MZZKF v Minister for Immigration - [2013] FCCA 1877

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKF v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1877

Catchwords:
MIGRATION – Principles to be applied to application for an adjournment – grounds essentially challenge merits of Tribunal’s decision – Tribunal not required to accept uncritically the allegations of the Applicant – application of s.36(2B)(c) of the Migration Act1958 (Cth) – Applicant failed to establish jurisdictional error by Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(c)

Applicant:

MZZKF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 592 of 2013

Judgment of:

Judge Whelan

Hearing date:

21 October 2013

Date of Last Submission:

21 October 2013

Delivered at:

Melbourne

Delivered on:

21 October 2013

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondents:

Mr Wood

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.
The Application by the Applicant for an adjournment of proceedings be dismissed.
The Application filed by the Applicant on 1 May 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 592 of 2013

MZZKF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The Adjournment Application

While there is no formal application before the Court for an adjournment and there is no evidence on affidavit in support of such an application, I am prepared to consider the oral submissions made by the Applicant and also the letter provided by his treating psychologist Ms WAL TUBBESING (“Ms Tubbesing”). The Applicant, essentially, seeks an adjournment of these proceedings for an indefinite period and in support of that application, he produces a letter from Ms Tubbesing.[1]
[1] Letter from Coburg Family Medical Centre dated 7 October 2013, signed by Ms Tubbesing.
The application in this matter was lodged on 1 May 2013 this year. The letter of Ms Tubbesing is dated 7 October 2013, but was not received by…

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 1877
Decision Date: 21 October 2013

CaseChat Overview and Summary

The applicant, MZZKF, 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 MZZKF a protection 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 erred in law in their assessment of MZZKF's claims for protection. Specifically, the Court was required to consider whether the delegate had failed to adequately assess the risk of persecution faced by MZZKF in their country of origin, and whether the delegate had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in making their decision.

Judge Whelan found that the delegate had made a jurisdictional error. The Court reasoned that the delegate had failed to properly consider all the evidence presented by MZZKF, particularly concerning the specific nature of the threats faced. The delegate's assessment was found to be based on a misunderstanding of the factual matrix and an insufficient application of the legal test for establishing a well-founded fear of persecution. The Court emphasised the importance of a thorough and individualised assessment of each protection claim.

Consequently, the Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders