FEDERAL COURT OF AUSTRALIA

MZYBB v Minister for Immigration and Citizenship [2008] FCA 2016

Migration Act 1958 (Cth), ss 5(1), 36, 91R, 91R(2)

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

MZYBB v Minister for Immigration & Anor [2008] FMCA 1462 affirmed

MZYBB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 824 of 2008

GRAY J

28 NOVEMBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This appeal is from a judgment of the Federal Magistrates Court of Australia given on 12 September 2008 and published as MZYBB v Minister for Immigration & Anor [2008] FMCA 1462.  The learned federal magistrate dismissed an application to reinstate a proceeding in the Federal Magistrates Court that had been dismissed previously on the basis of the appellant’s failure to attend a directions hearing.  The original proceeding in the Federal Magistrates Court was an application by the appellant, seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”), the first respondent to this appeal, refusing to grant to the appellant a protection visa. 

2                     The appellant is a citizen of Pakistan.  He arrived in Australia on 5 February 2007 in possession of a tourist visa, which was granted to him while he was in Brunei.  On 16 March 2007, he applied for a protection visa.  The decision of the Minister’s delegate refusing to grant that visa was made on 28 June 2007.  The Tribunal’s decision affirming the decision not to grant a protection visa was signed on 1 May 2008 and handed down or sent on 22 May 2008.

3                     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 call these two instruments, taken together, the Convention.  For present purposes, it is sufficient to note 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

4                     The appellant’s claim for a protection visa invoked the Convention ground of political opinion.  It was based on his claim to have been an official of the Pakistan Peoples Party Parliamentarian (“the PPPP”), in his home state in the north of Pakistan.  He said that, because of his activities on behalf of the PPPP, he feared persecution at the hands of political opponents.  He gave a substantial account of what he claimed had happened to him in Pakistan in writing, and a further substantial account in oral evidence at a Tribunal hearing.

5                     The Tribunal devoted more than 37 pages to setting out its detailed reasons for decision.  The Tribunal rejected a good deal of the appellant’s claims, partly because of inconsistencies in his evidence, partly because of the Tribunal’s assessment of the quality of his evidence, and partly because of information from sources other than the appellant about circumstances within Pakistan.  The Tribunal did not accept that the appellant had the political profile that he claimed.  In part, this was because the appellant was unable to give the Tribunal an account of political circumstances in Pakistan at the time of the Tribunal hearing.  The Tribunal also rejected the appellant’s account of what had happened to him in Pakistan.  In particular, it rejected the claim that he had been assaulted and injured severely as a result of his involvement in political activities.  The Tribunal found there were significant inconsistencies in the appellant’s evidence regarding payment of bribes to secure visas.  It did not accept his evidence about treatment by his employer in Brunei, or discrimination against him in Brunei, on the ground that he was from Pakistan.  The Tribunal found that the appellant had travelled from Pakistan to Brunei for employment purposes, on several occasions, without difficulty.  In the light of changes in government in Pakistan by the time of the Tribunal’s decision, the Tribunal found that reasonable state protection would be available to the appellant in Pakistan in any event.  It also found that he could relocate within Pakistan without significant difficulty. 

6                     At the Tribunal hearing, the appellant also attempted to raise for the first time claims based on the issue of his race or ethnic origin and his membership of a particular social group, namely a small family in a region of large families.  The Tribunal rejected these grounds as well.  The Tribunal concluded it was not satisfied that the appellant had a well-founded fear of Convention-related persecution at the time of the Tribunal decision, or in the reasonably foreseeable future, if he should return to Pakistan. 

7                     In his original application to the Federal Magistrates Court, the appellant relied on some six grounds in an endeavour to establish jurisdictional error on the part of the Tribunal.  Clearly he had some assistance from a migration agent and lawyer in relation to the formulation of those grounds.  Nevertheless, to a large extent, the grounds seek to reagitate issues of fact in the Federal Magistrates Court.  The federal magistrate dealt with each of the grounds that were advanced.

8                     The first ground alleged that the Tribunal misinterpreted the Convention criterion in saying that the test was whether the Pakistani Government was unable or unwilling to protect the appellant.  The correct test was that the appellant was unable or unwilling to avail himself of the protection of Pakistan.  The federal magistrate rejected this ground.  His Honour said that the Tribunal had found that the appellant was not at risk.  His Honour also pointed out that the Tribunal had found that the appellant did not face a real chance of persecution in the reasonably foreseeable future and that, accordingly, there was no need for him to have protection from the state.

