Applicant M39 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 108

FEDERAL COURT OF AUSTRALIA

Applicant M39 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 108 APPLICANT M39 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V 1095 of 2003 BLACK CJ, DOWSETT AND BENNETT JJ MELBOURNE 5 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1095 OF 2003

BETWEEN: Applicant M39 of 2003

APPLICANT

AND: Minister for Immigration and Multicultural and Indigenous Affairs

RESPONDENT

JUDGES: Black CJ, Dowsett and Bennett JJ

DATE OF ORDER: 5 May 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an extension of time for leave to appeal and the application for leave to appeal be refused, with costs. 2. The purported appeal be struck out as incompetent, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1095 OF 2003

BETWEEN: Applicant M39 of 2003

APPLICANT

AND: Minister for Immigration and Multicultural and Indigenous Affairs

RESPONDENT

JUDGES: Black CJ, Dowsett and Bennett JJ

DATE: 5 May 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT (Revised from transcript) The Court: 1 This is an application for an extension of time for leave to appeal from an order of a judge of the Federal Court made on 21 November 2003. If an extension of time is granted, then leave to appeal from that order is sought. 2 The applicant is an Italian citizen who arrived in Australia in December 1990 on a visitor's visa, which authorised his stay until September 1991. Between September 1991 and April 2000, he held temporary processing visas while his application to remain permanently in Australia on spouse grounds was assessed. On 13 April 2000, his application for permanent residence was rejected. In May 2001, the applicant was detained as an unlawful non-citizen pursuant to s 189(1) of the Migration Act 1958 (Cth) ('the Act'). He was later released while the Minister considered the applicant's request to exercise his powers under s 351 of the Act to substitute a more favourable decision in relation to his application for permanent residence. The Minister decided not to exercise this power first on 30 December 2001, and again on 27 February 2002 after a further request was made. The applicant was detained again in February 2002 following a breach of the bridging visa that he then held. 3 The applicant applied for a protection visa in March 2002. He claimed to fear persecution from the Mafia in Italy, as a result of having stolen a car from one of its members in November 1985, the boot or trunk of which, he said, contained guns and a number of drivers' licenses. The applicant claimed that he sold the guns and burnt the driver's licences, but the Mafia believe that he still has the licences, and has been using these in collaboration with the police to facilitate arrests of members of the Mafia. For this reason, he claimed, the Mafia want to kill him and continue to search for him. He claimed that the Italian authorities would be unable to protect him because the Mafia is very strong and beyond the control of government. 4 A delegate of the respondent refused the application for a protection visa in April 2002. The applicant then sought review of this refusal by the Refugee Review Tribunal ('RRT'). He attended a hearing before the RRT in May 2002. The RRT, however, affirmed the delegate's decision a few days later. 5 The applicant then filed an application in the Federal Court seeking judicial review of this decision. That application was transferred to the Federal Magistrates Court, where it was dismissed on 24 February 2003 (Applicant VEAX of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 53). 6 In March 2003, the applicant made an application to the High Court for orders nisi for writs of prohibition, certiorari and mandamus in respect of the RRT's decision. He also sought an injunction preventing his removal from Australia pending the determination of the application, and an extension of time in which to file his application for orders nisi. 7 In September 2003, Hayne J in the High Court ordered by consent that the application for an order nisi be remitted to this Court. On 16 October 2003, the applicant was sent a notice which stated in part: 'This matter (or part of this matter) has been remitted to the Federal Court of Australia by the accompanying order of the High Court of Australia. A directions hearing in this matter will be heard by the Court at the time and place specified below [being 9.30 am, 21 November 2003]. If there is no attendance before the Court by you or your counsel or solicitor, the application may be dealt with and judgment be given or an order made in your absence.' 8 On 21 November 2003, the applicant failed to appear at the directions hearing of which he had been notified, and the primary judge dismissed his application with costs, presumably in the exercise of the powers conferred by s 20(5)(c) of the Federal Court Act 1976 (Cth) or O 10 r 3(2) of the Federal Court Rules. 9 On 19 December 2003, the applicant filed a notice of appeal against these orders. Two procedural issues arise in relation to this notice of appeal. The first is that the order dismissing the application for an order nisi was interlocutory, and therefore leave to appeal from that order is required: NAHQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 297 and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The respondent has filed a notice of objection to the competency of the appeal on that ground. The second problem is that the applicant's notice of appeal was filed out of time. 10 The need for leave to appeal and for an extension of time to do so was raised at the callover on 10 February 2004 when this matter was set down for hearing before the Full Court. The applicant did not appear at the callover, but apparently received notice of the orders that were made. They were that he file and serve any application for leave to appeal and any application for an extension of time for leave to appeal on or before 27 February 2004. It was also ordered that a further notice of appeal, stating precisely and specifically the grounds of appeal to be relied upon, including full particulars of those grounds, accompany any application for leave to appeal. 