MZYLA v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYLA v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 499

MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error.

Migration Act 1958 (Cth), ss.36(2)(a), 91R
Migration Regulations 1994 (Cth), Part 866 of Schedule 2
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v VBAO of 2002 (2004) 139 FCR 405
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1

Applicant: MZYLA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 208 of 2011

Judgment of: Hartnett FM

Hearing date: 30 June 2011

Delivered at: Melbourne

Delivered on: 25 July 2011

REPRESENTATION

Counsel for the Applicant: Mr Gibson

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Ms Latif

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATMELBOURNE

MLG 208 of 2011

MZYLA

Applicant

And

MINISTER FOR IMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 January 2011 affirming a decision of the first respondent by his delegate not to grant the applicant a protection visa.

2. The applicant filed the proceedings on 17 February 2011 and amended his application by amended application filed 6 June 2011. Essentially, the applicant raises three grounds of review.  They are that the Tribunal:

   (a) misunderstood and/or misconstrued the test for evaluating whether the applicant had a well-founded fear of persecution by conflating the subjective and the objective elements of the Convention test as amended by s.91R(2) of the Act and without considering whether objectively the harm inflicted upon him by his father was “serious harm” within the terms of s.91R(2) of the Act and/or misconstrued and/or misunderstood the meaning of “serious harm” by failing to recognise that what was inflicted upon him constituted significant physical harassment and/or physical ill-treatment;

   (b)failed to consider the issue of State protection in the context of the applicant’s fears of persecution at the hands of his father and/or family members; and

   (c)     misunderstood and/or misconstrued the test of State protection as regards protection from serious harm at the hands of Muslim extremists by failing to evaluate and/or consider the efficiency and impartiality of the police or the efficacy of institutional and organisational protective measures which were available in Turkey.

3. The applicant first arrived in Australia on 20 November 2009 whilst working on an American cruise ship. He applied to the Department of Immigration and Citizenship (“the Department”) for a protection visa on 11 December 2009. On 1 March 2010, a delegate of the Minister of Immigration and Citizenship refused the…