SZMNP v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMNP v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 28

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with statutory obligation to give information – where applicant informed of adverse information provided by third party but not informed that the original source of that information was alleged to be the applicant himself – whether this denied applicant opportunity to effectively respond to adverse information.

Migration Act 1958 (Cth), ss.91R(3), 424A

SZBYR & Anor v Minister for Immigration [2007] HCA 26
VEAL v Minister for Immigration [2002] 225 CLR 88
MZXBQ v Minister for Immigration [2008] FCA 319

Applicant: SZMNP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1837 of 2008

Judgment of: Raphael FM

Hearing date: 1 December 2008

Date of last submission: 1 December 2008

Delivered at: Sydney

Delivered on: 23 January 2009

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Counsel for the First Respondent: Mr P Reynolds

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1837 of 2008

SZMNP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 27 October 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 6 November 2007.  On 1 February 2008, after an interview, the delegate refused to grant a protection visa and on 20 February 2008 the applicant applied for review of that decision by the Refugee Review Tribunal.  The Refugee Review Tribunal held a hearing which the applicant attended with the assistance of a Mandarin interpreter on 23 April 2008.  On 24 April 2008 the Tribunal wrote to the applicant inviting him to comment on or respond to information that the Tribunal considered would, subject to any comments or responses he might make, be the reason or part of the reason for affirming the decision under review.  The applicant responded to the letter and then provided certain further information.  The further information was taken into account by the Tribunal which, on 10 June 2008, determined to affirm the decision under review and handed that decision down on 19 June 2008.

2. The convention ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of religion.  The applicant told how that he had been a taxi driver since October 1992.  In 2004 the assistant manager of the taxi company asked the applicant to drive him to a meeting and on the way the manager advised him that he was a Christian and encouraged him to believe in God.  Through this introduction the applicant began to take an interest in Christianity and participate in family church groups which held activities every Friday evening from…