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

1. That the Application filed 28 July 2011 and as amended 30 November 2011 is dismissed.

2. 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)

1. 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.

2. 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. 

3. 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.

4. 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].

5. 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].

6. In the proceedings today the Applicant was invited to make further submissions with respect to the grounds of review. 

7. The Applicant’s submissions essentially went to the merits of his case as rejected by the Reviewer. 

8. 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

1. 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.

2. 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].

3. 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.

4. 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