SZMNV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMNV v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1691

MIGRATION – Review of decision of RRT – where applicant did not respond to s.424 letter – where Tribunal declined to give hearing – where applicant criticised first Tribunal hearing – where applicant claimed membership of a particular social group – where application sought merits review.

Migration Act 1958 (Cth), ss.424, 425

SZHVL v Minister for Immigration & Anor [2008] FCA 356
WAGP v Minister for Immigration [2006] FCAFC 103

Applicant: SZMNV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1885 of 2008

Judgment of: Raphael FM

Hearing date: 4 December 2008

Date of Last Submission: 4 December 2008

Delivered at: Sydney

Delivered on: 4 December 2008

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1885 of 2008

SZMNV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are a husband and wife of Indian nationality who arrived in Australia on 11 December 2006 and who first applied for protection (Class XA) visas on 25 January 2007.  That application was refused by a delegate of the Minister on 16 February 2007.  The applicants then applied to the Refugee Review Tribunal for a review of that decision.  On 18 July 2007 a Tribunal determined to set aside the decision not to grant the visas and substituted a decision that the protection visa applications were not valid and could not be considered.  On 12 November 2007 the applicants made fresh applications for class XA visas and those applications were also refused by a delegate.  On 27 February 2008 the applicants applied for a review of the second delegate's decision to the Refugee Review Tribunal.

2. On 3 April 2008 the Tribunal wrote a letter to the female applicant inviting her to comment on or respond to information in writing. Letters such as this are permitted by s.424 of the Migration Act 1958 (the “Act”). The Tribunal received no response to that letter either within the time proposed, 28 April 2008, or at all. The Tribunal determined pursuant to s.424C(1) that as the applicants had not responded to the letter it would make a decision on the review without taking any further action to obtain the additional information. It also determined that it was not required to invite the applicants to appear to give evidence and present arguments because of the provisions of s.425(2)(c). The decision of the Tribunal was signed on 29 May 2008 and handed down on 24 June 2008.

3. It was the female applicant who had the substantive claim to be a person to whom Australia owed protection obligations.  She claimed to belong to a particular social group of lesbians.  She claimed that persons within her group were reviled in…