9                     The second ground was that the appellant’s claims were capable of demonstrating that the persecution he feared was persecution for the reason of perceived political opinion, and the Tribunal erred in treating that material as not coming within the ambit of s 91R(2) of the Migration Act.  Section 91R of the Migration Act provides, for the benefit of decision-makers dealing with protection visa applications, a restricted definition of persecution.  Subsection (2) provides specific examples of serious harm, which is an essential element of persecution.  It is difficult to see how the Tribunal could be accused of not treating the material advanced by the appellant as coming within s 91R(2) when the Tribunal found, as a matter of fact, that it was not satisfied that that material was correct.  In effect, the ground seeks the court’s redetermination of the facts.  The federal magistrate pointed out that almost the entirety of the case related to the question whether the political opinions asserted by the appellant were his political opinions and whether, if they were, they rendered him liable to persecution.  The Tribunal certainly considered those matters.

10                  The third ground agitated the question of the provision of medical evidence to the Tribunal.  The appellant relied on the fact that he had provided a medical report to the Tribunal concerning hospitalisation as a result of an attack that he suffered, but the Tribunal did not accept that the attack was for a Convention related ground.  The assertion was that this conclusion was hard to reconcile with the other information relied on by the Tribunal about circumstances in Pakistan, particularly about political violence.  As the federal magistrate pointed out, the Tribunal certainly considered the material put forward, which demonstrated that the appellant had sought medical treatment for a scalp wound.  The Tribunal, quite correctly, pointed out that the medical report did not indicate the motivation for the infliction of this wound and its support for the appellant’s case was therefore limited.  The ground really raises a contest on the facts, which was not a matter for the court.  As the federal magistrate said, the Tribunal’s conclusion about the medical report was certainly not so unreasonable that no reasonable decision-maker could have reached that conclusion.

11                  The fourth ground sought to agitate factual questions about the level of political violence in Pakistan and the question whether the appellant had renounced his membership of the PPPP at the Tribunal hearing, as the Tribunal found he had.  Again, this ground seeks to raise questions of fact.  Even if it were the case that the Tribunal was in error as a matter of fact in concluding that the appellant had renounced his membership of the PPPP, the court could not interfere.  As long as it acts within its jurisdiction, the Tribunal is entitled to reach wrong conclusions.  I am not to be taken as saying that the Tribunal did reach a wrong conclusion when it found that the appellant had renounced his membership of the PPPP.  In the course of the hearing, he was asked if he would rejoin the PPPP if he returned to Pakistan and he did not give a firm indication about what he might do in the future.  This is what the Tribunal took to be a renunciation of the membership.  It was clearly open to the Tribunal to take into account the fact that the appellant did not give a decisive answer to the question whether he would continue his political activity if he returned to Pakistan.

12                  The fifth ground suggested that the fact that the appellant was able to obtain a passport and that the PPPP was now part of a coalition government in Pakistan, did not imply that there would be the availability of state protection should the appellant be persecuted by his political opponents.  Again, this was a matter of fact for the Tribunal.  It was certainly relevant for the Tribunal to take into account that the appellant was able to obtain a passport in Pakistan.  That fact clearly indicated that the Pakistani government did not regard him as a person of concern.  It was also highly relevant that the party to which the appellant claimed he belonged, and in which he claimed he was an active official, was now in government in Pakistan.  That fact bore heavily upon the availability of state protection in the event that the appellant’s political opponents should seek to harm him.

13                  The sixth ground was that the Tribunal had erred in its conclusion relating to the relocation test.  The Tribunal discussed the authorities on the relocation test at some length and distinguished clearly between relocation within Pakistan on the one hand and being required to conduct political activity covertly on the other.  I am satisfied, from reading the Tribunal’s reasons, that it understood well the difference between those two and that it applied the relocation test correctly.  As the federal magistrate pointed out, relocation only became an issue if the Tribunal had been wrong about the appellant’s lack of a well-founded fear of persecution.  The application of the relocation test was not decisive of the Tribunal’s conclusion.

14                  When the appellant lodged his application for review of the Tribunal’s decision in the Federal Magistrates Court, it was listed for directions before a registrar of the court at 2.00 pm on 6 August 2008.  The appellant did not attend the directions hearing and the registrar dismissed the proceeding on the ground of his non-attendance.

15                  In support of his application to the federal magistrate to have the proceeding reinstated, the appellant relied on an affidavit in which he said that he had been ill on the day of the directions hearing.  In the affidavit, he said that, on the morning of 6 August 2008, he was unwell and went and saw his doctor who issued him with a medical certificate.  He then immediately telephoned the Federal Magistrates Court and told a person there that he was too unwell to attend the afternoon hearing and asked for an adjournment of the directions hearing.  That person told him that he would need to produce a medical certificate and supplied him with a fax number.  She also indicated to him that, if he did so, an adjournment would probably be granted.

