MZYGN v Minister for Immigration and Citizenship
[2010] FCA 1015
FEDERAL COURT OF AUSTRALIA
MZYGN v Minister for Immigration and Citizenship [2010] FCA 1015
Citation: MZYGN v Minister for Immigration and Citizenship [2010] FCA 1015 Appeal from: MZYGN v Minister for Immigration and 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: 24 August 2010 Corrigendum: 22 November 2010 Legislation: Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)(ii)
Migration Act 1958 (Cth), ss 36, 424AA, 424A, 424A(3)Cases cited: MZYGN v Minister for Immigration and Anor [2010] FMCA 234 referred to Date of hearing: 24 August 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the appellant: The appellant did not appear Counsel for the first respondent: D Brown Solicitor for the respondents: Australian Government Solicitor FEDERAL COURT OF AUSTRALIA
MZYGN v Minister for Immigration & Citizenship [2010] FCA 1015
CORRIGENDUM
1.In paragraph 5 of the Reasons for Judgment, in the second sentence, the word “Punjabi” should read “Hindi”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Date: 22 November 2010
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
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
24 AUGUST 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal.
2. The appellant pay the first respondent’s costs of the appeal.
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
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE:
24 AUGUST 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This appeal from a judgment of the Federal Magistrates Court was listed for hearing this morning. On the appeal being called on, the appellant was not in attendance and was not represented. The appellant did not answer the call of his name outside the courtroom.
The appeal is from the judgment published as MZYGN v Minister for Immigration and Anor [2010] FMCA 234, given on 13 April 2010. The learned federal magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), the second respondent to the appeal. The Tribunal affirmed a decision of the delegate of the first respondent to the appeal, the Minister for Immigration and Citizenship (“the Minister”), refusing to grant the appellant a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) (“the Migration Act”).
Upon the appellant failing to answer the call of his name, I invited submissions from counsel for the Minister as to how the appeal should be dealt with. Counsel indicated the Minister’s preference for having the appeal dealt with on the merits. It does seem to me that, if the appeal were dealt with on the merits, there might be a point that is at least arguable in favour of the appellant.
The Tribunal affirmed the decision of the Minister’s delegate for the reason that it found that it would be reasonable for the appellant to relocate within India. This was on the basis that the Tribunal had found in favour of the appellant that, if he were to return to his home in Punjab, there was a real chance that he would suffer persecution for the reason of his religious belief. The appellant is a Christian, who claimed that he had suffered persecution at the hands of extremist Hindu organisations in Punjab. If it were the case that there was a real chance of persecution of the appellant should he return to Punjab, and if he were not able to relocate within India, the Tribunal would have found that he was a person to whom Australia had protection obligations pursuant to the relevant Convention. That would have qualified the appellant for a protection visa, pursuant to s 36 of the Migration Act.
One of the factors that the Tribunal took into account in determining that it would be reasonable for the appellant to relocate within India was a finding of fact that the appellant spoke both Hindi and Punjabi. If the Tribunal had information that the appellant spoke Punjabi, and if that information was part of the reason for affirming the decision of the delegate of the Minister, then the Tribunal may have had an obligation under either s 424A or s 424AA of the Migration Act to give the appellant particulars of the information and to ensure that he understood the relevance of the information to the decision to be made, and to invite the appellant to comment on or respond to the information. In the case of s 424AA, the Tribunal could do those things orally. In the case of s 424A, it was required to do them in writing. A failure to comply with either of those on the part of the Tribunal might have entitled the appellant to succeed on his application for review in the Federal Magistrates Court. Such a failure would appear to amount to jurisdictional error on the part of the Tribunal.
At [21] of his reasons for judgment, the federal magistrate took the view that the finding of fact about the appellant’s ability to speak both Hindi and Punjabi was not a part of the reason for decision, because it did not undermine the appellant’s claims. It is possible that this reasoning amounted to error on the part of the federal magistrate if, in fact, there were jurisdictional error on the part of the Tribunal of the kind to which I have referred. In order to determine whether there was such jurisdictional error on the part of the Tribunal, it would be necessary to obtain a transcript of the hearing before the Tribunal, to ascertain whether the Tribunal complied with s 424AA in relation to any information it had about the appellant’s capacity to speak Hindi. It would also be necessary to consider whether that information fell within any of the exceptions in s 424A(3) of the Migration Act.
For these reasons, I am reluctant to dismiss the appeal on the merits. It may be that the appellant has been prevented from attending today by reason of circumstances beyond his control. If so, and if the appeal were dismissed on the basis of his failure to appear, then he might apply successfully to have the order dismissing the appeal set aside and to have his appeal heard in the future. In those events, the question whether he had a good ground of appeal could be investigated properly, particularly by examining the transcript of the Tribunal’s hearing. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to dismiss the appeal by reason of the failure of the appellant to attend a hearing relating to the appeal. Such a failure has occurred, and it is for that reason that I propose to dismiss the appeal.
Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the appeal. Such an order accords with the general principle that costs follow the event, which suggests that the unsuccessful party to a proceeding normally pays the costs of the successful party. Nothing in the circumstances of this case presents an obstacle to the application of the normal principle. Accordingly, the appellant will be ordered to pay the Minister’s costs of the appeal.
The orders of the Court are:
1.The appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal.
2. The appellant pay the first respondent’s costs of the appeal.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 15 September 2010
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