MZACM v Minister for Immigration - [2016] FCCA 299

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACM & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 299

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – no matters of principle.

Legislation:

Migration Act 1958 (Cth), s.424AA

SZGOW v The Minister for Immigration and Anor [2006] FMCA 1687
NAOX and Anor v The Minister for Immigration and Anor [2008] FMCA 1467

First Applicant:

MZACM

Second Applicant:

MZACN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 560 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

27 November 2015

Date of Last Submission:

27 November 2015

Delivered at:

Melbourne

Delivered on:

16 February 2016

REPRESENTATION

Counsel for the Applicants:

Ms Nicholson

Solicitors for the Applicants:

Bardo & Erci Lawyers

Counsel for the First Respondent:

Ms Symons

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

n/a

Solicitors for the Second Respondent:

n/a

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal.
The application filed 28 March 2014 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 560 of 2014

MZACM

First Applicant

MZACN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are mother and son, the mother is the primary applicant. They are citizens of Lebanon.
The applicant came to Australia on 11 August 2012 on a sponsored family visa. On 2 November 2012 the applicant applied for protection visas for herself and her son.
The applicant argues that her claim is based upon four integers:
a)That she resided in a suburb of Tripoli, Lebanon, which is the location of intermittent armed conflict with the Alawi Group;
b)That her husband is a member of the Salafi Group, which is in conflict with the Alawi insurgents, and, therefore, places her at risk as his wife;
c)That her husband was controlling and had committed violence against her, and that the authorities in Lebanon would not intervene to protect her;
d)That her husband is entitled to force her to reside him and take custody of the second applicant (and prohibit her from seeing the second applicant) under the laws of Lebanon, and that the State would not intervene to prevent this from happening.
The Tribunal accepted that the applicants were citizens of Lebanon, and that there was intermittent armed conflict between the Salafi and Alawi insurgents during the time that the applicant claims to have resided in a suburb of Tripoli.
The overwhelming difficulty confronting the applicant in her application was that the Tribunal concluded that it would not accept her evidence, on the basis that she was not credible. The Tribunal did not simply make a statement that it found the applicant not to be a credible witness, but gave a detailed explanation as to why her credibility was rejected, including:
a)That her evidence at the hearing…

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: [2016] FCCA 299
Decision Date: 16 February 2016

CaseChat Overview and Summary

The applicant, MZACM, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant MZACM a protection visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of MZACM's claims for protection. Specifically, the Court was required to consider whether the delegate had failed to adequately consider all relevant information provided by the applicant, and whether the delegate's adverse credibility findings were reasonably open on the evidence.

Judge Riethmuller found that the delegate had failed to properly consider certain documentary evidence submitted by MZACM, which was relevant to the assessment of the applicant's claims. The Court held that the delegate's adverse credibility findings were not reasonably open on the evidence before them, as they had overlooked or undervalued crucial aspects of MZACM's account. Consequently, the Court concluded that the decision under review was affected by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders