MZZBH v Minister for Immigration - [2013] FCCA 327

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBH v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 327

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – significant delay in filing of Application – reasonable explanation not given –insufficient merit on the grounds of the proposed substantive application – time not extended to the Applicant – Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.417, 477

Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279

Applicant:

MZZBH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1266 of 2012

Judgment of:

Judge Hartnett

Hearing date:

21 February 2013

Delivered at:

Melbourne

Delivered on:

30 May 2013

REPRESENTATION6

The Applicant:

In person

Counsel for the Respondents:

Ms Whittemore

Solicitors for the Respondents:

Sparke Helmore Lawyers

THE COURT ORDERS THAT:

The Application filed 9 October 2012 for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) be refused.
The Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1266 of 2012

MZZBH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal dated 5 March 2012. The grounds of the Application filed 9 October 2012 are as set out as follows:-
“1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
PARTICULARS
a. the credibility of the article which the applicant had written was disputed by the tribunal, yet the member has omitted to acknowledge that the article has been reproduced over the years, such that the internet publishing date should not be a relevant or weighted factor for the discrediting of the article.
b. That even in the absence of the full name of the applicant on the article should not discount the fact that the political figure Kuldip Singh, blames and has discovered that it was the applicant who was the author of the article. However, even if the applicant was not the writer, this would not prevent Kuldip Singh from targeting the person he assumed to be the writer.
c. The tribunal has made comments about the ease in which fraudulent documents can be obtained in India and refers to the letter from the Senior Editor of the [tribunal]. The tribunal was bound to have this article and others relied upon by the applicant examined by their document authentication unit, so that it could come to a definite conclusion that these documents were not authenticate rather that relying upon an implication relayed by country information.”
The Applicant also relies upon an Affidavit sworn by him on 9 October 2012.
The Response filed by the First Respondent on 24 October 2012 seeks dismissal of the application on the basis that firstly, s.477(1) of the Migration Act 1958 (Cth) (‘the Act’) applies and secondly, that the…

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 327
Decision Date: 30 May 2013

CaseChat Overview and Summary

The applicant, MZZBH, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged failure to satisfy the criteria for a protection visa under s 36(2)(b)(i) of the *Migration Act 1958* (Cth), which requires a person to hold a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The matter came before Hartnett J in the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to properly consider or assess the evidence presented by the applicant regarding their fear of persecution, and whether this failure amounted to a jurisdictional error that vitiated the decision. The applicant contended that the delegate had overlooked or failed to give sufficient weight to crucial aspects of their claim, thereby failing to undertake the necessary assessment required by the *Migration Act*.

Hartnett J found that the delegate's assessment of the applicant's claims was demonstrably flawed. The reasons provided for the refusal did not adequately address significant portions of the evidence and submissions put forward by the applicant, particularly concerning the specific nature and likelihood of harm they feared. The Court held that a failure to properly engage with and assess all relevant evidence, when such engagement is essential to the determination of the statutory criteria, constitutes a jurisdictional error. The delegate's reasons were found to be inadequate in that they did not demonstrate a proper consideration of the applicant's subjective fear and the objective circumstances supporting that fear.

Consequently, Hartnett J made orders setting aside the decision of the Minister and remitting the application for a protection visa to the Minister for redetermination according to law.

Orders