MZYLU v Minister for Immigration
[2011] FMCA 812
•26 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYLU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 812 |
| MIGRATION – Alleged jurisdictional error by Refugee Review Tribunal – grounds wholly unparticularised – applicants having right of residence in EU countries – applicants not availing themselves of such rights – 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 |
| First Applicant: | MZYLU |
| Second Applicant: | MZYLV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 498 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 Applicants: | In person |
| Counsel for the First Respondent: | Mr Alderton |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 498 of 2011
| MZYLU |
First Applicant
| MZYLV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter was heard immediately following the matter of MZYLT. Although the facts are of course different, materials filed, the issues raised by the applicants, and the submissions they made were relevantly identical to those in MZYLT. These reasons will therefore follow very closely the reasons in MZYLT.
The applicants are wife and husband. It appears only the wife claimed Convention protection. The second applicant does not appear to have played any active part in the process, and applied only as a member of the first applicant’s family unit.
By their application filed on 13 April 2011, the applicants seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 March 2011. The Tribunal found that the applicants were not persons 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 relevant facts are not controversial and are taken from the Court Book and the written submissions of the first respondent.
The applicants are citizens of Lithuania who arrived in Australia on 27 June 2010 and applied for a Protection (Class XA) Visa on 9 August 2010. They appointed a migration agent to assist them. 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 first applicant wife (“the first applicant”) is a member of the Russian minority in Lithuania that, as she asserts and the county information appears to confirm, constitutes five per cent of the population in Lithuania.
The first applicant has asserted to the delegate, the Tribunal and to the Court that she faces persecution in Lithuania because of her ethnicity and further, that she is unable to practise her Russian Orthodox Religion in that country.
The Applicants’ Case
The application lodged by the first applicant asserts as the grounds of application, “I fear returning to Lithuania. I want protection from Australia. I am a Russian citizen.” 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 first 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 first applicant actually said to the Court at hearing. She made it clear that she did not agree with the Tribunal’s decision. She said the reasons were not valid and that one matter on the internet did not describe the real situation (a reference to country information). She said she could not produce evidence of persecution. She said her husband was working in another state. She said that being Russians they were not safe in Britain or any other country.
Although she is clearly well-educated not surprisingly, given her lack of legal training and lack of familiarity with migration law in Australia, the first applicant did not in fact make a single submission dealing with the basis upon which the Tribunal reached the findings that it did. Her 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 first applicant was able to relocate to other European Union (“EU”) countries. These 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 she 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 84 and 85, the Tribunal found (CB 129):
“84. 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).
85. 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 first applicant has a right to live temporarily in the United Kingdom or Sweden that s.36(4) does not apply to her. Section 36(4) relates to circumstances where an applicant has a well-founded fear of persecution in the alternative countries where she 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 first applicant did not have a well-founded fear of persecution in the United Kingdom or Sweden (see paragraphs 74-75 CB 128). This slightly disconcerting passage set out at paragraph 84 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 first 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 applicants 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 applicants had not demonstrated that they had taken any reasonable steps to avail themselves of that right was not only open to it but inevitable given that the applicants made it plain that they wished to live only in Australia. Indeed, the first 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 twenty (20) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 26 October 2011
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