SZBFF v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBFF v MINISTER FOR IMMIGRATION [2005] FMCA 253

MIGRATION – Review of RRT decision – where applicant claims to have a well founded fear of persecution for the convention reason of political opinion – where applicant chose not to attend Tribunal hearing – where applicant claims to have based this decision on his migration agents advice that non-attendance by the applicant would not matter – whether applicant denied procedural fairness – whether the court should consider an application for judicial review where the applicant admits no knowledge of the content of that application.

Federal Magistrates Court Rules 2001

B41 of 2003 v The Minister [2004] FCA 30
Hot Holdings Pty Ltd v Creasy & Ors (2002) 210 CLR 438
S58 of 2003 v The Minister [2004] FCAFC 283

Applicant: SZBFF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1622 of 2003

Judgment of: Raphael FM

Hearing date: 3 March 2005

Delivered at: Sydney

Delivered on: 3 March 2005

REPRESENTATION

For the Applicant: Applicant in Person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1622 of 2003

SZBFF

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 on 19 August 2002.  On 11 September 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 4 October 2002 a delegate of the Minister refused to grant a protection visa and on 18 October 2002 the applicant applied for review of that decision.  On 3 June 2003 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.

2. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 August 2003.  On 20 June 2003 the applicant advised the Tribunal in writing that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.  The letter from the applicant is found at [CB 70] and is in the form of a document entitled Response to Hearing Invitation.

3. The applicant's claim to have a well founded fear of persecution for the Convention reason of political opinion is set out at [CB 15] – [CB 16].  The applicant claimed to be a member of the Congress Party and a sponsor of political campaigns in his area.  He claimed that at the last elections in his state a Shiv Sena candidate won and that…