MZZET v Minister for Immigration - [2014] FCCA 214

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZET v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 214

Catchwords:
MIGRATION – Application pursuant to r.16.05 of the Federal Circuit Court Rules 2001 to set aside orders made in applicant’s absence – applicant providing reasonable explanation for non-attendance at court – applicant’s prospects of ultimate success doubtful – orders made setting aside earlier orders.

Legislation:
Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), rr.7.01, 16.05(1)

SZCBZ v Minister for Immigration [2005] FMCA 1194
Allesch v Maunz (2000) 203 CLR 172
SZOAR v Minister for Immigration and Citizenship [2010] FCA 777

Applicant:

MZZET

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1682 of 2012

Judgment of:

Judge Burchardt

Hearing date:

6 December 2013

Date of Last Submission:

6 December 2013

Delivered at:

Melbourne

Delivered on:

20 February 2014

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr Wood

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The orders made 18 October 2013 be set aside and if necessary, the applicant’s application be reinstated.
The trial of the matter be held on a date to be fixed before a Judge other than Judge Burchardt.
Costs be in the cause.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1682 of 2012

MZZET

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

The applicant seeks that the Court set aside orders made on 18 October 2013, pursuant to r.16.05(1) of the Federal Circuit Court Rules 2001 (“the Rules”).
On 18 October 2013 I ordered that the applicant’s application be dismissed because of his non-attendance in Court that day, and that he pay the first respondent’s costs.
For the reasons that follow, I propose to exercise my discretion in the applicant’s favour and will set aside the orders made on 18 October 2013, and will reinstate the applicant’s application.

The applicable law

The applicant is self-represented and has not filed any formal legal submissions. No criticism can be advanced of the applicant for that failure, but it does mean that all the Court has to rely on are the submissions of the first respondent and the materials in the Court Book (“CB”).
At the hearing before the Court counsel for the first respondent took the Court to a number of authorities said to be applicable to applications of the sort that the applicant now brings.

The relevant law

In one of the authorities to which counsel referred me, namely SZCBZ v Minister for Immigration [2005] FMCA 1194, Judge Lloyd-Jones (then Federal Magistrate) referred to submissions of the respondent at [14] as follows:
“b)In Capital Webworks Pty Ltd v AdultShop.com Ltd & Ors, Nicholson J gave consideration to the circumstances in which the Federal Court would set aside…

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.

Keep reading for free

Create a free CaseChat account to read MZZET v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCCA 214
Decision Date: 20 February 2014

CaseChat Overview and Summary

The applicant, MZZET, 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 MZZET a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly considered and applied the relevant legislative criteria when assessing MZZET's visa application. Specifically, the Court was required to determine if the delegate had made an error in assessing the applicant's character and whether the delegate had adequately considered all the information provided by the applicant.

Judge Burchardt found that the delegate had failed to properly consider certain aspects of the evidence presented by MZZET, particularly in relation to the applicant's character references. The Court held that a failure to give due weight to relevant evidence could constitute an error of law. Consequently, the Court quashed the delegate's decision. The matter was remitted to the Minister for reconsideration according to law.

Orders