MZZWU v Minister for Immigration - [2014] FCCA 1425

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZWU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1425

Catchwords:
MIGRATION – No appearance by or on behalf of the Applicants – application dismissed pursuant to r.13.03(c) Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001

Migration Act 1958

Cases cited:
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429

Applicants:

MZZWU & MZZWV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 2137 of 2013

Judgment of:

Judge McGuire

Hearing date:

2 July 2014

Date of Last Submission:

2 July 2014

Delivered at:

Melbourne

Delivered on:

2 July 2014

REPRESENTATION

Counsel for the Applicant:

Unrepresented

Counsel for the Respondents:

Mr Brown

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application filed 5 December 2013 be dismissed pursuant to r.13.03(c) of Federal Circuit Court Rules 2001.
Applicant pay the 1^st Respondent’s costs in the quantum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2137 of 2013

MZZWU & MZZWV

Applicants

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicants apply for an order that the Respondents show cause why the remedy sought by the Applicant not be granted. They seek a writ of certiorari quashing the decision of the 2^nd Respondent made 11 November 2013 which affirmed the decision of the delegate not to grant the applicants each a Protection (Class XA) visa.
The Application was filed on 5 December 2013. Orders and directions were made including for the filing of written submissions by the Registrar on the 19 February 2014. The court file shows that the Applicants have not complied with those orders and directions. This matter was called today at 10.00am there was no appearance by or on behalf of the Applicants. As a courtesy and as a precaution the matter was stood down for 30 minutes and there has still been no appearance by or on behalf of the Applicants. There has been no notification to my chambers of anything untoward or any delay.
Mr Brown appears as Counsel for the 1^st named Respondent and has filed written submissions.
The applicants raise the following grounds of complaint:
1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was require to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act”.
3. The applicants satisfy the four key elements of the Convention…

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 1425
Decision Date: 2 July 2014

CaseChat Overview and Summary

The applicant, MZZWU, 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 for protection, specifically relating to the risk of persecution upon return to their country of origin. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the Minister's decision was affected by jurisdictional error, and if so, whether the Minister failed to properly consider the applicant's claims regarding the risk of persecution. This involved an examination of the adequacy of the Minister's assessment of the evidence presented by the applicant and whether the Minister's findings were reasonably open on the material before them.

Judge McGuire found that the Minister's decision contained jurisdictional error. The court reasoned that the Minister had failed to adequately consider a significant part of the applicant's evidence concerning the risk of persecution. This failure meant that the Minister's assessment of the applicant's claims was not reasonably open on the material before them, thereby vitiating the decision.

Consequently, the court set aside the Minister's decision and remitted the matter to the Minister for redetermination according to law.

Orders