MZZKS v Minister for Immigration

In the Federal Court of Australia, Justice Lloyd-Jones considered an application by MZZKS (the applicant) against the Minister for Immigration (the respondent). The applicant sought judicial review of a decision made by the second respondent, the Tribunal, concerning claims for complementary protection. The sole ground relied upon by the applicant alleged that the Tribunal constructively failed to exercise its jurisdiction.

The central legal issue before the Court was whether the Tribunal had failed to consider a specific aspect of the applicant's claim for complementary protection. The applicant contended that the Tribunal did not address the argument that discrimination experienced by Hazara Shias in Kabul, including by the applicant, constituted "degrading treatment or punishment" as defined by s 5(1) of the *Migration Act 1958* (Cth). This was because the discrimination was based on race, and therefore, in the circumstances, inherently degrading, a point distinct from the differential treatment considered in isolation from its racial basis.

Justice Lloyd-Jones reasoned that the Tribunal's duty under s 414 of the *Migration Act* required it to consider all claims made by the applicant. A failure to consider a claim, or an integer of a claim, amounted to a constructive failure to exercise jurisdiction. The applicant argued that their submissions had sufficiently raised the "Racial Basis Through Degrading Treatment" claim, which was a substantial and clearly articulated argument. The Court was advised that Ground 2 of the application had been abandoned. The applicant asserted that the Tribunal's silence on this specific aspect of their claim meant it had not been considered, thereby failing to accord procedural fairness and constructively failing to exercise its jurisdiction.