MZZXL v Minister for Immigration and Border Protection

[2014] FCA 1211

FEDERAL COURT OF AUSTRALIA

MZZXL v Minister for Immigration and Border Protection [2014] FCA 1211

Citation:	MZZXL v Minister for Immigration and Border Protection [2014] FCA 1211
Appeal from:	MZZXL v Minister for Immigration and Border Protection [2014] FCCA 1795
Parties:	MZZXL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 434 of 2014
Judge:	JESSUP J
Date of judgment:	11 November 2014
Catchwords:	MIGRATION – appeal from Federal Circuit Court – whether leave should be granted for appellant to rely on a new ground under s 424A of the Migration Act 1958 (Cth) – no explanation for reliance on new ground and negligible prospect of success – appeal dismissed
Legislation:	Migration Act 1958 (Cth) s 424A
Date of hearing:	11 November 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	J Forsaith
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 434 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZXL
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	11 NOVEMBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs of the appeal.

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 434 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZXL
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	11 NOVEMBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 10 July 2014, in which the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 November 2013 was dismissed.  In that decision, the Tribunal had affirmed the decision of a delegate of the respondent Minister not to grant the appellant a Protection Class XA visa under the Migration Act 1958 (Cth) (“the Act”). In his application in the Federal Circuit Court the appellant sought an order that the decision of the Tribunal be quashed, and a writ of mandamus directed to the Tribunal requiring it to determine the appellant’s application for a visa according to law.

2. The grounds set out in the application in the Federal Circuit Court were that the appellant had applied for a Protection Visa to the Department of Immigration, that he applied to the Tribunal for a review of the Department’s decision to refuse his application for a visa, and that he thought the Tribunal and the Department did not look at his situation.  The judge in the Federal Circuit Court rejected that third ground, holding that the Tribunal had looked at the merits of the appellant’s case before it affirmed the decision of the delegate. 

3. In the appellant’s Notice of Appeal in this court he has specified one ground of appeal, namely, that the Circuit Court Judge –

   … failed to find the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth), and therefore fall [sic] under jurisdictional error.

   (a)There were certain adverse information used by the Tribunal to affirm the decision under review, and the Tribunal did not disclose the information in accordance with s 424A(1).

   It is apparent from a reading of the reasons of the Circuit Court that this ground was not raised in that court.  Accordingly, the appellant would need leave to raise it and to prosecute it, on appeal in this court. 

4. Conformably with that requirement, the appellant has sought an order that leave be granted to include additional grounds for review of the decision of the Tribunal on the ground of jurisdictional error.  Putting questions of prejudice to other parties to one side for the moment, the two main areas of consideration that arise when leave is sought to ventilate a ground on appeal which has not been taken at first instance are, first, whether the appellant has provided a satisfactory explanation for his or her failure to raise the ground originally, and secondly, whether, if advanced on appeal, the ground would have a reasonable prospect of success. 

5. The appellant has not dealt with either of those issues in the submissions which he made today, and his appeal is supported neither by an affidavit which deals with them nor by any written submissions.  If this is a ground which is now going to be available to the appellant, I cannot for my own part see any reason why it was not raised in the Federal Circuit Court.  I am not satisfied that a reasonable explanation for the appellant not having raised this ground at that stage exists. 

6. Neither has the appellant demonstrated that any such ground, if allowed to be advanced in this appeal, would have any prospect of succeeding. The facts of the case simply do not provide any sustenance for the proposition that there was a breach of s 424A of the Act. In his submissions before me today, the appellant simply did not address the matter.

7. It follows that the appellant’s application for leave to run this new ground should be rejected.  Since that is the only ground stated in his Notice of Appeal, it follows that the appeal must be dismissed.  That is the order I propose to make. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       18 November 2014