MZYPM v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPM v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 220

MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed.

Migration Act 1958

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; [2003] 75 ALD 630
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
S395/2002 v Minister for Immigration and Multicultural Affairs (2003), 216 CLR 473; [2003] HCA 71

Applicant: MZYPM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: THE INDEPENDENT MERITS REVIEWER

File Number: MLG 1124 of 2011

Judgment of: Riethmuller FM

Hearing date: 22 February 2012

Date of Last Submission: 22 February 2012

Delivered at: Melbourne

Delivered on: 22 February 2012

REPRESENTATION

Counsel for the Applicant: Mr McIntyre of Counsel

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondent: Mr Mosely of Counsel

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 3 August 2011 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed at $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1124 of 2011

MZYPM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(as revised from the transcript)

1. This is an application for judicial review with respect to a decision of a Reviewer appointed by the Minister in respect to an application for a protection visa.   The applicant arrived by boat from Sri Lanka.  He is of Tamil ethnicity and is fearful of returning to Sri Lanka primarily on the basis of his ethnicity and religion.

2. The decision was made by the Reviewer after an oral hearing, and written materials were placed before the Reviewer by an agent assisting the applicant.  Ultimately, a decision by way of a report was made on 30 June 2011 recommending against recognising that the applicant was a person to whom Australia had protection obligations.

3. The grounds of review in this case are not set out in the application.  The applicant focused on the part of the decision that deals with his claim that he was at risk of persecution as a result of his religion – that is, that he is a Christian, and that Sri Lanka is a predominantly Buddhist country, also with a Hindu population.  The applicant cast his grounds in the following terms in his outline of case document:

   [5]  The applicant submits that the IMR report contains elements of jurisdictional error, namely:

   (a)  The reviewer failed to consider the possible risk to the applicant of persecution on a day to day basis, from avenues aside from being identified as Tamil at or immediately following his return to Sri Lanka;

   (b)  The reviewer fell into error…