FEDERAL COURT OF AUSTRALIA MZXOM v Minister for Immigration and Citizenship [2007] FCA 1715 MZXOM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL VID 628 OF 2007 GRAHAM J 5 NOVEMBER 2007 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 628 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXOM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 5 NOVEMBER 2007 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed as incompetent. 2. The appellant pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 628 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXOM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 5 NOVEMBER 2007 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 25 June 2007 Burchardt FM had before him an application for constitutional writ relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal') of 8 November 2006, which was handed down on 28 November 2006. In the absence of an appearance by the applicant – identified, for the purpose of the proceedings in the Federal Magistrates Court of Australia and also in this court, as MZXOM – his Honour made the following orders: '1. Pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001, the application filed on 19 January 2007 be dismissed for non-attendance of the Applicant at Court this day. 2. The Applicant is to pay the costs of the First Respondent, fixed at $5,000.00.' 2 The ground of the application filed 19 January 2007 had been expressed as follows: 1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction; PARTICULARS The tribunal has made a finding that the assaults he suffered amounted to serious harm for the purposes of s91R and that he has suffered persecution for a Convention reason, and also finds that state protection is not available in his local area, but that he could reasonably expect to relocate elsewhere within Malaysia. However the tribunal has not taken into account the principles of relocation as per Randhawa's case [a reference to the Full Court's judgment in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437]. Using the example of his stay in Australia to justify relocation is not a relevant factor. The unwillingness of the applicant to seek the protection is justifiable and this is supported by the Country Information the tribunal refers to and also supported by the tribunal in its conclusion. The country information would suggest that state protection would not be available throughout the whole country and not just restricted to the local area where the applicant resided.' 3 The reasons for judgment of the learned Federal Magistrate were as follows: '1. On 24 June 2007 the Applicant forwarded to the Registrar of the Federal Court of Australia a short note which relevantly said: I am sick and unable to attend the hearing on 25 June 2007. I enclosed medical certificate for you (sic) attention. 2. It is then signed by the applicant in his full name. The enclosed certificate which appears to be from a Dr Rob Rawet, although anybody who thinks they could decipher the signature would be doing well, and that certificate merely says that the name of the Applicant is unable to attend for, and then it is underlined "employment" (there is also a heading "other" which has not been addressed), from 25 June 2007 and there is no return date. In other words it is not from 25 June to 26 June, it is just for this one day. 3. The certificate however, curiously is dated 23 June 2007. It was forwarded by facsimile transmission, recorded at 12.22pm, which one might infer was the time at which the document was forwarded to the Applicant, but it may have been the time at which it was forwarded to the Court, but I note that there is another facsimile transmission record dated today at 9.01 in the morning which I suspect was when the letter was forwarded to the Court. 4. One would look with some hesitation at a history of that sort. It would appear that on Saturday, the doctor, assuming that it was a doctor who saw the Applicant, was able to forecast with some precision an incapacity on the part of the Applicant to attend for Monday, but not for any other day, for work. Whether that would be reasonably taken to be sufficient not to be able to attend Court might well be said to be open to some question. 5. Furthermore, the Applicant seems to have had a measure of prescience when he wrote on Sunday on (sic) 24 June 2007, he would be unable to attend today. One might infer that it is a relatively precise and curious form of illness that can be foreshadowed with such certainty. In these circumstances and bearing in mind the fact that no application for an adjournment has been made, rather the Court has been presented with a document purporting to present the Court with a fait accompli, I think that the request of counsel for the First Respondents (sic), that the matter be dismissed for non-attendance is eminently sound and I will make an order dismissing the application on that footing.' 4 The medical certificate of Dr Rawet of 23 June 2007 and the note of the appellant of 24 June 2007 are not presently before me and it is inappropriate for any findings to be made in respect of the interpretation of those documents and the facsimile imprints which appear on them. However, it does seem clear that when the matter was before the learned Federal Magistrate on 25 June 2007, which was a Monday, the appellant did not appear and there was no application made to the Federal Magistrates Court on that day for an adjournment. His Honour considered it appropriate in the circumstances to exercise the power of the Federal Magistrates Court under rule 13.03A of the Federal Magistrates Court Rules 2001 ('the Federal Magistrates Court Rules'), which relevantly provided as follows: '13.03A. If a party to a proceeding is absent from a hearing … the Court may do one or more of the following: … (c) if the party absent is an applicant – dismiss the application; …' 5 Under rule 16.05(2)(a) of the Federal Magistrates Court Rules the Federal Magistrates Court may set aside its judgment or order after it has been entered if the order was made in the absence of a party. No application has apparently been made by the appellant for an order in the Federal Magistrates Court seeking to have the orders of Burchardt FM of 25 June 2007 set aside. Rather, the appellant has filed a Notice of Appeal in this Court on 13 July 2007. 