MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1

FEDERAL COURT OF AUSTRALIA

MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 Citation: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1

Appeal from: MZYPO v Minister for Immigration & Citizenship & Anor [2012] FMCA 412

Parties: MZYPO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File number: VID 352 of 2012

Judges: LANDER, JESSUP AND MIDDLETON JJ

Date of judgment: 18 January 2013

Catchwords: MIGRATION – appeal from decision of Federal Magistrate dismissing application for judicial review of a recommendation made by Independent Merits Reviewer – appeal referred to Full Court – whether Independent Merits Reviewer in error by not considering complimentary protection under s 36(2)(aa) of Migration Act 1958 (Cth) at time of recommendation notwithstanding that s 36(2)(aa) had not been enacted at that time – whether Minister could nevertheless rely on that recommendation – application of s 36(2)(aa) as provided by Item 35 of Schedule 1 of Migration Amendment (Complementary Protection) Act 2011 (Cth) – whether appellant denied procedural fairness – whether reasons of Independent Merits Reviewer gave rise to reasonable apprehension of bias – nature of relief available on judicial review PRACTICE AND PROCEDURE – application for leave to amend notice of appeal – application referred to Full Court – whether expedient in the interests of justice to allow amendment

Legislation: Federal Court of Australia Act 1976 (Cth), s 25(1AA)(b) Migration Act 1958 (Cth), ss 5, 36, 46A, 47, 91J, 91K, 91L, 476 Migration Amendment (Complementary Protection) Act 2011 (Cth), Schedule 1, Items 12, 35 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), Schedule 1, Item 7 The Constitution, s 75(v)