MZZIF v Minister for Immigration - [2013] FCCA 2091

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZIF v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2091

Catchwords:
MIGRATION – Refugee Review Tribunal – refusal of a protection visa – no matter of principle – application dismissed.

Minister for Immigration & Citizenship v SZRKT [2013] FCA 8

Applicant:

MZZIF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 341 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

25 July 2013

Date of Last Submission:

25 July 2013

Delivered at:

Melbourne

Delivered on:

10 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr Watters

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Ms Latif

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed on 19 March 2013 and the Amended Application filed 4 July 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 341 of 2013

MZZIF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

AS CORRECTED

This is an application pursuant to s 476 of the Migration Act 1958 (Cth) whereby the applicant seeks judicial review of a decision made by the Refugee Review Tribunal on 22 January 2013. The Tribunal affirmed the decision of a delegate of the Department of Immigration not to grant the applicant a Protection (Class XA) visa.

Background

The applicant is a 19 year old male and a Hindu Tamil Sri Lankan national. His parents and two siblings still live in Sri Lanka. The applicant arrived on Christmas Island on 25 July 2012 as an irregular maritime arrival.
The applicant completed high school and has a three month certificate in computer networking, however left Sri Lanka following his cousin’s arrest by the national army. In 2007, the applicant’s cousin was shot by the army when caught in crossfire between the Liberation Tigers of Tamil Eelam (LTTE) and the army at a cricket match. The applicant was standing beside his cousin during the incident and the army suspected both of them of having ties to the LTTE although neither has ever been involved with the LTTE. The cousin went to hospital, received treatment and was allowed to return home. In 2010 the applicant’s cousin went to Malaysia and lived and worked there for 2 years and returned in 2012. The cousin had no difficulty either departing or re-entering the country. However, in April of 2012, a few months after his return, the cousin was arrested and is now imprisoned in Colombo, held without charge and not been taken for a court investigation.
One year after the incident, in 2011 the army went to the applicant’s family home and although he was at school, the army told his parents that they were planning to conduct an investigation. Although the applicant’s parents told the army that he was at school,…

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 2091
Decision Date: 10 December 2013

CaseChat Overview and Summary

The applicant, MZZIF, sought judicial review of a decision by the Minister for Immigration to refuse to grant a visa. The dispute concerned the Minister's assessment of the applicant's eligibility for the visa, specifically in relation to character requirements. The matter came before Judge Riethmuller of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister had erred in law in assessing the applicant's character, particularly in relation to the application of the 'substantial criminal record' provisions under the *Migration Act 1958* (Cth). The Court was required to determine if the Minister's interpretation and application of these provisions, as they related to the applicant's past conduct, were legally sound.

Judge Riethmuller found that the Minister had made an error of law in the character assessment. The Court reasoned that the Minister had failed to properly consider all relevant factors and had applied an incorrect interpretation of the relevant legislative provisions concerning what constitutes a 'substantial criminal record'. The principle applied was that administrative decision-makers must correctly apprehend and apply the law to the facts before them. The Court quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.

Orders