MZADF v Minister for Immigration - [2016] FCCA 3000

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADF v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3000

Catchwords:
MIGRATION – Judicial review – application to reinstate.

Legislation:

Migration Act 1958 (Cth), s.486E

Immigrants and Emigrants Act 1949 (Sri Lanka)
Federal Circuit Court Rules 2001 (Cth), pt.3 sch.1

Cases cited:

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280

Chen v Monash University [2016] FCAFC 66
Briginshaw v Briginshaw [1938] HCA 34

Applicant:

MZADF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 743 of 2014

Judgment of:

Judge Harland

Hearing date:

12 September 2016

Date of Last Submission:

12 September 2016

Delivered at:

Melbourne

Delivered on:

12 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr Barataraj

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the Second Respondent be amended from ‘Refugee Review Tribunal’ to the ‘Administrative Appeals Tribunal’.
The application in a case filed 13 July 2016 is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 743 of 2014

MZADF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an Application in a Case seeking to reinstate proceedings which were discontinued by way of a consent order lodged in my chambers in July 2015. I do not propose to set out the factual background in any great detail and note that it is addressed in the written submissions of the first respondent. Both in the submissions that were filed with respect to this application but also with respect to the related proceedings of MLG 2330 of 2015. Having considered the court book and the decision of the Tribunal in particular it is an accurate summary of the background of the case. The applicant had the assistance of lawyers during the course of the first set of proceedings which are proceedings number MLG 743 of 2014. His lawyers filed a notice of address for service after the applicant filed his application for judicial review.
After the proceedings were discontinued by consent, which also included a costs order by consent in the Minister’s favour, the applicant made a request to the Minister for intervention. It is apparent from the applicant’s affidavit filed in support of the Application in a Case that the same solicitors assisted him with that application. This is because at the annexure of the applicant’s affidavit the letter notifying him of his failure to succeed in that request at page 2 of that annexure was also sent to his solicitors. That suggests that his solicitors assisted him with that application.
After he was unsuccessful in that request for ministerial intervention the applicant filed a further…

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 3000
Decision Date: 12 September 2016

CaseChat Overview and Summary

The applicant, MZADF, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse MZADF’s application for a protection visa. The dispute concerned the lawfulness of the Minister's decision, specifically whether it was affected by an error of law. 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, in assessing MZADF's claims for protection, had failed to properly consider and assess the evidence presented, particularly in relation to the applicant's fear of persecution. This involved determining whether the delegate had adequately addressed the specific claims made by MZADF and whether the assessment of those claims was based on relevant considerations and free from jurisdictional error.

Judge Harland found that the delegate had failed to properly consider and assess the evidence relating to MZADF's claims of persecution. The Court reasoned that the delegate's decision contained a failure to engage with crucial aspects of the applicant's evidence, leading to an assessment that was not open on the material before the delegate. This failure constituted a jurisdictional error. The Court applied principles of administrative law concerning the duty to provide adequate reasons and the requirement for decision-makers to genuinely consider all relevant evidence.

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

Orders