MZXPV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXPV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1225

MIGRATION – Review of RRT decision – procedural fairness – access to interpreter – quality of interpreter – whether misinterpreting affected hearing.

Migration Act 1958 (Cth), s.424A

Perera v Minister for Immigration [1999] FCA 507; (1992) 92 FCR 6
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: MZXPV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 439 of 2007

Judgment of: Riethmuller FM

Hearing date: 3 March 2008

Date of Last Submission: 5 May 2008

Delivered at: Melbourne

Delivered on: 1 September 2008

REPRESENTATION

Counsel for the Applicant: Mr Knowles

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Horan

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. That a writ of Certiorari issue quashing the decision of the second respondent made on 16 March 2007.

2. That a writ of mandamus issue requiring the second respondent, differently constituted, to hear and determine the application according to law.

3. The respondents pay the applicant’s costs fixed at $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG439 of 2007

MZXPV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Ethiopian citizen of Oromo ethnicity. The applicant applied for a protection visa on 19 June 2006 on the basis that should he return to Ethiopia, he would be persecuted by virtue of his Oromo ethnicity and support and membership of certain political organisations.

2. The applicant claims that he was a member of the Oromo Liberation Front (the ‘OLF’) and the Coalition for Unity and Democracy (the ‘CUD’). He further alleges that as a result of this membership, he has been detained and mistreated on four occasions by the Ethiopian authorities and has learned that his name had been placed on a government hit list.

3. On 12 September 2006, a delegate of the Minister refused to grant the protection visa. The delegate did not accept that the applicant was a member of the specified political organisations. On 21 September 2006, the applicant applied to the Tribunal for review of that delegate’s decision.

4. The application was heard before the tribunal on 6 December 2006. At the request of the applicant’s solicitors, an Amharic interpreter was present for the applicant at the hearing. At the conclusion of the hearing, the applicant’s solicitors expressed concerns about the quality of the interpreting during the hearing. On 16 March 2007, the Tribunal affirmed the delegate’s decision

5. In the Tribunal’s decision, the Tribunal held that it did not accept that the applicant was a member of the OLF nor the CUD. It said:

   The applicant's evidence about the way the OLF operated was unsatisfactory.  He said that it was secret and that it did not have an office, but meetings took place in cafes where the participants spoke in their own language. The applicant was not able to describe, beyond…