MZYBX v Minister for Immigration & Citizenship [2009] FCA 685

FEDERAL COURT OF AUSTRALIA

MZYBX v Minister for Immigration & Citizenship [2009] FCA 685

Migration Act 1958 (Cth), ss 5(1), 36, 36(2), 91R, 91R(2), 91R(2)(d), 424A 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 MZYBX v Minister for Immigration & Citizenship & Anor [2009] FMCA 195 affirmed MZYBX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 141 of 2009

GRAY J

26 MAY 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 141 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYBX

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAY J

DATE OF ORDER: 26 MAY 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be added as the second respondent to the appeal, and the title to the proceeding be amended accordingly. 2. The appeal be dismissed. 3. The appellant pay the first respondent'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. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 141 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYBX

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAY J

DATE: 26 MAY 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court of Australia, delivered on 10 February 2009, and published as MZYBX v Minister for Immigration & Citizenship & Anor [2009] FMCA 195. The learned federal magistrate dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), refusing to grant to the appellant a protection visa. 2 The appellant is a citizen of Malaysia who came to Australia with a legitimate visa on 21 November 2007. He applied for a protection visa on 3 January 2008. On 29 February 2008, the Minister's delegate refused to grant a protection visa. The appellant applied to the Tribunal for review of that decision. He attended at a hearing before the Tribunal on 16 May 2008 where he gave evidence and made submissions with the assistance of an interpreter in the Tamil and English languages. The Tribunal's decision was signed on 11 July 2008 and handed down or sent to the appellant on 4 August 2008. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act"), there is a class of visas to be known as protection visas. The relevant criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two documents, taken together, the Convention. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country 4 The appellant claimed to have a well-founded fear of persecution if he should return to Malaysia for reasons of his race, his religion and his political opinion. As a Tamil he was brought up in the Hindu religion. Some years ago, he intended to marry a Muslim woman and began the process of conversion to Islam for that purpose. The woman's family eventually put a stop to the marriage. The appellant reverted to his Hindu religion, and married a Hindu woman. Nonetheless, he said that Muslims still claim him as a Muslim and seek to persuade him to follow the Muslim faith. In addition, the appellant claimed to have a history of activism for the rights of Hindus in Malaysia, including activity with an organisation calling itself Hindraf. He said that he was at a demonstration on 30 October 2007, at which a crowd attempted to prevent the demolition of a Hindu shrine, and that he was beaten by police and detained overnight. He said that he was also threatened that he would be imprisoned if he was caught being involved in an illegal demonstration again. The appellant also claimed to have been an active member of a political party referred to as the DAP.