MZZQE v Minister for Immigration - [2014] FCCA 1642

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQE v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1642

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – applicant alleging failure by the Tribunal properly to consider and determine claim for complementary protection – claim only advanced as part of claim to fear persecution as failed asylum seeker – claim nonetheless free – standing and clearly articulated – claim not properly addressed – extension of time granted – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A)

Applicant:

MZZQE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1231 of 2013

Judgment of:

Judge Burchardt

Hearing date:

29 May 2014

Date of Last Submission:

29 May 2014

Delivered at:

Melbourne

Delivered on:

19 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Robinson

Solicitors for the Applicant:

Maddocks Lawyers

Counsel for the First Respondent:

Mr Priest

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

THAT time for the application to be made be extended under s.477 of the Migration Act 1958.
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent dated 12 April 2013.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review.
The first respondent pay the applicant’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1231 of 2013

MZZQE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an amended application filed 15 May 2014 the applicant seeks an extension of time in which to apply to this Court to review a decision of the Refugee Review Tribunal dated 12 April 2013. The application was originally filed on 7 August 2013, approximately four months out of time. The amended application raises only one ground, which essentially relates to whether or not the Tribunal failed properly to consider the applicant’s claim pursuant to the Complementary Protection regime described in s.36(2)(aa) of the Migration Act 1958 (“the Act”). For the reasons that follow, I think that the applicant ought to be granted an extension of time, and his application should be upheld.

The Grounds of Application

The grounds of application are:
1. The second respondent fell into jurisdictional error and failed to arrive at its decision according to law, namely by failing to fully consider the applicant’s claim and/or failing to apply the correct legal test to the applicant’s claim for complementary protection.
Particulars
(a)the second respondent failed to consider the applicant’s claim relating to general prison conditions and treatment in detention against the complementary protection criteria. The applicant’s submission raised a detailed claim for complementary protection on account of the harmful conditions and treatment that he would be at risk of being subjected to in prison upon return to Sri Lanka. The second respondent failed to make a separate assessment of…

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 1642
Decision Date: 19 August 2014

CaseChat Overview and Summary

In MZZQE v Minister for Immigration, heard in the Federal Court of Australia, the applicant, MZZQE, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant MZZQE a visa, a decision MZZQE contended was unlawful.

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, in making the decision, failed to take into account a relevant consideration or took into account an irrelevant consideration, thereby vitiating the decision.

Judge Burchardt reasoned that the delegate's assessment of the applicant's claims had been flawed. The delegate had failed to adequately consider certain evidence provided by the applicant, which was a relevant consideration in determining the application. This failure meant that the delegate had not properly applied the relevant legal criteria to the applicant's circumstances. Consequently, the Court found that the decision was affected by jurisdictional error.

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

Orders