MZABH v Minister for Immigration - [2015] FCCA 1111

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABH & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1111

Catchwords:
MIGRATION – Refugee Review Tribunal – Tribunal reconstituted – whether the Tribunal’s reliance on record of hearing conducted by Tribunal as originally constituted involved jurisdictional error – whether interpretation shown to involve jurisdictional error – whether jurisdictional error consisting of alleged inadequacies of applicants’ lawyer.

Legislation:
Migration Act 1958, ss.422, 424A

Cases cited:
SZDWB v Minister for Immigration and Citizenship [2008] FCA 92
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

First Applicant:

MZABH

Second Applicant:

MZABJ

Third Applicant:

MZABK

Fourth Applicant:

MZABL

Fifth Applicant:

MZABM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 383 of 2014

Judgment of:

Judge Riley

Hearing date:

23 March 2015

Date of last submission:

14 April 2015

Delivered at:

Melbourne

Delivered on:

4 May 2015

REPRESENTATION

Advocate for the applicant:

David Eldridge

Solicitors for the applicant:

David Eldridge - Lawyer

Counsel for the first respondent:

Catherine Symons

Solicitors for the first respondent:

Clayton Utz

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Clayton Utz

ORDERS

The application filed on 4 March 2014 and amended on 25 March 2015 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 383 of 2014

MZABH

First Applicant

MZABJ

Second Applicant

MZABK

Third Applicant

MZABL

Fourth Applicant

MZABM

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicants protection (class XA) visas. The first applicant is the husband of the second applicant. They are the parents of the third, fourth and fifth applicants. The first applicant made protection claims. The other applicants relied on being members of his family unit.
The first three applicants were born in Sri Lanka. The first applicant left Sri Lanka in 2008 and went to Malaysia. He returned to Sri Lanka later in 2008 and went back to Malaysia again shortly after. The second and third applicants joined the first applicant in Malaysia in 2009. The fourth applicant was born in Malaysia. The fifth applicant was born in Australia after the others arrived here as irregular maritime arrivals on 9 August 2012. The applicants are all of Tamil ethnicity.
The application to this court was filed without the benefit of legal assistance. However, by the time of the hearing on 23 March 2015, the applicants had obtained a lawyer. He advised the court of the amended grounds of review verbally during the hearing. Without opposition, the applicants were given leave to file an amended application by

27 March 2015. An amended application was filed on 25 March 2015.
Also on 23 March 2015,…

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: [2015] FCCA 1111
Decision Date: 4 May 2015

CaseChat Overview and Summary

The applicant, MZABH, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the Minister's assessment of MZABH's claims for protection, specifically relating to the risk of persecution upon return to their country of origin. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had failed to consider relevant information when assessing MZABH's protection claims. This involved determining whether the delegate had adequately considered the evidence presented by MZABH regarding the alleged persecution and whether the delegate's adverse credibility findings were reasonably open on the material before them.

Judge Riley found that the delegate had failed to properly consider crucial aspects of MZABH's evidence, particularly concerning the applicant's stated reasons for fearing persecution and the specific circumstances they alleged would expose them to harm. The Court held that the delegate's adverse credibility findings were not reasonably open on the evidence, as they had overlooked or undervalued significant portions of MZABH's account. Consequently, the decision to refuse the protection visa was found to be affected by jurisdictional error. The Court set aside the decision under review and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders