DZACO v Minister for Immigration
[2012] FMCA 152
•23 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 152 |
| MIGRATION – Administrative review – use of irrelevant information or failure to use relevant information – merits review. PRACTICE AND PROCEDURE – Orders – interlocutory orders – order for the provision of relevant documents in review of Independent Merits Review matters. |
| DZAAY v Minister for Immigration & Ors [2011] FMCA 687 |
| Applicant: | DZACO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 78 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 February 2012 |
| Date of Last Submission: | 23 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
There be included in the short minutes the following order:
“The first respondent must send to the applicant by 22 March 2012 a CD containing the guidelines applicable at the time of the assessment by the second respondent, country information relied upon or apparently relied upon by the second respondent, and that is relevant to the grounds of review, and a copy of any sound recordings of interviews with the applicant available to the respondents.”
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
DNG 78 of 2011
| DZACO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks an order that the first respondent file and serve a court book containing all documents in the possession of the respondent which may be relevant to the application:
It should include the guidelines or other instructions under which the second respondent acted and the country information relevant to the grounds of review which was available for consideration by the second respondent.
The respondent proposes an order that it must send to the applicant a CD containing the guidelines applicable at the time of assessment by the second respondent, country information relied upon or apparently relied upon by the second respondent that is relevant to the grounds of review, and a copy of any sound recordings of interviews with the applicant available to the respondent.
The applicant relies upon a decision made by his Honour Federal Magistrate Lucev in DZAAY v Minister for Immigration & Ors [2011] FMCA 687, which was a decision made following a hearing on 17 August 2011. At that time matters of this nature, being applications to review a decision of an independent merits reviewer, were novel, but since that time there have been a large number of cases heard in this Court, including in Darwin, and the forms of orders which have been made by the Court in its various registries have changed.
The form of order suggested in this matter by the respondents is, to my understanding, the current form of order generally used. The only difference between the two orders is that the first would require the respondent to produce a very large court book from which possibly only a small amount of material might be relevant.
Under the second order, it would be up to the applicant to choose those pieces of information that he believes are relevant to his claim and to reproduce them for the benefit of the court. This court holds considerable respect for Federal Magistrate Lucev and has no doubt that at the time he made that decision it was appropriate, but believes that the interests of justice will be adequately served by applying the orders of the respondent.
I should also say this: making a case that an Independent Merits Reviewer may have utilised irrelevant information or may have neglected to utilise relevant information frequently trespasses very closely upon merits review, which the applicant’s lawyers will appreciate is impermissible. The strictures of the High Court and Federal Courts in cases which deal with jurisdictional error arising out of the utilisation or non-utilisation of allegedly irrelevant or relevant material should be studied carefully to ensure that the arguments put forward are consistent with them and not consistent with an attempt to persuade this court that a reviewer, who has a considerable scope and discretion as to what information he or she may take into account, fell into jurisdictional error in the manner in which he or she reached his or her decision.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 2 March 2012
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