FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZFS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 576 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth) 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 Kumar v Minister for Immigration & Anor [2009] FMC 649 Minister for Immigration, Multicultural Affairs & Eshetu (1999) 197 CLR 611 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZHHF v Minister for Immigration & Anor [2008] FMCA 1208 |
| Applicant: | MZZFS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 110 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 23 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 21 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sabelberg |
| Solicitors for the Applicant: | Sabelberg Morcos Lawyers |
| Counsel for the Respondent: | Ms Simons |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
THE COURT ORDERS THAT:
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the Court extends time for the Applicant to file his application so that it can be heard by the Court.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 110 of 2013
| MZZFS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 2 January 2013 (at its conclusion and in the certification clause) and dated 24 December 2012 at its commencement and on the decision record. The Application was filed on 30 January 2013 and amended by Amended Application filed 30 April 2013. The First Respondent, on the hearing of the matter, did not oppose the granting of an extension of time to the Applicant pursuant to s.477(2) of the Migration Act 1958 (Cth) (‘the Act’) and the Court considers that is an appropriate order to be made, being satisfied that it is necessary in the interests of the administration of justice.
The Amended Application filed 30 April 2013 sets out the grounds relied on by the Applicant which are as follows:-
“(4) In making the Decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction in that it:
a) failed to take into account relevant considerations; and
b) took into account irrelevant considerations;
PARTICULARS
a) the Refugee Review Tribunal failed to take into account relevant considerations, namely the:
i. The Applicant risked being persecuted upon his return to Uganda by reason of his political allegiance and belonging to a particular group, (namely Returned Asylum Seekers);
iiThe Applicant would suffer a threat to personal security if forced to return to Uganda and…
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- Case
- [2013] FCCA 576
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the RRT committed jurisdictional error by failing to take into account relevant considerations, specifically MZZFS's risk of persecution in Uganda due to his political allegiance, belonging to the group "Returned Asylum Seekers," threats to his personal security, fear of persecution, other risks in Uganda, past violence and unlawful kidnapping by local authorities, the extraordinary measures he took to reach Australia, and the cumulative assessment of his claims. Additionally, the court had to determine if the RRT considered irrelevant factors, such as the late issuance of his mother's and child's death certificates, his time in Iraq, his failure to apply for a South African protection visa, and the listing of his deceased mother as an emergency contact.
The court found that the RRT had not committed jurisdictional error. It reasoned that the RRT's decision demonstrated it had considered the applicant's claims regarding persecution in Uganda, including his political allegiance and fear of harm. The RRT's assessment of the evidence, including the applicant's personal circumstances and history, was within its mandate. The court also concluded that the matters identified by the applicant as irrelevant considerations were, in fact, relevant to the RRT's overall assessment of the applicant's credibility and the circumstances surrounding his claims. The RRT was entitled to weigh all the evidence presented, including the timing of documentation and the applicant's prior actions, in reaching its conclusion.
The application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
The Amended Application filed 30 April 2013 sets out the grounds relied on by the Applicant which are as follows:-“(4) In making the Decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction in that it:a) failed to take into account relevant considerations; andb) took into account irrelevant considerations;PARTICULARSa) the Refugee Review Tribunal failed to take into account relevant considerations, namely the:i. The Applicant risked being persecuted upon his return to Uganda by reason of his political allegiance and belonging to a particular group, (namely Returned Asylum Seekers);iiThe Applicant would suffer a threat to personal security if forced to return to Uganda and that the Applicant had a fear and apprehension of persecution;iii.The Applicant would be subject to other risks in Uganda;iv.The violence committed against the Applicant;v. Unlawful kidnapping and detention committed against the Applicant by the local authorities;viExtraordinary measures that the Applicant undertook to arrive in Australia seeking refugee status;vii.In denying the Applicant procedural fairness the Second Respondent unreasonably failed to consider the Applicant’s claims cumulatively.b) the Refugee Review Tribunal and Second Respondent took irrelevant considerations into account, namely:i.Late issuance of death certificate of his mother and child;ii.Applicants time in Iraq;iii.Non application by the applicant for a south African protection visa;iv.Listing of applicants deceased mother as emergency contact” The Applicant relies upon his Amended Application together with submissions filed on behalf of the Applicant on 13 May 2013. The First Respondent seeks dismissal of the application claiming the decision dated 24 December 2012 was not affected by jurisdictional error. The First Respondent relies upon submissions filed on 21 May 2013. The Applicant was born on 7 October 1981 and is now aged 31 years. He was born in Uganda and has Ugandan citizenship. He arrived in Australia on 21 September 2011 on his own Ugandan passport issued on 22 April 2004. He travelled to Australia on a Special Programs (Subclass 416) visa. The visa was issued on 19 August 2011 and valid until 15 December 2011. On 28 October 2011, he Applicant made an application for a Protection (Class XA) visa. On 22 November and 21 December 2011 and on 18 January 2012, the Applicant’s representative provided documents in support of the application for the visa. On 29 November 2011,the Applicant attended an interview with a delegate of the First Respondent (‘the Delegate’). By decision dated 5 March 2012, and notified to the Applicant in letter of that date, the Delegate refused the Applicant’s visa application. On 15 March 2012, the Applicant applied to the Tribunal for review of the Delegate’s decision. That application indicated that he was represented by a registered migration agent. On 15 May 2012, the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Applicant was invited to appear before the Tribunal on 26 June 2012 at 9.30am. On 25 June 2012, and being the day before the hearing, the Applicant’s representative provided written submissions and various supporting documents to the Tribunal. On 26 June 2012, the Applicant participated in the Tribunal hearing with the assistance of his representative. Following the hearing and on 20 July 2012, the Applicant provided further documentation to the Tribunal. On 7 November 2012, the Tribunal sent the Applicant an invitation to comment on or respond to information. On 20 November 2012, the Applicant’s representative provided a response to the invitation to comment. On 24 December 2012, the Tribunal handed down its decision in which it affirmed the decision of the Delegate not to grant a protection visa to the Applicant, determining that the Applicant was not a person to whom Australia owes protection obligations.