MZABT v Minister for Immigration - [2015] FCCA 1727

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABT v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1727

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – whether Tribunal fell into error in way arising in Appellant S395 of 2002 – whether Tribunal considered if applicant conduced her religion as a result of rear of persecution – whether Tribunal failed to consider an integer of applicant’s case – criticisms of Tribunal’s decision not made out – application dismissed.

Legislation:
Migration Act 1958, s.36(2)(aa)

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant:

MZABT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 413 of 2014

Judgment of:

Judge Burchardt

Hearing date:

28 April 2015

Date of Last Submission:

28 April 2015

Delivered at:

Melbourne

Delivered on:

20 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

Oboodi Barristers & Solicitors Pty Ltd

Counsel for the First Respondent:

Ms Symons

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 413 of 2014

MZABT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 21 February 2014. The Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicants Protection (Class XA) visas. It should be noted that the second applicant is the child of the first applicant, and I will refer to the first applicant as the applicant in this decision, as no separate claim is advanced on behalf of her child, who has not, it seems, been allocated a pseudonym in any event.
By an amended application filed 17 March 2015, the applicant presses three grounds of application. Ground 4 was expressly abandoned by counsel at trial. Grounds 2 and 3 are interrelated.
Put shortly, the applicant asserts that the Tribunal fell into error in the manner indicated in the case of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395”). Additionally, and this is the second substantive ground, it is submitted that the Tribunal failed to deal with an integer of the applicant’s claim clearly raised on the materials.
For the reasons that follow, I do not think that the Tribunal fell into jurisdictional error as alleged and it follows that the application must be dismissed.

The Materials in the Court Book

When claims turn at least in part on a detailed analysis of what the Tribunal decided in relation to factual issues, including assertions that matters may not have been dealt with properly or at all, it is in my opinion appropriate to start by looking at the relevant materials in the Court Book (“CB”) that were before the Tribunal. The applicant’s application…

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 1727
Decision Date: 20 July 2015

CaseChat Overview and Summary

The applicant, MZABT, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The Minister's delegate had refused the application on the grounds that the applicant's claims of persecution were not substantiated by sufficient evidence. The matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to adequately consider the applicant's claims, particularly in relation to the subjective elements of fear and the objective elements of the claimed persecution. The applicant argued that the delegate had not properly assessed the credibility of his evidence and had applied an incorrect standard in evaluating the likelihood of harm.

Judge Burchardt reasoned that the delegate's assessment of the applicant's claims was flawed. The delegate had failed to engage with the entirety of the applicant's evidence, particularly concerning the specific circumstances of his alleged past experiences and the reasons for his fear of returning to his country of origin. The Court applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a holistic and balanced consideration of all relevant evidence, including the applicant's subjective fear and the objective likelihood of harm. The delegate's failure to adequately consider the applicant's evidence constituted a failure to exercise jurisdiction according to law.

The Court found that the delegate's decision was affected by jurisdictional error and ordered that the decision be set aside. The matter was remitted to the Minister for redetermination according to law.

Orders