MZZYD v Minister for Immigration and Border Protection

MZZYD
v
MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR
[2015] HCASL 99
M25/2015

The applicant, a citizen of Pakistan, applied to the first respondent for a Protection (Class XA) visa. On 31 October 2011, a delegate of the first respondent refused the application.
The Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision, but on 30 July 2013, the Federal Circuit Court of Australia (Riethmuller J) set aside this decision for denial of procedural fairness, and remitted the matter to the Tribunal for determination according to law. On 21 November 2013, the Tribunal, constituted by the same member as for the initial review, again affirmed the delegate's decision. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention or under s 36(2)(aa) of the Migration Act 1958 (Cth).
On 12 September 2014, the Federal Circuit Court (McGuire J) dismissed an application for judicial review, neither being satisfied that the applicant had made out his claim that there was perceived bias by reason of the remitted matter being considered again by the same Tribunal member, nor that any particulars in the determination of 21 November 2013 were indicative of prejudgment or bias. McGuire J was not satisfied that any of the applicant's further grounds of complaint were made out such that the Tribunal's decision was infected by jurisdictional error.
The Federal Court of Australia (Barker J) dismissed an appeal on 10 February 2015. Barker J held that there was nothing to suggest that the Tribunal member was actuated by bias or that there was any reasonable apprehension of bias. His Honour held that McGuire J had not erred in holding that the Tribunal had not committed any jurisdictional error.
The applicant seeks special leave to appeal to this Court. The complaints raised in the applicant's summary of argument are not of substance. An appeal to this Court would enjoy no prospects of success. Special leave is refused.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
18 June 2015 P.A. Keane

CaseChat Overview and Summary

The applicant, a Pakistani citizen, applied for a Protection (Class XA) visa to the respondent but was refused. The Tribunal upheld the delegate's decision, but the Federal Circuit Court set aside this decision for a breach of procedural fairness and remitted the matter back to the Tribunal. The Tribunal, again, upheld the delegate's decision. The Federal Circuit Court dismissed an application for judicial review, which was subsequently upheld by the Federal Court of Australia. The applicant sought special leave to appeal to the High Court of Australia.

The legal issues in this case revolved around whether the Tribunal had acted with procedural fairness and whether there was any reasonable apprehension of bias on the part of the Tribunal member. The applicant argued that the Tribunal's decision was infected by jurisdictional error due to the same member considering the remitted matter again, and that there was perceived bias. The court was required to determine whether the lower courts' decisions were correct and whether the applicant had grounds to appeal to the High Court of Australia.

The High Court of Australia found that the applicant's complaints did not have substance and that an appeal would not enjoy any prospects of success. The court held that the lower courts had correctly dismissed the application for judicial review and that there was no reasonable apprehension of bias on the part of the Tribunal member. The High Court of Australia found that the Tribunal had not committed any jurisdictional error, and that the applicant's complaints were not of substance.

Accordingly, the High Court of Australia refused the applicant special leave to appeal. Pursuant to the rules, the Registrar was directed to draw up, sign and seal an order dismissing the application.

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