MZWMQ & Ors v MIMIA & Anor

[2006] HCATrans 361

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M126 of 2005

B e t w e e n -
MZWMQ, MZWMR AND MZWMS
Applicants
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
THE REFUGEE REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 AUGUST 2006, AT 9.39 AM

HAYNE J: The applicants are husband, wife and child, and are citizens of Sri Lanka. They seek special leave to appeal against the orders of a single judge of the Federal Court of Australia (Marshall J) exercising the appellate jurisdiction of that Court. By those orders, Marshall J dismissed the applicants’ appeal against orders of the Federal Magistrates Court dismissing an application for relief under s 39B of the Judiciary Act 1903 (Cth), in respect of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister to refuse to grant the applicants’ protection visas.

The Tribunal’s decision turned on findings of fact and an adverse assessment of credibility. Grounds challenging these findings were unsuccessfully agitated before Marshall J, as was a contention that the Refugee Review Tribunal was misled by an incorrect translation of the evidence given by the wife through an interpreter. Marshall J noted that there was no evidence before the Court which would enable him to make an assessment of errors, if any, in the translation, and whether such errors were so serious as to deny the applicants a fair hearing.

Because the applicants are unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

The applicants’ written submissions in support of the application for special leave develop no argument in support of the application beyond assertions of fact. There is no reason to doubt the correctness of the decision of Marshall J.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.41 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, MZWMQ and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and the second respondent, concerning the refusal of their applications for protection visas. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when refusing the protection visa applications. Specifically, the applicants argued that the delegate had failed to properly assess the risk of persecution they faced in their country of origin, thereby breaching the requirements of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

The High Court considered the principles of administrative law, particularly the duty of an administrative decision-maker to consider all relevant considerations and to disregard irrelevant ones. Their Honours found that the delegate's assessment of the risk of persecution was flawed because it did not adequately engage with the evidence presented by the applicants regarding their specific circumstances and the general situation in their country of origin. The delegate had, in effect, applied a generalised assessment rather than a specific one tailored to the individual claims of each applicant.

The High Court allowed the appeals, quashed the decisions of the Minister's delegate, and remitted the applications for protection visas to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established