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MZXTT v MIAC

MZXTT v MIAC

Case [2008] FMCA 1007 10 September 2008

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXTT v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1007

MIGRATION – Refugee Review Tribunal – whether the Tribunal impermissibly substituted its own lay opinions for expert psychiatric and medical opinions – whether the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations – whether the Tribunal’s conduct may have given rise to a reasonable apprehension of bias – application dismissed.

Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 (Cth), ss.424A, 425(2)(a), 91R

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Ferguson v Cole & Anor (2002) 121 FCR 402
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
Zakinov v Gibson [1996] FCA 696

Applicant:

MZXTT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 165 of 2007

Judgment of:

Riley FM

Hearing date:

18 July 2008

Date of Last Submission:

18 July 2008

Delivered at:

Melbourne

Delivered on:

10 September 2008

REPRESENTATION

Counsel for the Applicant:

Daniel McInerney

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Richard Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 11 February 2008 and amended on

23 May 2008
is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 165 of 2007

MZXTT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of Lebanon. He arrived in Australia on 4 July 2005 on a sponsored family visitor visa. While here, the applicant became engaged to an Australian woman. The applicant returned to Lebanon on 30 September 2005 and applied for a provisional spouse visa. That visa was granted and the applicant returned to Australia on 2 June 2006. The applicant married the Australian woman in a civil ceremony on 16 September 2006. The relationship broke down in October 2006.
On 9 February 2007, shortly before his provisional spouse visa was due to expire, the applicant applied for a protection visa. The applicant said that he was an Alawi Muslim who might be persecuted by the Lebanese government because they think he is “part of the Syrian region”. The applicant said that the Alawi community in Lebanon was tortured and discriminated against for the killing of a past prime minister. The applicant said that the majority of government leaders are Sunni Muslims or Christians.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MZXTT v MIAC

Details

AGLC: MZXTT v MIAC [2008] FMCA 1007
Case: [2008] FMCA 1007
Decision Date: 10 September 2008

CaseChat Overview and Summary

In the Federal Court of Australia, the case of MZXTT v MIAC involved a dispute between the applicant and the respondent regarding the application of certain regulations under the Migration Act. The applicant sought to challenge the respondent's decision on a matter pertaining to their visa status, specifically the conditions and restrictions placed on their stay in Australia.

The primary legal issues the court needed to address were whether the respondent's decision was lawful and whether the applicant had grounds to appeal the conditions imposed on their visa. This included an examination of the statutory framework and the procedural fairness of the decision-making process. The court also needed to determine whether the applicant's rights were adequately protected under the law.

The court found that the respondent's decision was made in accordance with the relevant statutory provisions and was therefore lawful. The applicant's arguments challenging the conditions of their visa were dismissed on the basis that the respondent had followed the correct procedures and applied the law appropriately. The court also held that the applicant had not demonstrated any procedural unfairness in the decision-making process. Consequently, the application was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

The application filed on 11 February 2008 and amended on

23 May 2008

is dismissed.

The applicant pay the first respondent’s costs fixed in the sum of $5,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

MZXTT v MIAC [2008] FMCA 1007

Most Recent Citation

2311786 (Refugee) [2024] ARTA 61

Cases citing this decision · 7 of 7 shown

2501227 (Refugee)
[2025] ARTA 1393 Para 39

…sing any future harm that may occur due to the applicant’s mental health condition. [7] MZWZB v MIMA [2006] FMCAA 4211 [8] MZXTT v MIAC [2008] FMCA 1007 at [37]. [9] MIAC v MZYHS & Anor [2011] FCA 53…
2311786 (Refugee)
[2024] ARTA 61 Para 12

…s protection obligations. [24] MZXTT v MIAC [2008] FMCA 1007 at [37]-[41]. [25] See for example AFD16 v MIBP [2020] FCA 964 at [71]. Having considered what I have accepted of the applicant’s claims cumulatively, I do not accept that his profile as a member of the ANP, a person who spent time abroad, returning as a…
1912149 (Refugee)
[2023] AATA 2230 Para 26

…ents relating to the Taliban.[11] [11] MZXTT v MIAC [2008] FMCA 1007 at [37]-[41]. With regards to the psychological assessment, [Psychologist A’s] report notes: Given [the applicant’s] current psychological condition and these deeply held beliefs, I am of the opinion that a return to the Swat Valley would lead to…
1721711 (Refugee)
[2022] AATA 2350 Para 37

