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MZZSN v Minister for Immigration

MZZSN v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZSN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1067

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Tribunal considered applicant’s claims – whether applicant accorded procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424, 422B, 425, 424AA, 424A

SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18
Prasad vMinister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Luu and Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
SZHQC v Minister for Immigration & Anor [2006] FMCA 1275
Dhanoa v Minister for Immigration & Anor [2009] FMCA 383
Goodreau v Minister for Immigration and Anor [2009] FMCA 35
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214
SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
SZHOA v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 501
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
MZYFH v Minister for Immigration and Citizenship [2010] FCA 559
SZMCD vMinister for Immigration and Citizenship (2009) 174 FCR 415

Applicant:

MZZSN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1493 of 2013

Judgment of:

Judge Jones

Hearing date:

29 April 2014

Date of Last Submission:

29 April 2014

Delivered at:

Melbourne

Delivered on:

2 July 2014

REPRESENTATION:

Counsel for the Applicant:

Self represented

Solicitors for the Applicant:

Self represented

Counsel for the Respondents:

Mr Petrie

Solicitors for the Respondents:

Clayton Utz

ORDERS:

The application filed on 12 September 2013 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.00 within 28 days of this Order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1493 of 2013

MZZSN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 August 2013 affirming a decision of a delegate of the Minister for Immigration and Citizenship (as it then was), dated 14 March 2013 not to grant the applicant a Protection (Class XA) visa (“the Protection visa”).
The applicant is a 37 year old citizen of Sri Lanka who arrived in Australia on 29 July 2012 as an un-authorised maritime arrival (CB 20, 22, 128). His ethnicity is Tamil and his religion is Catholic.

Applicant’s claims

The applicant applied for the protection visa on 1 November 2012. Included with his application was a statutory declaration setting out his claims…

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 1067
Decision Date: 2 July 2014

CaseChat Overview and Summary

The applicant, MZZSN, sought judicial review of a decision made by the Minister for Immigration, which affirmed a decision to refuse to grant a protection visa. The dispute concerned the Minister's assessment of the applicant's claims of persecution. The matter came before Judge Jones of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister, in affirming the refusal of the protection visa, had failed to properly consider or give sufficient weight to the applicant's claims regarding past persecution and the real chance of future persecution should they be returned to their country of origin. This involved an examination of the evidence presented by the applicant and the application of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly concerning the assessment of credibility and the evaluation of risk.

Judge Jones reasoned that the delegate's decision contained a critical error in its assessment of the applicant's credibility. The delegate had failed to adequately explain why certain aspects of the applicant's account were disbelieved, particularly in light of corroborating evidence that was available. The Court applied the principle that a decision-maker must provide a clear and logical connection between the evidence, the findings of fact, and the ultimate conclusion. In this instance, the lack of a satisfactory explanation for discounting key parts of the applicant's testimony meant that the delegate's assessment of the risk of future persecution was vitiated by this error.

Consequently, Judge Jones found that the decision of the Minister was affected by jurisdictional error. The Court set aside the decision under review and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders