MZYLT v Minister for Immigration and Citizenship

[2012] FCA 205

FEDERAL COURT OF AUSTRALIA

MZYLT v Minister for Immigration and Citizenship [2012] FCA 205

Citation:		MZYLT v Minister for Immigration and Citizenship [2012] FCA 205
Appeal from:		MZYLT v Minister for Immigration & Anor [2011] FMCA 810
Parties:		MZYLT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 1316 of 2011
Judge:		MARSHALL J
Date of judgment:		2 March 2012
Legislation:		Migration Act 1958 (Cth) s 36(3)
Date of hearing:	2 March 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	The applicant appeared for himself with the assistance of an interpreter
Counsel for the Respondents:	Ms K Whittemore
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1316 of 2011

BETWEEN:

MZYLT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	2 MARCH 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

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

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1316 of 2011

BETWEEN:

MZYLT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	2 MARCH 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time within which to appeal from a judgment of the Federal Magistrates Court which dismissed his application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Lithuania and arrived in Australia on 27 June 2010.  On 9 August 2010 he applied to the Department of Immigration and Citizenship for a protection visa.  A delegate of the respondent Minister refused to grant the visa on 30 September 2010.  On 5 November 2010 the applicant applied to the Tribunal for a review of the delegate’s decision. 

3. The applicant claims to be at risk of persecution if returned to Lithuania in the reasonably foreseeable future because he is of Russian ethnicity. He claims that Russians make up five per cent of the population in Lithuania and are treated like second-class citizens.  The applicant further claims that he is a member of the Russian Orthodox Church and that he cannot practice his religion in Lithuania.

4. The Tribunal held that s 36(3) of the Migration Act 1958 (Cth) applied to the applicant as a person who had not taken all possible steps to avail himself of a right to enter and reside in a country other than Australia, and that therefore Australia did not owe him protection obligations. The Tribunal found that as a Lithuanian citizen the applicant could relocate to other EU countries, namely the United Kingdom and Sweden, where he did not face a real chance of persecution. The Tribunal further found that there was no real chance that any EU country would refoule the applicant should he enter its jurisdiction. It specifically considered the possibility of the applicant residing in United Kingdom or Sweden. It found that the applicant did not have a well founded fear that either country would return him to another country where he would be at risk.

5. The applicant sought judicial review of the Tribunal’s decision before the Federal Magistrates Court on the following ground:

   I am scared to go back to Lithuania.  I fear for my safety.  I seek protection from [sic] Australia.

   The Federal Magistrate dismissed the applicant’s application. His Honour stated that the Tribunal’s finding that the applicant had an enforceable right to reside, at least temporarily, in either Sweden or the United Kingdom was clearly open to it on the evidence before it.  His Honour also held that the Tribunal’s finding that the applicant would not face reasonable fear of persecution in those countries, or refoulement from them, was open to it on the material before it.

6. The applicant now applies for an extension of time within which to file a notice of appeal from his Honour’s decision. In his proposed notice of appeal the applicant seeks to rely on two grounds:

   1. Denial of procedural fairness at RRT[; and]
   2. Denial of natural justice.

   No attempt was made to articulate the basis upon which such grounds were said to be established.  Further, those grounds were not raised before the court below and no leave has been sought to raise them on appeal. 

7. Having reviewed the decision of the Tribunal, I am not satisfied that any such errors have been committed. Further, no basis has been established to show that the Court below made an appealable error. The proposed appeal has no prospect of success.  It would be futile to extend the time to permit the proposed appeal grounds to be raised.  The Court will order as follows:

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

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

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       9 March 2012