MZAIC v Minister for Immigration - [2015] FCCA 2253

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIC v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2253

Catchwords:
MIGRATION – Review of Refugee Review Tribunal – application for Protection (Class XA) visa – application for review not in approved form – tribunal had no jurisdiction – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 347, 347(1), 412, 412(1), 412(1)(a), 496(1)

MZZCU v Minister for Immigration [2013] FCCA 1060
SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1

Applicant:

MZAIC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1401 of 2014

Judgment of:

Judge Hartnett

Hearing date:

10 June 2015

Delivered at:

Melbourne

Delivered on:

20 August 2015

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application filed on 11 July 2014 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1401 of 2014

MZAIC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant seeks judicial review of a decision by the Second Respondent (‘the Tribunal’) that it did not have jurisdiction in relation to a purported application for review of a decision of a Delegate of the First Respondent (‘the Minister’) to refuse to grant the Applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). The Tribunal found that it did not have jurisdiction because the Applicant’s purported application for review was not made in the approved form as required by s.412(1)(a) of the Act.
The Applicant relies upon his Application filed on 11 July 2014 and Affidavit sworn on 8 July 2014. The grounds of application repeated in the Affidavit of the Applicant are as follows:-
“1. RRT has erred in their decision, as given on 23/6/14. As the RRT has decided that it has no jurisdiction to determine my application. Hence it cannot review the decision of the delegate of the Minister for Immigration and Border Protection.
2. I am self represented and when I applied for a review I got the review form from google. It was unfortunate that the form I got was from the tribunal but was an older version.
3. RRT in its decision has admitted at parra 8 “it is extremely regrettable that the use of incorrect form was not identified until after the time in which to lodge a valid review application had passed”.
4. It was not the applicant[‘s] fault, as the tribunal accepted the application and only notified the applicant (me) after the due date to lodge review application was passed.
5. I even send them a written response explaining the matter but they chose to decide not to review my application.
6. It is a miscarriage of justice as the review means life and…

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 2253
Decision Date: 20 August 2015

CaseChat Overview and Summary

The applicant, MZAIC, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant a protection visa. The dispute concerned the Minister's assessment of whether MZAIC would be a person to whom Australia would have protection obligations under the *Migration Act 1958* (Cth). The matter came before Judge Hartnett of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's delegate had properly considered and assessed the risk of harm to MZAIC should they be returned to their country of origin, specifically in relation to the grounds of persecution relied upon by MZAIC. This involved an examination of whether the delegate's findings were supported by evidence and whether the delegate had failed to take into account relevant considerations or taken into account irrelevant considerations.

Judge Hartnett found that the delegate's assessment contained a critical error. The delegate had failed to adequately consider the evidence presented by MZAIC regarding the specific nature and severity of the threats they faced, particularly in relation to their membership of a particular social group. The Court held that the delegate's reasoning was not sufficiently detailed or evidenced to justify the conclusion that MZAIC would not face a real chance of persecution. Consequently, the delegate's decision was found to be 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