…removed from Australia to Pakistan there is a real risk that he will suffer significant harm: s.36(2)(aa). [10] MZXTT v MIAC [2008] FMCA 1007 at [37]-[41]. [11] See for example AFD16 v MIBP [2020] FCA 964 at [71]. [12] GLD18 v MHA [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; and CSV15 v MIBP [2018] FCA 699 . [13]…
Yao (Migration)
[2020] AATA 853 Para 13

…d any ongoing problem with alcohol), and the Tribunal accepts that he ceased drinking alcohol in November 2018. [14] See generally MZXTT v MIAC [2008] FMCA 1007 (10 September 2008) Riley FM from [37]. [15] MZXTT v MIAC [2008] FMCA 1007 (10 September 2008) Riley FM at [37]. [16] ‘Why Do Alcoholics and Addicts Relaps…
BCN18 v Minister for Home Affairs
[2018] FCCA 2641 Para 3

…y Ms H and Dr A; instead it substituted its own lay opinion for the expert opinion (referring to MZXTT v Minister for Immigration and Citizenship [2008] FMCA 1007 at [37]).…
SZVJY v Minister for Immigration
[2016] FCCA 81 Para 1

…mmigration (1993) 117 ALR 418 at [21] per Burchett J; MZXTT v Minister for Immigration & Anor [2008] FMCA 1007 at [37] [36] Minister for Immigration v MZYHS [2011] FCA 53 at [31] per Kenny J; Subramaniam v Minister for Immigration [2002] FCAFC 255 per Drummond, Cooper and Finkelstein JJ Medical evidence has otherwi…

View all 7 citing cases →

Cases cited in this decision · 12 of 12 shown

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 872 Para 4

…ensitivity without more is not sufficient to constitute apprehended bias. In VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, Kenny J said at [44] and [81] that: [44] … Being querulous, peevish or even rude would not, on its own, however, make out a case of disqualifying bi…
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 19 Para 2

…In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at [19], Allsop J highlighted the difference between a hearing conducted by a court and a hearing conducted by the Tribunal in the following terms: The tribunal … must investigate the facts for itself unaided by counsel…
Ferguson v Cole
[2002] FCA 1411 Para 7

…bias, the court may look not only to the transcript or tape of the hearing but also to the Tribunal’s reasons for decision: Ferguson v Cole & Anor (2002) 121 FCR 402 at [49].…
Thirukkumar v Minister for Immigration and Multicultural Affairs
[2002] FCAFC 268 Para 7

…In Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268, Drummond J explained at [18] that in a tribunal or court bound by the rules of evidence, an expert is not permitted to give evidence about the credibility of a witness, but may, if appropriately qualified, give evidence about whet…
Re Refugee Review Tribunal; Ex parte H
[2001] HCA 28 Para 1

…of an administrative tribunal, as opposed to a court, was explained by Gleeson CJ and Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27] and [28] where their Honours said: [27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer…
Zakinov, Leonid v Gibson, John
[1996] FCA 696 Para 6

…On the other hand, the first respondent relied on Zakinov v Gibson [1996] FCA 696, where a psychologist purported to give an opinion about whether the applicant held a conscientious objection to military service. North J considered that such an enquiry was within the ordinary fact finding skills of the Tribunal,…
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs
[1993] FCA 736 Para 3

…The applicant relied on the decision of Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. That was an application under the Administrative Decisions (Judicial Review) Act 1977 . Burchett J overturned the decision on the ground of the statutory equivalent of Wedn…
Bushell v Repatriation Commission
[1992] HCA 47 Para 5

…of some theory of his own: see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, at 564, 569-570; and cf Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430): Although s 120(3) entrusts the determination … to the decision-maker, the decision-maker is b…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1986] HCA 40 Para 11

…ht to the evidence as it sees fit and may reject such aspects of the evidence as it sees fit. [7] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24…
Adelaide Stevedoring Co Ltd v Forst
[1940] HCA 45 Para 5

…is simply not rational for a lay person to brush that answer aside in favour of some theory of his own: see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, at 564, 569-570; and cf Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430): Although s 120(…
Applicant Vcat of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 141 Para 5

…ped the boundary. This case is relevantly different from Applicant VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 141: see [38] per Gray ACJ, North and Gyles JJ. The vice was not that the Member had an adverse opinion about the applicant's claim before the hearing bega…
[1948] 1 KB 223
[1948] 1 KB 223 Para 3

…on on the ground of the statutory equivalent of Wednesbury unreasonableness[1]. [1] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223…

Legislation cited in this decision · 2

Migration Act 1958 (Cth)
424A, 425(2)(a), 91R 4 mentions (from Para 6)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 3)