FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZYD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1894 |
| Catchwords: MIGRATION – Allegation of bias or perceived bias in a reconstituted Tribunal – relevant considerations – whether Tribunal failed to take into account relevant considerations. |
| Legislation: Migration Act 1958 (Cth) |
| Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189 Comcare v Broadhurst [2011] FCAFC 39 Livesey v NSW Bar Association [1983] HCA 17 Northern NSWFM Pty Ltd v The Australian Broadcasting Tribunal and Northern Rivers FM Radio Limited (1990) 26 FCR 39 re JRL; ex parte CJL (1986) 161 CLR 342 Smith v New South Wales Bar Association [1992] HCA 36 |
| Applicant: | MZZYD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2319 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing date: | 21 August 2014 |
| Date of Last Submission: | 21 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2014 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
That the application filed 23 December 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2319 of 2013
| MZZYD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The application filed 23 December 2013 seeks an order that the respondents shows cause why a remedy should not be granted the applicant in exercise of the court’s jurisdiction under section 476 of the Migration Act 1958 (“the Act”). The relevant decision is one of the Refugee Review Tribunal (“the Tribunal”) made 21 November 2013. That decision affirmed one of the delegate of the Minister made 31 October 2011 refusing the applicant a Protection (Class XA) visa (“the visa”).
The application is opposed and the first respondent seeks orders that it be dismissed with costs.
There have been intervening proceedings which, in part, ground the applicant’s complaint.
The applicant first made application to the Tribunal for a review of the delegate’s decision in an application filed 30 November 2011.
The tribunal’s hearing was listed and conducted on 14 June 2012. On 18 May 2012 the applicant was properly invited to appear. He failed to appear at the hearing and without explanation. The tribunal handed down its decision on 15 June 2012 affirming the delegate’s determination.
On 18 June 2012 the applicant contacted the tribunal. He sought an adjournment by reason of having been medically unwell on the day of the hearing. He apparently was both unable to attend on 14 June or to contact the Tribunal as to his illness. Given that the Tribunal was functus officio by that time, an adjournment was not possible.
The applicant therefore sought judicial review of the Tribunal’s decision by way of an application to this court. My colleague Judge Riethmuller decided in the applicant’s favour finding that his non-attendance had been due to an illness. His Honour specifically found no fault in the Tribunal but considered that the…
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- Case
- [2014] FCCA 1894
- Decision Date
CaseChat Overview and Summary
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 McGuire reasoned that the delegate's decision-making process had failed to adequately address the applicant's protection claims. The delegate's assessment was found to be superficial and did not engage with the substance of the evidence provided by MZZYD regarding their fear of persecution. The Court applied the principle that a failure to consider a mandatory consideration constitutes a jurisdictional error, rendering the decision invalid.
The Court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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