MZARM v Minister for Immigration - [2018] FCCA 965

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZARM v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 965

Catchwords:
MIGRATION – Protection (class XA) visa – applicant claimed to fear harm from Colombian drug cartel if he returned to Colombia – whether tribunal’s failure to inform applicant of existence of s.438 certificate amounted to jurisdiction error – no jurisdictional error detected – information contained in s.438 certificate known to the applicant and was before the tribunal – whether tribunal’s failure to put to the applicant information in departmental international movement records amounted to a breach of s.424 of the Migration Act 1958 – s.424 not breached – information about international movements was before the tribunal and known to the applicant.

Legislation:

Migration Act 1958, ss.424A, 427(1)(c), 438

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant:

MZARM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 230 of 2015

Judgment of:

His Honour Judge Wilson

Hearing date:

21 February 2018

Date of Last Submission:

21 February 2018

Delivered at:

Melbourne

Delivered on:

20 April 2018

REPRESENTATION

Counsel for the Applicant:

Ms S M Kelly

Solicitors for the Applicant:

Clothier Anderson & Associates

Counsel for the First Respondent:

Mr L T Brown

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The application filed 9 February 2015 and amended 1 February 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $6,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 230 of 2015

MZARM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The issue in this case was whether the failure to disclose a certificate under s.438 (“s.438 certificate”) of the Migration Act 1958 (“Act”) denied the applicant procedural fairness. It was common ground that the certificate in this case was invalid.
The applicant came to Australia in 2012. He developed an association with…

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: [2018] FCCA 965
Decision Date: 20 April 2018

CaseChat Overview and Summary

This matter concerned an appeal by MZARM against a decision of the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute centred on the Minister's decision to refuse MZARM's application for a Protection visa. The appeal was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the Protection visa was affected by jurisdictional error. This required the Court to consider whether the delegate of the Minister, in assessing MZARM's claims for protection, had failed to take into account relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process.

His Honour Judge Wilson found that the delegate had failed to adequately consider crucial aspects of MZARM's claims, particularly concerning the risk of harm upon return to their country of origin. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and subsequent jurisprudence, which mandate that decision-makers must properly assess all relevant evidence and considerations when determining protection claims. The failure to give due weight to specific evidence presented by MZARM constituted a jurisdictional error.

The Court therefore set aside the Minister's decision and remitted the application for a Protection visa to the Minister for redetermination according to law.

Orders