SZCHS v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCHS v MINISTER FOR IMMIGRATION [2005] FMCA 1070

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant did not attend Tribunal hearing which had been postponed at his request – whether breach of procedures or lack of procedural fairness. 

Migration Act 1958, ss.425,425A & 426A
Migration Regulations, 4.35D

SZBAZ vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 790

Applicant: SZCHS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2890 of 2003

Judgment of: Barnes FM

Hearing date: 20 July 2005

Delivered at: Sydney

Delivered on: 20 July 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs set in the amount of $4600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2890 of 2003

SZCHS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 9 December 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The applicant is a citizen of India.  He arrived in Australia in March 2003, and applied for a protection visa.  The application was refused and he sought review by the Tribunal.  On 5 August 2003 the Tribunal wrote to the applicant at the only address provided in his review application advising that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone.  The Tribunal invited him to give oral evidence and present arguments at a hearing on 30 October 2003.  The letter asked him to read and complete an enclosed response to hearing application form and to send any new documents or written arguments he wanted the Tribunal to consider.  Such material and the form were to be returned by 21 August 2003. 

3. It is apparent from the material before the court that there was no reply to the hearing invitation form returned to the Tribunal and that the applicant did not attend the hearing at the place and time scheduled on 30 October 2003.  However on 30 October 2003 the applicant notified the Tribunal in writing that he was suffering from acute flu and muscular pains, had visited a doctor on 29 October 2003, and that, “The doctor advised me to take a complete bed rest for, at least, one week”.  The applicant requested a postponement of the hearing to a later date.  He attached a medical certificate which was dated 29 October 2003 and stated that he was “suffering from viral infection with high fever and is unable to attend court on 30.10.03”.

4. On 3 November 2003 the Tribunal wrote to the applicant agreeing to his…