FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147
Citation: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v MZYYL and REFUGEE REVIEW TRIBUNAL File number: VID 493 of 2012 Judges: LANDER, JESSUP AND GORDON JJ Date of judgment: 24 October 2012 Catchwords: MIGRATION – application for protection visa – application of complementary protection regime under s 36(2)(aa) of the Migration Act 1958 (Cth) – taken not to be a “real risk” of “significant harm” if the non-citizen could obtain state protection such that there would not be a real risk that the non-citizen will suffer significant harm – level of state protection required in order for Minister to be satisfied within the meaning of s 36(2B)(b) Legislation: Federal Court of Australia Act 1976 (Cth)
Federal Magistrates Act 1999 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Complementary Protection) Bill 2011 (Cth)Cases cited: A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95
Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543
SZTAV v Minister for Immigration and Citizenship (2007) 233 CLR 18Date of hearing: 16 October 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: Dr M Perry QC and Ms H Younan Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: Mr R Merkel QC and Mr M Albert Solicitor for the First Respondent: Victoria Legal Aid
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 493 of 2012
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
AND: MZYYL
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGES:
LANDER, JESSUP AND GORDON JJ
DATE OF ORDER:
24 OCTOBER 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Application is dismissed.
2.The Applicant is to the pay the First Respondent’s costs of and incidental to the Application, such costs to be taxed in default of agreement.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 493 of 2012
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
AND: MZYYL
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGES:
LANDER, JESSUP AND GORDON JJ
DATE:
24 OCTOBER 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
The Migration Act 1958 (Cth) (the Act) now provides for the grant of a protection visa to a non-citizen of Australia in certain circumstances notwithstanding that the Minister is not satisfied that Australia owes protection obligations to that person under the 1951 Convention Relating to the Status of Refugees as amended by the Protocol (the Refugees Convention). This is known as the complementary protection regime which was implemented by…
Continue reading MIAC v MZYYL
Sign in free to access the full text
Details
- AGLC
- MIAC v MZYYL [2012] FCAFC 147
- Case
- [2012] FCAFC 147
- Decision Date
CaseChat Overview and Summary
MIAC v MZYYL is a case concerning an application for a protection visa under the complementary protection regime of the Migration Act 1958 (Cth). The applicant, MZYYL, is a citizen of another country who arrived in Australia in 2005 and had his temporary visa cancelled in 2009 due to character grounds. Despite this, he applied for a protection visa in 2010, which was subsequently refused. The primary issue in the case was the interpretation of s 36(2)(aa) of the Migration Act, specifically focusing on the concept of state protection under s 36(2B)(b). The case reached the court after the applicant sought judicial review of the Tribunal's decision, which found that MZYYL could not obtain state protection that would eliminate the real risk of significant harm if he were to be returned to his home country.
The court had to determine the proper construction of the phrase "could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm" in the context of the complementary protection regime. The Minister for Immigration argued that the Tribunal had incorrectly interpreted this phrase to require a higher standard of state protection than is necessary under the Act. The Minister contended that the standard required under the complementary protection regime is the same as that required under the Refugees Convention, which is an effective legal system for the detection, prosecution, and punishment of acts constituting serious harm, rather than a guarantee of absolute safety from harm caused by non-State actors. The court considered this argument and ultimately found in favour of the Minister. The court held that the Tribunal had erred in its interpretation of s 36(2B)(b), leading to an incorrect application of the complementary protection regime.
The court dismissed the application and ordered that the applicant pay the costs of the proceeding. The court's decision clarified the proper interpretation of the complementary protection provisions in the Migration Act, affirming that the standard of state protection required is consistent with Australia's obligations under international law, rather than an absolute guarantee of safety. This case serves as an important precedent for future cases involving the complementary protection regime and the interpretation of the relevant provisions of the Migration Act.
The court had to determine the proper construction of the phrase "could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm" in the context of the complementary protection regime. The Minister for Immigration argued that the Tribunal had incorrectly interpreted this phrase to require a higher standard of state protection than is necessary under the Act. The Minister contended that the standard required under the complementary protection regime is the same as that required under the Refugees Convention, which is an effective legal system for the detection, prosecution, and punishment of acts constituting serious harm, rather than a guarantee of absolute safety from harm caused by non-State actors. The court considered this argument and ultimately found in favour of the Minister. The court held that the Tribunal had erred in its interpretation of s 36(2B)(b), leading to an incorrect application of the complementary protection regime.
The court dismissed the application and ordered that the applicant pay the costs of the proceeding. The court's decision clarified the proper interpretation of the complementary protection provisions in the Migration Act, affirming that the standard of state protection required is consistent with Australia's obligations under international law, rather than an absolute guarantee of safety. This case serves as an important precedent for future cases involving the complementary protection regime and the interpretation of the relevant provisions of the Migration Act.