6 The appellant, who has described himself as the applicant in the Notice of Appeal, has not sought leave to appeal from the judgment of Burchardt FM on the basis that the learned Federal Magistrate's judgment was interlocutory within the meaning of s 24(1A) of the Federal Court of Australia Act 1967 (Cth) ('the Federal Court Act'). 7 The Notice of Appeal filed on 13 July 2007 records as the grounds of appeal simply: 'a. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction; b. The decision was a denial of procedural fairness and natural justice. PARTICULARS The Federal Magistrate has denied me the chance of presenting my case by refusing my application for an adjournment, which was a genuine application.' 8 On 13 July 2007 an affidavit, apparently sworn by the appellant, was filed in this Court, but such affidavit has not been read. 9 On 25 July 2007 the first respondent filed an appearance in this Court and the second respondent also appeared submitting to such order as the court may see fit to make, save as to costs. 10 On 27 July 2007 the first respondent filed a Notice of Objection to Competency in accordance with Order 52 rule 18 of the Federal Court Rules ('the Rules'). Order 52 rule 18 provides, relevantly: '18(1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent. (2) On the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.' 11 The Notice of Objection to Competency recorded the first respondent's objection to competency on the following grounds: '(a) the decision of Burchardt FM given on 25 June 2007 is an interlocutory judgment; (b) pursuant to section 24(1A) of the Federal Court of Australia Act 1976, an appeal cannot be brought from a judgment of the Federal Magistrates Court that is an interlocutory judgment unless the Court or a Judge gives leave to appeal; (c) no application for leave to appeal has been sought or obtained.' 12 The Notice of Appeal recorded that the papers in the appeal would be settled before the Registrar at a time to be advised. 13 The Notice of Appeal gave an address at a place at Kingsville in Victoria as the address of the appellant and also gave a telephone number at the foot of the first page of the Notice of Appeal. Another telephone number for the appellant was given in a 'Change of address and/or passport details' form dated 31 May 2005. 14 The Court's file includes a copy of a letter of 24 July 2007 directed to the appellant indicating that it was anticipated that the Court would hear this appeal in Melbourne during the sitting period 29 October 2007 to 23 November 2007. A further letter dated 10 September 2007 directed to the appellant at the address given in the Notice of Appeal recorded that the appeal had been fixed for hearing before me at 10.15 am today, Monday 5 November 2007. 15 The appellant did not appear when the matter was first called at about 10.15 am. His name was called three times outside the Court at about 10.20 am and again at about 10.42 am and he did not appear. 16 Between about 10.20 am and about 10.42 am, there was a short adjournment during which telephone calls were made to the two telephone numbers to which reference has been made, being the number appearing at the foot of the first page of the Notice of Appeal filed 13 July 2007 and the number appearing in the 'Change of address and/or passport details' form of 31 May 2005. The evidence before me indicates that neither telephone number was that of a current telephone service. 17 The first respondent has filed detailed written submissions on 31 October 2007. I am informed by counsel for the first respondent that those submissions were forwarded to the appellant on Tuesday, 30 October 2007, that is to say some six days ago. 18 The appellant having failed to appear, I have been asked by counsel for the first respondent to proceed to deal with the matter in the absence of the appellant, in accordance with Order 52 rule 38A(1)(d) of the Rules. That rule provides: '38A(1) If a party is absent when an appeal is called on for hearing, the Court may: … (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal.' 19 It seems to me that, in the light of the non-attendance of the appellant and the evidence concerning the disconnection or lack of connection of the relevant telephone services to which calls have been placed, the Court should proceed to deal with the appeal in the absence of the appellant. 20 The first respondent submits that the appeal should be dismissed as incompetent for the reasons indicated in the Notice of Objection to Competency. The first respondent further submits that had there been an application for leave to bring an application for leave to appeal out of time, such an application should fail. Finally, the first respondent has submitted that had the matter been the subject of an appeal and had special grounds been advanced for allowing that appeal to be brought out of time, the appeal should, in any event, be dismissed. 21 It seems clear to me that the judgment of Burchardt FM was an interlocutory judgment and that leave to appeal from it was required. In the absence of any application for leave to appeal from the learned Federal Magistrate's judgment, and to do so out of time, the objection as to competency should be upheld and the appeal dismissed as incompetent. 