FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZFW v MINISTER FOR IMMIGRATION | [2015] FCCA 1902 |
| Catchwords: MIGRATION – Injunction sought to prevent removal from Australia – whether Court has jurisdiction – whether migration decision – whether prohibition on issuance of injunction – usual principles for issuing injunctions. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.15 Migration Act 1958 (Cth), ss.5, 5E, 36(2), 46A(2), 91R, 189(1) and (3), 197C, 198, 417, 474, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Schedule 5, Part 1, Item 2 |
| Applicant: | MZZFW |
| Respondent: |
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- Case
- [2015] FCCA 1902
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the IAPC's assessment of MZZFW's request against the Minister's Review Guidelines was legally sound. Specifically, the Court was required to determine if the IAPC erred in finding that MZZFW had not provided a truthful account of his age and fabricated evidence regarding his attendance at a vocational institute. The Court also had to consider whether the IAPC correctly assessed that MZZFW did not face serious harm from the Taliban due to his ethnicity or imputed political opinion, and whether the general insecurity in Afghanistan, including the withdrawal of international forces and upcoming elections, amounted to a well-founded fear of persecution.
His Honour found that the IAPC's assessment was not vitiated by error. The IAPC had permissibly found MZZFW to be an untruthful witness based on inconsistencies in his evidence, particularly concerning the alleged threatening letter from the Taliban and the timing of its receipt. The IAPC also reasonably concluded that the verbal abuse MZZFW experienced did not constitute serious harm, and that his ability to secure accommodation and employment in Kabul for four years suggested he could remain there upon return. The Court accepted the IAPC's reasoning that the country information provided did not corroborate MZZFW's assertions of a well-founded fear of persecution, and that claims regarding the impact of the security situation were speculative and lacked evidence. Consequently, the IAPC was not satisfied that MZZFW had an enhanced chance of success for a protection visa.
The Court therefore dismissed MZZFW's application for judicial review, upholding the Minister's decision not to refer the request for further consideration.
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Background
Background to the litigation
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Evidence
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Ratio Decidendi
Legal Principle Established
The MIU Assessment summarised the applicant’s request for further consideration and supporting documents as follows:Summary of request for further consideration/New information of 1 October 2013[The applicant] … was initially represented by Asylum Seeker Resources Centre (ASRC). He then authorised Warna Legal as his representative. On 21 March 2014 he re-appointed ASRC as his representative and instructed department to end appointment of Warna Legal.In summary, … [the applicant] reiterated his previous claims and stated that:· There is new country information that when the international forces withdraw the Taliban and insurgent groups will attain strength and will target ethnic and religious minorities. This will lead to a dire security situation exacerbated by the current presidential elections. He quoted several available country information reports supporting this argument, including the DFAT Report of 31 July 2013, Human Rights Watch Report of 1 February 2013 and several Reuter’s news titles.· He withdrew his judicial review application not because his claims were weak or unimportant but because he is unable to proceed due to financial hardships.Supporting documents[The applicant] … provided the following:· A support letter from Kawthar-Lugar Association of Victoria dated 16 September 2013 stating that … [the applicant] is a man of integrity, extremely dedicated to his family and work and a member of the association.· An employment certificate from Zouki Dandenong and copy of … [the applicant’s] undated tax return estimate.No SZQRB error found · [The applicant] … is not affected by the Full Federal Court judgment in SZQRB due to there being no evidence that the IPAO (i) applied the incorrect threshold test or (ii) did not afford procedural fairness in this instance. The MIU Assessment then assessed the applicant’s request against the Minister’s Review Guidelines as follows:ASSESSMENT OF THE REQUEST AGAINST THE MINISTER’S GUIDELINESProtection claims· While comprehensively assessing his refugee claims the IPA found that … [the applicant] has not provided a truthful account of his age and simply fabricated his evidence rather than providing a truthful account of the length of time he attended the vocational institute. The IPA found it implausible that the Taliban would send a threatening letter to his family with the government logo on it and his deliberately vague and evasive evidence as to when he was sent the threatening letter indicated that he was not a truthful witness.· The IPA accepted that the Taliban is active in Logar Province and targets government institutions and Afghan and international forces but did not accept that … [the applicant] faced serious harm from the Taliban because he is Tajik Shia from Logar Province or that the verbal abuse he experienced from Sunni Tajiks in Logar amounted to serious harm. The IPA did not accept that he would face serious harm from the Taliban for reasons of his imputed political opinion or for being a failed asylum seeker/returnee from the west.· The IPA found that as he had no difficulty in obtaining accommodation and employment in Kabul for four years without family support he may decide to remain living in Kabul on return rather than return to Logar Province because of better employment and educational opportunities in Kabul. The IPA was not satisfied that the effects of general insecurity and insurgency in Afghanistan amounted to a well-founded fear of persecution. The assessor was not satisfied that there is a real risk that he will be arbitrarily deprived of his life, subjected to torture or cruel, inhuman treatment or punishment or degrading treatment or punishment or that the death penalty will be carried out because of the generalised violence.· The department accepts that there has been a decline in the security situation in Afghanistan, however, notes that claims such as the withdrawal of security forces or upcoming elections pose a further threat to minority groups like Hazaras, the Taliban may increase the frequency and scale of targeted attacks and … [the applicant] may be at risk of physical injury, torture or death by the Taliban, are all purely speculative. There is no evidence to corroborate these assertions.· In any case, the country information provided by … [the applicant] does not contradict the IPA’s findings about his lack of credibility that was evident in his core claims.Overall Assessment· [The applicant] … has no enhanced chance of making a successful Protection visa application in light of Australia’s protection obligations in the Refugees Convention or in the complementary protection provisions.ASSESSMENT FINDINGS· For the reasons above, I am not satisfied that the request meets the Minister’s guidelines. The request should therefore not be referred to the Minister for consideration.