MZYEG v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYEG v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1249

MIGRATION – Refugee Review Tribunal – whether Tribunal implicitly made a finding that the applicant was a national of PNG – whether Tribunal implicitly made a finding that the applicant was stateless – no implicit finding – jurisdictional error established.

United Nations Refugees Convention, Art.1A(2)

Minister for Immigration v SZIPL [2009] FCA 143
SZIPL v Minister for Immigration [2007] FMCA 643
SZIPL v Ministerfor Immigration [2008] FMCA 1501

Applicant: MZYEG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 494 of 2009

Judgment of: Riley FM

Hearing dates: 8 September & 2 October 2009

Date of Last Submission: 2 October 2009

Delivered at: Melbourne

Delivered on: 2 October 2009

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the First Respondent: Mr D. Brown

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent No Appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The decision of the Tribunal dated 26 March 2009 is set aside. 

2. The decision is remitted to the Tribunal for further hearing according to law.

3. No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 494 of 2009

MZYEG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal.  The applicant may be a citizen of Papua New Guinea or he may be a citizen of West Papua.  He applied to the Refugee Review Tribunal for review of a decision refusing him a protection visa.  He made various claims to the Tribunal which the Tribunal rejected. 

2. The essential issue before the court today is whether the Tribunal made a finding that the applicant was stateless.  The Tribunal said, at paragraphs 90, 91 and 105 of its reasons for decision, the following:

   90.The applicant has provided no travel documentation and he has presented no evidence of his identity.  As a consequence the Tribunal can make no clear finding about the applicant’s identity.

   91.In his visa application the applicant has claimed that he was born in PNG and has made various claims of his circumstances in PNG throughout the conduct of this review.  In evidence to the Tribunal the applicant has made claims that he may be West Papuan because his mother was born in West Papua.  In evidence to the Tribunal the applicant has made contradictory claims that he is West Papuan and does not have PNG citizenship.  The applicant’s evidence to the Tribunal is also that he was born in Daru, PNG and has variously indicated that he has lived in Daru; the applicant gave evidence that he departed Daru when he travelled to Australia.  On balance, the Tribunal considers that PNG is the applicant’s country of former residence and will consider his claims accordingly.

   …

   105.