MZZMG v Minister for Immigration - [2015] FCCA 607

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZMG v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 607

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – consideration of UNHCR Guidelines – weight given to corroborating evidence – standard of interpretation – Briginshaw test.

Legislation:
Immigrants and Emigrants Act No 31 of 2006 (Sri Lanka)

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; (1938) 12 ALRJ 100; [1938] ALR 334; [1938] HCA 34
Durairajasingham v Minister for Immigration and Multicultural Affairs and Others (2000) 58 ALD 609; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 21(2) Leg Rep 2; [2000] HCA 1
M100 of 2004 v Minister for Immigration and Citizenship (2007) 213 FLR 63; [2007] FMCA 829
FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754; (2014) 64 AAR 15; (2014) 310 ALR 1; [2014] HCA 26
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SCAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 129
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

Other materials:

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:

MZZMG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 854 of 2013

Judgment of:

Judge Riley

Hearing date:

30 January 2015

Date of last submission:

13 February 2015

Delivered at:

Melbourne

Delivered on:

19 March 2015

REPRESENTATION

Advocate for the applicant:

Ian Cunliffe

Solicitors for the applicant:

Ian Cunliffe, solicitor

Advocate for the first respondent:

David Brown

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

The application filed on 14 June 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 854 of 2013

MZZMG

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 (“the 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 is a young Tamil male from the north-west of Sri Lanka. In a statutory declaration made on 20 September 2012, the applicant claimed that:
a)his father was a fisherman who went missing in about 2002 when the applicant was about nine years old;
b)the people in his village said that the applicant's father had been kidnapped by the Criminal Investigation Department (“CID”);
c)the applicant's father had not been seen since that time;
d)the CID had come to the applicant’s home and harassed his family;
e)the CID and the Sri Lankan Army (“SLA”) were concerned that the applicant would inform the…

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 607
Decision Date: 19 March 2015

CaseChat Overview and Summary

In the Federal Court of Australia, Judge Riley considered the application of MZZMG (the applicant) for judicial review of a decision made by the Minister for Immigration (the respondent). The dispute concerned the applicant's claim for protection as a refugee.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider, or adequately consider, the applicant's claims regarding their fear of persecution based on their membership of a particular social group. Specifically, the Court was asked to determine if the delegate's assessment of the evidence relating to the applicant's alleged membership of a particular social group, and the consequent risk of harm, was reasonable and consistent with the requirements of the *Migration Act 1958* (Cth) and relevant international obligations.

Judge Riley reasoned that the delegate's decision-making process had failed to properly engage with the applicant's evidence and submissions concerning their membership of a particular social group. The Court found that the delegate had applied an overly narrow interpretation of what constituted a "particular social group" and had not adequately assessed the real chance of the applicant suffering harm if returned to their country of origin. The Court emphasised the importance of a holistic and individualised assessment of refugee claims, requiring a thorough consideration of all relevant evidence and the application of correct legal principles.

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

Orders