SZOZD v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOZD v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 382

MIGRATION – Application for review of RRT decision – where applicant did not appear before RRT – whether RRT exceeded its powers in proceeding under s.426 – merits review – application dismissed.

Migration Act1958 (Cth) s.426A

NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86
SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant: SZOZD

First respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 189 of 2011

Judgment of: Raphael FM

Hearing date: 18 May 2011

Date of Last Submission: 18 May 2011

Delivered at: Sydney

Delivered on: 18 May 2011

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. The Applicant pay the First Respondent’s costs assessed in the sum of $3,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 189 of 2011

SZOZD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on

   
   

   12 June 2010, and applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 21 July 2010.  On

   
   

   19 October 2010, a delegate of the Minister refused to grant a protection visa, and on 9 November 2010 the applicant applied for a review of that decision from the Refugee Review Tribunal.  The applicant provided the Tribunal and the Minister’s delegate with a lengthy statement as to why he believed he was a person to whom Australia owed protection obligations [CB 27-30].

2. The Tribunal had written to him on 30 November 2010 advising him that it had considered that material but was unable to make a favourable decision on that information alone [CB74]. The Tribunal appointed a hearing on 11 January 2011 and invited the applicant to attend. The applicant did not respond to the hearing invitation and did not appear in the hearing room at the appointed time. The Tribunal telephoned the applicant, but there was no response. As the Tribunal had no other way of contacting the applicant, it considered its position and determined to proceed with its determination pursuant to s.426A of the Migration Act1958 (Cth) (the ‘Act’).

3. In its findings and reasons the Tribunal set out the nature of the applicant’s claims which appeared to arise out of his religion as a Muslim from Ahmedabad in Gujarat State, India.  The applicant claimed that as a leader of the Muslim community in his hometown he had, over a period of time, been exposed to persecution by Hindu fundamentalists: particularly those from the BJP, the RSS, and the Hindu Shave Sana.  The applicant is a lawyer; he claimed that he had received persecution from…