MZZBO v Minister for Immigration - [2013] FCCA 1832

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBO v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1832

Catchwords:
MIGRATION – Review of recommendation of Independent Merits Reviewer (“IMR”) – grounds argued being that the IMR made findings of fact about a particular social group and about the applicant’s membership of such a group without evidence; findings illogical or irrational and no indication of IMR undertaking a process of evaluating and preferring evidence – no error found – review application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, Article 1A

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Minister for Immigration and Border Protection v MZYTS (2013) FCAFC 114
Minister for immigration and citizenship v SZMDS (2010) 240 CLR 611
NABD of 2002, Applicant v Minister for Immigration and Multicultural and Indigenous Affairs 216 ALR 1

Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319

Applicant:

MZZBO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 1294 of 2012

Judgment of:

Judge O'Dwyer

Hearing date:

4 November 2013

Date of Last Submission:

4 November 2013

Delivered at:

Melbourne

Delivered on:

8 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr G. Barnes

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr N. Wood

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the first respondent be amended to read, “Minister for Immigration and Border Protection”.
The application filed on 16 October 2012, as amended, is dismissed.
The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1294 of 2012

MZZBO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application the applicant seeks to review the findings and recommendation (collectively, “the recommendation”) made by the second respondent ("the IMR"); which recommended to the first respondent (“the Minister”) was that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).
In the amended application the applicant set out two grounds for review; of which one was abandoned at the hearing, leaving only the following:
“ 2.
a)The second respondent misconstrued and misapplied the test set out in section 36(2) of [the Act] in relation to whether Australia has protection obligations to the applicant under [the Convention] by failing to consider properly
i)whether a group defined as ‘failed asylum seekers returning to Iran’ is a particular social group;
ii)whether the applicant was a member of a particular social group; namely, a group defined as ‘failed asylum seekers returning to Iran.’
b)The second respondent, by failing to find that a group…

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 1832
Decision Date: 8 November 2013

CaseChat Overview and Summary

The applicant, MZZBO, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant a protection visa. The dispute concerned the Minister's assessment of the applicant's claims of persecution. 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 was affected by jurisdictional error. This involved examining whether the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection, particularly in relation to the risk of harm upon return to their country of origin.

Judge O'Dwyer found that the Minister's delegate had failed to adequately consider the applicant's evidence regarding the specific nature of the persecution they feared, including the potential for harm from non-state actors. The delegate's assessment was found to be based on a misunderstanding of the applicant's claims and a failure to engage with the detailed evidence provided. This failure constituted a jurisdictional error.

Consequently, the Court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders