SZDFO v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDFO v MINISTER FOR IMMIGRATION [2004] FMCA 391

MIGRATION – Review of RRT decision – where application for judicial review dismissed by the Federal Court following non-appearance by applicant on two occasions – where applicant did not seek to have that order vacated – where application for judicial review lodged in Federal Magistrates Court – whether findings and reasons of Tribunal evidence jurisdictional error – whether applicant essentially seeking merits review – whether conduct of applicant’s previous legal advisers relevant to whether applicant denied procedural fairness.

Federal Court Rules O.32 r.2, O.35 r.7

NAHR v MIMIA [2004] FCAC 10
B41 of 2003 v MIMIA [2004] FCA 30

Applicant: SZDFO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFIARS

File No: SZ 998 of 2004

Delivered on: 11 June 2004

Delivered at: Sydney

Hearing date: 11 June 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 998 of 2004

SZDFO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Bangladesh.  He arrived in Australia on 7 September 1996.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 2 May 1997.  The delegate declined to provide the applicant with a protection visa by decision made on 30 May 1997.  The applicant sought review of that decision by the Refugee Review Tribunal on 30 June 1997.  On 1 July 1998 the applicant attended a hearing with the Tribunal and on the same day the Tribunal wrote to him seeking his comments on certain matters.  In essence these matters related to certain information which the applicant had given to the Tribunal about his membership of the Freedom Party at a time when the Freedom Party has not been formed.

2. On 21 July 1998 the Refugee Review Tribunal determined to affirm the decision not to grant a protection visa.  The applicant was not satisfied with that decision and sought review from the Federal Court by way of an application dated 17 August 1998.  The grounds of that application were:

   “I am not satisfied with the refusal to seeking of my application for protection visa as I certainly believe that the primary case officer as well as the case officer of the Refugee Review Tribunal has failed to properly assess my situation in Bangladesh which I tried to establish about my fears of prosecution and possibly face life imprisonment on return.”

3. On 3 November 1998 the application came before Hely J.  As his Honour's reasons for judgment indicate the matter had previously come before his Honour on 29 October.  It had been put over until the later…