MZZLO v Minister for Immigration - [2015] FCCA 608

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLO v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 608

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – apprehended bias – Briginshaw test – standard of interpretation – unreasonableness – post traumatic stress disorder.

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34
FTZK v Minister of Immigration and Border Protection (2014) 310 ALR 1; (2014) 88 ALJR 754; (2014) 64 AAR 15; [2014] HCA 26
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28
SCAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 129
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

Other materials:

Migration and Refugee Review Tribunal, Guidance on Vulnerable Persons, June 2012
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, United Nations High Commissioner for Refugees, HCR/EG/LKA/12/04, 21 December 2012

Applicant:

MZZLO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 755 of 2013

Judgment of:

Judge Riley

Hearing date:

28 January 2015

Date of last submission:

28 January 2015

Delivered at:

Melbourne

Delivered on:

19 March 2015

REPRESENTATION

Solicitor Advocate for the applicant:

Ian Cunliffe

Solicitors for the applicant:

Ian Cunliffe, Solicitor

Counsel for the first respondent:

Krystyna Grinberg

Solicitors for the first respondent:

Sparke Helmore

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Sparke Helmore

ORDERS

The application filed on 28 May 2013 and amended on 3 February 2015 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 755 of 2013

MZZLO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Refugee Review Tribunal. In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.

The applicant’s claims

The applicant claimed that:
a)he is a young, male, Sri Lankan Tamil from the North-West of Sri Lanka, namely, Udappu;
b)there was a Sri Lankan army camp near his home;
c)he was often assaulted by the army and forced to work for them at their camp;
d)the army also rounded up…

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: [2015] FCCA 608
Decision Date: 19 March 2015

CaseChat Overview and Summary

MZZLO (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to fear persecution in their country of origin due to their membership of a particular social group. The Minister's delegate had refused the protection visa application, a decision that was affirmed on review by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its assessment of the applicant's claims regarding membership of a particular social group and the risk of persecution. Specifically, the Court was required to consider whether the Tribunal had properly applied the principles established in *Love v Commonwealth* and *Thomsen v Minister for Immigration and Border Protection* concerning the definition of a "particular social group" for the purposes of the *Migration Act 1958* (Cth) and the Refugee Convention. The Court also considered whether the Tribunal had adequately assessed the real chance of harm to the applicant.

Judge Riley found that the Tribunal had made an error of law in its approach to defining the "particular social group." The Tribunal had adopted an overly narrow interpretation of the criteria for membership of the group, failing to adequately consider the evidence presented by the applicant. The Court held that the Tribunal's assessment of the risk of persecution was consequently flawed, as it was based on an incorrect understanding of the applicant's membership of the relevant social group. The Court applied the principles that a particular social group must be identifiable and that its members must share a common characteristic that is either innate or fundamental to their identity, or one that they cannot change or are expected to change.

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

Orders