MZYPA v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPA v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 43

MIGRATION – Review of decision of Independent Merits Reviewer – applicant a Hazara Shia – applicant asserting failure by Reviewer to address issues of economic and other persecution – alleged failure to consider claims cumulatively.

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
MZYLR v Minister for Immigration and Citizenship [2011] FMCA 633
Minister for Immigration and Citizenship v SZONJ [2011] FCAFC 85
NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 144 FCR 1
W353 v Minister for Immigration and Multicultural Affairs [2002] FCA 398

Applicant: MZYPA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: J. BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 1103 of 2011

Judgment of: Burchardt FM

Hearing date: 24 November 2011

Date of Last Submission: 24 November 2011

Delivered at: Melbourne

Delivered on: 30 January 2012

REPRESENTATION

Counsel for the Applicant: Ms N. Karapanagiotidis

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr R. Knowles

Solicitors for the First Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1103 of 2011

MZYPA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. In this matter, the applicant seeks judicial review of a decision of an Independent Merits Reviewer (“Reviewer”) dated 31 May 2011.  The Reviewer found that the applicant was not a person to whom Australia owed obligations pursuant to the Refugees Convention. 

2. The applicant advances four grounds of error on the part of the Reviewer each constituted by a failure on the part of the Reviewer, it is alleged, to give proper attention to or deal with various aspects of the applicant’s claims advanced before him. 

3. For the reasons that follow, I do not think that these criticisms are made out and it follows that the application must be dismissed.  

The Reviewer’s Decision

1. Before coming to the individual grounds of error asserted, it is appropriate to spend a few moments looking at the structure and nature of the Reviewer’s decision.  After setting out some brief introductory remarks and a citation of the relevant law, neither of which are the subject of any criticism, the Reviewer came to look at what were described as “Claims and Evidence.” 

2. The Reviewer traversed the matters advanced by the applicant at his entry interview.  The Reviewer noted that the applicant had claimed that his family left Afghanistan in 1992 because the Taliban had started attacking villages and further noted at paragraph 17 (Court Book (“CB”) 179) that:

   “… He did not stay in Afghanistan because there is no security there because of the Taliban.  Being a Shia in Afghanistan is a crime and if the Talibs and Pashtuns catch you they chop…