SZGRC v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGRC v MINISTER FOR IMMIGRATION [2005] FMCA 1752

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – issue of competency – exercise of discretion to deny relief – application dismissed.

Migration Act 1958 (Cth), ss.91X, 417, 426, 474, 483A
Judiciary Act 1903 (Cth), s.39B

R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant: SZGRC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1757 of 2005

Delivered on: 30 November 2005

Delivered at: Sydney

Hearing date: 16 November 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1757 of 2005

SZGRC

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 July 2005 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on

   
   

   25 February 1999, affirming the decision of the delegate of the respondent (“the delegate”) made on 20 October 1997 to refuse to grant the applicant a protection (Class XA) visa.  The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZGRC”.

3. The respondent tendered and applied for two affidavits of Brooke Marie Griffin affirmed on 16 November 2005 (“the affidavits of Ms Griffin”) to be admitted into evidence.  A Court Book (“CB”) prepared by the respondent solicitors was filed and served on 3 August 2005.

Background

1. The applicant, who claims to be a citizen of China, arrived in Australia on 30 August 1997. On 19 September 1997 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (CB pp.1-24). On 20 October 1997 the delegate refused to grant a protection visa (CB pp.27-35) and on 20 November 1997 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.36-39).

2. The applicant…