MZYLU v Minister for Immigration and Citizenship

[2012] FCA 204

FEDERAL COURT OF AUSTRALIA

MZYLU v Minister for Immigration and Citizenship [2012] FCA 204

Citation:		MZYLU v Minister for Immigration and Citizenship [2012] FCA 204
Appeal from:		Application for extension of time: MZYLU & Anor v Minister for Immigration and Anor [2011] FMCA 812
Parties:		MZYLU and MZYLV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 1315 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 Applicants:	The first applicant appeared for herself and the second applicant with the assistance of an interpreter
Counsel for the Respondent:	Ms K Whittemore
Solicitor for the Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1315 of 2011

BETWEEN:

MZYLU
First Applicant

MZYLV
Second 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 applicants pay the costs of the first respondent.

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 1315 of 2011

BETWEEN:

MZYLU
First Applicant

MZYLV
Second 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 applicants have applied for an extension of time within which to appeal from a judgment of the Federal Magistrates Court, which dismissed their application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse to grant the applicants protection visas on the basis that they are not persons to whom Australia owes protection obligations.

2. The applicants are husband and wife and are citizens of Lithuania. They arrived in Australia on 27 June 2010. They applied to the Department of Immigration and Citizenship for protection visas on 9 August 2010. The first applicant wife is a member of the Russian minority in Lithuania which constitutes about five per cent of the Lithuanian population. She claimed that she would be persecuted in Lithuania because of her Russian ethnicity and because she is a member of the Russian Orthodox Church.  The second applicant husband applied for a protection visa as a member of the first applicant’s family unit.

3. On 30 September 2010, the delegate refused to grant the applicants protection visas.  The first applicant then applied to the Tribunal on 5 November 2010 for a review of the delegate’s decision. The applicants claimed before the Tribunal that they may face persecution should they relocate to another European Union (“EU”) country for reason of being “refugees”. They also claimed that they faced prosecution in Lithuania because the first applicant is a churchgoer who may be targeted by anti-religious people.

4. The Tribunal dismissed the applications on the basis that s 36(3) of the Migration Act 1958 (Cth) applied to the applicants as persons who had not taken all possible steps to avail themselves of a right to enter and reside in a country other than Australia. The Tribunal found that as Lithuanian citizens the applicants could relocate to other EU countries, namely, the United Kingdom and Sweden, where they did not face a real chance of persecution. The Tribunal found that Australia did not owe the applicants protection obligations as the applicants had not taken all reasonable steps to avail themselves of their right to enter and reside in another EU country.

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

   I fear returning to Lithuania. I want protection from [sic] Australia. I am a Russian citizen. 

   Federal Magistrate Burchardt held that the above appeal ground failed to establish any jurisdictional error in the Tribunal’s decision. His Honour held that it was open to the Tribunal, on the evidence before it, to find that the applicants had an enforceable right to reside, at least temporarily, in Sweden or the United Kingdom. His Honour further held that it was open to the Tribunal to find that the applicants would not reasonably fear persecution in or refoulement from those countries should they reside there. His Honour noted that the Tribunal’s decision was the correct one, and that it was “not attended by any error, let alone jurisdictional error”; see at [20].

6. The applicants now apply for an extension of time within which to file a notice of appeal from his Honour’s decision. In their proposed notice of appeal the applicants raise the following ground of appeal:

   In person [sic] denial of procedural fairness [at] RRT. 

   I have examined the reasons of the Tribunal and the judgment of the court below.  The former is free of jurisdictional error and the latter is free of appealable error. In addition, the current appeal ground was not raised in the court below and no leave has been sought to raise it here. 

7. It would be futile to extend time to permit the filing and serving of a notice of appeal, notwithstanding that the applicants are only eight days out of time.  That is because any such appeal would be bound to fail.  No basis has been advanced for the claim that the Tribunal denied procedural fairness to the applicants.  The application must be dismissed with costs.  The formal order of the Court is as follows:

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

   2.The applicants pay the costs of the first respondent.

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:       8 March 2012