MZAJE v Minister for Immigration - [2016] FCCA 2313

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJE v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2313

Catchwords:
MIGRATION – Application for judicial review – protection visa – whether Tribunal failed to consider claims or integers of claims made by Applicant – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 414

Cases cited:
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and Border Protection v MZYTS(2013) 136 ALD 547
Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81
SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant:

MZAJE

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1556 of 2014

Judgment of:

Judge Jones

Hearing date:

25 September 2015 and 13 May 2016

Date of Last Submission:

13 May 2016

Delivered at:

Melbourne

Delivered on:

6 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms Burt

Solicitors for the Applicant:

Ambi Associates

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.
A writ of certiorari issue, directed to the Second Respondent quashing the decision of the Second Respondent dated 28 June 2014.
A writ of mandamus issue, remitting the matter to the Second Respondent and requiring it to determine the matter according to law.
The First Respondent pay the Applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1556 of 2014

MZAJE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application for judicial review of a decision by the then Refugee Review Tribunal ( “the Tribunal”) made on 28 June 2014, to affirm a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant is a Sri Lankan national, of Tamil ethnicity and Hindu religion. He was born on 21 August 1985 in Kaluvanchikudy, Batticaloa. His wife remains living in Sri Lanka. Between 2006 and 2008, he worked as a driver of three wheeled vehicles and, from April 2009 to May 2012, he was self-employed in the construction industry. It is relevant to note that the Applicant has two male siblings. One brother, Mr T, is a citizen of France having been recognised as a refugee in France, in December 2000, on the basis that he was a member of the LTTE. The other brother, Mr N, also applied for a protection visa in…

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 2313
Decision Date: 6 September 2016

CaseChat Overview and Summary

The applicant, MZAJE, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant MZAJE a protection visa. The matter came before Judge Jones of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing MZAJE's claims, had failed to properly consider or give sufficient weight to certain aspects of MZAJE's evidence and submissions, thereby failing to undertake the assessment required by the *Migration Act 1958* (Cth).

Judge Jones reasoned that the delegate's decision-making process, as evidenced in the reasons provided, demonstrated a failure to properly engage with the entirety of MZAJE's claims. The delegate appeared to have overlooked or undervalued critical elements of the evidence relating to past persecution and the risk of future harm. This failure to undertake a comprehensive assessment, as mandated by the relevant provisions of the *Migration Act*, constituted a jurisdictional error. The Court applied the principle that a failure to consider relevant material or to properly weigh evidence can vitiate a decision, rendering it legally invalid.

Consequently, Judge Jones quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders