SZIGT v Minister for Immigration
[2006] FMCA 569
•31 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 569 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 426A, 474 |
| Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 |
| Applicant: | SZIGT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 377 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 March 2006 |
| Date of Last Submission: | 31 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That an order in the nature of certiorari issue quashing the decision of the Refugee Review Tribunal made on 9 December 2005 and handed down on 3 January 2006 affirming the decision of a delegate of the Respondent Minister not to grant the Applicant a protection visa.
That an order in the nature of mandamus issue remitting the Applicant’s application to the Refugee Review Tribunal for consideration according to law.
That there be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 377 of 2006
| SZIGT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was made on
9th December 2005 and handed down on 3rd January 2006.
The applicant is a citizen of the People's Republic of China who arrived in Australia on 28th March 2005. He applied for a protection class XA visa on 28th April 2005 but it was refused on 16th September.
On 21st October 2005 the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the applicant on 7th November 2005 informing him that it had considered the material before it in relation to his application, but was unable to make a decision in his favour based on that information alone.
The Tribunal invited the applicant to attend the hearing at 1:00 pm on Thursday, 8th December 2005. The Court book contains no record of any response to hearing invitation form being received from the applicant. The Tribunal decision states at page 63 of the Court book that the applicant did not attend the Tribunal hearing on 8th December.
The Tribunal proceeded to determine the application based on the evidence available without taking any further action to allow the applicant to appear. This power is given to the Tribunal under s.426A of the Migration Act. The Tribunal was satisfied that the applicant was given proper opportunity to support his application, that he had not appeared and had not provided any corroborative evidence, apart from a translated document entitled "release certificate" stating that on
29th October 1990 the applicant was sentenced to 15 years' imprisonment for having committed the crime of "injury".
The Tribunal found that without further details, clarification or corroborative evidence and without having had the opportunity to explore the applicant's claims for hearing it could not be satisfied about the essential parts of his claim. The Tribunal was not satisfied that the applicant had suffered, or would suffer, any of the harm that he claimed.
As a result the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention related reason and affirmed the decision not to grant him a protection visa.
On 7th February 2006 the applicant filed an application under the Migration Act seeking an order to show cause why a remedy should not be granted to him. He has had the opportunity of obtaining legal advice under the pilot scheme available to applicants for review of Refugee Review Tribunal decisions.
Whilst the documents are late the solicitor for the respondent Minister did not object to the applicant filing an amended application and an affidavit in support. The affidavit was affirmed by Raymond Charles Turner, solicitor, who provided the applicant with legal advice under the scheme.
The amended application contains a number of grounds. The relevant one for the purpose of the proceedings before me is that the Tribunal failed to exercise its discretion to hold a hearing. The relevant particulars are that the Tribunal's letter contained the wrong postcode, which may have affected the delivery.
The applicant told the Court the he did not receive the letter from the Tribunal until late and he was not able to translate it due to his inability to speak English. He said that a friend who had assisted him had gone away and was not able to assist him in time.
I have had the opportunity to examine the applicant's application for review which appears at pages 49 to 52 of the Court book.
The applicant gives a post office box number as his address for correspondence. That post office box number gives a particular postcode.
I note that the letters from the Refugee Review Tribunal contain a slightly different postcode, different by only one digit, but different nevertheless. The applicant does not say that he did not receive the letter at all. His claim, in effect, is that he did not receive the letter in sufficient time. In his amended application he speculates that an incorrect postcode may well have delayed the delivery of the letter from the Refugee Review Tribunal.
That being the case and I am satisfied that the postcode is incorrect, it raises a question about the Tribunal's strict compliance with s. 425 of the Migration Act. Section 441A(4) provides for the dispatch of a document by pre-paid post to the last address for service provided to the Tribunal.
Mr Markus for the Minister has quite properly conceded that posting a letter to an address with an incorrect postcode cannot be construed as strict compliance with the section. With respect, I agree. I would also comment that the concession made reflects favourably on the Minister's legal advisers.
I am satisfied that the requirements of the Migration Act in circumstances such as this must be strictly complied with. It is for that reason that I consider that I am obliged to grant the application.
I therefore propose to make an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal signed on
9th December 2005 and handed down on 3rd January 2006.
On the question of costs, I note that the applicant although he has had the assistance of Mr Turner, solicitor, under the pilot scheme and it appears that that assistance has been most beneficial to him, is not legally represented in these proceedings and has not been. It seems to me that any order in the nature of costs would therefore be inappropriate except that from the original application it would appear that he did pay the filing fee, which I understand amounts to $288.00. No order for costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 20 April 2006
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