SZALS v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZALS v MINISTER FOR IMMIGRATION [2004] FMCA 255

MIGRATION – Review of RRT decision – where applicant claims well-founded fear of persecution based on his Indo-Fijian ethnicity – where country information before Tribunal did not uphold applicant’s claims – whether applicant was afforded a proper hearing as required by s.425 Migration Act – where entire hearing lasted 33 minutes – whether Tribunal prevented applicant from giving evidence and presenting arguments by talking over applicant – whether length of hearing relevant to whether applicant afforded procedural fairness.

Migration Act 1958 (Cth), ss.422B, 425

Mazhar v MIMA [2000] FCA 1759
WAHP v MIMIA [2004] FCAFC 87
MIMA v Yusuf (2001) 206 CLR 323
Dranichnikov v MIMA (2003) 197 ALR 389
Htun v MIMA [2001] FCA 1802
Ratumaiwai v MIMA [2002] FCA 311
Applicant VFAP v MIMIA [2003] FCA 1532
MIMA v Rajalingham [1999] FCA 719
S154/2002 v MIMA [2003] HCA 60
SZAJF v MIMIA [2004] FCA 291

Applicant: SZALS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 690 of 2003

Delivered on: 7 May 2004

Delivered at: Sydney

Hearing date: 23 April 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Mr M Jones, Solicitor

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 690 of 2003

SZALS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a Fijian citizen of Indo-Fijian ethnicity and of the Muslim religion. He arrived in Australia on 1 November 2001 and on 8 November 2001 applied for a protection (class XA) visa. On 12 December 2001 a delegate of the Minister wrote to the applicant providing him with relevant extracts of country information which he was invited to comment upon and address. On 23 January 2002 the delegate refused the protection visa application. On 13 February 2002 the applicant lodged an application for review with the Refugee Review Tribunal. The applicant was invited by the Tribunal to attend a hearing before it on 25 February 2003 which he did. On 27 March 2003 the Tribunal determined to affirm the decision under review.

2. The applicant’s claim to have a well-founded fear of persecution for the convention reason of religion was based upon the fact that on two occasions whilst walking between the Mosque and his home he and others had been attacked by Fijian nationals and on one occasion he had lost a tooth. He claimed to hold a general fear of returning to Fiji because he believed that this type of incident might occur again. He said in his documentary material that he had been unable to identify his attackers and therefore had not involved the police. Before the Tribunal the applicant said at [T-6]:

   “That…