MZYPK v Minister For Immigration and Anor (No.2)
[2012] FMCA 789
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYPK v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2012] FMCA 789 |
| MIGRATION – Matter remitted by the Federal Court on the basis of the decision in SZQDZ v Minister for Immigration and Citizenship. |
| Migration Act 1958 (Cth), s.477 |
| Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 MZYPK v Minister for Immigration and Citizenship [2012] FMCA 95 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 |
| Applicant: | MZYPK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1113 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 22 August 2012 |
| Date of Last Submission: | 22 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 22 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Rebikoff |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the Application filed 28 July 2011 and as amended 30 November 2011 is dismissed.
That the Applicant pay the First Respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1113 of 2011
| MZYPK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
This matter was remitted to the Court for rehearing in accordance with Orders made by North J on 23 April 2012.[1] The matter was remitted to the Court for determination having regard to the reasons for judgment in SZQDZ v Minister for Immigration and Citizenship (“SZQDZ”).[2]
[1] Matter Number: (P)VID247/2012
[2] SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26.
By orders made on 16 February 2012 the Court dismissed the application in this matter and ordered that:
(1) The Application to extend time pursuant to s.477 of the Migration Act 1958 (“the Act”) be dismissed;
(2) The substantive application filed on 28 July 2011 is dismissed; and
(3) The Applicant pay the First Respondent’s costs in the sum of $6240.00.
In SZQDZ, the Full Court determined that s.477 of the Act did not apply to recommendations made by an Independent Merits Review. Leave to appeal in this matter was, therefore, granted.
In determining that leave to extend time should not be granted, when this matter was first before the Court as currently constituted, I expressed the view that the principles set out by Wilcox J in Hunter Valley Development Pty Ltd v Cohen[3] applied. Both the Applicant and the First Respondent agreed that the issue should be determined on the basis of whether the substantive application had merit.[4]
[3] Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344.
[4] MZYPK v Minister for Immigration and Citizenship [2012] FMCA 95 at [64].
The Court gave consideration to the two grounds of review advanced by the Applicant and concluded that both grounds should be rejected.[5]
[5] Ibid at [74] and [78].
In the proceedings today the Applicant was invited to make further submissions with respect to the grounds of review.
The Applicant’s submissions essentially went to the merits of his case as rejected by the Reviewer.
The First Respondent referred to the submissions previously put to the Court in the proceedings which were heard on 14 December 2011. The First Respondent further submitted that it was not the role of the Court to review the merit of the Applicant’s claim only to determine whether there had been legal error on the part of the Reviewer.
Conclusions
My reasons for rejecting the grounds of review advanced by the Applicant when the matter was first before the Court are set out at paragraphs [70] to [77] of the judgment issued on 16 February 2012. In upholding the appeal against that judgment, North J referred only to the reasons for judgment in SZQDZ which dealt solely with the issue of the application of s.477 of the Act to Independent Merits Review matters.
It is not necessary to reiterate the background to this matter or the previous submissions made as they are contained in the judgment issued on 16 February 2012.[6] No new argument relevant to those grounds has been advanced by the Applicant in these proceedings.
[6] MZYPK v Minister for Immigration and Citizenship [2012] FMCA 95 at [64].
I am satisfied that the reasons for finding that the Application was without merit remain valid and that the substantive application should, therefore, be dismissed.
The Order of the Court shall, therefore, be that the application filed on 28 July 2011 as amended on 30 November 2011 is dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 3 September 2012
0
2
0