MZYFH v Minister for Immigration and Citizenship

[2012] HCASL 97

MZYFH

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 97
M56/2011

1. The applicant is a citizen of India.  He arrived in Australia in September 2008.  In November 2008 he applied for a protection visa.  He claimed to fear persecution in India by reason of his Christian faith.  A delegate of the Minister for Immigration and Citizenship refused his application. 

2. In February 2009 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision.  The Tribunal affirmed the decision.  The Tribunal's determination was set aside by order of the Federal Court in June 2010.  On 7 October 2010 a differently constituted Tribunal again affirmed the delegate's decision. 

3. An application for judicial review of the second Tribunal's determination was dismissed by the Federal Magistrates Court (Whelan FM). 

4. An appeal to the Federal Court of Australia (Jessup J) was dismissed on 26 May 2011.

5. On 20 June 2011 the applicant filed an application for special leave to appeal from the order of the Federal Court. It was deemed abandoned under the High Court Rules 2004 (Cth). On 22 March 2012 Hayne J reinstated the application.

6. Special leave is sought on the ground that the Tribunal failed to comply with its statutory obligations under s 424A(1) of the Migration Act 1958 (Cth) ("the Act"). This was a ground of challenge before the Federal Magistrate. On that occasion the applicant provided no particulars of any adverse information which the Tribunal had failed to disclose. The sole ground of appeal to the Federal Court was the asserted failure to comply with s 424A(1) of the Act. Again, no particulars were furnished in support of the ground.

7. In his written case the applicant gives particulars of his s 424A(1) complaint, which relate to the use made of the evidence of persons called Father Thomas and Father Peter. This was material that was relied upon by the first Tribunal. It appears that the use made of the material was relevant to the determination to set aside the Tribunal's decision. The differently constituted Tribunal, whose determination is the subject of the present proceedings, did not place any reliance on this evidence. Other particulars of the Tribunal's asserted failure to comply with s 424A(1) are in fact complaints that the Tribunal did not accept the applicant's evidence.

8. If special leave to appeal were granted the appeal would have no prospects of success. 

9. The application is dismissed.

10. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

J.D. Heydon
20 June 2012 V.M. Bell