MZYLC v Minister for Immigration and Citizenship

[2012] FCA 213

FEDERAL COURT OF AUSTRALIA

MZYLC v Minister for Immigration and Citizenship [2012] FCA 213

Citation:		MZYLC v Minister for Immigration and Citizenship [2012] FCA 213
Appeal from:		MZYLC v Minister for Immigration & Anor [2011] FMCA 925
Parties:		MZYLC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 1474 of 2011
Judge:		JESSUP J
Date of judgment:		9 March 2012
Catchwords:		MIGRATION – Visa – Protection Visa – Application for judicial review of decision of Federal Magistrate which affirmed decision of Tribunal – allegation that Tribunal relied on material not disclosed to appellant – Whether Tribunal failed to disclose material – Whether Tribunal’s decision affected by error
Legislation:		Migration Act 1958 (Cth) s 424A
Date of hearing:	9 March 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms C Symons
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1474 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYLC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	9 MARCH 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1474 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYLC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	9 MARCH 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 9 December 2011, in which an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 February 2011 under the relevant provisions of the Migration Act 1958 (Cth) (“the Act”) was dismissed. The Tribunal had affirmed an earlier decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the applicant a protection Class XA visa.

2. As prosecuted by counsel who appeared on behalf of the appellant before the Federal Magistrate, the appellant’s then case involved a single ground, namely, that the Tribunal had failed to comply with s 424A of the Act by omitting to give him particulars of information which was before it, and which, according to the case then advanced, the Tribunal implicitly considered would be the reason or a part of the reason for affirming the decision under review. I say “implicitly considered” because it is clear from a reading of the Tribunal’s written decision of 10 February 2011, and it was found as a fact by the Federal Magistrate, that the Tribunal did not refer to what was then (ie before his Honour) said to be the reason, or part of the reason, which would have attracted the operation of s 424A.

3. The controversial information was contained in a file which had been forwarded to the Tribunal, and was in the possession of the Tribunal at the time that it made its decision in the present case.  That information was such as would cast doubt upon the true identity of the appellant.  The only reference to the matter of identity to be found in the reasons of the Tribunal is that set out in paragraph 90 thereof, as follows:

   The applicant claims to be a national of Ghana.  He arrived on a Ghanaian passport which he states is not his real identity.  The applicant provided an identification card in support of his claimed identity.  On the basis of the information presented, the Tribunal accepts that the applicant is a Ghanaian national, and for the purposes of the Convention, has therefore assessed his claims against Ghana as his country of nationality. 

   In the way that it disposed of the appellant’s application for review, the Tribunal made no other reference to the matter of the appellant’s identity, and it is clear that the question of identity was irrelevant to the disposition of the case by the Tribunal.  In fact, the Federal Magistrate made a finding, which appears to be wholly consistent with the reasons of the Tribunal and in all respects beyond challenge, that the Tribunal had no regard to, and in all probability had no awareness of, the information in the file which related to the doubts about the appellant’s identity.

4. In those circumstances, the Federal Magistrate took the view that the provisions of s 424A of the Act were not attracted. That is to say, he found as a fact that the Tribunal did not consider that such information as existed on the file which related to the appellant’s identity would be the reason or part of the reason for affirming the decision under review. It followed, and his Honour found, that any information of that kind was not in fact the reason, or part of the reason, by reference to which the Tribunal affirmed the decision of the delegate.

5. Although, in appearing before me today, the appellant has not had the benefit of legal representation, as he did before the Federal Magistrate, it is clear from the submissions that he makes that he well understands the point in issue, and I am satisfied that, if there were any indication overlooked by the Federal Magistrate that the Tribunal had relied to any extent upon the information available to it about his identity, he would have been able to draw it to my attention.  I have also had the assistance of submissions made on behalf of the Minister, whose counsel assures me that there is nothing in the materials of the case generally which would cast any doubt upon the categorical findings made by the Federal Magistrate that the Tribunal had no regard to the identity information apparently on the file which was in its possession. 

6. In the circumstances, I am bound to find that the appellant has not established that the Federal Magistrate was in error in concluding that there was no jurisdictional mistake made by the Tribunal, or in arriving at the factual conclusion that the information about the appellant’s identity was not the reason or part of the reason for the Tribunal affirming the decision of the delegate.  The appeal must, therefore, be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       22 March 2012