MZAGO v Minister for Immigration - [2015] FCCA 1305

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGO v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1305

Catchwords:
MIGRATION – Judicial review – whether applicant at risk in India for inter-caste marriage can relocate – test for relocation – whether Tribunal applied the correct test – relief granted.

Legislation:

Migration Act 1958 (Cth), s.91R(1)(b)

Applicant:

MZAGO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1255 of 2014

Judgment of:

Judge F. Turner

Hearing date:

22 April 2015

Date of Last Submission:

22 April 2015

Delivered at:

Melbourne

Delivered on:

22 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr J.R Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the Refugee Review Tribunal quashing its decision dated 5 June 2014.
A writ of mandamus issue directed to the Refugee Review Tribunal requiring it to determine according to law the application made to it, to review the decision of a delegate of the first respondent dated

25 November 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1255 of 2014

MZAGO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 5 June 2014. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant’s amended application filed on 7 April 2015 contains the following grounds for judicial review:
(1)The Second Respondent made jurisdictional error by failing to carry out its jurisdictional task in determining whether there was a real chance that the Applicant and her husband would be located by her persecutors if they moved to another State in India.
(2)The Second Respondent made jurisdictional error by assuming that the Applicant and her husband would not be living openly and as easily located professionals in any part of India.
(3)The Second Respondent made jurisdiction error by having regard to irrelevant…

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 1305
Decision Date: 22 May 2015

CaseChat Overview and Summary

In MZAGO v Minister for Immigration, the applicant sought judicial review of a decision made by the Refugee Review Tribunal. The core of the dispute concerned whether the Tribunal had erred in law when assessing the applicant's claims.

The primary legal issue before the Court was whether the Refugee Review Tribunal had failed to properly exercise its jurisdiction by not addressing the correct legal questions in its decision-making process. Specifically, the Court had to determine if the Tribunal had followed the established principles for assessing claims, as previously outlined in High Court authorities such as *SZSCA* and *SZATV*.

The Court reasoned that the Tribunal had erred by failing to consider whether a safe haven existed in India before assessing the practicability of relocation for the applicant. This approach contravened the established legal framework, which required the safe haven question to be addressed first. The Court found that this failure constituted a failure to exercise jurisdiction, as the Tribunal had not followed the legally mandated steps. The Court dismissed the argument that the decision was irrational, finding that there was some probative evidence supporting the Tribunal's findings. However, the failure to address the correct legal questions was determinative.

Consequently, the Court ordered that a writ of certiorari issue to quash the Refugee Review Tribunal's decision of 5 June 2014, and a writ of mandamus issue requiring the Tribunal to determine the applicant's review application according to law. The Court found that the grounds for this relief were sufficiently incorporated within the amended application, rendering further leave unnecessary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In SZMDS (supra) at [135], Crennan and Bell JJ decided:“On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims.” (emphasis added) The Court dismisses the claim that the decision was irrational as there is evidence on which the finding could be based. Mr McDermott submitted that the Tribunal completed its statutory task in line with the principle in SZSCA. The Court disagrees. The Tribunal did not find that there was a safe haven in India before considering the issue of whether it was reasonably practicable for the applicant to relocate. That being so, the Tribunal erred in law by failing to address the first question as set out in SZSCA (supra). Those questions had previously been accepted as correct by three judges of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19] and therefore applied at the time of the Tribunal’s decision in this matter. There was thereby a failure by the Tribunal to exercise its jurisdiction. On that basis, the Court finds that the applicant is entitled to the relief sought. The Court orders that:(1)A writ of certiorari issue directed to the Refugee Review Tribunal quashing its decision dated 5 June 2014.(2)A writ of mandamus issue directed to the Refugee Review Tribunal requiring it to determine according to law the application made to it to review the decision of a delegate of the first respondent dated 25 November 2013. Mr McDermott submitted that the above ground was not set out in the application and required leave to be granted. However, the Court finds that as the ground is incorporated in ground 1 of the amended application, leave is not necessary. The above relief having been granted, it is unnecessary for the Court to decide the other issues addressed at the hearing.