11 On 26 February 2004 the applicant filed an application for an extension of time for leave to appeal, an application for leave and a further notice of appeal. In support of his applications he filed an affidavit, in which he stated: '1. I was unable to file within time as I was unable to secure legal advice to complete the appeal documents. 2. I am destitute. I am unrepresented currently. 3. I did not attend Court for callover on 10 February 2004 as I did not receive notification of this proceeding.' 12 The affidavit does not explain his failure to appear at the directions hearing on 21 November, at which his application was dismissed by the primary judge. 13 The further notice of appeal filed by the applicant simply restates the ground of appeal contained in his original notice of appeal, namely: 'His Honour erred in finding that the tribunal's decision was not affected by jurisdictional error' No particulars for this ground are given and the applicant has not been able to elaborate on these grounds today beyond restating, in substance, that the RRT's decision is wrong. 14 The applicant has provided no reason why leave to appeal should be granted even if time were extended. As already noted, he has provided no explanation for his failure to appear at the directions hearing. 15 Importantly, the applicant has not advanced any argument that puts in doubt the validity of the RRT's conclusion that the harm he feared from the Mafia in Italy was not for a reason that is recognized by the 1951 Convention Relating to the Status of Refugees ('the Convention'). The Convention is quite confined in the grounds upon which it offers protection to refugees. The RRT's conclusion was that the applicant's fear does not fall within those grounds. The RRT concluded: 'As stated in the earlier outline of the relevant legal considerations governing the grant of protection visas, in order to be found to be a refugee a person must fear harm of a seriousness which can reasonably be regarded as persecution; there must be a real chance that such harm could happen to them; and the reason for the harm must be among those reasons specified in the Refugees Convention: race, religion, nationality, membership of a particular social group and political opinion. Matching this last element to the applicant's circumstances is in my view a threshold question to address before proceeding to consider whether there is a real chance that he might face harm amounting to persecution. The harm which the applicant fears is a consequence of him having taken goods from a stolen car in 1985, particularly, it appears, the documents which he took and burned. The people who he believes are after him are mafia-connected gangsters: they want the documents back and are threatening to kill the applicant and members of his family if they find him. Clearly, the Convention reasons of race, religion, nationality or political opinion are not factors which could be seen as the reason for the harm which the applicant has said he fears from these people. I have considered carefully whether a permissible formulation of a particular social group can be identified from the circumstances described by the applicant: there must be 'some characteristic other than persecution or the fear of persecution which unites the collection of individuals; that characteristic must set the group apart, as a social group, from the rest of the community; and there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community'. I have been unable to identify such a group to which it could be said that the applicant belonged and that his membership of such a group would be the reason (or essential or significant part of the reasons) for the harm he has said he fears might befall him if he were to return to Italy. The delegate suggested that victims of crime might be regarded as a particular social group but such a formulation clearly defines the group by the persecution feared. The applicant suggested to me at hearing that the mafia could be such a group but this describes the association of those who he fears will persecute him: it is the applicant's membership of a particular social group which must conform to legal requirements. Another group might be people who have angered the mafia but I do not consider that such a group could reasonably be seen as united by anything other than a fear of harm which might be done to them. I have concluded that the harm the applicant claims to fear from mafia-connected gangsters is not because of a reason in the Refugees Convention.' 16 The applicant faces an additional problem. He seeks to raise in these proceedings the same matter as was apparently determined against him by the Federal Magistrate's Court when it dismissed his original application for review in February 2003 (see Applicant VEAX of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 53). On that ground alone, the present proceeding was liable to be struck out. 17 In these circumstances, the application for an extension of time to file an application for leave to appeal and the application for leave to appeal must be refused with costs. The respondent's objection to competency in relation to the appeal purportedly commenced by the notice of appeal originally filed on 19 December 2003 must also be upheld and the purported appeal struck out as incompetent, with costs. This result is not, as the applicant will have appreciated, just because the appeal was filed out of time or without leave. The Court has taken into account the broader question whether there ever really was a case at all.