SZAPL v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPL v MINISTER FOR IMMIGRATION [2004] FMCA 444

MIGRATION – Review of RRT decision – where Minister filed a notice of objection to competency – where applicant claims well-founded fear of persecution for Convention reason of political opinion – where applicant’s account inconsistent with independent country information before the Tribunal – whether country information so out of date as to amount to a denial of procedural fairness or natural justice – whether applicant seeking merits review – whether findings and reasons of Tribunal evidence of a denial of natural justice or breach of procedural fairness – whether Tribunal failed to consider part of applicant’s claim.

Migration Act 1958 (Cth), ss.477(1A), 477(2)

WAEE v MIMIA [2003] FCAFC 184
SCAA v MIMIA [2002] FCA 668
NAST v MIMIA [2004] FCA 86

Applicant: SZAPL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 829 of 2003

Delivered on: 5 July 2004

Delivered at: Sydney

Hearing date: 5 July 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. The 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 829 of 2003

SZAPL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of India. He arrived in Australia as a temporary business entrant in July 1999 and applied for a protection (class AZ) visa on 31 August 1999. On 16 February 2000 a delegate of the Minister declined to grant him such a visa and the applicant sought review of that decision from the Refugee Review Tribunal on 1 March 2000. The Tribunal interviewed the applicant and discussed his claims with him in detail. On 30 January 2002 it determined to affirm the decision not to grant the protection visa and handed that decision down on 21 February 2002. The applicant sought review of the decision from this court on 14 May 2003. A period which was substantially outside the 28-day limit contained in s.477(1A) of the Migration Act. For that reason the Minister's solicitors filed a notice of objection to competency. A notice of objection to competency in these circumstances is only relevant to an actual decision of the Tribunal so that if a decision is found to have been made in jurisdictional error a notice of objection has no validity. However, if a non-jurisdictional error is found then the objection must be accepted pursuant to s.477(2) of the Act.

2. The applicant's claim to a well-founded fear of persecution for the Convention reason of political opinion arises from his very long standing association with a naxalite group known as the People's War Group or PWG.  The applicant, who is a member of the untouchable caste, joined the group after an…