SZHQL v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHQL  v MINISTER FOR IMMIGRATION [2006] FMCA 513

MIGRATION – Review of decision of the RRT – whether expulsion from army constituted persecution on grounds of applicant’s religion and imputed political opinion – whether the Tribunal properly considered all elements of the applicant’s claims – whether the Tribunal deprived the applicant of natural justice – finding that discrimination fear by applicant must arise out of convention based claim for asylum and not out of punishment for breach of law of general application.

Migration Act 1958, ss.417, 424A

ApplicantA v Minister for Immigration (1997) 142 ALR 331
Aksahin v Minister for Immigration [2000] FCA 1570
Mehenni v Minister for Immigration [1999] FCA 789
SZAOG v Minister for Immigration [2004] FCAFC 316

Applicant: SZHQL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG3418 of 2005

Judgment of: Raphael FM

Hearing date: 3 April 2006

Date of Last Submission: 3 April 2006

Delivered at: Sydney

Delivered on: 3 April 2006

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3418 of 2005

SZHQL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of the People's Republic of China, arrived in Australia in March 1996.  He applied for a protection visa on 15 October 1996.  By an undated letter found at [CB 37] the delegate of the Minister advised the applicant that on 21 November 1997 a decision had been made declining to grant him a protection visa [CB 39-43].  On 13 December 1997 the applicant lodged an application for review with the Refugee Review Tribunal.

2. On 31 August 1998 the applicant appeared before the Tribunal at a hearing. On 28 December 1998 the Tribunal affirmed the decision not to grant a protection visa. The applicant filed this application in this court on 23 November 2005. The Minister has produced an affidavit of Anthony Carter dated 29 March 2006 setting out a history of the matter in support of a submission that I should refuse to exercise any discretion I may have to grant prerogative writs in this matter on the grounds of the applicant's delay. I accept there was a considerable delay between the applicant being advised on 8 September 1999 that the Minister had refused to exercise his discretionary power under s.417 of the Migration Act 1958  and 23 September 2003 when the applicant was incarcerated for certain offences. I also note that there was no explanation of why the applicant was not removed from the country during that period.  Again, there was a delay between the applicant completing his sentence and being detained in Villawood on 13 June 2003 and him lodging a further request on…