Case: MLGXAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 966
Outcome: cited
he did not attend the hearing of that application on 6 April 2006. Because he did not attend, his application was dismissed pursuant to r 13.03A(c) of the Federal Magistrates Court Rules. The applicant then applied to this Court for leave to appeal from the judgment of the Federal Magistrates Court on 4 July 2006. Leave is required because the judgment is interlocutory. See s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and MLGXAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 966. In addition, because that application for leave to appeal was not brought within 21 days, the time specified by O 52 r 5(2) of the Federal Court Rules , the applicant also seeks an order that compliance with that rule be dispensed with. I do not propose to explore the reasons why the applicant failed to make that application promptly or why he did not attend before the Federal Magistrates Court. The grant of the application for leave to appeal is, of course, discretionary. One matter of significance is that the Court should be satisfied that there is at least some arguable basis on which the appeal might succeed if leave to appeal is granted. It is to that topic that I turn. As the applicant did not attend the Federal Magistrates Court hearing and his application was dismissed for non-attendance, there are no reasons of the Federal Magistrate dealing with the merits of his application. I propose, nevertheless, to look at the Tribunal decision to see whether there is any prospect of the applicant succeeding on an appeal from that decision, assuming the events in the Federal Magistrates Court may be ignored. That is an assumption very much in the applicant's favour. So too is my preparedness to treat as a neutral factor in the exercise of my discretion his failure to appear at that Court and his delay in making his application to this Court. Before the Tribunal, the applicant made five claims upon which he said he had a well founded fear of persecution for a convention reason. Upon one or more of those claims he therefore asserted that he was a person to whom Australia owed protection obligations under the Refugees Convention, as amended by the Refugees Protocol so as to satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act. It was upon the satisfaction or otherwise of the existence of that criterion that the Tribunal affirmed the decision not to grant him a protection visa. The Tribunal was not satisfied that the applicant has a well founded fear of persecution for a convention reason if he returns to Pakistan in respect of any of the five grounds upon which he asserted the existence of such a fear. Those grounds were, firstly, that he had converted from Islam to Christianity and that if he were to return to Pakistan he would be persecuted for apostasy. Secondly, he claimed that he and his family had been targeted by Jihadi organisations since at least 1993 and that if he were to return to Pakistan he would be further persecuted by those organisations, the more so because he would be perceived as having changed his religion so as not to have to pay those organisations money.