MZZXD v Minister for Immigration - [2015] FCCA 104

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXD v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 104

Catchwords:
MIGRATION – Application lodged out of time – consideration of reasons for delay – consideration of merits of claim – whether Refugee Review Tribunal failed to exercise jurisdiction by failing to consider an integer of the Applicant’s claim – Court not satisfied that Refugee Review Tribunal assessed and made findings with respect to Applicant’s claim concerning the impact on his position when the international forces were withdrawn from Afghanistan in 2014 – critical integer of Applicant’s claim – extension of time granted –
writs issued.

Legislation:

Migration Act 1958 (Cth), s.477

Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 303 ALR 64

Applicant:

MZZXD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 2190 of 2013

Judgment of:

Judge Whelan

Hearing date:

11 November 2014

Date of Last Submission:

11 November 2014

Delivered at:

Melbourne

Delivered on:

23 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms Grinberg

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Ms Symons

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), be allowed.
A writ of certiorari issue quashing the decision of the

Second Respondent dated 5 September 2013.
A writ of mandamus issue requiring the Second Respondent to hear and determine the matter according to law.
The First Respondent pay the Applicant’s costs of, and incidental to, the proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2190 of 2013

MZZXD

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”) made on 5 September 2013[1] which affirmed a decision of a delegate of the Minister

(“the First Respondent”) to refuse the Applicant a Protection (Class XA) visa. The initial application for review was lodged on 11 December 2013. It was therefore filed outside of the 35 days required by s.477(1) of the Migration Act 1958 (Cth) (“the Act”).
[1] Court Book filed 15 April 2014, at pp.267-286.
On 24 July 2014, 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: [2015] FCCA 104
Decision Date: 23 January 2015

CaseChat Overview and Summary

The applicant, MZZXD, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a 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 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 a mandatory consideration, namely the applicant's claims of protection.

Judge Whelan reasoned that the delegate's decision-making process did not adequately address the applicant's claims for protection. The Court found that the delegate had overlooked or failed to give sufficient weight to crucial information provided by the applicant regarding their fear of persecution. This failure constituted a jurisdictional error, as it meant the delegate had not properly exercised the power conferred upon them by the relevant legislation. The Court applied the principles established in cases concerning the duty of decision-makers to consider all relevant information and to engage with the substance of an applicant's claims.

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

Orders