MZYGN v Minister for Immigration and Citizenship (No 2) [2010] FCA 1369 (23 November 2010)

Last Updated: 8 December 2010

FEDERAL COURT OF AUSTRALIA

MZYGN v Minister for Immigration and Citizenship (No 2) [2010] FCA 1369

Citation:	MZYGN v Minister for Immigration and Citizenship (No 2) [2010] FCA 1369
Appeal from:	MZYGN v Minister for Immigration & Anor [2010] FMCA 234
Parties:	MZYGN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	VID 303 of 2010
Judge:	GRAY J
Date of judgment:	23 November 2010
Legislation:	Migration Act 1958 (Cth) ss 5(1), 36, 424AA, 424A, 424A(1), 424A(3)(ba) Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967
Cases cited:	MZYGN v Minister for Immigration and Citizenship [2010] FCA 1015 discussed MZYGN v Minister for Immigration & Anor [2010] FMCA 234 discussed
Date of hearing:	23 November 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	21
The appellant appeared in person
Counsel for the first respondent:	Mr D Brown
Solicitor for the respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 303 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZYGN Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	23 NOVEMBER 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The motion the subject of the appellant’s notice of motion, filed on 7 October 2010, be dismissed.
   
2. The appellant pay the first respondent’s costs of the notice of motion, fixed at $750.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 303 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZYGN Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GRAY J
DATE:	23 NOVEMBER 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 24 August 2010 I dismissed the appellant’s appeal to this court for failure of the appellant to attend a hearing relating to the appeal. I also ordered that the appellant pay the first respondent’s costs of the appeal. By notice of motion filed on 7 October 2010 the appellant seeks that his appeal be reinstated. Such reinstatement would require the setting aside of the orders made on 24 August 2010.
2. In an affidavit, also sworn and filed on 7 October 2010, the appellant has given an explanation for his absence on 24 August 2010. He was intending to come from his home at Merrigum to Melbourne for the hearing, but he missed the train. Because of his lack of English, he asked a friend to assist him to travel to Melbourne. The friend has a job and was required to attend at his workplace, so did not assist. Counsel for the first respondent, the Minister for Immigration and Citizenship (“the Minister”), has informed me that the notice of motion and affidavit were not served on the Minister. This is confirmed by the fact that the appellant produced the copies of those documents intended for service in Court this morning.
3. The Minister takes no point about non-service, but argues that the appellant’s excuse for his absence is inadequate. I disagree. I am prepared to accept the appellant’s explanation for his absence. The difficulties for a person with little or no English in attempting to use public transport can be great.
4. My acceptance of the appellant’s explanation does not result in the reinstatement of the appeal. Before I set aside the orders made on 24 August 2010, I would need to be satisfied that the appellant has an arguable case on his appeal. If there is no ground on which the appeal could succeed, then there is no utility in having the appeal reinstated. For this reason, it is necessary to examine the circumstances of the appeal in some detail.
5. The appellant is a citizen of India who arrived in Australia on 2 September 2008. On 13 October 2008, he applied for a protection visa. On 10 December 2008, a delegate of the Minister refused to grant the appellant a protection visa. The appellant applied to the Refugee Review Tribunal (“the Tribunal”), the second respondent to the appeal, for review of the decision of the Minister’s delegate. The Tribunal conducted hearings on two occasions, 12 March 2009 and 27 March 2009, at which the appellant gave evidence and presented arguments through an interpreter in the Punjabi language. By a decision dated 17 August 2009 and notified to the appellant by letter dated 18 August 2009, the Tribunal affirmed the decision not to grant the appellant a protection visa.
6. By s 36 of the Migration Act 1958 (Cth) (“the Migration Act”), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these two instruments, taken together, as the “Convention”. For present purposes, it is sufficient to say that, pursuant to the Convention, Australia has protection obligations to a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country

