SZMRU v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMRU v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 87

MIGRATION – Application for review of RRT decision – where applicant did not receive invitation to hearing – where unofficial third party may have been relied upon.

Migration Act 1958 (Cth), ss.426A, 36, 65

SZFDE v Minister for Immigration & Anor (2007) 232 CLR 189

Applicant: SZMRU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2226 of 2008

Judgment of: Raphael FM

Hearing date: 9 February 2009

Date of Last Submission: 9 February 2009

Delivered at: Sydney

Delivered on: 9 February 2009

REPRESENTATION

For the Applicant: In Person

Counsel for the First Respondent: Mr 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 $3,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2226 of 2008

SZMRU

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 17 February 2008 utilising a Japanese passport. On 1 April 2008 he applied for a protection (class XA) visa. On 9 April 2008 a delegate of the Minister refused to grant him a protection visa. On 12 May 2008 the applicant applied for a review of the decision from the Refugee Review Tribunal. In his application to the Tribunal [CB 65] the applicant gave an address in Hurstville as his residential address.

2. He completed section C of the application form [CB 65] by indicating that he did not have a representative authorised to act for him in the matter. He completed section D of the application form indicating that he wanted all correspondence sent to him at PO Box 1018 Hurstville [CB 66]. The applicant signed the application in Mandarin although the application had been written in English. Interestingly, there is no reference in that application form as there is in some to the form having been translated to the applicant.

3. On 23 May 2008 the Tribunal sent by registered post a letter to the applicant at the post office box that he had nominated advising him that it had considered the material before it and was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to a hearing on 11 July 2008 and told him where the hearing was to be and that he would receive the assistance of a Mandarin interpreter.  The applicant did not respond to that hearing invitation.

4. There is found at [CB 73] a checklist the Tribunal went through before determining that the invitation had been properly issued and that the Tribunal could proceed in accordance with s.426A of the Migration Act 1958 (the “Act”). On 11 July 2008 the Tribunal determined to affirm the decision not to grant the applicant a protection visa. Notification of the decision was sent to the post office box in Hurstville and…