MZYLC v Minister for Immigration and Citizenship

[2012] HCASL 124

MZYLC

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 124
M31/2012

1. The applicant, who claims to be a citizen of Ghana, arrived in Australia on 26 October 2008 and applied for a Protection (Class XA) visa on 19 December 2008.  A delegate of the first respondent refused the application for a protection visa on 17 February 2009.  The second respondent, the Refugee Review Tribunal ("the Tribunal"), affirmed the delegate's decision on 10 February 2011.

2. The applicant claimed to fear persecution on the basis that he was an active member of the National Democratic Congress ("NDC"), a Ghanaian political party.  The applicant claimed that due to his active involvement in the NDC, members of the New Patriotic Party ("NPP") made threats on his life.  The applicant further claimed that NPP members shot and killed the families of known NDC supporters.  He claimed that NPP members murdered his wife, sister and uncle.

3. In addition to the above claims, the applicant claimed that as a Bosanga tribe member, he was also targeted by the Dagbani tribe, therefore adding to the fear of persecution and risk of harm if he were to return to Ghana.

4. The Tribunal affirmed the delegate's decision to refuse to grant a protection visa on the basis that the applicant was not a credible witness with respect to essential aspects of his claims.  The Tribunal was unable to be satisfied on the evidence before it that the applicant had a well-founded fear of being persecuted for reasons of political opinion or any other Convention reason.

5. The applicant sought judicial review of the Tribunal decision in the Federal Magistrates Court on an amended application which raised a question of jurisdictional error by the Tribunal. The applicant contended that the jurisdictional error in question was the failure by the Tribunal to comply with s 424A of the Migration Act 1958 (Cth) by failing to alert the applicant to the contents of a file from the National Identity Verification and Advice section of the first respondent ("NIVA"). On 9 December 2011, Burchardt FM dismissed the applicant's claim finding that the Tribunal had no regard to the NIVA material. Accordingly, the identity material from NIVA did not constitute a part of the Tribunal's reasons for decision.

6. The applicant appealed the decision of Burchardt FM in the Federal Court.  On 9 March 2012, Jessup J upheld the decision of Burchardt FM finding that the applicant failed to identify any error on the part of the Federal Magistrate.  The appeal was dismissed with costs.

7. The applicant now seeks special leave to appeal to this Court from the decision of the Federal Court.  No error has been shown in that decision, and the applicant would enjoy no prospects of success on an appeal to this Court.  Special leave is refused.

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

W.M.C. Gummow
15 August 2012 S.M. Kiefel