SZIXO v Minister for Immigration and Citizenship
[2008] HCASL 392
SZIXO
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 392
S69/2008
The applicant is a citizen of the People's Republic of China. On 19 December 2005, a delegate of the first respondent refused his application for a Protection (Class XA) visa. The delegate's decision was affirmed by the Refugee Review Tribunal. The applicant claimed to fear persecution on religious grounds, as a practitioner of Falun Gong. The applicant was invited to appear before the Tribunal but did not do so. Pursuant to s 426A of the Migration Act 1958 (Cth), the Tribunal made a decision in his absence. The Tribunal was unable to be satisfied, on the information before it, that the applicant had a well-founded fear of persecution for a Convention reason.
The Federal Magistrates Court (Raphael FM) dismissed an application for judicial review, holding that there was no jurisdictional error in the Tribunal's decision. Before the Federal Magistrates Court, the applicant sought to explain his failure to attend the Tribunal hearing on the basis that a migration agent had failed to request an adjournment, as instructed by the applicant. Raphael FM did not accept that there was a migration agent involved, and held that, even if the applicant did have an agent, his allegedly negligent failure to request an adjournment did not sustain an application for review.
The Federal Court of Australia (Cowdroy J) dismissed an appeal from the decision of Raphael FM. His Honour held that, even if there had been negligence of the kind alleged, it would not warrant quashing the decision of the Tribunal.
The decision of Cowdroy J was correct. The application for special leave to appeal does not raise any question of law that would justify the intervention of this Court. An appeal has no prospects of success.
The application is dismissed.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
A.M. Gleeson
16 July 2008J.D. Heydon
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