7. The appellant claimed that he had a well-founded fear of persecution, if he should return to India, by reason of his religion. He said that he had become an active Christian and had been subject to attacks and threats by extremist Hindu organisations, Shiv Sena and Bajrang Dal, by reason of his religious activities. Relying on the appellant’s evidence, and on information from sources other than the appellant about circumstances in India, the Tribunal found in favour of the appellant that, if he were to return to Punjab, he would be liable to persecution from the extremist organisations. The Tribunal also found that state protection would not be available to him in accordance with international standards.
8. The Tribunal found against the appellant that it was open to him to relocate within India, to one of several areas where there are majority or significant Christian communities. The Tribunal rejected specifically claims by the appellant that the persecution by the extremist organisations would follow him wherever he went in India. In reaching its conclusion that it was open to the appellant to relocate within India, the Tribunal made a finding that the appellant speaks both Hindi and Punjabi. It therefore found that language difficulties would not be an insurmountable barrier to his ability to set up a business in another part of India. The appellant did not therefore have a well-founded fear of persecution in India as a whole, but only in Punjab.
9. The appellant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal’s decision. The reasons for judgment of the learned federal magistrate, given on 12 March 2010, are published as MZYGN v Minister for Immigration & Anor [2010] FMCA 234. The learned federal magistrate dealt with the three grounds in the appellant’s amended application to that court. His Honour rejected the first ground because it raised allegations of membership of a particular social group and political opinion, on which the appellant had not relied before the Tribunal.
10. The second ground relied on s 424A of the Migration Act. That section imposes on the Tribunal certain obligations with respect to information that it considers would be the reason, or part of the reason, for affirming a decision. The Tribunal is obliged to give particulars of that information, an explanation of its relevance, and an invitation to comment on or respond to it in writing. There are exceptions to these obligations. The first, found in subs (2A), is if during a hearing the Tribunal has given oral particulars of the information, and has invited an applicant to comment on, or respond to it. Other exceptions are found in subs (3). Paragraph (ba) of subs (3) creates an exception with respect to information given by the applicant during the process leading to the decision under review, unless that information was provided orally.
11. The attention of the federal magistrate was drawn by counsel for the Minister to the Tribunal’s finding that the appellant spoke both Hindi and Punjabi. His Honour expressed the view that this information was not part of the reason for decision, and did not undermine the appellant’s claims. In respect of other information relied on by the Tribunal, the federal magistrate took the view that exceptions in s 424A(3) applied.
12. The third ground raised the question whether the Tribunal had applied the wrong test, in determining that the appellant could relocate. His Honour considered that the Tribunal had considered properly the appellant’s circumstances. The federal magistrate also referred to attempts by the appellant to reargue the facts before him. His Honour recognised that these attempts could not assist the appellant. His Honour therefore dismissed the application for judicial review.
13. There is only one ground in the appellant’s notice of appeal filed in this Court. By that ground the appellant seeks to raise the question of failure by the Tribunal to comply with s 424A of the Migration Act. The notice of appeal does not specify the information that the appellant says the Tribunal relied on but did not disclose to him.
14. My reasons for judgment when I dismissed the appeal for non-attendance on 24 August 2010 are published as MZYGN v Minister for Immigration and Citizenship [2010] FCA 1015. In those reasons for judgment at [3] I identified that there might be a point at least arguable in favour of the appellant. At [4] and [5], I referred to the Tribunal’s conclusion that the appellant could relocate and to its finding that the appellant spoke both Hindi and Punjabi. If the Tribunal had information to this effect, falling within s 424A, and had not complied with its obligations under either that section or s 424AA, there might have been jurisdictional error on the part of the Tribunal. At [6], I suggested that, if there were such jurisdictional error, it might be that there was error on the part of the federal magistrate in saying that the finding about speaking both Hindi and Punjabi was not part of the reasons for decision and did not undermine the appellant’s claims. I said that, to determine the issue, it would be necessary to obtain a transcript of the hearing before the Tribunal, in order to ascertain whether it had complied with s 424AA in relation to information about the appellant’s capacity to speak Hindi. I also said that it would be necessary to consider whether the information fell within any of the exceptions in s 424A(3) of the Migration Act. At [7], I said that, for those reasons, I was reluctant to dismiss the appeal on the merits.
15. Since that time, in preparing to deal with the appellant’s notice of motion, I have examined more closely the documents found in the appeal book. They reveal that, in his application for a protection visa, the appellant stated in writing that he spoke both Punjabi and Hindi. Assuming that this was the information on which the Tribunal relied to make its finding that the appellant spoke both Punjabi and Hindi, the Tribunal had no obligation under s 424A of the Migration Act to give the appellant particulars of the information, or an indication of its relevance, or an invitation to comment on or respond to it. The information fell within the exception in s 424A(3)(ba), as information that the appellant gave during the process that led to the decision under review.
16. Accordingly, even if the federal magistrate took the wrong view about the consequences of using information without complying with s 424A(1) of the Migration Act, the appellant could not succeed on his appeal in relation to the particular information.
17. In his submissions to me today, the appellant did not refer to any other information on which his ground of appeal might be made out. The appellant attempted to persuade me that, as a matter of fact, he would not be safe anywhere in India if he should return. This is not a ground on which the appellant’s appeal could succeed. As I have said, in its reasons for decision, the Tribunal dealt specifically with the issue of safety in relocation. It found against the appellant on that issue. The fact that the Tribunal could, or even should, have reached the opposite conclusion did not provide any ground on which the appellant could have succeeded in his application for judicial review in the Federal Magistrates Court. That fact cannot, therefore, provide any ground for this Court to say that there was error on the part of the federal magistrate.
18. The appellant was unable to point to any other ground on which his appeal might succeed. I have read carefully the Tribunal’s reasons for decision and the federal magistrate’s reasons for judgment. I have been unable to discern any other ground on which the appellant’s appeal could succeed. The appeal is therefore futile. There is no point in setting aside the earlier order dismissing the appeal. The motion the subject of the appellant’s notice of motion must be dismissed.
19. Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the notice of motion. Such an order is in accordance with the normal principle that an unsuccessful party pays the successful party’s costs. The appellant says that he has no money to pay costs. The fact that an unsuccessful party has no money is not normally regarded as a reason for refusing to make an order. Whether the Minister attempts to enforce the order is a matter for the Minister.
20. Counsel for the Minister has asked that I fix the costs in the amount of $750. Such an order appears to me to be reasonable in the circumstances. I am aware that the Minister did not incur costs in preparation for the hearing of the motion. Counsel for the Minister is only here as a result of seeing the matter in the Court list. Nevertheless, $750 seems to me to be a reasonable amount to cover the appearance, on behalf of the Minister, for the majority of the morning. For these reasons, I propose to make the orders sought by the Minister.
21. The orders I make are as follows:
    
    1. The motion the subject of the appellant’s notice of motion, filed on 7 October 2010, be dismissed.
       
    2. The appellant pay the first respondent’s costs of the notice of motion, fixed at $750.
       

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 7 December 2010