MZAOL v Minister for Immigration - [2017] FCCA 1837

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAOL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1837

Catchwords:
MIGRATION – Protection visa – visa applicant asserting that she feared harm on account of the risk of forced sterilisation if returned to China – whether any such claim made before the Tribunal – none made – application for judicial review dismissed.

SECTION 438 CERTIFICATE – Consideration of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 – consideration of Singh v Minister for Immigration and Border Protection [2016] FCAFC 183 and Minister for Immigration and Border Protection v Singh [2017] HCATrans 107.

Legislation:

Migration Act 1958 (Cth), s.438

PAM3 Refugee and Humanitarian – Complementary Protection Guidelines

Cases cited:

AJB16 v Minister for Immigration and Border Protection [2017] FCA 544

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

AVO15 v Minister for Immigration and Border Protection [2017] FCA 566

First Applicant:

MZAOL

Second Applicant:

MZAOM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2444 of 2014

Judgment of:

Judge Wilson

Hearing date:

17 October 2016

Date of Last Submission:

Delivered at:

29 March 2017

Melbourne

Delivered on:

8 August 2017

REPRESENTATION

Counsel for the Applicants:

Ms G Costello

Solicitors for the Applicants:

Victoria Legal Aid

Counsel for the First Respondent:

Mr L Brown

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The further amended application filed 2 December 2016 is dismissed.
The applicants pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2444 of 2014

MZAOL

First Applicant

MZAOM

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Special leave to appeal application

The unusually long period of time that elapsed between the date on which this application for judicial review was heard and the handing down of judgment was explained on the basis that the parties wished to await the outcome…

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 1837
Decision Date: 8 August 2017

CaseChat Overview and Summary

The applicant, MZAOL, sought judicial review of a decision by the Minister for Immigration to refuse her protection visa. The applicant's claim for protection was based on an asserted fear of forced sterilisation if returned to China. The primary dispute concerned whether this specific claim had been made before the Administrative Appeals Tribunal.

The court was required to determine whether the applicant had, in fact, raised the issue of forced sterilisation as a ground for her protection claim before the Tribunal. If this claim had not been raised, the court would then consider the implications for the applicant's application for judicial review.

Justice Wilson found that the applicant had not made any claim before the Tribunal that she feared harm on account of the risk of forced sterilisation if returned to China. Her Honour considered the evidence presented to the Tribunal and concluded that the grounds relied upon by the applicant in her judicial review application were not raised in the proceedings before the Tribunal. Accordingly, the application for judicial review was dismissed.

Orders