SZHAV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHAV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 415

MIGRATION – Review of decision of RRT – whether the Tribunal was biased and did not refer to any independent information – whether the Tribunal failed to hear the application pursuant to the necessary steps – whether the Tribunal failed to observe the Act properly - whether the Tribunal failed to assess the chance of persecution adequately on the basis that the application was too vague and lacking in detail.

Migration Act 1958 (Cth), s.426A
Federal Magistrates Court Rules 2001, Rule 13.03A(c)

NAST v Minister for Immigration [2004] FCA 86

Applicant: SZHAV

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG 2413 of 2005

Judgment of: Raphael FM

Hearing date: 16 March 2006

Date of Last Submission: 16 March 2006

Delivered at: Sydney

Delivered on: 16 March 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2413 of 2005

SZHAV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the Peoples Republic of China.  He arrived in Australia on 29 November 2004.  On 10 January 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 11 March 2005 a delegate of the Minister refused to grant a protection visa and on 11 April 2005 the applicant applied for review of that decision.  On 26 May 2005 the Tribunal wrote to the applicant at the address given by him in his application as his address for service and informed him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.

2. The Tribunal offered the applicant an opportunity to come to a hearing on 8 July 2005.  On 7 June 2005 the Tribunal wrote to the applicant again at the same address.  It informed him that due to circumstances beyond its control, it was necessary to change the hearing date.  The date was changed from 8 July to 7 July.  The time within which the Tribunal gave that notice was in excess of the time required by the Migration Act 1958 (Cth) (‘the Act”). On 7 July 2005 the applicant did not appear at the hearing. The Tribunal checked and found that none of the mail which it had sent to the applicant had been returned [CB60]. The Tribunal therefore determined to hear the case in accordance with the provisions of s.426A of the Act. On 8 July 2005 it affirmed the decision not to grant the protection visa and handed the decision down on 2 August.

3. The applicant's claim to have a well founded fear of persecution arose…