22 Had the matter come before me as an appeal founded upon a decision of the Federal Magistrates Court dismissing the application for constitutional writ relief following a hearing in that Court, I would have been disposed to dismiss the appeal. The reasons for the decision of the Tribunal of 8 November 2006, which were handed down on 28 November 2006, included the following: 'The Tribunal accepts, based upon the applicant's entry into Australia on a valid Malaysian passport, that he is a citizen of Malaysia. … … The Tribunal accepts that the applicant was assaulted on a few occasions by his work colleague and that person's associates, and that his Hindu religion played a part in the motivation of the attackers. … the Tribunal … accepts that these assaults amounted to serious harm for the purposes of s 91R of the Migration Act 1958, and that the applicant has therefore suffered persecution for a Convention reason. However, for the reasons explained below, the Tribunal finds that these incidents were localised, and that even if that were (sic) state protection were not available in his local area, that he could reasonably and safely relocate elsewhere within Malaysia. [I would interpolate that I understand the Tribunal Member to have intended to say in the last paragraph quoted, words to the effect – "the Tribunal finds that these incidents were localised, and that even if state protection were not available in his local area, he could reasonably and safely relocate elsewhere within Malaysia."] … … the Tribunal is not satisfied that there exists in Malaysia a reasonably effective police force and a reasonably impartial system of justice. … it … concludes … that the applicant's unwillingness to avail himself of state protection may in all the circumstances be justified. The Tribunal must therefore consider the applicant's claim that he cannot safely and reasonably relocate within Malaysia. … the Tribunal has found that the persecution which the applicant experienced in the past was only locally based and did not extend to the country as a whole. … the Tribunal … finds that the applicant could reasonably be expected to relocate to another part of Malaysia. Accordingly, the Tribunal finds that the applicant does not face a real chance of persecution in Malaysia now or in the foreseeable future for a Convention reason.' 23 As I understand the reasons of the Tribunal, the Tribunal Member was not satisfied that the appellant had a well-founded fear of persecution in Malaysia, even though it found that the appellant had been persecuted in the area in which he had been working, that there was not a reasonably effective police force and impartial system of justice in Malaysia and that the appellant's unwillingness to avail himself of state protection was, in all the circumstances, justified. 24 Under s 65(1)(a)(ii) of the Migration Act 1958 (Cth) ('the Migration Act') the Minister is to grant a visa if, relevantly, the 'other criteria for it prescribed by this Act or the regulations have been satisfied'. The relevant criteria prescribed by the Migration Act for the grant of a Protection (Class XA) Visa are to be found in s 36(2) of the Act, which relevantly provides: 'A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the [Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention')]. 25 Article 1(A) of the Refugees Convention relevantly provides: 'A.For the purposes of the present Convention, the term "refugee" shall apply to any person who: … (2) … owing to well-founded fear of being persecuted for reasons of race, religion … 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; …' 26 The decision of the Tribunal plainly turned on the question of relocation within Malaysia. Had the opportunity not presented itself for the appellant to relocate within Malaysia then it would seem to follow that the appellant was entitled to be treated as a refugee. However, the Tribunal found, as I understand it, that had the appellant relocated to another part of Malaysia he would not in that location have had a well-founded fear of persecution of the type which he experienced in the particular location where he suffered the serious harm and persecution to which reference has been made. 27 The question of relocation and the reasonableness of relocation was recently addressed by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634. In the judgment of Gummow, Hayne and Crennan JJ their Honours said at [23] and following: '[23] The minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a "hypothetical assumption", nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a "safe area" within the country of nationality as determinative of the existence of a well-founded fear of persecution. [24] However, that does not mean that, without more, the formulation by the minister is sufficient and satisfactory. What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. … [26] … in particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.' 28 In the Tribunal's reasons the Tribunal Member had also said: 'The Tribunal … rejects the applicant's claims to have been prevented from practising his religion in Malaysia, and that he has been denied the capacity to earn a livelihood in that country. As the applicant himself conceded at the hearing, apart from the assaults he received which arose out of a conflict with a work colleague, he did not experience any other problems in Malaysia, and never had any difficulty practising his religion or attending the temple. He has not provided any cogent evidence to suggest either that he personally was prevented from practising his religion, or that Hindus in Malaysia in general are prevented from doing so. …' 29 In the circumstances of this case it would seem clear that it was both reasonable and practicable for the appellant to relocate within Malaysia to a place where he could not claim to experience a well-founded fear of persecution for a Convention reason. Had the matter come before me to consider whether or not constitutional writ relief should go in respect of the decision of the Tribunal I would have been disposed to refuse such relief. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 9 November 2007 The Appellant did not appear. Counsel for the First Respondent: C L Symons Solicitor for the First Respondent: Clayton Utz The Second Respondent entered a submitting appearance. Date of Hearing: 5 November 2007 Date of Judgment: 5 November 2007