SZFQL v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQL v MINISTER FOR IMMIGRATION [2006] FMCA 1076

MIGRATION – Review of RRT decision − where applicant invited to Tribunal hearing − whether applicant received invitation to attend Tribunal hearing − whether fault of applicant’s migration agent can constitute jurisdictional error − whether the applicant was given the opportunity by the Tribunal to comment upon independent country information used in its decision.

Migration Act 1958, ss.441A, 426A, 424A

B41 of 2003 v Refugee Review Tribunal [2004] FCA 30

SZEYH v Minister for Immigration [2006] FCA 93

Dranichnikov v Minister for Immigration [2003] 197 ALR 389

Abebe v The Commonwealth [1999] 197 CLR 510

SZATG v Minister for Immigration [2004] FCA 1595

Applicant: SZFQL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 286 of 2005

Judgment of: Raphael FM

Hearing date: 20 July 2006

Date of Last Submission: 20 July 2006

Delivered at: Sydney

Delivered on: 20 July 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 286 of 2005

SZFQL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China.  He first arrived in Australia on 30 September 1999.  He had a number of visas issued to him for the purposes of study.  These would appear to have expired by July 2004.  Between 1999 and 2004 he entered and departed Australia on several occasions, as noted by the Tribunal at [CB 89].  On 9 July 2004 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.  On 19 July 2004, a delegate of the Minister refused to grant a protection visa, and on 18 August 2004 the applicant applied for a review of that decision.

2. In the application for review, found between [CB 43] and [CB 46], the applicant appoints a Mr Wong as his migration agent and indicates that Mr Wong is his authorised agent who is acting for him in these proceedings.  He gave an address as his residential address, but he stated in section D of the form [CB 45] that he wanted correspondence about his application to be sent to his authorised recipient. 

3. On 18 October 2004 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his claim but was unable to make a decision in his favour on that information alone.  The Tribunal invited the applicant to a hearing on 9 December 2004.  The letter was sent to the applicant at his residential address and also to the migration agent.  The letter sent to the applicant at his residential address was returned unclaimed with a notation that the applicant had left the address on 24 November 2004, but there is no indication that the letter to the migration agent was…