SZADO v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADO v MINISTER FOR IMMIGRATION [2003] FMCA 329

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant a deserter from the Pakistan army – private enquiry made by the presiding member about the fate of deserters – presiding member relying upon unnamed colleague’s opinion – whether the decision of the RRT vitiated by apprehended bias – whether the Court should consider another ground of review where the applicant is legally represented and does not rely upon that other ground – whether a hearing that is procedurally unfair vitiates a decision that is otherwise properly based upon an unimpeachable conclusion.

Migration Act 1958 (Cth), ss.474, 474A

BEAJ v Minister for Immigration [2003] FCA 678
Hogan v Chief of Army (1999) ADFDAT 1
NASQ v Minsiter for Immigration [2002] FMCA 305
Re JRL; ex parte CJL (1986) 161 CLR 342

Applicant: SZADO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ110 of 2003

Delivered on: 16 July 2003

Delivered at: Sydney

Hearing date: 16 July 2003

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr B Levet

Solicitors for the Applicant: Bharati Solicitors

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ110 of 2003

SZADO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Tribunal (“the RRT”) made on 28 November 2002 and handed down on 7 January 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa.  The applicant is a citizen of Pakistan who came to Australia in 2000 as a contestant for Pakistan in the Sydney Olympics.  The background to the matter is set out in paragraphs 4 to 10 of the respondent's written submissions filed on 11 July 2003. I adopt that background for the purposes of this decision:

   The applicant arrived in Australia on 4 September 2000 as part of the Pakistani Olympic team.  He competed in the boxing competition.  At that time, the applicant was a member of the Pakistani Army.

   On 1 November 2000, the applicant lodged an application for a protection visa.

   The applicant attended an interview with a delegate of the Minister on 20 November 2000.

   On 1 December 2000, a delegate of the Minister refused the protection visa application.

   An application for review to the RRT was lodged on 19 December 2000.

   The applicant attended a hearing before the RRT on 21 November 2002.  Important evidence given during the hearing is set out in the RRT’s reasons (court book, pages 55-56).

   The RRT handed down its decision and reasons on 7 January 2003.  It may be summarised…