SZAKV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAKV & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 222

MIGRATION – Review of RRT decision – where applicants did not attend Tribunal hearing – where Tribunal found that violence encountered was random criminal activity – whether the Tribunal’s finding that state protection was available to the Plaintiff constituted Wednesbury unreasonableness – whether the causal nexus between the persecutory events and convention ground of race was made out – whether the Tribunal failed to take into account a relevant consideration critical to the decision.

Federal Magistrates Court Rules 2001, Pt 21 r 21.02(2)(a)

Abebe v The Commonwealth [1999] HCA 14
NAVX v Minister for Immigration [2004] FCA 346

First Applicant: SZAKV

Second Applicant: SZAKW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 645 of 2003

Delivered on: 31 March 2004

Delivered at: Sydney

Hearing date: 31 March 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Tony Silva of Silva Solicitors

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicants to pay the respondent’s costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 645 of 2003

SZAKV

First Applicant

And

SZAKW

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicants in these proceedings are husband and wife, they are citizens of India and they arrived in Australia on 21 March 2002.  On

   
   

   5 April 2002 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs.  On 4 June 2002 a delegate of the Minister refused to grant protection visas and on 25 June 2002 the applicants applied for a review of that decision.

2. The applicants were represented by a migration agent.  They received the standard letter from the Tribunal advising them that the Tribunal had considered the papers and was unable to come to a favourable decision on that information alone.  The Tribunal, which sent this letter out on 8 January 2003, proposed a hearing on 17 February 2003.  The applicants initially requested an interview in a document to be found at [CB 110] but in another document dated 13 February 2003, found at [CB 114] they advised the Tribunal that they did not wish to come to the hearing.  There was filed before me today an affidavit in which some explanation was put forward for that decision but the fact is that the decision was made and the parties did not attend.

3. The evidence before the Tribunal consisted of the applicants' original completed forms, and in particular, the response to questions 40 and 41 found at [CB 17] and [CB18].  At [CB 17] the applicants stated :

   “But now after the 1992 Hindu - Muslim riots, the situation has become very bad.  After these riots, in which many Muslims were killed, living in India for…