MZZTW v Minister for Immigration - [2014] FCCA 2083

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZTW v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2083

Catchwords:
MIGRATION – Application for judicial review of Independent Merits review – detailed criticism of reviewer’s decision – whether reviewer applied wrong test and/or failed to apply correct test – whether reviewer’s decision open on the materials – whether reviewer properly considered applicant’s claims – whether reviewer properly considered claim under complementary protection regime – whether jurisdictional error established.

Legislation:

Migration Act 1958, ss.36(2)(aa), 91R(1)(b)

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632
SZSON v Minister for Immigration & Anor [2003] FCCA 1153
Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9

Applicant:

MZZTW

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MS WENDY BODDISON IN HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number:

MLG 1642 of 2013

Judgment of:

Judge Burchardt

Hearing date:

11 July 2014

Date of Last Submission:

11 July 2014

Delivered at:

Melbourne

Delivered on:

19 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr Stanton

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Mosley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Pursuant to r.16.01of the Federal Circuit Court Rules 2001 the application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646..

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1642 of 2013

MZZTW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MS WENDY BODDISON IN HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introductory

By an amended application filed on 2 May 2014, the applicant seeks judicial review of a decision of the second respondent (“the Reviewer”) dated 4 May 2012. The Reviewer conducted a review of a negative assessment made by a delegate of the first respondent on 17 May 2011. The Reviewer recommended to the Minister that the applicant not be recognised as a person to whom Australia had protection obligations.
The amended application lists three grounds all of which, as counsel said, to an extent interrelate. They all relate to the applicant’s status as a young woman who did not abide by strict Islamic protocol with respect to dress and appearance.
For reasons that follow, I do not think that the criticisms advanced by the applicant are made out and it follows that the application will be dismissed with costs.
Because the grounds of application and the submissions made in support of them involve inter alia a relatively detailed analysis of the Reviewer’s decision, it is appropriate to look at, in the first instance, of what materials were, in fact, before the Reviewer.

The Applicant’s Materials as disclosed by The Court Book

The applicant’s irregular maritime arrival entry interview is at Court Book (“CB”) 1-26. At CB10 the applicant gave reasons why she had left Iran. She referred to being an Arab and being 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: [2014] FCCA 2083
Decision Date: 19 September 2014

CaseChat Overview and Summary

The applicant, MZZTW, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The dispute concerned the Minister's assessment of the applicant's claims for protection, specifically relating to the risk of persecution in their country of origin. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had properly considered and assessed the applicant's claims of past persecution and fear of future persecution, particularly in light of the country information available at the time of the decision. This involved determining if the delegate had applied the correct legal test for assessing claims of persecution and whether the delegate's findings of fact were reasonably open to them on the evidence before them.

Judge Burchardt found that the delegate had failed to adequately consider certain aspects of the applicant's evidence regarding past experiences and the potential for future harm. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a comprehensive and balanced assessment of all relevant evidence. The delegate's failure to properly engage with specific claims and country information meant that the decision was affected by jurisdictional error. The Court made orders setting aside the decision under review.

Orders