FEDERAL COURT OF AUSTRALIA

MZYUH v Minister for Immigration and Border Protection [2015] FCA 187

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Magistrates Court on 16 July 2012 in proceeding MLG40/2012 be set aside and, in lieu thereof, there be orders that:

(a)    a writ of certiorari issue directed to the Refugee Review Tribunal quashing the decision of the Refugee Review Tribunal dated 15 December 2011;

(b)    a writ of mandamus issue directed to the Refugee Review Tribunal requiring it to determine according to law, and by a differently constituted Tribunal, the application for review made to it of the decision of the delegate of the first respondent dated 6 April 2011;

(c)    the first respondent pay the appellant’s costs of the proceedings in the Federal Magistrates Court, fixed by agreement in the sum of $4000.

3.    The first respondent pay the appellant’s costs of the appeal, to be taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

1    The applicant appeals against the dismissal by the Federal Circuit Court of Australia (then known as the Federal Magistrates Court of Australia) of his application for judicial review of a decision of the Refugee Review Tribunal (the RRT). By that decision, the RRT affirmed the decision of a delegate of the Minister refusing the appellant’s application for a Protection (Class XA) visa.

2    The RRT has filed a submitting notice and has not appeared at today’s hearing. The Minister has indicated consent to orders allowing the appeal. I consider that the orders proposed by the parties are appropriate and give the following brief reasons.

3    Many of the circumstances of the appeal are set out in my decision in MZYUH v Minister for Immigration and Border Protection [2014] FCA 1374, by which the Court granted the appellant an extension of time on which to commence his appeal to this Court. These ex tempore reasons should be read in conjunction with those reasons and, except when it is necessary to do so, I will endeavour to avoid repetition.

4    The Minister acknowledges that the RRT failed to consider properly the applicant’s claims in respect of his being a member of the Coptic Church in Egypt and, in particular, the evidence which the appellant had adduced from an Egyptian priest regarding the harm which he had suffered in Egypt before coming to Australia, as well as documentary evidence which the appellant had put forward in support of his application for the visa. The Minister accepts that the RRT’s failure to consider those matters properly constitutes jurisdictional error.

5    The Notice of Appeal to this Court contains three grounds, but there is some overlap between the second and third. The first complains that the then Federal Magistrate misconstrued the nature of the application before him, with the effect that he failed to consider appropriately the case for judicial review and, in particular, the grounds upon which the appellant then relied. Grounds two and three complain that the then Federal Magistrate should have found that the RRT had failed to address and determine the application for the visa on the basis of the material which the RRT itself had accepted.

6    For the reasons given in [18] to [26] of the extension of time decision, I consider that the first ground is made out. By itself, this would make it appropriate for the application for judicial review to be remitted for further hearing in the Federal Circuit Court or, alternatively, for this Court to reach its own decision on the application.

7    The reasons for the RRT decision are set out in [36] to [40] of the extension of time decision. Essentially, the RRT regarded the appellant as an unreliable witness, and preferred other evidence on aspects his application.

8    However, the RRTs reasons also indicate that it had accepted other evidence which indicated that the appellant was an active worker within his Church in Egypt at Sunday school and within groups within the Church; that the appellant had been harassed while in Egypt because of his religion; that the Egyptian priest had regarded the harassment as being so serious that he had suggested to the appellant that he leave Egypt; that the appellant had received threats on the telephone from Muslim fundamentalists and had been bashed while walking on the streets; that conditions relating to religious freedom had not improved in Egypt since 2011; that attacks on religious minorities continued; and that if the appellant was returned to Egypt, he would continue to practice his faith as he had before leaving Egypt and as he has while in Australia.

9    The appellant submitted that, despite accepting the oral and documentary evidence which indicated those matters, the RRT had not addressed their significance to his claim that he has a well-founded fear of being persecuted by reason of his religion in Egypt such as to give rise to protection obligations by Australia under the Refugees Convention. In particular, he submitted that it meant that the RRT had failed to address, as it was required to do, the application of the criteria prescribed in s 65(1) of the Migration Act 1958 (Cth).

10    I addressed this submission in part in the extension of time decision when considering whether the appellant’s claims were reasonably arguable so as to warrant an exercise of the discretion to extend time in his favour. I accepted then that the appellant’s claim that the RRT had failed to consider the case which emerged on the submissions and the evidence accepted by the RRT was reasonably arguable. The Minister’s consent now to the appeal being allowed indicates an acknowledgement on his part that the appellant’s claim in this respect is meritorious. This means that the Court should accept that the RRT’s decision was affected by jurisdictional error.

11    I am satisfied in these circumstances that it is appropriate to give effect to the parties’ agreement. Accordingly, I make orders as follows:

(1)    The appeal is allowed.

(2)    The orders made by the Federal Magistrates Court on 16 July 2012 in proceeding MLG40/2012 be set aside and, in lieu thereof, there be orders that:

(a)    a writ of certiorari issue directed to the Refugee Review Tribunal quashing the decision of the Refugee Review Tribunal dated 15 December 2011;

(b)    a writ of mandamus issue directed to the Refugee Review Tribunal requiring it to determine according to law, and by a differently constituted Tribunal, the application for review made to it of the decision of the delegate of the first respondent dated 6 April 2011;

(c)    the first respondent pay the appellant’s costs of the proceedings in the Federal Magistrates Court, fixed by agreement in the sum of $4000.

(3)    The first respondent pay the appellant’s costs of the appeal, to be taxed or agreed.

Associate:

Dated:    6 March 2015