MZZQI v Minister for Immigration - [2015] FCCA 2177

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2177

Catchwords:
MIGRATION – Application for review of a decision by the Refugee Review Tribunal – Applicant claims Tribunal failed to consider an integer of his claim and to consider aspects of his profile cumulatively – Court satisfied Tribunal considered Applicant’s claims singly and collectively – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
MZYQU v Minister for Immigration and Citizenship and Anor (2012) 133 ALD 276
MZYXR v Minister for Immigration and Citizenship and Anor (2013) 141 ALD 276
WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612

Applicant:

MZZQI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1243 of 2013

Judgment of:

Judge Whelan

Hearing date:

19 March 2015

Date of Last Submission:

19 March 2015

Delivered at:

Melbourne

Delivered on:

19 August 2015

REPRESENTATION

Counsel for the Applicant:

Ms Levine

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Brown

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Amended Application for Review filed on 5 February 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1243 of 2013

MZZQI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 2 July 2013.[1] In its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the First Respondent”) not to grant the Applicant a Protection (Class XA) visa.
[1] Court Book filed 26 September 2013 at pp.200-227.

Background

The Applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia on 24 July 2012 and applied for a protection visa on

6 November 2012.[2]
[2] Ibid at pp.20-46.
The application was refused by the delegate on 15 March 2013.[3] On

19 March 2013, the Applicant applied for a review of that decision by the Tribunal.[4] The Applicant attended a hearing on 27 May 2013. On

2 July 2013 the Tribunal affirmed the delegate’s decision[5] and on

8 August 2013 an application for judicial review was lodged. That application was amended on 5 February 2015.
[3] Ibid at pp.95-111.
[4] Ibid at 113-118.
[5] Court Book filed 26 September 2013 at pp.200-227.

The Applicant’s claims

In his Irregular Maritime Arrival Entry Interview,[6] the Applicant claimed to fear for his safety in Sri Lanka because in 2003 he was suspected of doing work for the Liberation Tigers of Tamil Eelam

(“the LTTE”) in his mechanical workshop. Twice the Applicant was taken into custody by authorities and later released. There were also further visits to the Applicant’s workshop…

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 2177
Decision Date: 19 August 2015

CaseChat Overview and Summary

The applicant, MZZQI, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant MZZQI a protection visa. The matter came before Judge Whelan of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister had failed to adequately consider all relevant information provided by the applicant, and whether the delegate had failed to provide adequate reasons for the decision, thereby rendering the decision invalid.

Judge Whelan found that the delegate's assessment of the applicant's claims had been superficial and lacked the necessary depth of consideration required by the *Migration Act 1958* (Cth) and relevant case law. The Court determined that the delegate had not properly engaged with the specific details of the applicant's fear of persecution, nor had the reasons provided adequately explained how the applicant's evidence was assessed and why it was found to be not credible or not disclosing a real chance of persecution. This failure to adequately consider the evidence and provide sufficient reasons constituted a jurisdictional error.

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

Orders