MZAFX v Minister for Immigration - [2015] FCCA 1228

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFX v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1228

Catchwords:
MIGRATION – Application for judicial review of determination of Refugee Review Tribunal – extension of time required – substantive delay – unsatisfactory explanation for delay – no merit in substantive application – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth).

SZLIH & SZLII v Minister for Immigration & Citizenship [2009] FCA 308
SZNZI v Minister for Immigration & Anor [2010] FMCA 57

Applicant:

MZAFX

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1155 of 2014

Judgment of:

Judge McGuire

Hearing date:

12 May 2015

Date of Last Submission:

12 May 2015

Delivered at:

Melbourne

Delivered on:

26 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Mosley

Solicitors for the Applicant:

Australian Government Solicitors

Counsel for the Respondents:

In Person

ORDERS

The applicant’s application for an extension of time to lodge his application for judicial review be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,825.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1155 of 2014

MZAFX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application.

The Applicant seeks judicial review of a determination of the Refugee Review Tribunal (“the Tribunal”) made 23 January 2014 affirming a decision of the Minister’s Delegate that the applicant did not meet the criteria for a Protection (Class XA) visa (“the visa”) pursuant to s 36(2) of the Migration Act 1958 (“the Act”).
The applicant appears unrepresented but with the assistance of an interpreter.
The application was filed 12 June 2014 and is some three months out of time. The applicant therefore seeks the indulgence of an extension of time to bring this application.
The application for the extension of time and the substantive application are both opposed.
On 5 September 2014 the Registrar made orders and directions including for the filing of written submissions. The applicant has not provided any written submissions.
The applicant was invited to make oral submissions before me both prior and post submissions of Counsel for the first respondent. The submissions that were forthcoming did not address the issue of the extension of time nor any particular error of the Tribunal alleged. Such submissions broadly repeated the material in the applicant’s claim for a visa heard by the Minister’s Delegate and the Tribunal.
The applicant did file an affidavit sworn 12 June 2014 which sets out a chronology as apparent explanation for failure to lodge the application with this Court within the prescribed 35 day time limit. The applicant is functionally illiterate and it is apparent that he had the assistance of some legal advice at that stage. The applicant’s chronology, which is conceded by the first respondent, relevantly sets out:
·On 23 January 2014, the RRT affirmed the delegate’s decision not to grant a protection visa.
·On 3 February 2014, the Red Cross…

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 1228
Decision Date: 26 June 2015

CaseChat Overview and Summary

The applicant, MZAFX, 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 MZAFX's application for 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 by failing to adequately consider or give sufficient weight to the evidence provided by MZAFX regarding their claims of persecution. Specifically, the Court was asked to determine if the delegate's assessment of the evidence was so unreasonable that no decision-maker, acting according to the law, could have reached it.

Judge McGuire found that the delegate's decision-making process contained a jurisdictional error. The delegate had failed to properly engage with significant portions of the evidence presented by MZAFX, particularly concerning the credibility of their claims and the potential risks they faced upon return to their country of origin. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to consider all relevant evidence and to provide reasons that demonstrate such consideration. The failure to do so rendered the decision invalid.

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

Orders