MZYFM v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYFM v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1276

MIGRATION – Refugee Review Tribunal – whether Tribunal addressed claims as put – whether the Tribunal misunderstood or misapplied the test for determining whether a group is a particular social group within the meaning of the Convention – whether any error in the consideration of the particular social group claim made a difference to the decision.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Paramananthan v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: MZYFM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 916 of 2009

Judgment of: Riley FM

Hearing date: 25 November 2009

Date of Last Submission: 25 November 2009

Delivered at: Melbourne

Delivered on: 21 December 2009

REPRESENTATION

Counsel for the Applicant: T. A. Fernandez

Solicitors for the Applicant: T. A. Fernandez

Counsel for the first Respondent: Brian Wee

Solicitors for the first Respondent: DLA Phillips Fox

Counsel for the second Respondent: No appearance

Solicitors for the second Respondent: DLA Phillips Fox

ORDERS

1. The application filed on 20 July 2009 and amended on 4 November 2009 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 916 of 2009

MZYFM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to review a decision of the Refugee Review Tribunal.  The applicant is a Sinhalese citizen of Sri Lanka.  He arrived in Australia on 25 July 2005 on a student visa.  On 16 January 2009, he applied for a protection visa. 

2. The applicant claimed that, for six to eight weeks, he had assisted victims of the tsunami that struck Sri Lanka in December 2004.  He said that he mostly assisted Muslims and people who secretly supported the Tamil Tigers.  He said that the JVP also assisted victims of the tsunami.  The applicant’s father said that he received threatening telephone calls from the JVP from mid-2008, while the applicant was in Australia.  The callers said that the applicant had only helped Muslim and Tamil tsunami victims, and had thus denied relief to Sinhalese people. 

3. The applicant’s solicitor, in a letter to the Tribunal dated 21 May 2009, said that the applicant was a member of a particular social group, being:

   those people of diverse backgrounds who shared a common and uniting characteristic namely to provide succour to the people affected by the 2004 tsunami that devastated much of Sri Lanka.

Ground 1

1. The first ground of review in the amended application filed on

   
   

   4 November 2009 is:

   1.The Convention ground that the applicant claimed he belonged to is that of a particular social group.  In finding that the…