MZXTZ v Minister for Immigration - [2008] FMCA 1716

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXTZ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1716

MIGRATION – Decision of the Refugee Review Tribunal – functus officio.

MIGRATION – Judicial review – procedural fairness – country information – protection visa.

Migration Act 1958, ss.91R, 422B, 424, 424A, 425, 430, 430A, 430B

Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73
Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551
NANI v Minister for Immigration [2003] FCA 1082
Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533; (2000) 60 ALD 383
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 2; [2002] FCA 56; (2002) 116 FCR 319; (2002) 67 ALD 355

Applicant:

MZXTZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 326 of 2008

Judgment of:

Riethmuller FM

Hearing date:

9 September 2008

Date of Last Submission:

1 October 2008

Delivered at:

Melbourne

Delivered on:

22 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

Mano Associates

Counsel for the Respondents:

Mr Wee

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

That the application be dismissed.
The applicant pay the respondent’s costs fixed at $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 326 of 2008

MZXTZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal dated 7 February 2008.
The applicant arrived in Australia on 20 June 2007. He applied for a protection visa on 6 August 2007, claiming fear of persecution for religious reasons. On 2 October 2007, the delegate of the Minister refused the protection visa, finding that the country information did not support the applicant’s claims. The applicant then sought review in the Refugee Review Tribunal. A hearing was conducted by the Tribunal on 18 December 2007, at which the applicant attended with his representative and gave evidence. The RRT affirmed the decision of the delegate.

Background

The applicant is a Malaysian citizen. The applicant said that he was born a Tamil, considers himself a Hindu, but also prays to a Muslim God. At the Tribunal hearing, the applicant said that he believed in every religion and every god.
Following the death of his father in 1993, the applicant worked as a kitchen hand cleaner. The applicant attended prayers and participated in Ramadan with his employer.
The applicant claims that when he was 14, he was forced to convert to Islam by his employer. His employer gave the applicant some documents to sign. The applicant was illiterate and signed the documents without understanding their meaning. Arrangements were then made for the applicant to be circumcised. However, he ran from 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.

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Details

Case: [2008] FMCA 1716
Decision Date: 22 December 2008

CaseChat Overview and Summary

The case before the court involved an applicant seeking to overturn a decision made by the Refugee Review Tribunal (RRT) which had dismissed their application for a protection visa. The applicant, MZXTZ, argued that the RRT had failed to consider certain information relevant to their case, and that the decision-making process had been unfair. The matter was heard and determined by the Federal Court of Australia.

The primary legal issue before the court was whether the RRT had failed to observe the principles of procedural fairness in making its decision. The applicant contended that the RRT had not properly considered certain country information and had thereby made an error in its decision. The court was also required to consider whether the RRT had acted beyond its authority by making a decision after the applicant had applied for judicial review of its earlier decision.

In determining the matter, the court found that the RRT had not erred in its consideration of the country information, and that the decision-making process had been fair. The court held that once the applicant had applied for judicial review of the RRT's earlier decision, the RRT was functus officio and could not make a new decision on the application. The court found that the RRT had not acted beyond its authority by making a decision after the applicant had applied for judicial review, as the RRT had been unaware of the application at the time it made its decision. The court dismissed the application and ordered that the applicant pay the respondent's costs of $6,500.

Orders

Orders of the court

That the application be dismissed.

The applicant pay the respondent’s costs fixed at $6,500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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