SZHTY v Minister for Immigration

[2007] FMCA 696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 696

MIGRATION – Review of RRT decision – where applicant did not appear at RRT hearing – where Tribunal was unable to make a decision on the information provided in the application – interpretation of s.65(1) Migration Act – whether Tribunal erred in concluding it was unable to grant visa.

Migration Act 1958 (Cth), s.65(1)

VSAF of 2003 v Minister for Immigration [2005] HCATrans 757
Minister for Immigration v VSAF of 2003 [2005] FCAFC 73
NAQR v Minister for Immigration [2004] FCA 1033
Applicant A159 of 2003 v Minister for Immigration [2004] FCA 473

Applicant: SZHTY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3611 of 2005

Judgment of: Raphael FM

Hearing date: 30 April 2007

Date of last submission: 30 April 2007

Delivered at: Sydney

Delivered on: 30 April 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. The applicant shall pay the First Respondent’s costs assessed in the sum of $2,500.00.

3. The First Respondent’s name be amended to “Minister for Immigration and Citizenship”.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3611 of 2005

SZHTY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the Philippines.  She arrived in Australia on 2 May 2005.  On 18 May 2005 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 16 August 2005 a delegate of the Minister refused to grant a protection visa and on 6 September 2005 the applicant applied for review of that decision.

2. On 28 September 2005 the Tribunal wrote to the applicant advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.  The Tribunal invited the applicant to a hearing on 4 November 2005.  It is fair to say that the applicant was then living in Griffith and the documents which are contained in the green book do not indicate that the applicant might have been offered some alternative but to travel into Sydney in order to attend the Tribunal.  That is not to say that such offer was not made in some document that is not contained in the book.

3. In any event, the applicant responded to that invitation on 11 October 2005 indicating that she did not wish to come to a hearing and that she consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.  On 25 October 2005 the Tribunal determined to affirm the decision and handed that down on 15 November 2005.  At [CB 53]-[54] the Tribunal deals with the claim and its decision:

   “The Applicant is a 46 year old married woman…