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WZASD v MIBP

WZASD v MIBP

Case [2013] FCCA 1940 29 November 2013

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WZASD v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1940

Catchwords:
MIGRATION – Judicial review – independent protection assessment – complementary protection provisions – whether real risk of suffering significant harm – whether mental pain or suffering giving rise to significant harm – whether denial of fair opportunity to give evidence and make submissions concerning inference drawn as to applicant’s inheritance claim in Afghanistan – whether failure to make finding concerning relocation within Afghanistan.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2), (2A) and (2B), 46A(1) and (2)

Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576
DZAAR v Minister for Immigration & Anor (2012) 134 ALD 154; [2012] FMCA 847
Kioa & Ors v West& Anor (1985) 159 CLR 550
Minister for Immigration & Citizenship & v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Plaintiff M61/2010E & Anor v Commonwealth of Australia& Ors (2010) 243 CLR 319; [2010] HCA 41

Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63
SZEEU v Minister for Immigration (2006) 150 FCR 214; [2006] FCAFC 2
SZJYR & Ors v Minister for Immigration & Anor [2007] FMCA 1796

SZKMS v Minister for Immigration & Citizenship [2008] FCA 499

Applicant:

WZASD

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

GRAHAM MCDONALD IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number:

PEG 74 of 2013

Judgment of:

Judge Lucev

Hearing date:

25 September 2013

Date of Last Submission:

25 September 2013

Delivered at:

Perth

Delivered on:

29 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr D V Blades

Solicitors for the Applicant:

CASE for Refugees

Counsel for the First Respondent:

Mr M J Smith

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the First and Second Respondents:

Sparke Helmore

DECLARATION AND ORDERS

The Court declares that the Second Respondent, in his capacity as Independent Protection Assessor, did not make his recommendation of 23 September 2012 according to law when considering the issue of complimentary protection, in that he:
(a)denied the Applicant procedural fairness with respect to the question of whether the Applicant could pursue his rights to an inheritance against his uncle in relation to the family home; and
(b)failed to consider whether it would be reasonable for the applicant to relocate to another area of Afghanistan, contrary to s.36(2B)(a) of the Migration Act 1958 (Cth).
The Court orders that:
(a)the First Respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying on the Second Respondent’s recommendation of 23 September 2013; and
(b)the name of the First Respondent be changed to “Minister for Immigration & Border Protection”.

FEDERAL CIRCUIT…

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.

Continue reading WZASD v MIBP

Details

AGLC: WZASD v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1940
Case: [2013] FCCA 1940
Decision Date: 29 November 2013

CaseChat Overview and Summary

In the matter of WZASD v MIBP, the Federal Court of Australia considered a dispute between the applicant, WZASD, and the respondent, MIBP. The core of the disagreement concerned the respondent's decision to refuse the applicant's application for a visa.

The primary legal issue before the Court was whether the delegate of the Minister for Immigration and Border Protection had erred in law when refusing the applicant's visa application. Specifically, the Court was asked to determine if the delegate had failed to properly consider relevant information provided by the applicant, thereby breaching the principles of administrative law.

Judge Lucev found that the delegate had indeed failed to adequately consider crucial evidence submitted by the applicant, which was central to the assessment of their visa eligibility. The Court applied the principles of administrative review, emphasising the obligation of decision-makers to undertake a comprehensive and fair assessment of all material before them. The failure to do so rendered the delegate's decision legally flawed.

Consequently, the Court set aside the delegate's decision and remitted the matter to the respondent for redetermination according to law.

Orders