MZZYS v Minister for Immigration - [2015] FCCA 3221

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZYS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3221

Catchwords:
MIGRATION – refugee application – application for judicial review – no matters of principle

Legislation:

Migration Act 1958 (Cth), ss.36, 420, 422, 424.

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 320 ALR 467; (2015) 89 ALJR 639
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; 135 ALR 421; (1996) 40 ALD 445; [1997] CA 22; (1997) 71 ALJR 743
SZOGE v Minister for Immigration [2010] FCA 871
Weng v The Queen [2013] VSCA 221; (2013) 279 FLR 119
YF (double jeopardy - JC confirmed) China CG [2011] UKUT 32 (IAC)
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947; (2014) 144 ALD 82.

Applicant:

MZZYS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 15 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

23 September 2014

Date of Last Submission:

23 September 2014

Delivered at:

Melbourne

Delivered on:

21 January 2015

REPRESENTATION

Counsel for the Applicant:

Mr Niall of Queens Counsel with Mr Kelsey-Sugg of Counsel

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Ms Symons of Counsel

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal.
The decision of the Administrative Appeals Tribunal made 3 January 2014 be quashed.
A writ of mandamus issue is directed to the Tribunal requiring it to determine the applicant’s application according to law and the matter be remitted to the Administrative Appeals Tribunal for rehearing.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 15 of 2015

MZZYS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISRTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant applied for a protection visa on 8 July 2013. The Applicant fears what might occur if he returns to China, given his alleged involvement in drug offences, as set out in detail in the decision of the Victorian Court of Appeal in Weng v The Queen [2013] VSCA 221; (2013) 279 FLR 119 at paras.24 to 26 of that judgment.
The substance of the Applicant’s evidence in the Supreme Court is set out as follows:
24 On the hearing of the appeal [the Applicant] was called to give oral evidence and did so following the grant of a certificate pursuant to s.128 of the Evidence Act 2008. He gave evidence with the assistance of an interpreter. In the course of that evidence he stated as follows:
• [The Applicant] is a plasterer living in Melbourne.
• In September 2010 he was also living in Melbourne.
• He entered Australia on a student visa but that visa had expired by September 2010.
• At the time of the alleged offence [the Applicant] was in a relationship with [Weng] and she knew his visa had expired.
• At…

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 3221
Decision Date: 21 January 2015

CaseChat Overview and Summary

In MZZYS v Minister for Immigration, the applicant, MZZYS, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Riethmuller in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in finding that MZZYS did not hold a well-founded fear of persecution for a Convention reason. This required the Court to consider the evidence presented by MZZYS regarding past events and the potential for future harm, and to assess whether the delegate's assessment of this evidence was reasonable and in accordance with the relevant legal standards.

Judge Riethmuller reasoned that the delegate's decision had failed to adequately consider certain aspects of MZZYS's evidence, particularly concerning the applicant's subjective fear and the objective reasonableness of that fear in the context of the country of origin. The Court applied the principles established in cases concerning the assessment of well-founded fear, emphasizing the need for a holistic and balanced consideration of all relevant evidence. The delegate's failure to properly weigh specific pieces of testimony and to articulate a clear rationale for discounting them led to the conclusion that the decision was vitiated by error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders