FEDERAL COURT OF AUSTRALIA

MZYMO v Minister for Immigration and Citizenship [2012] FCA 144

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

1    The appellant appeals from a decision of the Federal Magistrates Court which dismissed an application by him for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”): see MZYMO v Minister for Immigration and Citizenship [2011] FMCA 793.

background

2    The appellant is a dual citizen of Romania and Moldova. He arrived in Australia on 22 August 2010. He entered on a tourist’s visa. He applied to the Department for a protection visa on 29 September 2010. A delegate of the Minister refused to grant a visa. The appellant applied to the Tribunal for a review of the delegate’s decision.

3    The appellant claimed to have left Romania and Moldova because the countries were under Mafia control and that he had been forced to pay protection money monthly to the Mafia. The appellant claimed that, if he failed to pay the protection funds, he would be beaten up and put in hospital and that the police were part of the Mafia. The Mafia had the support of the authorities. The appellant worked in Sachel village, Romania where he was offered a logging job. He worked there for three years before his employer started defaulting in making payment of its debts. He reported this to the local police. They did nothing. He and a friend went to Bucharest to report the company. An inspection authorised by officials in Bucharest discovered that the logging was illegal. In the meantime the appellant relocated to Moldova and worked as a taxi driver. He claimed that he had received a call from an unknown person in Sachel who informed him that men from the illegal logging company had been prosecuted because of him “whistle-blowing” and that he should pay compensation for this. He refused and was beaten up by two Romanians one night. He began paying money each month and continued to do so for two years.

the Tribunal

4    The Tribunal found that the appellant had not exaggerated his claims. It found general support in the country information, both with respect to the illegal logging problem in Romania, and also with respect to the corruption and Mafia activity which pervades both Moldova and Romania. The Tribunal found that the appellant could be classed as a member of a social group comprising “whistleblowers”. It also found, however, that there was no evidence to support the claim that the appellant had been targeted for reason of his membership of the group or for reason of his membership of any other group. The Tribunal considered that the evidence suggested that the appellant was targeted as an individual.

5    The Tribunal was not satisfied that there was any Convention related reason for the harm the appellant faced from Romanian criminals in circumstances where there appeared to be a failure of State protection in both Romania and Moldova. The Tribunal also found that s 36(3) of the Migration Act 1958 (Cth) (“the Act”) applied to the appellant as a person who had not taken all possible steps to avail himself of the right to enter and reside in a country other than Australia. As the appellant is Romanian, and, therefore, an EU citizen, he had a presently existing, and enforceable, right to enter and reside in other EU countries, and, therefore, he did not face a real chance of persecution or risk refoulement to another country where he would face such a threat.

the federal magistrates court proceedings

6    The appellant’s application for judicial review of the Tribunal’s decision was founded on a single ground. It was that:

“1.    Requires protection because life at risk.”

7    The Federal Magistrate held that the Tribunal approached the task of determining a Convention nexus correctly and made findings that were open to it. She also held that, under s 36(3) of the Act, Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in any country apart from Australia. The Federal Magistrate found that it was open to the Tribunal to find that there was no evidence to support the appellant’s claim that the Romanian Mafia operated in other parts of Europe.

apPEAL to this court

8    The appellant’s appeal to this Court raised two related grounds neither of which had been relied on in the Federal Magistrates Court. They were:

“1.    Denial of procedural fairness at RRT

2.    Denial of natural justice”

9    The appellant appeared in person on the hearing of his appeal this afternoon. He had the assistance of an interpreter.

10    When asked to elaborate on his grounds of appeal he said “my only reasons are of a personal nature”. He said that he could not return to his home because the Mafia was looking for him. If he did not respond to their demands they may kill him. He also said that he feared for his family.

11    The appellant presented a letter from his wife which he had received through the internet about a month ago. The letter referred to demands being made on him by unnamed persons for monetary payments. It had been necessary for him to sell all vehicles in his mini bus fleet. He had nothing left to meet such demands. His wife said that they “chose Australia” as a country to come to because it was as far away as possible from the location of their problems.

12    The appellant’s oral submissions on the merits of his claims were substantially the same as those which he had advanced before the Tribunal. His wife’s letter (which, of course, had not been before the Tribunal) confirmed these claims. The claims had been accepted by the Tribunal.

13    The reason that the appellant’s claim had been rejected by the Tribunal was that he had the right to enter and reside in a country within the EU. It did not accept his claim (which was reiterated in oral submissions in reply this afternoon) that the Mafia would be able to track him down anywhere in the EU.

14    There is nothing in the material to support the appellant’s contention that he was denied natural justice or procedural fairness by the Tribunal. No other reviewable error was identified.

DISPOSITION

15    The appeal must be dismissed with costs.

Associate:

Dated:    27 February 2012