MZYNQ v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYNQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 655

Catchwords:
MIGRATION – Offshore entry person – Review of Independent Merits Reviewer’s recommendation – grounds for review allege Independent Merits Reviewer failed to apply proper legal principles and/or did not afforded natural justice to the Applicant – challenge to Court’s jurisdiction – High Court determination that Court has jurisdiction – grounds for review not sustained – application for review, as amended, dismissed.

Legislation:
Migration Act 1958, ss.46A, 91H, 195A, 474(7), 476(1), 476(2)(d)

Cases cited:
Appellant B v Minister for Immigration and Multicultural Affairs [1998] FCA 1237
MZAOQ v Minister for Immigration & Citizenship [2011] FMCA 869
MZYNB v Minister for Immigration [2011] FMCA 714
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
Nufarm Australia Ltd v Dow AgroSciences Ltd (No.2) [2011] FCA 757

Plaintiff M61/2010E v Commonwealth (2010) 272 ALR 14
Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Re JRL: Ex parte CJL (1986) 361 CLR 342

SZQHF v Minister for Immigration and Citizenship [2012] FC A 251
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26
Vakauta v Kelly (1989) 167 CLR 568

Applicant: MZYNQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 939 of 2011

Judgment of: Judge O'Dwyer

Hearing dates: 13 April 2012 and 10 July 2012

Date of Last Submission: 10 July 2012

Delivered at: Melbourne

Delivered on: 4 April 2014

REPRESENTATION

Counsel for the Applicant: Ms De Ferrari

Solicitors for the Applicant: Baker & McKenzie

Counsel for the First Respondent: Mr Horan

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The application for review filed on 5 July 2011, as amended, is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 939 of 2011

MZYNQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 5 July 2011, later amended, the Applicant seeks judicial review of a recommendation dated 17 May 2011 made by the Second Respondent (“the Reviewer”) to the First Respondent (“the Minister”) that the Applicant not be recognised as a person to whom Australia has protection obligations. 

2. The subject recommendation was the second made in respect of this Applicant; the first having been made prior to the decision in Plaintiff M61/2010E v Commonwealth[1] (“Plaintiff M61”). After that decision, the Minister offered the Applicant another independent merits review (“IMR”) by a different reviewer, which of necessity also included another interview. The recommendation of the Reviewer was the same as the first reviewer.

   [1] (2010) 243 CLR 319

Procedural history

1. This review was first before me on 13 April 2012 where, over a day, Counsel for both…