MZZUT v Minister for Immigration - [2014] FCCA 2054

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZUT v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2054

Catchwords:
MIGRATION – Judicial review – whether claim not considered by Tribunal – no failure to deal with claims – parts of claims withdrawn – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
NABE v Minister for Immigration and Multicultural Affairs (No 2)[2004] FCAFC 263; (2004) 144 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104

Applicant:

MZZUT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1775 of 2013

Judgment of:

Judge F. Turner

Hearing date:

13 August 2014

Date of Last Submission:

13 August 2014

Delivered at:

Melbourne

Delivered on:

13 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Muller

Solicitors for the Applicant:

Harwood Andrews

Counsel for the Respondents:

Mr L Brown

Solicitors for the Respondents:

Clayton Utz

ORDERS

Leave is granted to the applicant to file an amended application.
The application for judicial review filed 23 October 2013 and amended application filed 13 August 2014 are dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.
All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1775 of 2013

MZZUT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

This is an application for a judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 4 October 2013 (Court Book “CB” p.219). That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) visa.
By application filed 23 October 2013, the applicant seeks judicial review of the decision of the Tribunal. That application is replaced by an amended application filed by leave today. The sole ground for review in the amended application is:
(1)The Tribunal erred by failing to consider a claim or a component integer of a claim, made by the applicant.
By orders of Registrar Allaway, dated 18 December 2013, a hearing under r.44.12 of the Federal Circuit Court Rules 2001 (the “Rules”) was dispensed with and the matter was listed for final hearing before Judge Riethmuller on 10 June 2014. That matter was re-listed before me today.
The applicant did not file and serve his amended application 35 days before the hearing but sought leave to file it today. The first respondent had notice of the amended claim since the applicant filed written submissions on 25 July 2014, and filing the amended application today was not opposed.
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 2054
Decision Date: 13 August 2014

CaseChat Overview and Summary

The applicant, MZZUT, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's refusal to grant the applicant a visa. The matter came before the Federal Circuit and Family 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 taken into account irrelevant considerations when assessing the applicant's eligibility for the visa.

Judge F. Turner found that the delegate had indeed failed to consider a crucial piece of evidence that was relevant to the applicant's case. This failure constituted a jurisdictional error, as it meant the delegate had not properly applied the relevant legislative criteria for the visa. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to consider all relevant material placed before them.

Consequently, the Court quashed the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders