extension of time within which to file a notice of appeal be dismissed.

2.         The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          This is an application for an extension of time within which to appeal from a decision of a Federal Magistrate dismissing an application for review of the decision of the second respondent (the Tribunal) affirming the decision of the first respondent’s delegate to refuse the applicant a protection visa. The Magistrate’s decision was handed down on 16 July 2009. The applicant did not attend the Court on that day, although he had been invited to do so by a letter of 8 July 2009 informing him that judgment would be delivered on 16 July 2009. The last day for filing a notice of appeal was 6 August 2009. The applicant did not file his application for an extension of time until 12 August 2009.

2                          The applicant’s explanation for his delay in filing the application for extension of time is that he did not receive a copy of the Magistrate’s orders and reasons for decision until 22 July.

3                          Order 52 rule 15 of the Court’s Rules requires a notice of appeal to be filed within 21 days of the date of the judgment appealed from. Subrule (2) permits the Court to give leave to file a notice out of time “for special reasons”. Considerations relevant to the exercise of the discretion to extend time include the explanation for the delay and whether the applicant’s prospects of success on an appeal are sufficient to justify an extension.

4                          The applicant’s claims are fully set out in the Tribunal’s reasons and do not need to be repeated. The applicant propounded three grounds of review before the Magistrate. The first was that the Tribunal misinterpreted the Convention criterion “in that the test is not whether the Sri Lankan government was unable or unwilling to protect the applicant, but rather whether the applicant owing to a well founded fear is unable or unwilling to avail himself [of] the protection of the country”.

5                          The Magistrate said that having found that the applicant’s fear of persecution was not well‑founded, the Tribunal was not called on to find whether because of a well‑founded fear the applicant was unwilling or unable to avail himself of the protection of his country. His Honour also said that the Tribunal had in fact stated the relevant test in exactly the form contended for by the applicant.

6                          The second ground of review before the Magistrate was that having accepted that the applicant had been harassed around the time of the 2004 and 2005 elections, and that violence between supporters of opposing parties often accompanies elections in Sri Lanka, the Tribunal erred in concluding that the harassment was not sufficient to constitute persecution within s 91R of the Migration Act 1958 (Cth).

7                          The Magistrate considered that the Tribunal had set out its reasons for finding that the harassment the applicant may have suffered was not sufficient to constitute persecution. That finding of fact was open to it and was not amenable to review.

8                          The third ground was that the Tribunal had not given proper weight to the political violence that takes place in Sri Lanka, “because if it did there would have been reference to the variety of Country Information and DFAT reports” that detail the violence. The applicant said that had the Tribunal referred to this information, it would have realised that the Sri Lankan police are very politicised, and it would have been pointless for him to have reported his harassment to them.

9                          The Magistrate dismissed this ground. He said that the weight to be attached to political violence in Sri Lanka was a matter for the Tribunal and was not open to be second guessed by a court. His Honour noted that the Tribunal had accepted that there is violence surrounding elections in Sri Lanka between supporters of opposing parties, and that it had taken political violence into account. He added that the Tribunal had recorded certain country information lodged by the applicant. Indeed, in its reasons it recorded verbatim four items of country information tendered by the applicant about violence in Sri Lankan politics. His Honour said that the Tribunal was not obliged to refer to every item of evidence or country information, and that a failure to refer to a particular piece of country information does not establish jurisdictional error. Finally, the Magistrate said that having found that the applicant was not involved in political activity, there was no occasion for it to have made a finding about the politicisation of the police.

10                        The grounds of appeal to this Court assert error to the part of the Magistrate in not finding that:

(a)     the Tribunal “acted without jurisdiction in acting in breach of its obligations under the law”;

(b)     the Tribunal acted without jurisdiction in that the decision was based in part on a finding not open on the material before the Tribunal; and

(c)     the decision was affected by jurisdictional error in that there was a reasonable apprehension that the Tribunal was biased.

