MZYZI v MIAC - [2013] FMCA 242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYZI v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 242

MIGRATION – Refugee review tribunal – applicant’s failure to attend hearing before tribunal – s.426A – applicant claimed to be a christian in China.

Migration Act 1958 s.426A

VNAA & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474

Applicant:

MZYZI

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 878 of 2012

Judgment of:

Riley FM

Hearing date:

4 February 2013

Date of Last Submission:

4 February 2013

Delivered at:

Melbourne

Delivered on:

4 February 2013

REPRESENTATION

Counsel for the Applicant:

The applicant appeared in person

Solicitors for the Applicant:

The applicant was not represented

Advocate for the First Respondent:

Ben Petrie

Solicitors for the First Respondent:

Clayton Utz

Advocate for the First Respondent:

No appearance

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed on 23 July 2012 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 878 of 2012

MZYZI

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal.
The applicant is a citizen of China. He claimed to be a Christian who attended gatherings in a house church. He said that on 9 January 2005 he was at a house church gathering which was raided by the police. He said that the police gave him a severe warning to stop attending house church gatherings.
The applicant said that on 10 December 2006 the police again raided a house church gathering which he was attending. He said that he and his brother were arrested but released later the same day. He said his parents were detained for 15 days.
The delegate conducted an interview with the applicant. The delegate recorded that during the interview the applicant was given the opportunity to address inconsistencies in his written and verbal claims. The delegate said at CB 112:
… Although I have doubts as to whether these incidents actually occurred given the lack of detail provided, I am willing to extend the benefit of the doubt that the applicant’s family had previously been detained in China. …
… I had concerns about the truthfulness of the claims submitted. The applicant was very vague in his responses and reluctant to elaborate on the details of his life in China post 2006. …
… Based on the information provided by the applicant, it does not appear apparent that he continued to participate in local church gatherings post 2006. … Given the applicant’s family have been able to continue practicing and have not experiencing [sic] any further problems, despite their coming to the authorities [sic] attention in 2006, the likelihood of the applicant suffering harm for his participating in local house gatherings, together with country…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCA 242
Decision Date

CaseChat Overview and Summary

In the case of MZYZI v Minister for Immigration and Citizenship [2013] FMCA 242, the applicant, a citizen of China, sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) that his application for a protection visa was not well-founded. The applicant claimed to be a Christian in China who had faced persecution due to his religious beliefs. The Minister for Immigration and Citizenship and the Tribunal were the respondents. The Federal Magistrates Court dismissed the applicant's application for review and ordered him to pay the first respondent's costs.

The primary legal issue in this case was whether the Tribunal had the authority to make a decision without the applicant's presence at the hearing, pursuant to section 426A of the Migration Act 1958. The applicant argued that he was unable to attend the hearing due to illness and that the Tribunal should have notified him of the basis upon which the decision would be made. The court considered whether the Tribunal was obligated to contact the applicant or his agent if he failed to attend the scheduled interview.

The court found that section 426A of the Migration Act permits the Tribunal to make a decision without the applicant's presence if they do not attend the scheduled hearing. The court also held that there was no obligation on the Tribunal to notify the applicant of the basis upon which the decision would be made, as the applicant was already aware of the basis from the delegate's reasons. The court found that the Tribunal did not err in making its decision without the applicant's presence and dismissed the application for review.

Orders