MZZLF v Minister for Immigration - [2014] FCCA 1298

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLF v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1298

Catchwords:
MIGRATION – Review of a decision made by the Refugee Review Tribunal – alleged failure of the Refugee Review Tribunal to afford procedural fairness – consideration of s.424 of the Migration Act 1958 (Cth) – no error found – application dismissed.

Legislation:

Migration Act 1958, ss.65, 414, 424A(1)(a), 430

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Applicant:

MZZLF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 714 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

13 May 2014

Date of Last Submission:

13 May 2014

Delivered at:

Melbourne

Delivered on:

13 May 2014

REPRESENTATION

Counsel for the Applicant:

Mr Sorensen

Solicitors for the Applicant:

Goz Chambers Lawyers

Counsel for the First Respondent:

Ms Symons

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Application filed on 22 May 2013 and the Amended Application filed 8 November 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 714 of 2013

MZZLF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

The applicant in this matter seeks judicial review of the decision of the Refugee Review Tribunal made on 17 April 2013 which affirmed a decision of the delegate of the first respondent to refuse the applicant a protection visa.
The applicant is a citizen of Ghana, he has Akan ethnicity and follows the Christian faith.
He entered Australian on 5 August 2011 on a bridging visa and lodged his application on 30 September 2011 for a protection visa. The applicant was interviewed a delegate of the Minister on 7 November 2011.
The applicant claimed to fear persecution on two grounds, actual or imputed political opinion and secondly a membership of a particular social group being a mining trade junior (see court book 270 to 271).
On 15 November 2011, the delegate refused to grant the applicant a protection visa. He then applied to the Refugee Review Tribunal for a merits review of the delegate’s decision. The applicant was assisted during the proceedings in the Refugee Review Tribunal by an interpreter and migration agent. The Tribunal ultimately confirmed the delegate’s decision on 19 June 2012.
Following this, the applicant made application to the Federal Magistrates Court (as it was then known) to seek a judicial review and an order was made on 29 November 2012 remitting the matter for reconsideration. That order was by consent.
The Refugee Review Tribunal heard the matter again on 2 April 2013, and again the applicant was represented by a migration agent and an interpreter. The Tribunal hearing took place on two separate occasions as was outlined in the reasons of the decision.
On 20 February 2013 an earlier hearing had taken place with the Tribunal (see paras. 55 and 95…

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: [2014] FCCA 1298
Decision Date: 13 May 2014

CaseChat Overview and Summary

The applicant, MZZLF, sought judicial review of a decision made by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). The matter came before Judge Riethmuller of 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 finding that the applicant had not established a well-founded fear of persecution for a reason specified in section 5(1) of the *Migration Act 1958* (Cth). This involved a consideration of the evidence presented by the applicant regarding their alleged experiences and the assessment of the credibility and plausibility of those claims by the decision-maker.

Judge Riethmuller considered the evidence and the reasons provided by the delegate. The Court found that the delegate had failed to adequately consider certain aspects of the applicant's evidence, particularly concerning the alleged threats and the applicant's reasons for fearing return to their country of origin. The Court applied the principles established in cases concerning the assessment of well-founded fear, emphasizing the need for a holistic and balanced consideration of all relevant evidence. The delegate's assessment was found to be deficient in its analysis of the subjective fear and the objective country information.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

Orders