MZZAL v Minister for Immigration - [2013] FCCA 392

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZAL v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 392

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – applicant claimed fear of persecution as a Kurd in Turkey – Tribunal accepting some of the applicant’s claims but not believing others – whether Tribunal considered applicant’s claims – whether claims were or should have been considered cumulatively.

Legislation:

Migration Act 1958, ss.91R(2), 91R(1)(b)

Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025
NAHW v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 399
Minister for Immigration and Multicultural and Indigenous Affairs v VWBA
[2005] FCAFC 175
S395/2002 v Minister for Immigration and Multicultural Affairs
[2003] 216 CLR 473
W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398
Re Minister for Immigration and Multicultural Affairs, Ex parte
Durairajasingham (2000) 168 ALR 407
NAOI v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 383

Applicant:

MZZAL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1120 of 2012

Judgment of:

Judge Burchardt

Hearing date:

22 March 2013

Date of Last Submission:

22 March 2013

Delivered at:

Melbourne

Delivered on:

3 June 2013

REPRESENTATION

Counsel for the Applicant:

Ms Panagiotidis

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Mosley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1120 of 2012

MZZAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 January 2012. He necessarily requires an extension of time to bring his application as the application was only filed with this Court on 10 September 2012.
The first respondent opposes the extension of time, but on the sole ground that the extension would be pointless, given the lack of merit in the claim. Accordingly, and with the consent of both parties, the Court has heard submissions on the merits of the claim.
For the reasons that follow, I do not think that the criticisms advanced by the applicant of the Tribunal’s decision are made out and it follows that the application must be dismissed.

The Applicant’s claims

The applicant’s claims were first articulated in a statutory declaration declared on 27 July 2010 which accompanied his original application. He claimed, and there is no dispute, to be Kurdish and a Sunni Muslim. His statutory declaration (CB51-57) identified a number of concerns. The applicant claimed to have been teased at school. He claimed that an uncle who had been active in politics was detained for three months after the introduction of martial law. The applicant claimed that he had been the subject of discriminatory treatment during his military service after he sought to help another Kurdish soldier who was being unfairly…

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: [2013] FCCA 392
Decision Date: 3 June 2013

CaseChat Overview and Summary

The applicant, MZZAL, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the assessment of MZZAL's claims for protection, specifically relating to the risk of persecution upon return to their country of origin. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed MZZAL's claims of past persecution and fear of future persecution, particularly in light of the country information available at the time of the decision. This involved determining whether the delegate had adequately addressed the specific vulnerabilities and circumstances articulated by MZZAL and whether the assessment of the risk of harm was reasonable and supported by the evidence.

Judge Burchardt found that the delegate had failed to adequately consider crucial aspects of MZZAL's claims, including specific incidents of alleged persecution and the potential for future harm based on the delegate's own findings regarding the country conditions. The Court applied the principles of administrative law, emphasizing the need for a decision-maker to engage with and properly assess all relevant evidence and claims presented by an applicant. The delegate's failure to give sufficient weight to certain evidence and to adequately explain why particular claims were not accepted led to the conclusion that the decision was affected by jurisdictional error. The Court made orders setting aside the original decision and remitting the application for reconsideration according to law.

Orders