MZAQB v Minister for Immigration - [2017] FCCA 161

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAQB & ORS v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 161

Catchwords:
MIGRATION – Mental capacity of applicant to participate in Tribunal hearing – medical evidence showing applicant with mental infirmity – jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.422B, 425

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

First Applicant:

MZAQB

Second Applicant:

MZAQC

Third Applicant:

MZAQD

Fourth Applicant:

MZAQE

Fifth Applicant:

MZAQF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 9 of 2015

Judgment of:

Judge Wilson

Hearing date:

7 September 2016

Date of Last Submission:

14 October 2016

Delivered at:

Melbourne

Delivered on:

2 February 2017

REPRESENTATION

First Applicant in person

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the
First Respondents:

Clayton Utz

ORDERS

The name of the second respondent is amended to “Administrative Appeals Tribunal”.
An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 8 December 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 applicants’ costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 9 of 2015

MZAQB

First Applicant

MZAQC

Second Applicant

MZAQD

Third Applicant

MZAQE

Fourth Applicant

MZAQF

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The question in this application for judicial review was whether the second applicant was competent to participate in the proceeding before the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), by reason of her mental health. If she was not, the Tribunal fell into jurisdictional error.

Synopsis

For the reasons that follow, in my judgment the second applicant did not possess the requisite capacity to participate in the hearing before the Tribunal.
These reasons will make more sense when the relevant legal principles are set out ahead of a consideration of the factual scenario in the case.

Relevant legal principles

Three important decisions bear upon the outcome of this case, two of the Full Court of the Federal Court of Australia and one of the

High Court of Australia. The two Full Court of the Federal Court decisions are Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[1] (“SCAR”) and Minister for Immigration and Citizenship v SZNVW[2] (“SZNVW”). The decision of the High Court of Australia is SZFDE v Minister for Immigration and Citizenship[3]…

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 161
Decision Date: 2 February 2017

CaseChat Overview and Summary

The applicant, MZAQB, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision of the Refugee Review Tribunal (RRT) to refuse to grant the applicant a protection visa. The dispute concerned the applicant's claims for protection based on a fear of persecution in their country of origin.

The primary legal issue before the court was whether the RRT had erred in law by failing to adequately consider and assess the applicant's claims regarding their membership of a particular social group and the alleged persecution they faced due to that membership. Specifically, the court was asked to determine if the RRT's findings were reasonably open to them on the evidence before them, or if they had made an error in applying the relevant legal tests for establishing membership of a particular social group and for assessing the well-foundedness of a fear of persecution.

Judge Wilson found that the RRT had failed to properly engage with the evidence presented by the applicant concerning their alleged membership of a particular social group. The RRT's reasoning was found to be deficient in its analysis of the nexus between the alleged persecution and the applicant's claimed group identity. The court applied the principles established in cases concerning the interpretation of "particular social group" under the Refugee Convention, emphasising the need for a clear and logical connection between the grounds for persecution and the characteristics of the group. The RRT's failure to adequately address this nexus constituted an error of law.

The court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders