AJZ17 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: MOSHINSKY J
• Judgment Date: 11 September 2019
• Neutral Citation: [2019] FCA 1485
• Date: 11 September 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

AJZ17 v Minister for Home Affairs [2019] FCA 1485

Appeal from:	AJZ17 v Minister for Immigration & Anor [2018] FCCA 3081
File number:	VID 1446 of 2018
Judge:	MOSHINSKY J
Date of judgment:	11 September 2019
Catchwords:	MIGRATION – appeal from Federal Circuit Court of Australia – protection visa – where appellant was from Kenya and made claims based on (among other things) membership of a particular social group, namely mentally ill persons in Kenya – where Tribunal reasoned that the appellant would not be subject to discrimination because the Kenyan authorities do not recognise mental illness – whether the Tribunal erred in its consideration of the concept of discrimination – consideration of the nature of the causal link required by the words “for reasons of” in the Refugees Convention and s 5J(1)(a) of the Migration Act 1958 (Cth) – whether the Tribunal erred by focussing on the intention of the perpetrator rather than the predicament of the visa applicant – whether the Tribunal erred by failing to evaluate an integer of the appellant’s claims under the refugee criteria (as distinct from under the complementary protection criteria)
Legislation:	Migration Act 1958 (Cth), ss 5, 5J, 36, 36(2B) Mental Health Act 2014 (Vic)
Cases cited:	ADS15 v Minister for Immigration and Border Protection [2018] FCA 233 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Applicant VEAZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1033 BRF038 v Republic of Nauru (2017) 349 ALR 67 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150 K v Secretary of State for the Home Department [2007] 1 AC 412 Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 MZZXF v Minister for Immigration and Border Protection [2015] FCA 158 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 550 NAEU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 259 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 Zitoni v Minister for Immigration and Multicultural Affairs [2000] FCA 621 ; The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014), Hathaway, JC and Foster, M The Refugee in International Law (Oxford University Press, 3rd ed, 2007), Goodwin-Gill, G and McAdam, J
Date of hearing:	10 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Appellant:	Mr MLL Albert
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	Mr CM McDermott
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		VID 1446 of 2018
BETWEEN:	AJZ17 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	MOSHINSKY J
DATE OF ORDER:	11 SEPTEMBER 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court dated 1 November 2018 be set aside and in lieu thereof it be ordered that:

   1. the decision of the second respondent dated 18 January 2017 be set aside;

   2. the matter be remitted to the second respondent for determination according to law;

   3. the first respondent pay the applicant’s costs of the proceeding in the Federal Circuit Court, as agreed or assessed.

3. The first respondent pay the appellant’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the appellant’s costs referred to in paragraph 3 above.

5. In the absence of any agreement:

   1. within 21 days, the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

   2. within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

   3. in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1. The appellant, a citizen of Kenya, appeals from a judgment of the Federal Circuit Court of Australia, dismissing his application for judicial review. The proceeding in the Federal Circuit Court concerned a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of a delegate of the respondent (the Minister) not to grant the appellant a protection visa.

2. The appellant’s three grounds of appeal (set out in his notice of appeal) mirror the three grounds that were raised in the Federal Circuit Court. The appellant’s three grounds of appeal are as follows:

1. The Federal Circuit Court erred by failing to find that the Tribunal erred by failing to consider whether any law that led the appellant to be detained by the police or authorities as a result of actions caused by his mental illness was ‘appropriate and adapted’, such that it did not amount to discrimination...