ZMBZ v Minister for Home Affairs [2019] FCAFC 195

ZMBZ v Minister for Home Affairs [2019] FCAFC 195

The Tribunal failed to consider the argument that, as a Rohingya and Sunni Muslim, the appellant may face harm if returned to Myanmar, which was a relevant 'other consideration' under cl 12(1) of Direction No 65 and distinct from non-refoulement obligations based on HIV status. The argument was advanced and not abandoned, and the result may have been different had it been taken into account. This amounted to jurisdictional error.

Jurisdiction
Australia
Judgment Date
11 November 2019
Procedural Posture
Appeal / Federal Court of Australia Full Court Decision, Appeal From Single Judge Decision
Outcome
Appeal allowed
Legal Topics
['judicial Review' 'jurisdictional Error' 'protection Visa' 'non Refoulement Obligations' 'direction No 65' 'character Test']
['migration Law' 'administrative Law'] ['judicial Review' 'jurisdictional Error' 'protection Visa' 'non Refoulement Obligations' 'direction No 65' 'character Test']

Case Brief

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Procedural Posture

Appeal / Federal Court of Australia Full Court Decision, Appeal From Single Judge Decision

Legal Issues

  1. 1 ['Whether the Administrative Appeals Tribunal failed to consider harm to the appellant by reason of ethnicity and religion in breach of Direction No 65, cl 12(1)' 'Whether the argument regarding harm from ethnicity/religion was advanced or abandoned before the Tribunal' "Whether the Tribunal's findings regarding non-refoulement obligations subsumed the harm based on ethnicity or religion" 'Whether the Tribunal treated the best interests of minor children as a factor weighing against the appellant when no minor children were relevant']

Ratio Decidendi

The Tribunal failed to consider the argument that, as a Rohingya and Sunni Muslim, the appellant may face harm if returned to Myanmar, which was a relevant 'other consideration' under cl 12(1) of Direction No 65 and distinct from non-refoulement obligations based on HIV status. The argument was advanced and not abandoned, and the result may have been different had it been taken into account. This amounted to jurisdictional error.

Court Disposition

Appeal allowed

Orders

  • ['The appeal is allowed.' "Orders made by the primary judge on 4 April 2019 be set aside and replaced with: 1. A writ of certiorari quashing the decision of the second respondent (AAT) dated 27 June 2018 affirming the delegate's refusal to grant a Safe Haven Enterprise visa under s 501(1) of the Migration Act 1958...