MZYJA v Minister for Immigration - [2010] FMCA 767

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYJA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 767

MIGRATION – Application for a review of a decision of the Refugee Review Tribunal not to grant a protection visa – application for an extension of time – no reasonable prospect of success in substantive application – application for extension of time dismissed – substantive application dismissed as incompetent.

Migration Act 1958, ss.477, 424AA

Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684
Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485; (2010) 115 ALD 294; [2010] FCAFC 50
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002(2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24(11) Leg Rep 10; [2003] HCA 30

Applicant:

MZYJA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 835 of 2010

Judgment of:

Riley FM

Hearing date:

23 September 2010

Date of Last Submission:

23 September 2010

Delivered at:

Melbourne

Delivered on:

23 September 2010

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

S A Burchell

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application for an extension of time, filed on 8 June 2010, is refused.
The substantive application for review, filed on 8 June 2010, is dismissed as incompetent.
The applicant pay the first respondent’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 835 of 2010

MZYJA

Applicant

And

MINISTER FOR IMMIGRATION &CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time to review a decision of the Refugee Review Tribunal and an application for review of a decision of that Tribunal. Section 477 of the Migration Act 1958 requires an application to this court to be made within 35 days of the Tribunal’s decision. In the present case, the Tribunal’s decision was handed down on 13 January 2010. The time within which the applicant needed to file his application to this court expired on 17 February 2010. The application was lodged on 8 June 2010, some four months out of time.
In his application to this court, the applicant put a cross in the box indicating that he sought an extension of time, but did not state any grounds for the application for the extension of time, nor did the applicant state any grounds for his substantive application.
The applicant filed two affidavits with his application. The first says:
After RRT I went to Minister and did not appeal to the court. Minister has made the following decision on 18-05-2010. Now I want to appeal in court.
The second affidavit simply said that the applicant believed that the Tribunal had incorrectly determined that he was not a refugee.
Subsections 477(1) and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 767
Decision Date: 23 September 2010

CaseChat Overview and Summary

The applicant, MZYJA, sought judicial review of the Minister for Immigration’s decisions to cancel their visa and refuse review of that decision. The case was heard in the Federal Court of Australia. MZYJA argued that the Minister’s decisions were unlawful due to procedural errors and that the Minister did not properly consider certain information. The Minister contended that the application was incompetent and that MZYJA had failed to meet the legal requirements for seeking judicial review.

The primary legal issues were whether MZYJA's application for judicial review was filed within the statutory time limit and whether it complied with the relevant procedural requirements. The court had to determine if the application was a valid request for judicial review and whether the applicant had standing to bring the proceedings. Additionally, the court needed to examine whether the Minister's decisions were flawed by procedural errors or improper consideration of evidence.

The court found that MZYJA's application for an extension of time was not justified and was therefore refused. The court also concluded that MZYJA's substantive application for review was not properly filed as it did not comply with the necessary procedural requirements. The court held that MZYJA had not demonstrated that they had standing to bring the proceedings and that the application was incompetent. Consequently, the court dismissed the substantive application and ordered that MZYJA pay the Minister’s costs.

Orders

Orders of the court

The application for an extension of time, filed on 8 June 2010, is refused.

The substantive application for review, filed on 8 June 2010, is dismissed as incompetent.

The applicant pay the first respondent’s costs fixed in the sum of $5,865.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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