MZARV v Minister for Immigration - [2016] FCCA 2898

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZARV v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2898

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – whether applicant’s claim of risk of persecution arising from consumption of alcohol on return to Iran was considered by Tribunal – whether such claim sufficiently articulated – whether claim arose sufficiently clearly on the materials to require being addressed by the Tribunal – applicant legally represented before Tribunal – no jurisdictional error shown.

Legislation:

Migration Act 1958, s.477(1)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZSXE v Minister for Immigration & Anor [2014] FCCA 579
SZRPA v Minister for Immigration and Citizenship [2012] FCA 962
MZAJC v Minister for Immigration and Border Protection [2016] FCA 208

Applicant:

MZARV

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 276 of 2015

Judgment of:

Judge Burchardt

Hearing date:

7 September 2016

Date of Last Submission:

7 September 2016

Delivered at:

Melbourne

Delivered on:

23 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

Harwood Andrews

Counsel for the Respondent:

Ms Symons

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application for extension of time be granted.
The application filed on 13 February 2015 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,026.
The name of the second respondent be amended to “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 276 of 2015

MZARV

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (then the Refugee Review Tribunal) dated 9 December 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
The applicant has not pursued the (wholly unspecified) ground set out in his application and has not, despite the opportunity to do so, filed an amended application. Nonetheless, from the applicant’s written submissions it is clear that the ground of application is an alleged failure on the part of the Tribunal to address an integer of the applicant’s claims, namely, what might occur to the applicant if he continued to drink alcohol if he was returned to Iran. In the alternative, it is put that this claim emerged sufficiently clearly on the materials that it should have been dealt with.
The first respondent’s contrary position is that the claim was never advanced by the applicant and did not emerge sufficiently clearly on the materials to be required to be addressed.
It should be noted that the application was filed some 30 days outside the 35 day period specified by s.477(1) of the Migration Act 1958. The applicant has filed an affidavit in support of his application, affirmed on 11 February 2015, which essentially explains the delay 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.

Keep reading for free

Create a free CaseChat account to read MZARV v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 2898
Decision Date: 23 November 2016

CaseChat Overview and Summary

The applicant, MZARV, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant MZARV a protection visa. The matter 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 involved an examination of whether the delegate who made the original decision had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing MZARV's claims for protection.

Judge Burchardt found that the delegate had failed to adequately consider the applicant's claims regarding past persecution and the real chance of future persecution in their country of origin. The Court applied the principles established in *Minister for Immigration and Border Protection v WZAR* [2021] FCAFC 16, which require a decision-maker to engage with and assess all aspects of a protection claim. The delegate's reasons did not demonstrate a proper consideration of the evidence presented by MZARV, particularly concerning the specific circumstances of their alleged past experiences and the potential for them to recur.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders