MZZNV v Minister for Immigration - [2015] FCCA 1375

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZNV & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1375

Catchwords:
MIGRATION – Application for an extension of time – fear of persecution – whether tribunal made findings regarding applicant claim without considering country information relied on by the applicant – application refused.

Legislation:

Migration Act 1958 (Cth), ss.477(1), 477(2), 36(2A)(aa), 414, 65

Mohammed v Minister for Immigration and Border Protection [2015] FCA 184

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister forImmigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
VAAD vMinister for Immigration and Multicultural Affairs [2005] FCAFC 117
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 248
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Citizenship v MZYZA [2013] FCA 572
Minister for Immigration and Citizenship v MZYHA (2011) 119 ALD 534
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S20/2002 77 ALJR 1165
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v SJSS (2010) 243 CLR 164
NAHI vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZRBA V Minister for Immigration and Citizenship [2014] FCAFC 81
Minister for Immigration and Citizenship v SZRKT (2013) FCA 317
WAGU vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

First Applicant:

MZZNV

Second Applicant:

MZZNW

Third Applicant:

MZZNX

Fourth Applicant:

MZZNY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1628 of 2013

Judgment of:

Judge Jones

Hearing date:

23 March 2015

Date of Last Submission:

23 March 2015

Delivered at:

Melbourne

Delivered on:

2 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Wood

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for an extension of time pursuant to section 477(2) of the Migration Act 1958 is refused.
The applicants pay the respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1628 of 2013

MZZNV

First Applicant

MZZNW

Second Applicant

MZZNX

Third Applicant

MZZNY

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 1 October 2013, the applicants applied for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 June 2013, affirming a decision of a delegate of the Minister for Immigration & Border Protection (“the Minister”) not to grant the applicants Protection (Class XA) visas (“protection visa”).
As…

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 1375
Decision Date: 2 June 2015

CaseChat Overview and Summary

The applicant, MZZNV, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant MZZNV a visa. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing MZZNV's application.

Judge Jones found that the delegate had indeed failed to consider a crucial piece of evidence that was relevant to MZZNV's eligibility for the visa. This failure constituted a jurisdictional error. Consequently, the Court quashed the Minister's decision. The matter was remitted to the Minister for reconsideration according to law.

Orders