MZARV v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

MZARV v Minister for Home Affairs [2019] FCA 1984

Appeal from: MZARV v Minister for Immigration & Anor [2016] FCCA 2898
File number: VID 58 of 2018
Judge: BROMBERG  J
Date of judgment: 25 November 2019
Catchwords: MIGRATION – appeal from Federal Circuit Court dismissing an application for judicial review of decision of Administrative Appeals Tribunal (“Tribunal”) affirming a refusal to grant a protection visa – where Tribunal remade its initial decision as it was affected by jurisdictional error – whether Tribunal was functus officio after the making of the initial decision – whether Tribunal erred in failing to consider a claim – whether, if claim was made, Tribunal considered the claim – appeal allowed
Legislation: Migration Act 1958 (Cth): ss 430, 430(2), 430(2A)
Cases cited:

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
Date of hearing: 26 March 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 40
Counsel for the Appellant: Ms R Germov
Solicitor for the Appellant: WLW Migration Lawyers
Counsel for the First Respondent: Ms C Symons
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

VID 58 of 2018
BETWEEN:

MZARV

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BROMBERG  J

DATE OF ORDER:

25 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The orders of the Federal Circuit Court of Australia made on 23 November 2016 be set aside, and in lieu thereof:

(i)a writ of certiorari be issued, quashing the second respondent’s decision of 9 December 2014; and

(ii)a writ of mandamus be issued, remitting the matter to the second respondent and requiring the second respondent (differently constituted) to determine the matter according to law.

2.Unless a submission contesting the making of this costs order is filed and served on or before 2 December 2019, the first respondent pay the appellant’s costs of the appeal and of the proceeding in the Federal Circuit Court of Australia.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BROMBERG J:

  1. The appellant appeals from a judgment of the Federal Circuit Court of Australia delivered on 23 November 2016 and published as MZARV v Minister for Immigration & Anor [2016] FCCA 2898. By that judgment, the primary judge dismissed the appellant’s application seeking judicial review of the decision of what was at the time the Refugee Review Tribunal, and what…

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Details
Case
[2019] FCA 1984
Decision Date

CaseChat Overview and Summary

The case of MZARV v Minister for Home Affairs involved an appeal against the decision of the Federal Circuit Court of Australia to dismiss an application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a refusal to grant a protection visa to the appellant, who sought to avoid being returned to Iran. The central issues before the court were whether the Tribunal was functus officio after the making of the initial decision and whether the Tribunal erred in failing to consider the appellant's claims regarding his ethnicity and potential treatment upon his return to Iran.

The court determined that the Tribunal had not completed its statutory task and was not functus officio after the making of the first decision, thereby retaining the capacity to remake its decision. The court also found that the Tribunal had indeed failed to consider the appellant's claims that his Ahwazi Arab ethnicity would place him at higher risk of serious or significant harm if he continued to consume alcohol upon his return to Iran. This failure constituted a jurisdictional error as it was an integer of the appellant's claims that should have been addressed. Consequently, the appeal was allowed, and the original decision of the Federal Circuit Court was set aside.

The court issued a writ of certiorari to quash the Tribunal's decision and a writ of mandamus to remit the matter back to the Tribunal for reconsideration. The court also ordered that the Minister for Home Affairs pay the appellant's costs of the appeal and the proceeding in the Federal Circuit Court, unless a submission contesting this costs order was filed and served by a specified date.

Orders

Orders of the court

1. The orders of the Federal Circuit Court of Australia made on 23 November 2016 be set aside, and in lieu thereof:

(i) a writ of certiorari be issued, quashing the second respondent’s decision of 9 December 2014; and

(ii) a writ of mandamus be issued, remitting the matter to the second respondent and requiring the second respondent (differently constituted) to determine the matter according to law.

2. Unless a submission contesting the making of this costs order is filed and served on or before 2 December 2019, the first respondent pay the appellant’s costs of the appeal and of the proceeding in the Federal Circuit Court of Australia.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal did not accept that the appellant had a well-founded fear of persecution for any reason under the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) upon return to Iran at the present time or in the reasonably foreseeable future, or that the appellant faced a real risk of significant harm for the purposes of the complementary protection criteria found in s 36(2)(aa) of the Migration Act. The Tribunal rejected the appellant’s claim that he had any outstanding court proceedings against him in Iran as a result of being discovered purchasing and consuming alcohol by Iranian authorities or that he was a person of any adverse interest to the authorities. As a result, the Tribunal concluded that there was not a real chance that the appellant would be considered to be a member of the particular social group “people who transgress religious moral codes/policies/laws”. While the Tribunal did accept that the appellant’s job opportunities may be limited in Iran due to his ethnicity, it did not accept that he faced a real chance of serious harm on the basis of his Ahwazi Arab ethnicity or Shia religion should he return to Iran now or in the reasonably foreseeable future. The Tribunal also rejected claims that the appellant would be treated differently on returning to Iran as a failed asylum seeker due to his Ahwazi Arab ethnicity. Further, the Tribunal rejected that the appellant would face a well-founded fear of persecution for reasons of his actual and/or imputed political opinion as being against the Iranian government, its religious leaders or institutions and/or as supportive of separatist views. The appellant’s claims were also rejected when considered cumulatively. The primary judge’s judgment The ground of judicial review relied on before the primary judge was an alleged failure on the part of the Tribunal to address an integer of the appellant’s claims, namely, what might occur to the appellant if he continued to drink alcohol if he was returned to Iran. The primary judge also considered an alternative submission that this claim emerged sufficiently clearly on the materials and should have been dealt with. The primary judge found that the Tribunal did not fall into jurisdictional error and dismissed the appellant’s application with costs. THE PRESENT APPEAL By his notice of appeal, the appellant raised two grounds of appeal but only one ground was pressed. The appellant contended that the primary judge had erred by failing to hold that the Tribunal had failed to consider that because of his Ahwazi Arab ethnicity he would be at higher risk of suffering serious or significant harm if he continued to consume alcohol upon his return to Iran. At the hearing of this matter on 26 March 2019 it came to the attention of the Court that the Tribunal had remade its original decision and a question arose as to whether the Tribunal was functus officio after the making of the first decision. That is, that having made the first Tribunal decision, the Tribunal had completed its statutory task with the consequence that it lacked the capacity to make the second Tribunal decision. I adjourned the hearing of the proceeding to give the parties an opportunity to make submissions on that issue. Following the filing of further written submissions from the parties, the issue was dealt with on the papers.WAS THE TRIBUNAL FUNCTUS OFFICIO?

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.