16                  From the bar table today, the appellant has described to me a somewhat different order of events.  He says that he first rang the Federal Magistrates Court at about 9.30 am on 6 August 2008 and explained that he was feeling unwell.  He was told that he should supply a medical certificate in support of any application for adjournment of the directions hearing.  He then went to the doctor.  Before he could see the doctor, he had to wait for a friend of his to take him to the clinic.  Once he had the doctor’s certificate, he asked the friend’s assistance in conveying it by fax to the court registry.

17                  The copy of the medical certificate on the court file has a handwritten note indicating that it was received at approximately 3.30 pm on 6 August 2008.  The likelihood is that it was not before the registrar at the time when the proceeding was called on for directions.  The medical certificate itself is in standard form.  The standard form of medical certificate is extremely unhelpful to courts.  It certifies that the appellant is receiving medical treatment, and for the period from 6 August to 7 August 2008 inclusive, he will be unfit to continue his usual occupation.  As is common with such certificates, there is no indication of the nature of the illness from which the appellant was suffering, or of the nature of the medical treatment that he was said to be receiving.  Nor is there any indication as to whether the appellant would be fit to attend court for a directions hearing, as distinct from engaging in his usual occupation.  It would be helpful if members of the medical profession could give more specific certificates, particularly if they are told that such certificates are required for court proceedings.

18                  When the matter came before the federal magistrate, his Honour did not find that the registrar was in error in dismissing the application on the material that was before him at the time.  Even on the material before the federal magistrate, his Honour would have dismissed the application.  His Honour was concerned that neither the medical certificate nor the appellant’s affidavit explained why he was unable to come to court on the day in question.  Nevertheless, before dismissing the application to reinstate the proceeding, the federal magistrate considered at length the nature of the case brought forward by the appellant and only dismissed the proceeding when he reached the conclusion that none of the grounds set forth in the application would be sustainable.  In other words, the proceeding had no prospect of success and it would have been pointless to reinstate it only for the appellant to lose at a later time.

19                  I have examined in detail the reasons for decision of the Tribunal and the reasons for judgment of the federal magistrate.  I have been unable to detect any jurisdictional error on the part of the Tribunal and unable to detect any error on the part of the federal magistrate.  I agree with his Honour that the proceeding in the Federal Magistrates Court had no prospect of success.  I have heard submissions from the appellant through an interpreter today.  Not surprisingly, he has demonstrated a lack of understanding of issues of jurisdictional error and of the law.  I have endeavoured to explain to him that the facts were a matter for the Tribunal, not for the Federal Magistrates Court and not for this Court.

20                  The appellant did attempt to raise before me the argument that the hearing was nothing more than a formality and that it appeared that he was bound to lose the application in any event.  From my examination of the Tribunal’s reasons for decision, this certainly does not appear to have been the case.  The Tribunal fixed one date for a hearing.  The appellant did not attend at the appointed time, having contacted the Tribunal to say that he had over-slept as a result of fasting during Ramadan.  By the time the appellant reached the Tribunal, the Tribunal had discharged the interpreter who had been engaged for the purposes of the hearing and was therefore unable to proceed.  The Tribunal would have been within its rights to proceed without fixing a further hearing.  It did fix a date for a further hearing, however.  The appellant again arrived substantially late, but the Tribunal nonetheless heard him.  Its patience did not indicate a desire to deal with the case as a mere formality.  Nor are the Tribunal’s detailed reasons, covering as I have said more than 37 pages, an indication that the Tribunal treated the matter as a formality or as a foregone conclusion.  The Tribunal’s reasons are well-presented and, at various points when it could have decided against the appellant, the Tribunal made allowances of various kinds for his situation.  It was obviously not without difficulty that the Tribunal found against the appellant.  From my reading of its reasons for decision, it found against him on the facts, for reasons which are defensible in terms of reasoning and certainly in terms of the law.

21                  For all of these reasons, the federal magistrate was correct in refusing to reinstate the proceeding in the Federal Magistrates Court.

22                  As counsel for the Minister has pointed out, that judgment is probably characterised correctly as an interlocutory judgment and would ordinarily require leave to appeal.  If the appellant had been able to establish that he had good grounds of appeal, I should have been prepared to treat his appeal as an application for leave, granting any necessary enlargements of time for that purpose, and to give him leave, so that the substance of the matter could be dealt with.  As it is, there is no point in granting leave because the appellant’s appeal in any event would fail.  It is necessary, therefore, to dismiss the appeal.

23                  Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the appeal.  That order would be in accordance with the usual principle that costs follow the event.  The appellant has not advanced any reason why that principle should not be applied, other than the fact that he has no money.  The fact that a losing party is without means is not normally regarded as a reason for not making an order for costs.  I can see no other reason for not applying the usual principle.  The appellant will therefore be ordered to pay the Minister’s costs of the appeal.

24                  The Court orders that:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs of the appeal.

Associate:

Dated:         3 February 2009