Orders
Orders of the court
1. The Application is dismissed.
2. The Applicant is to the pay the First Respondent’s costs of and incidental to the Application, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
Background
Background to the litigation
For the reasons that follow, we would dismiss the application with costs.FACTS The facts are not in dispute. MZYYL is a citizen of another country (the receiving country). He arrived in Australia on 23 February 2005 and, upon arrival, was granted a temporary visa. While in Australia, MZYYL committed various criminal offences and his visa was cancelled on 2 June 2009 on character grounds pursuant to s 501(2) of the Act. That decision was affirmed by the Administrative Appeals Tribunal. MZYYL then applied for a protection visa on 24 June 2010. On 2 July 2010, that application was refused by a delegate of the Minister. On 6 July 2010, MZZYL sought review of the delegate’s decision by the Tribunal but, on 23 August 2010, he withdrew that application. Subsequently, MZYYL attempted to lodge a further review application in respect of the same primary decision. The Tribunal determined it lacked jurisdiction to review that decision. On 4 February 2011, MZYYL was removed from Australia to the receiving country. On 12 April 2011, MZYYL re-entered Australia using a passport in a different name, and was granted a further temporary visa on arrival. He came to the attention of the police again, and was arrested in August 2011. On 29 September 2011, his visa was cancelled on character grounds. On 22 December 2011, he was transferred from criminal to immigration detention. On 20 January 2012, MZYYL made a further application for a Protection (Class XA) visa, which is the subject of this proceeding. A delegate of the Minister refused to grant the visa on 19 March 2012. On 22 March 2012, MZYYL applied to the Tribunal for review of the delegate’s decision. On 3 May 2012, the Tribunal considered MZYYL’s application for a protection visa under s 36 of the Act and decided to remit the matter to the Minister for reconsideration with the direction referred to at [6] above. LEGISLATIVE FRAMEWORK Protection visas are dealt with in s 36 of the Act. At the relevant time, s 36 contained the following relevant provisions:…(2) 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 Refugees Convention as amended by the Refugees Protocol; or (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …(2A) A non-citizen will suffer significant harm if: (a)the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e)the non-citizen will be subjected to degrading treatment or punishment. (2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or (b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or (c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. …(3)Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. …(5A) Also, subsection (3) does not apply in relation to a country if: (a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country. (Emphasis added.)
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely ss 36(2)(aa) and 36(2B), construed in the way that has been indicated.THE TRIBUNAL’S DECISION In relation to the question of whether MZYYL could obtain state protection under s 36(2B)(b), the Tribunal found that:1.the requisite standard of protection from an authority under the complementary protections provisions (in s 36(2B)(b) of the Act) is different from the concept of state protection under the Refugees Convention in that the language requires that “… the level of protection must be such as to reduce the risk of significant harm to something less than a real one”: Decision at [156] and [159]; and2.despite the in-principle availability of state protection in the receiving country for the purposes of the Refugees Convention, for the purposes of s 36(2B) of the Act, MZYYL could not obtain, from an authority in that country, protection such that there would not be a “real risk” that he will suffer significant harm. That is, there remains a “real risk” that if MZYYL was removed to the receiving country he would suffer significant harm for the purposes of s 36(2A): Decision at [162].ISSUE It is common ground that the Tribunal was concerned with s 36(2B)(b) of the Act and, in particular, the proper construction of the following concept:the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm.PARTIES’ RESPECTIVE POSITIONS The Minister’s complaint was that the Tribunal wrongly construed s 36(2B)(b) of the Act as requiring that a higher standard of state protection must be available to a non-citizen in applying the criterion for a protection visa under s 36(2)(aa) than that required by s 36(2)(a) of the Act. The Minister submitted that neither the wording of s 36(2B)(b) nor its legislative purpose requires a guarantee that the non-citizen will not suffer significant harm. Instead, the Minister contends that the prescribed standard in s 36(2)(aa) is satisfied if the State in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm and MZYYL has access to such protection. In support of that contention, the Minister referred to and relied upon three specific matters. First, the purpose of s 36(2)(a) is to ensure the implementation of Australia’s non-refoulement obligations under the Refugees Convention and these obligations require no more than that the State “take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system”: Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1 at [26] and [117]. In other words, Australian refugee law does not require a receiving State to guarantee the safety of its citizens from harm caused by non-State actors. In the Minister’s submission, the same could equally be said with respect to the purpose of the Complementary Protection Regime in relation to Australia’s non-refoulement obligations under the International Human Rights Treaties.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.