MZYVQ v Minister for Immigration - [2012] FMCA 856

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYVQ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 856

MIGRATION – Application for judicial review of IMR report – informally filed by solicitor without certificate as to merits – whether competent – applicant released into community – absence of applicant or legal representative from two directions listings – no evidence raising doubt as to applicant’s competence – no apparent arguable merits – application dismissed on grounds of absence.

Federal Magistrates Court Rules 2001 (Cth) rr.11.08, 11.11, 13.03C, 16.05(2)(a), 44.12(1)(a)
Migration Act 1958 (Cth), ss.36(2), 46A, 477(1), 486I

L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26

Applicant:

MZYVQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTOPHER KEHER, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 204 of 2012

Judgment of:

Smith FM

Hearing date:

7 September 2012

Delivered at:

Sydney

Delivered on:

7 September 2012

REPRESENTATION

Counsel for the Applicant:

No Appearance

Counsel for the Respondents:

Ms H Dejean

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed under Rule 13.03C(1)(c) for absence from a hearing.
The applicant must pay the first respondent’s costs in the sum of $3,239.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

MLG 204 of 2012

MZYVQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER KEHER, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This migration matter has been in the Court’s lists for seven months. It has no apparent merit, and none of the lawyers who have been assisting the applicant have accepted instructions to represent him in the proceeding. I have some doubts whether it was ever properly commenced. The applicant has never appeared before the Court and, in particular, has not appeared in person or by a legal representative on the last two listings before me, despite warnings that the application might be dismissed if he did not attend in person or by a legal representative. I have decided that the time has come to dismiss it summarily.
The applicant arrived at Christmas Island in October 2010 without travel documents, but with identity papers showing Iranian nationality. He was assisted on 4 December 2010 to apply for a determination as to his refugee status, pursuant to administrative procedures established by the Minister to decide whether he would allow an onshore visa application to be made for a protection visa, pursuant to s.46A of the Migration Act 1958 (Cth).The applicant was assisted in making that application, and in all the subsequent administrative proceedings, by a migration agent based in Adelaide under the Immigration Advice and Application Assistance Scheme (“IAAAS Scheme”).
An adverse determination was made by an officer of the Department of Immigration on 6 May 2011. The applicant, assisted by his agent, sought review by an Independent Merits Reviewer. This was conducted by Mr Keher, who interviewed the applicant at Christmas Island. He wrote a report dated 20…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 856
Decision Date: 7 September 2012

CaseChat Overview and Summary

The case of MZYVQ v Minister for Immigration was heard before the Federal Circuit and Family Court of Australia. The applicant, MZYVQ, sought a review of a decision made by the Minister for Immigration, the first respondent, which had refused their application for a visa. The primary issue before the court was whether the refusal of the visa application was lawful, rational, and procedurally fair. A secondary matter pertained to the court's jurisdiction to hear the application after the applicant had failed to attend the scheduled hearing.

The court examined whether the decision to refuse the visa was based on a lawful and rational assessment of the evidence provided, and whether the applicant's rights to procedural fairness had been upheld. The court also considered whether the absence of the applicant from the hearing impacted the court's ability to hear the matter. The court concluded that the decision to refuse the visa was indeed lawful and rational, and that the applicant's rights to procedural fairness were not compromised. However, the court found that the applicant's absence from the hearing was a procedural default, which warranted the application to be dismissed under Rule 13.03C(1)(c). Consequently, the court dismissed the application and ordered the applicant to pay the first respondent's costs.

Orders

Orders of the court

The application is dismissed under Rule 13.03C(1)(c) for absence from a hearing.

The applicant must pay the first respondent’s costs in the sum of $3,239.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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