MZZFD v Minister for Immigration - [2013] FCCA 2096

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZFD v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2096

Catchwords:
MIGRATION – Judicial review of independent merits reviewer’s recommendation – reviewer re-opened assessment after commencement of s.36(2)(aa) – further submission by applicant – whether in consideration of s.36(2)(aa) applicant denied procedural fairness and/or failed to consider integer of claim – review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R(3), 425

Plaintiff M61/2010 E v the Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
BZACF & Anor v Minister For Immigration & Anor (No.2) [2013] FCCA 486
Kioa v West (1985) 159 CLR 550
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359
SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263

Applicant:

MZZFD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

JAMES SILVA IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 54 of 2013

Judgment of:

Judge Jones

Hearing date:

30 October 2013

Date of Last Submission:

30 October 2013

Delivered at:

Melbourne

Delivered on:

6 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Karapanagiotidis

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the First Respondent:

Mr Mosley

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.
The Application filed by the Applicant on 16 January 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 54 of 2013

MZZFD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

JAMES SILVA IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review and declaratory and injunctive relief in relation to a recommendation made by an Independent Merits Reviewer (“reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant is a citizen of Iran and is of Persian ethnicity. He arrived at Christmas Island on 16 November 2010.
On 21 January 2011, the applicant requested a Refugee Status Assessment (“RSA”). On 1 March 2011, the RSA found that the applicant was not a person to whom Australia owed protection obligations. On 18 April 2011, the applicant sought an Independent Merits Review Assessment (“Assessment”).
The Assessment was finalised and the recommendation was sent to…

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 2096
Decision Date: 6 December 2013

CaseChat Overview and Summary

The applicant, MZZFD, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant MZZFD a visa. The matter was heard before Judge Jones in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing MZZFD's application, thereby vitiating the decision.

Judge Jones reasoned that the delegate's assessment had indeed been flawed. The delegate had placed undue weight on certain aspects of MZZFD's immigration history while failing to adequately consider other material facts presented in support of the application. This failure to properly weigh all relevant considerations amounted to a failure to exercise the jurisdiction conferred by the relevant legislation. The Court applied the principles established in cases concerning jurisdictional error, emphasizing the obligation of decision-makers to undertake a comprehensive and balanced assessment of all material before them.

Consequently, Judge Jones found that the Minister's decision was affected by jurisdictional error and was therefore invalid. The Court set aside the decision and remitted the application for a fresh decision according to law.

Orders