SZEIL v Minister for Immigration

[2005] FMCA 822

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEIL v MINISTER FOR IMMIGRATION [2005] FMCA 822

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal refused to postpone hearing – no medical certificate – no failure of procedural fairness – cumulative effect of fears – privative clause decision – application dismissed.

Migration Act 1958 (Cth)

NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZEIL

Respondent: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

File Number: SYG 2748 of 2004

Judgment of: Mowbray FM

Hearing date: 10 May 2005

Date of Last Submission: 10 May 2005

Delivered at: Sydney

Delivered on: 10 May 2005

REPRESENTATION

Advocate for the Applicant: In person

Counsel for the Respondent: Lenny Leerdam

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2748 of 2004

SZEIL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment which has been revised and edited from a transcript.  It relates to a decision of the Refugee Review Tribunal (Tribunal) made on 16 July 2004 and handed down on

   
   

   10 August 2004. 

2. The applicant is a citizen of India who arrived in Australia on

   
   

   14 March 2004.  On 27 April 2004 he applied for a protection visa, which application was refused by a delegate of the Minister on

   
   

   29 April 2004.  On 26 May 2004 the applicant lodged an appeal with the Tribunal.  The Tribunal invited the applicant to attend a hearing on 15 July 2004 and the applicant responded to that invitation on

   
   

   11 June 2004 indicating he wished to attend the hearing. 

3. On 14 July 2004 the Tribunal received a letter from the applicant which was dated 13 July 2004 (at the top it says 13 July 2003, but the signature is dated 13/07/2004).  This letter requested the Tribunal to postpone the hearing as the applicant was sick.  He would send a “medical certificate by next mail”.  The Tribunal did not receive a medical certificate and therefore did not postpone or adjourn the hearing.  On 16 July 2004 the Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa and that decision was handed down on 10 August 2004. 

Claims before the Department and the Tribunal

1. The applicant’s claims centred on his concern that he would be persecuted because of his religious beliefs as a Hindu.  He said he participated in Hindu cultural activities in his local suburb.  He was attacked and threatened by the majority Muslims for his religious activities.  He was cut on his left thigh and was threatened that he would be killed wherever he lived in India.  He reported the matter to the local police but they took no action.  He claims that the Muslims are supported…