MZAER v Minister for Immigration - [2016] FCCA 782

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAER v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 782

Catchwords:
MIGRATION – Application to reinstate an application to extend time to bring substantive application – abuse of process – no merit – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Applicant A26 of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050

Bailey v Maronoff (1971) 125 CLR 529
Khadri v Minister for Immigration and Border Protection and Migration Review Tribunal [2014] FCA 91

SZFOZ v Minister for Immigration and Citizenship & Anor [2007] FCA 1137 at 17
SZSML v Minister for Immigration and Anor [2013] FCCA 1253
Vu v Minister for Immigration and Citizenship [2008] FCA 59

Applicant:

MZAER

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 2305 of 2014

Judgment of:

Judge McGuire

Hearing date:

29 March 2016

Date of Last Submission:

29 March 2016

Delivered at:

Melbourne

Delivered on:

17 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Gordon

Solicitors for the Applicant:

Ronald Gordon Barrister & Solicitor

Counsel for the Respondent:

Mr Hibbard

Solicitors for the Respondent:

Clayton UTZ

ORDERS

That the application in a case dated 29 July 2015 be dismissed.
That the applicant pay the first respondent’s costs of $2262.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2305 of 2014

MZAER

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This application is convoluted in its history. The application now before me is one to reinstate an application which itself sought to extend time in relation to a substantive application.
The applicant is now represented by Mr Gordon, solicitor, and relies on his own affidavit sworn 26 October 2015, which deals with the applicant’s failure to attend court on 28 July 2015 on the hearing of his application for extension of time. The circumstances around this date are complicated and confusing. It is suffice to say that there were communications between Victoria Legal Aid (then assisting the applicant) and the first respondent’s solicitors. It appears that a date and/or time for the hearing was changed and that the applicant came to court on 28 July 2015 in the afternoon when the hearing had been listed in the morning and hence his application was dismissed.
On the balance of probabilities, I can be satisfied that the applicant did attend court on 28 July 2015 and, despite some evidentiary queries and issues of credit, I am prepared to accept that there was a climate of some confusion and miscommunication to the applicant. His explanation was a plausible one and I accept it as being reasonable.
The application to extend time is also problematic in that it results from a prior substantive application that was discontinued by the applicant in order to pursue an option of ministerial intervention. The application for an extension of time now emanates from a second and separate application for judicial review. That is, the…

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 782
Decision Date: 17 May 2016

CaseChat Overview and Summary

The applicant, MZAER, 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 the applicant a visa. The matter came before Judge McGuire of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. This involved an examination of whether the decision-maker failed to take into account a relevant consideration or took into account an irrelevant consideration when assessing the applicant's eligibility for the visa.

Judge McGuire reasoned that the decision-maker had failed to properly consider the applicant's submissions regarding their genuine temporary entrant status. The Court found that the decision-maker had overlooked crucial evidence that supported the applicant's intention to remain in Australia only temporarily. This failure to consider relevant material constituted a jurisdictional error, rendering the decision invalid.

Consequently, the Court quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders