MZAJD v Minister for Immigration - [2016] FCCA 2697

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJD v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2697

Catchwords:
MIGRATION – Protection (Class XA) visa – applicant a Pakistani Pashtun Sunni-Islam – complementary protection claim rejected by Tribunal.

REASONS FOR DECISION – “for the reasons set out above” used to reject claims to Convention-based protection as well as claims to complementary protection claims notwithstanding different criteria applied to each claim and no separate differentiation used by the Tribunal when rejecting both claims.

COMPLEMENTARY PROTECTION CLAIM – Whether made on material – whether Tribunal property identified issues for its consideration – Tribunal failed to properly address claim.

JURISDICTIONAL ERROR ESTABLISHED – Constitutional writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)
77 ALJR 1088
F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244
Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052
NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff M61/2010E v Commonwealth & Ors (2010) 243 CLR 319
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

SZSXE v Minister for Immigration and Border Protection [2014] FCA 867

Justice Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’ (2014)
5 Victorian Judicial Scholarship

Applicant:

MZAJD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1546 of 2014

Judgment of:

Judge Wilson

Hearing date:

17-18 December 2015 & 18 May 2016

Date of Last Submission:

18 May 2016

Delivered at:

Melbourne

Delivered on:

20 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr M. Albert

Solicitors for the Applicant:

Clothier Anderson & Associates

Counsel for the First Respondent:

Mr S. Rebikoff

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The name of the second respondent is amended to “Administrative Appeals Tribunal”.
Leave is granted to the applicant to amend the grounds of review in the amended application filed 19 November 2014.
An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 30 June 2014.
An order in the nature of a writ of mandamus issue directing the

second respondent to hear and determine the application for review according to law.
The first respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1546 of 2014

MZAJD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By amended application filed 19 November 2014, the applicant alleged that the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), fell into jurisdictional…

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 2697
Decision Date: 20 October 2016

CaseChat Overview and Summary

The applicant, MZAJD, a Pakistani Pashtun Sunni-Islam, sought judicial review of a decision by the Migration Review Tribunal (MRT) that rejected their claims for a Protection (Class XA) visa. The dispute centred on the MRT's handling of both Convention-based protection claims and complementary protection claims. The matter came before Judge Wilson of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the MRT had properly identified and addressed the applicant's claims for complementary protection, and whether the Tribunal had committed jurisdictional error in its rejection of these claims. The applicant also contended that the MRT had failed to adequately differentiate between the criteria for Convention-based protection and complementary protection when rejecting both, despite these claims having distinct legal bases.

Judge Wilson found that the MRT had failed to properly address the applicant's complementary protection claim. The Tribunal's reasons, which referred to "the reasons set out above" to reject both types of claims, did not demonstrate that it had properly considered the specific material and legal requirements applicable to complementary protection. This failure to properly identify and address the issues for its consideration constituted jurisdictional error.

Consequently, the Court established that jurisdictional error had occurred and issued constitutional writs accordingly.

Orders