WZAOQ and WZAOR v Minister for IMMIGRATON - [2011] FMCA 869

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOQ & WZAOR v MINISTER FOR IMMIGRATON & ANOR

[2011] FMCA 869

MIGRATION – Review of decision of IMR – whether applicant entitled to translated copy of first IMR decision – whether applicant entitled to advance copies of independent country information – whether IMR asked irrelevant questions of second applicant.

Plaintiff M61 of 2010E v Commonwealth of Australia (2010) 85 ALJR 133 Darabi v Ministerfor Immigration & Anor [2011] FMCA 371
SZPAC v Ministerfor Immigration & Anor [2011] FMCA 517
Abebe v Commonwealth (1999) 197 CLR 510
Dranichnikov v Minister for Immigration & Anor (2003) 77 ALJR 1088
Applicant A27 of 2002 v Minister for Immigration & Anor [2004] FCA 259
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
MZQAP v Minister for Immigration & Anor [2005] FCAFC
SZATG v Minister for Immigration & Anor [2004] FCA 1595
SFGB v Minister for Immigration & Anor [2003] FCAFC 231
NABE v Minister for Immigration & Anor (2004) 144 FCR 1

Applicants:

WZAOQ
WZAOR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

WENDY BODDISON, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 151 of 2011

PEG 152 of 2011

Judgment of:

Raphael FM

Hearing date:

24 October 2011

Date of Last Submission:

24 October 2011

Delivered at:

Darwin

Delivered on:

24 October 2011

REPRESENTATION

Counsel for the Applicants:

Mr S Lee

Counsel for the Respondent:

Mr Anderson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Both applications are dismissed.
The applicant father WZAOQ is ordered to pay the first respondent’s cost which are assessed it the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

PEG 151 of 2011

PEG 152 of 2011

WZAOQ
WZAOR

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

I deal with the matters WZAOQ and WZOAR together, because that is how the matters were dealt with by the independent merits reviewer, in respect of whose decision judicial review is sought. The applicants are entitled to judicial review following the decision of the High Court in Plaintiff M61/2010E v The Commonwealth of Australia (2010) 85 ALJR 133 (“M61”)
The two applicants are Vietnamese citizens who arrived in Australia by boat in around September 2009. It transpired that the first applicant, the father, was a serial escaper, having left Vietnam unlawfully by boat in mid-1990, in 2001, 2003 and 2006 before his attempt in 2009.

He had actually arrived in Australia in 2001 but was removed back to Vietnam in that year. The father’s claims to be a person to whom Australia owed protection obligations arose out of the restrictions that were being placed upon him in Vietnam, including the failure to provide him with a current Ho Khau. This prevented him, he said, from working in the trade that he knew best, which was fishing. Instead, he was able to earn what the IMR described as a “limited income” as…

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: [2011] FMCA 869
Decision Date: 24 October 2011

CaseChat Overview and Summary

The matter before the court involved two applicants, WZAOQ and WZAOR, who sought to challenge the decisions of the Minister for Immigration. The applicants were from an unnamed country and had lodged an application for a protection visa in Australia. The Minister for Immigration had refused their applications, and the applicants sought judicial review of those decisions. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue for the court to decide was whether the Minister’s decisions to refuse the applicants’ protection visa applications were legally sound. The applicants argued that the Minister had failed to consider relevant material, had misapplied the law, and had not given adequate weight to the evidence presented. The court needed to determine whether these arguments had merit and, if so, whether the decisions should be quashed and remitted back to the Minister for reconsideration.

The court considered the arguments presented by the applicants and reviewed the evidence and material before the Minister at the time of the decision. The court found that the Minister had considered all relevant material and had applied the correct legal tests in making the decisions. The court also found that the Minister had given appropriate weight to the evidence presented. As a result, the court dismissed the applicants’ claims and affirmed the Minister’s decisions. The applicants were ordered to pay the costs of the proceedings in the sum of $6,240.00.

Orders

Orders of the court

Both applications are dismissed.

The applicant father WZAOQ is ordered to pay the first respondent’s cost which are assessed it the sum of $6,240.00.

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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