MZZES v Minister for Immigration - [2014] FCCA 758

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZES v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 758

Catchwords:
MIGRATION – Application for review of RRT decision – whether threat per se amounted to serious harm or a real risk of significant harm – alleged failure to consider two integers based on membership of two particular social groups –whether finding made without evidence – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2A), 36(2)(aa)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
BVB v Victims of Crime Assistance Tribunal [2010] VSC 57
Campbell v United Kingdom European Court of Human Rights Application No 7511/76
Curragh Queensland Mining Limited v Daniel & Ors [1991] FCA 244
Drachnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Gafgen v Germany European Court of Human Rights Application No 22978/05
Martitza v Guatemala, Series C No 103 [2003] IACHR
Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33
MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 124
S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
SZQFR v Minister for Immigration and Citizenship [2011] FMCA 785

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant:

MZZES

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1679 of 2012

Judgment of:

Judge O'Dwyer

Hearing date:

30 May 2013

Date of Last Submission:

30 May 2013

Delivered at:

Melbourne

Delivered on:

17 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Albert

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The time for the filing of the application is extended to 24 December 2012.
The application for review filed on 24 December 2012 as amended, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1679 of 2012

MZZES

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application the Applicant seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 November 2012; which decision affirmed an earlier decision by the Delegate of the
First Respondent (“the Minister”) to refuse to grant the Applicant a Protection (Class XA) visa.
The application was out of time, but the Minister nonetheless agreed to it proceeding.

Background and claims

The Applicant arrived at Christmas Island as an unauthorised maritime entry claiming that he was a stateless citizen of Indian Tamil ethnicity. However, a copy of a passport identified him as a 35 year old Sri Lankan citizen of Indian Tamil ethnicity.
He gave a history of…

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: [2014] FCCA 758
Decision Date: 17 April 2014

CaseChat Overview and Summary

The applicant, MZZES, 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 whether the applicant's claims for protection were validly assessed under the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's assessment of MZZES's claims for protection, particularly concerning the risk of persecution based on membership of a particular social group, was affected by jurisdictional error. This involved determining if the delegate had failed to consider relevant information or had taken into account irrelevant considerations when assessing the applicant's fear of harm.

Judge O'Dwyer found that the delegate had made a jurisdictional error by failing to adequately consider the evidence relating to MZZES's membership in a particular social group and the specific risks associated with that membership. The Court reasoned that the delegate's assessment had been overly narrow and had not properly engaged with the detailed submissions and evidence provided by the applicant regarding the nature of the persecution feared. The principles applied centred on the proper construction and application of the criteria for assessing claims of persecution under Australia's protection visa framework, emphasizing the need for a comprehensive and individualised assessment of each claim.

The Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders