SZOOW v Minister for Immigration & Anor

This case concerns the applicant's challenge to a decision of the Refugee Review Tribunal, affirming the Minister's delegate's decision not to grant the applicant a protection visa. The applicant, a male citizen of China, had applied for a Protection (Class XA) visa on 14 March 2001, claiming he feared persecution in China due to the Chinese one child policy. The Tribunal, however, was unable to make a favourable decision as the applicant failed to attend the hearing, and the Tribunal could not be satisfied that the applicant had a well-founded fear of persecution in China.

The court was required to determine the following legal issues: whether the Tribunal and the primary decision maker erred in failing to recognise the principle of non-refoulment contained in Article 33 of the 1951 Convention Relating to the Status of Refugees; whether the Tribunal and the primary decision maker erred in finding that a finding of a lack of bona fides must necessarily be based upon the Tribunal acting with a closed mind or proceeding on the basis that it was seeking reasons to decide against the application; whether the Tribunal and the primary decision maker erred in finding that the general attack on the applicant’s credit as an element of a failure to make a bona fide consideration of the application; and whether the Tribunal member and the primary decision maker erred in their construction of the Migration Act 1958 (the Act) Part 8.

The court rejected all grounds of the application. The court held that the Tribunal's decision was the inevitable consequence of the applicant failing to attend the hearing to which he was invited. The Tribunal met its obligations pursuant to s.425 of the Migration Act, and the Tribunal's discretion under s.426A was properly enlivened and the Tribunal was entitled to proceed in the absence of the applicant. The court also held that the grounds of the application did not relate to the circumstances of the present case.

The Federal Magistrate dismissed the application and ordered the applicant to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $5,500. The court expressed the view that it should be a condition on a valid protection visa application that the application is made through a registered migration agent who is a legal practitioner, to avoid problems resulting from applicants being assisted by persons who are not registered migration agents or ineffective assistance being provided by registered migration agents who are not legal practitioners.