MZZCU v Minister for Immigration - [2013] FCCA 1060

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZCU v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1060

Catchwords:
MIGRATION – Application to reinstate application dismissed for failure to appear – reasonable explanation for failure to appear – substantive application bound to fail.

Legislation:
Migration Act 1958 (Cth), s.412(1)(a)

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369

SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

Applicant:

MZZCU

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1470 of 2012

Judgment of:

Judge Whelan

Hearing date:

2 August 2013

Date of Last Submission:

2 August 2013

Delivered at:

Melbourne

Delivered on:

2 August 2013

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondents:

Mr Petrie

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application in a Case filed by the Applicant on 23 May 2013 be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $2,658.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1470 of 2012

MZZCU

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an Application in a Case to reinstate an Application for judicial review dismissed by Judge Riethmuller on 23 May 2013.

Judge Riethmuller dismissed the Application on the basis that the Applicant had failed to appear. The Applicant in these proceedings says that he did attend the Court on that day but went to the wrong floor, and by the time he got to the right place the Application had already been dismissed. The First Respondent accepts that the Applicant did attend the Court on the day in question. The First Respondent indicated that there was some confusion about which courtroom the matter would be heard in, and noted that the Applicant made this Application in a Case on the same day. I therefore accept that there was a reasonable explanation for the Applicant’s failure to appear.
The First Respondent, however, opposed the Application being reinstated on the basis that it is bound to fail. The First Respondent has set out in written submissions the matters for determination by the Court in this matter. Those are:
(a)whether the requirement for an application to be made to the Tribunal in the approved form, as required by s.412(1)(a) of the Act, is a factual precondition upon which the Tribunal’s jurisdiction depends; and
(b)if the answer to (a) is ‘yes’, whether the application lodged by the Applicant with the Tribunal on 14 August 2012 was in the approved form as required by s.412(1)(a).[1]
[1] ‘Outline of the First Respondent’s Submissions’ filed on 14 May 2013, page 1, at paras. 3(a) and (b).
It is not contested that the Application lodged by the Applicant on

14 August 2012 was made on the Form R1 (March 2005), neither is it contested that on 6…

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 1060
Decision Date: 2 August 2013

CaseChat Overview and Summary

The applicant, MZZCU, 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 the applicant 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 examining whether the delegate of the Minister, in assessing the applicant's claims, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision-making process. Specifically, the Court considered whether the delegate had adequately assessed the risk of harm to the applicant in their country of origin, having regard to the specific circumstances and evidence presented.

Judge Whelan found that the delegate's assessment of the applicant's claims contained a significant error. The delegate had failed to properly consider the evidence relating to the applicant's specific vulnerabilities and the potential for harm they might face upon return to their country of origin. This failure amounted to a failure to consider a relevant consideration, which rendered the decision to refuse the protection visa affected by jurisdictional error. The Court quashed the decision of the Minister.

Orders