MZZYD v Minister for Immigration - [2014] FCCA 1894

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…

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.

Keep reading for free

Create a free CaseChat account to read MZZYD v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCCA 1894
Decision Date: 12 September 2014

CaseChat Overview and Summary

The applicant, MZZYD, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant MZZYD a visa. The matter came before Judge McGuire 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 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