MZYLT v Minister for Immigration
[2011] FMCA 810
•26 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYLT v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 810 |
| MIGRATION – Application for judicial review of Refugee Review Tribunal decision – no meaningful grounds asserted – attempted merits review – application dismissed. |
| Migration Act 1958, ss.36(3), 36(4) |
| Wu Shan Liang (1996) 185 CLR 259 SZMWQ v Minister for Immigration and Citizenship [2010] 187 FCR 109 |
| Applicant: | MZYLT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 497 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 12 September 2011 |
| Date of Last Submission: | 12 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 26 October 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Alderton |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 497 of 2011
| MZYLT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application filed on 13 April 2011, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 March 2011. The Tribunal found that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention.
For the reasons that follow, I agree with the Tribunal and will order that the application be dismissed.
Relevant facts
The applicant is a citizen of Lithuania who arrived in Australia on 27 June 2010 and applied for a Protection (Class XA) Visa on 9 August 2010. The delegate decided to refuse to grant the visa on 30 September 2010, and that decision was the subject of review by the Tribunal leading to the decision already referred to.
The applicant is a member of the Russian minority in Lithuania that, as he asserts and the country information appears to confirm, constitutes five per cent of the population in Lithuania.
The applicant has asserted to the delegate, the Tribunal and to the Court that he faces persecution in Lithuania because of his ethnicity and further, that he is unable to practise his Russian Orthodox Religion in that country.
The latter observations about religion were not pressed before the Court and were rejected in plain terms by both the delegate and the Tribunal.
The Applicant’s Case
The application lodged by the applicant asserts as the grounds of application, “I am scared to go back to Lithuania. I fear for my safety. I seek protection from Australia.” The affidavit filed in support of the application merely appends the decision of the Tribunal. Despite orders made by Registrar Allaway on 1 June 2011 for the filing of any amended application and written submissions, the applicant has filed no further materials.
It is readily apparent, as the first respondent submits at paragraph 18 of written submissions:
“This ground fails to establish even an arguable case of jurisdictional error in the Tribunal’s decision and on its face simply seeks to impermissibly challenge the merits of the Tribunal’s decision.”
Nonetheless, notwithstanding the force of this submission, I will deal with what the applicant actually said to the Court at hearing. He made it clear that he did not agree with the Tribunal’s decision. He said there are people from Lithuania everywhere, that the country information relied upon by the Tribunal was very different from the reality, that Orthodox Russians had no rights in Lithuania, and that he could not help being afraid. The applicant said he was shouted at when driving about and that his position was no better in the Russian Federation.
He said that the facts listed in the Tribunal’s decision were not true.
Although he is clearly well-educated not surprisingly, given his lack of legal training and lack of familiarity with migration law in Australia, the applicant did not in fact make a single submission dealing with the basis upon which the Tribunal reached the findings that it did. His remarks were very much to the effect that I have paraphrased above (and I emphasise that it is paraphrase taken from notes, although I believe it is accurate).
The Tribunal’s Decision
The Tribunal found that the applicant was able to relocate to other European Union (“EU”) countries. This included, at the very least, the United Kingdom and Sweden. The Tribunal found that the applicant would not be refouled from either of those countries and accordingly, that he fell within the terms of s.36(3) of the Migration Act 1958
(“the Act”).
It should be noted that there is one aspect of the Tribunal’s decision which is, at first glance, somewhat disconcerting. At paragraphs 75 and 76, the Tribunal found:
“75. The Tribunal therefore finds that the applicant’s right to reside in other EU countries, specifically the United Kingdom and Sweden, is a presently existing, legally enforceable right to reside temporarily in those countries, albeit only temporarily, for the purposes of s.36(3).
76. It follows from this that the Tribunal finds that s.36(4) does not apply to modify the operation of s.36(3) with respect to the United Kingdom and Sweden.”
In fact, it does not follow logically that because the applicant has a right to live temporarily in the United Kingdom or Sweden that s.36(4) does not apply to him. Section 36(4) relates to circumstances where an applicant has a well-founded fear of persecution in the alternative countries where he might otherwise have this temporary right of residence.
Nonetheless, if one reads the Tribunal’s decision as a whole, it is clear that the Tribunal found that the applicant did not have a well-founded fear of persecution in the United Kingdom or Sweden (see paragraph 66 CB 90). The slightly disconcerting passage set out at paragraph 76 of the Tribunal’s reasons for decision, in my view, attracts the observations of the High Court in Wu Shan Liang (1996) 185 CLR 259 at [272], where the majority quoted a decision of the Full Court with approval to this effect:
“It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision maker. The court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly to the perception of error.”
Consideration
I do not propose to deal with the first respondent’s submissions in any detail. They speak for themselves and are cogent. I would only refer briefly to the submission made by the first respondent that the Court should have regard to the decision of the Full Court of the Federal Court relatively recently given in the matter SZMWQ v Minister for Immigration and Citizenship [2010] 187 FCR 109. It is clear from that decision that the right referred to in s.36(3) is qualified. It is only necessary for an applicant to be able to enter and reside in another country. The right can be temporary in nature and how that right to enter and reside arose is expressed is irrelevant (see Rares J at [34]-[36] and Besanko J at [61] who agreed with Flick J at [109]).
In the circumstances of this case, the Tribunal’s finding that the applicant had a presently enforceable right to reside, at least temporarily, in either the United Kingdom or Sweden was clearly open to it on the materials as a whole. The Tribunal’s finding that the applicant would not face reasonable fears of persecution in those countries or refoulement from them was also open to the Tribunal on the materials before it.
The Tribunal’s conclusion that the applicant had not demonstrated that he had taken any reasonable steps to avail himself of that right was not only open to it but inevitable given that the applicant made it plain that he wished to live only in Australia. Indeed, the applicant said words to that effect also to the Court.
Conclusion
It is clear that the Tribunal’s conclusion was the correct one. It was not attended by any error, let alone jurisdictional error. The application must be dismissed with costs and I will so order.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 26 October 2011
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