SZHYV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYV v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 341

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in both Nepal and Bhutan – claims assessed in relation to Nepal on the basis that the applicant was either a Nepalese national or it was his country of habitual residence – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
Migration Litigation (Reform) Act 2005 (Cth)

Addo v Minister for Immigration [1999] FCA 940
SZBEL v Minister for Immigration (2006) 231 ALR 592

Applicant: SZHYV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3838 of 2005

Judgment of: Driver FM

Hearing date: 16 March 2007

Delivered at: Sydney

Delivered on: 16 March 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The Court directs that the title of the first respondent be amended to the Minister for Immigration and Citizenship.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3838 of 2005

SZHYV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 17 August 2000. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant filed in this Court on 23 December 2005 a show cause application in relation to the Tribunal decision. He asserted actual notification of the decision on 17 August 2000. However, pursuant to item 42 of schedule 1 to the Migration Litigation (Reform) Act 2005 (Cth) the applicant is taken to have been actually notified of the Tribunal decision on 1 December 2005.  On that basis I find that the application was filed within the current time limit prescribed for applications to this Court.  Nevertheless, the question of the time that has elapsed between the date when the applicant was in fact notified of the decision and when he applied to this Court is one that I will return to.

2. The applicant had made claims of persecution both in relation to Nepal and Bhutan.  The background to his protection visa claims and the Tribunal’s decision on them is summarised in the Minister’s outline of written submissions filed on 9 March 2007.  I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 2 to 7 of those submissions:

   The applicant arrived in Australia from…