MZYFH v Minister for Immigration and Citizenship

[2011] FCA 667

FEDERAL COURT OF AUSTRALIA

MZYFH v Minister for Immigration and Citizenship [2011] FCA 667

Citation:		MZYFH v Minister for Immigration and Citizenship [2011] FCA 667
Appeal from:		MZYFH v Minister for Immigration and Citizenship & Anor [2011] FMCA 234
Parties:		MZYFH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 252 of 2011
Judge:		JESSUP J
Date of judgment:		26 May 2011
Catchwords:		MIGRATION – appeal from Federal Magistrates Court – Whether error demonstrated
Cases cited:		MZYFH v Minister for Immigration and Citizenship (2010) FCA 559
Date of hearing:	26 May 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms S Burchell
Solicitor for the Respondents:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 252 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYFH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	26 MAY 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 252 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYFH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	26 MAY 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 16 March 2011, in which that court dismissed the appellant’s application for writs of certiorari, prohibition and mandamus with respect to a decision made by the Refugee Review Tribunal on 7 October 2010.  That decision in turn affirmed an earlier decision of a delegate of the respondent minister not to grant the appellant a protection Class XA visa under the Migration Act 1958 (Cth) (“the Migration Act”).

2. In his Notice of Appeal dated 5 April 2011, the appellant specified one ground only by which he challenged the reasoning of the Federal Magistrate:

   The FM failed to find that the Tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and, therefore, fall [sic] under jurisdictional error. There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

   This ground corresponded substantially with the first of three grounds which had been raised in the appellant’s original application in the Federal Magistrates Court. 

3. In the Federal Magistrate’s reasons of 16 March 2011, her Honour said the following of this first ground:

   The Applicant did not seek to amend his application or to provide any further or better particulars, and nor did he provide any written submissions to this hearing.  Each of the grounds were put to the Applicant by this Court, and he was invited to address the court on the matters on which he sought to rely.  The Applicant was unable to recall the information he relied upon in ground 1. 

   Notwithstanding those shortcomings in the appellant’s then case, her Honour examined the decision and reasoning of the Tribunal, both on its own account and in the context of an earlier judgment of this court which had been favourable to the appellant, MZYFH v Minister for Immigration and Citizenship [2010] FCA 559, and came to the conclusion that there had been no non-compliance with s 424A on the part of the Tribunal. Unassisted as her Honour was by submissions from the appellant, her Honour cast around for any indication of information that may have provided a basis for the Tribunal’s decision and of which the appellant was not properly informed under the section. Taking account of the exceptions for which the section provides, and of the circumstance that, in this instance, the Tribunal made a point of indicating that it placed no reliance upon the information which lay at the base of the appellant’s earlier successful proceeding in this court, her Honour reached the conclusion that s 424A had not been departed from in any way which was relevant to the appellant’s proceeding in the Tribunal.

4. In this court the appellant has not filed any outline of his submissions, offering this morning the explanation that he had been ill and unable to do so.  I gave him the opportunity to address me on any matter that he considered to be relevant to his appeal, and I specifically invited him to say what he desired with respect to the decision of the Federal Magistrate.  The appellant drew my attention to nothing in the reasons of her Honour which might bespeak error on her part, and to nothing otherwise in the circumstances of the case which might come anywhere near a justification for the prerogative remedies which he sought below.  The appellant made some fairly short submissions about the factual basis of his claims for a protection visa, but he put before the court nothing which would even suggest the possibility that the Tribunal had not taken those facts into account or had otherwise constructively failed to exercise its jurisdiction.

5. In the result, the appellant’s case as presented today has provided no support for the ground which appears in his Notice of Appeal, and no support otherwise for any suggestion that the reasoning or the conclusion of the Federal Magistrate was attended by error.  It follows that the appeal will be dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       10 June 2011