Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
MZXQS v Minister for Immigration and Citizenship [2009] FCA 97
MIGRATION – visa – protection visa – whether Refugee Review Tribunal failed to consider all claims of appellants – whether claim based on persecution for imputed political opinion due to sister's political affiliations distinct from claim to membership of particular social group (family), or from claim based on imputed political opinion as Tamil – whether Tribunal failed to consider claim based on membership of particular social group, being failed asylum seekers returning to Sri Lanka Held: Tribunal failed to consider both claims – jurisdictional error Migration Act 1958 (Cth), ss 5(1), 36, 91R(3), 91S, 91X Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967 MZXQS v MIAC & Anor and MZXQT v MIAC & Anor [2008] FMCA 372 reversed SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 (2003) 76 ALD 625 applied Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 (2001) 194 ALR 244 applied MZXQS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
VID 226 of 2008
MZXQT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
VID 227 of 2008
GRAY J
17 FEBRUARY 2009
MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 226 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZXQS
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: GRAY J
DATE OF ORDER: 17 FEBRUARY 2009
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by the Federal Magistrates Court on 10 April 2008 be set aside. 3. There be substituted for those orders orders that: (1) A writ of certiorari issue, directed to the Refugee Review Tribunal, removing into this Court the decision of the Refugee Review Tribunal, signed on 30 April 2007 and sent to the appellant on 10 May 2007, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant to the appellant a protection visa, for the purpose of quashing that decision. (2) The decision of the Refugee Review Tribunal, signed on 30 April 2007 and sent to the appellant on 10 May 2007, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant to the appellant a protection visa, be quashed. (3) A writ of mandamus issue, directed to the Refugee Review Tribunal, requiring it to hear and determine according to law the application of the appellant for review of the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant to the appellant a protection visa. (4) The first respondent pay the appellant's costs of the proceeding in the Federal Magistrates Court. 4. The first respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.
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