11                        There are no particulars of these grounds. Ground (a) does not identify any respect in which the Tribunal had acted in breach of its obligations. Ground (b) does not identify the particular finding that is complained of. Ground (c) does not identify any matter that could support a finding of reasonable apprehension of bias. No claim of bias, apprehended or actual, was made before the Magistrate.

12                        The generality and lack of particularity of the grounds of appeal together with the fact that the applicant is not legally represented, has led me to conclude that I should treat him as wishing by grounds (a) and (b) to repeat the claims he made before the Magistrate.

13                        No error appears in the Magistrate’s disposition of the first ground. In its reasons at [15] and [16] the Tribunal properly directed itself as to the need for the applicant’s fear of persecution to be well‑founded and the law surrounding that requirement. It identified the additional requirement that an applicant must be unable or unwilling because of his or her fear to avail himself or herself of the protection of the country of nationality. Then at [38], after having reviewed the applicant’s claims and its findings in relation to them, it found that he did not face a real chance of persecution by reason of his political opinion, now or in the foreseeable future, should he return to Sri Lanka, and thus it found that his fear of persecution was not well‑founded. The Magistrate correctly said that having found that the applicant’s fear was not well founded, the Tribunal was not called on to make a finding about whether because of a well founded fear, he was unwilling or unable to avail himself of the protection of his country. As it had earlier said, that was a matter that it had to enquire into only if a well‑founded fear had been made out. As the Magistrate said, the Tribunal had stated the test in the manner contended for by the applicant (at [15] and [16] of its reasons). It applied the test by finding that he did not have a well‑founded fear of persecution. Having so found, there was no need for it to deal with the additional requirement that the applicant was unable or unwilling because his fear of persecution to avail himself of Sri Lanka’s protection.

14                        As to the second ground, the Magistrate noted that the Tribunal had referred to the fact that s 91R qualified in some respects Article 1A(2) of the Convention for the purposes of the application of the Migration Act and the regulations to a particular person. At [35], having accepted that the applicant may have been harassed around the 2004 and 2005 elections, but not that he was threatened, it concluded that the harassment was not sufficient to constitute persecution in terms of the Convention. That was a finding of fact that was open to the Tribunal. I have only summarised the effect of its discussion and reasoning at [35]. There the Tribunal clearly explains why the harassment did not satisfy the definition of persecution, as affected by s 91R. The Magistrate did not err in reaching this conclusion and rejecting the second ground.

15                        No error is apparent in the Magistrate ‘s rejection of the third ground. Each of the observations of the Magistrate I have recorded at [9] is justified and supported by the authorities to which he referred at [36] and [37] of his reasons.

16                        The unparticularised bias claim was not put to the Magistrate. There is no substance in the complaint. There is nothing external to the Tribunal’s reasons bearing on the claim. There is nothing in the reasons suggestive of bias. The Tribunal accepted parts of the applicant’s claims, but rejected others, and gave its reasons for so doing. A bias case is not made out because parts of an applicant’s claims are not accepted or are disbelieved. That does not show prejudgment or a closed mind. See SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38] and Sun v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]‑[48].

17                        The applicant chose not to attend at the Magistrate’s Court when judgment was to be handed down, despite being invited to attend. By his non‑attendance he disabled himself from receiving the Magistrate’s reasons on the day they were handed down. He does not explain why he did not attend on the day. His non‑attendance meant that it was a few days before the reasons reached him by mail. He then had over two weeks to file his notice of appeal. He does not explain why this was not time enough for him to file his notice within time. His explanation for the delay is inadequate.

18                        Furthermore, as I have pointed out above, the grounds of appeal to this Court have no prospects of success. Assuming that he wishes to propound on the appeal the grounds aired in the Court below, there is no merit in those grounds, as I have explained. The lack of arguable grounds is another reason why I would not grant an extension of time in which to appeal.

19                        The application for an extension is refused.

Associate:

Dated:         11 November 2009