MZAPH v Minister for Immigration and Border Protection [2016] FCA 1527

FEDERAL COURT OF AUSTRALIA

MZAPH v Minister for Immigration and Border Protection [2016] FCA 1527 Appeal from: MZAPH v Minister for Immigration & Anor [2016] FCCA 1867

File number: VID 994 of 2016

Judge: MCKERRACHER J

Date of judgment: 23 November 2016

Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 424A

Date of hearing: 23 November 2016

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 25

Counsel for the Appellant: The Appellant appeared in person

Counsel for the First Respondent: Mr O Young

Solicitor for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs

ORDERS VID 994 of 2016

BETWEEN: MZAPH Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: MCKERRACHER J DATE OF ORDER: 23 NOVEMBER 2016

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

MCKERRACHER J: 1 The appellant is a citizen of Malaysia who entered Australia in August 2005. Following expiry of his electronic travel authority he remained in Australia as an unlawful non-citizen, but made his first application for a protection visa in June 2010 which was refused. 2 Now before this Court is an appeal filed on 19 August 2016 from a decision of the Federal Circuit Court of Australia, given earlier that month on 1 August 2016. In that decision, the Federal Circuit Court ordered that an application for judicial review of a decision of the Refugee Review Tribunal be dismissed with costs. The Tribunal's decision was given on 12 November 2014. On that occasion the Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth). 3 The grounds of appeal from the Federal Circuit Court decision, which are relied upon today by the appellant are: (1) that the Federal Circuit Court judge failed to find that the Tribunal's decision was in breach of s 424A of the Act, and therefore fell under jurisdictional error; (2) that the Tribunal accepted part of the appellant's claims that he had been convicted of an offence and served time in jail between 1992 and 2004, but it found that the balance of the claim had been fabricated. The Tribunal did not explain why it did not accept the remainder of the appellant's claims; and (3) that the Tribunal made an adverse finding on the appellant's credibility based on fabricated refugee claims provided in his first visa application. In making that adverse finding, the appellant complains that the Tribunal failed to consider the fact that the fabricated claims were made by the appellant's former agent without the appellant's knowledge. 4 The appellant also seeks to add an additional general ground of jurisdictional error, but there are no further specifics in relation to that ground.