MZAJA v Minister for Immigration - [2017] FCCA 448

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJA v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 448

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 429.

Applicant:

MZAJA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2094 of 2016

Judgment of:

Judge Riethmuller

Hearing date:

30 January 2017

Date of Last Submission:

30 January 2017

Delivered at:

Melbourne

Delivered on:

30 January 2017

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Mr Tran

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2094 of 2016

MZAJA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) to affirm a delegate’s decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
The application before the Court was lodged 69 days after the Tribunal’s decision and, therefore the applicant also requires an extension of time to bring this application.
To understand this case, one has to go back to 2011. The applicant came to Australia in January 2011 on a prospective marriage visa on the basis that he was travelling to marry his sponsor, Ms S. By October 2011, the prospective marriage visa had expired and the applicant has held various bridging visas since then.
The bridging visa, the subject of this application, was granted in April 2014. The applicant has not held a substantive visa since October 2011. The reason that the applicant has continued to receive bridging visas is that he sought a protection visa and also pursued his spouse visa. The application for a protection visa was refused, and in December 2015 an application for judicial review of the protection visa decision was also dismissed. In April 2014, a delegate refused his spouse visa application. On the applicant’s case, the relationship with Ms S. had ended and Ms S. had claimed that he had committed family violence against her and obtained an intervention order.
It transpires that the original decision to refuse his spouse visa application was not notified to him in accordance with the Migration Act 1958. As a result, the Department had a delegate consider the application again. The delegate refused his spouse visa on 25 January 2016. On 8 August 2016, the Tribunal affirmed the decision of the delegate. The applicant has not sought judicial review of the Tribunal’s decision. As a result, his bridging visa would have expired in accordance with cl.010.511 on 12 September 2016 (see cl.010.512).
In the intervening period, the Department issued a Notice of intention to cancel the bridging visa on 15 June 2016. The particulars of the grounds for cancellation were set out and are as…

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: [2017] FCCA 448
Decision Date: 30 January 2017

CaseChat Overview and Summary

The applicant, MZAJA, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Riethmuller in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant evidence, including country information and the applicant's personal circumstances, when assessing the risk of persecution. The Court also considered whether the delegate had applied the correct legal test for establishing a well-founded fear.

The Court found that the delegate had failed to adequately consider certain aspects of the country information and had not given sufficient weight to the applicant's subjective experience. The delegate's assessment was found to be based on an incomplete understanding of the potential risks faced by individuals in the applicant's situation. Consequently, the Court concluded that the decision under review was affected by jurisdictional error. The Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders