MZXBQ v Minister for Immigration and Citizenship & Anor

[2009] HCATrans 225

[2009] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M28 of 2008

B e t w e e n -

MZXBQ

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 SEPTEMBER 2009, AT 11.21 AM

Copyright in the High Court of Australia

MZXBQ appeared in person.

MR W.S. MOSLEY:   May it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HEYDON J:   Mr Mosley, the gentleman on your left, is he the interpreter?

MR MOSLEY:   He is the gentleman who appeared last time assisting the applicant.  He is not on the record, as I understand it, but obviously appears, assisting again in some capacity.

HEYDON J:   I see.  Yes, very well.

MR D. CHEUNG:   If the honourable Court pleases, I appear on behalf of the applicant, sir.  I come to this Court as a friend of the Court.  (instructed by the applicant)

HEYDON J:   We have read the application book including the written submissions.  We have read the amended application for special leave and the amended written case filed by the applicant.  We have read the applicant’s affidavits of 25 May and 26 June 2009, and we have read an outline of oral submissions bearing yesterday’s date.  Now, is there anything you want to add to what appears in those documents?

MR CHEUNG:   Yes, sir.

HEYDON J:   What is that?

MR CHEUNG:   If it pleases the Court, sir, I respectfully submit on behalf of the applicant that there be unanswered issues here today.  The fact that the applicant has through all the years of his journey through the judicial process has manifested a fraud upon the system.  He is today standing before this honourable Court as an applicant who is not in actual fact the applicant himself, sir.  There are issues like fraud and psychological problems which today no Court of law has determinately determined the applicability of these issues for cases of this sort.

I respectfully submit that it is time that this honourable Court as the final forum of redress be able to establish once and for all that the issues like fraud within migration matters, which are quite rampant, especially in cases where documents are fraudulently secured and presented, issues are being raised which are fraudulently concocted and applicants that come in on false passports and false identities, sir.  I think it is about time this Court determines issues of these sorts so that in future applicants may not be confused and applicants may not be in a position where they do not know where they stand as far as the law is concerned, sir.

As far as my friend is concerned, the applicant, he stands today in front of this honourable Court in a position where he does not know where he stands as far as the law is concerned.  His file has been amended by the Immigration Department as his true identity but he stands here today before this honourable Court as [the applicant].  This issue needs to be addressed and canvassed properly so that the applicant knows exactly his position as far as his migration application and his ability to seek the protection of this country.  That is my submission, sir.

HEYDON J:   Thank you, Mr Cheung.  We need not trouble you, Mr Mosley.

This application originally concerned a question regarding the circumstances in which section 424A of the Migration Act 1958 (Cth) is engaged. The Federal Court, Justice Heerey, dismissed an appeal from the decision of the Federal Magistrates Court, Federal Magistrate Burchardt, dismissing an application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed the decision of a delegate of the first respondent not to grant the applicant a protection (class XA) visa.

The applicant now seeks to have the decisions below quashed on the grounds that he misled the Minister’s delegate and the Tribunal as to the veracity of his identity.  The amended application contains no question of law suitable for the grant of special leave and the interests of justice do not require such a grant.  Special leave to appeal is therefore refused with costs.

The Court will now adjourn until 2.00 pm to hear applications by video link from Sydney (Court 18A).

AT 11.26 AM THE MATTER WAS CONCLUDED