SZJLV v Minister for Immigration and Citizenship [2008] FCA 121 (20 February 2008)

Migration Act 1958 (Cth) ss 425, 426A

SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199 referred to

SZJLV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1772 OF 2007

TAMBERLIN J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1772 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJLV Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1772 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJLV Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TAMBERLIN J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

1 This is an appeal from a decision of a Federal Magistrate which dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") which in turn affirmed a decision of a delegate of the first respondent to refuse a protection visa under the Migration Act 1958 (Cth) ("the Act"). The essence of the appellant’s claim is that he would be persecuted in China due to his religious beliefs and in Papua New Guinea due to his Chinese ethnicity, and that the Tribunal failed to comply with ss 425 and 426A of the Act, which, it is said, led the Tribunal into jurisdictional error.

2 One peculiarity of this appeal was that the application for review nominated a Post Office Box in Melbourne as the appellant’s address for service. On 23 November 2000, a letter was sent to the Post Office Box, inviting the appellant to attend a hearing on 8 February 2001. Although a copy of that letter was also sent by facsimile to the appellant’s representative, there was no requirement that the Tribunal do so since the provisions of the Act which were referred to in the case of SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199 at 207 had then not been enacted.

3 On 6 December 2000, the Tribunal received correspondence stating that the appellant intended to attend the hearing. That correspondence had a signature on it which purported to be the appellant’s. When the matter came on for hearing before me, the appellant said that it was not his signature, and that this correspondence indicated to the Tribunal he intended to attend the hearing. The correspondence stated the appellant’s name and provided the same residential address that he had previously given to the Department of Immigration and Citizenship (in Noble Park, Victoria) as his address for service. It is worth noting that the invitation to appear at the hearing had also been sent to that address.

4 Before the Federal Magistrate, the appellant gave evidence that, although he had lived at Noble Park in 2000, he had left there when he travelled to Sydney. Although the Federal Magistrate expressed concerns about the appellant’s general credibility and was unsure whether he had left the Noble Park address by December 2000, his Honour considered it unnecessary to draw a conclusion on that matter. The Federal Magistrate found that there was nothing before the Tribunal which would to cause it to doubt that the appellant had received the notification of the hearing and intended to attend it. This was especially the case since the appellant never gave the Tribunal his telephone numbers.

5 In the opinion of the Federal Magistrate, the Tribunal was not required to conduct any other inquiry or follow any other procedure before determining the application in accordance with s 426A of the Act. The Federal Magistrate also found that there was no basis upon which to decide that s 425 of the Act was vitiated by any improper exercise of power or any other failure by the Tribunal. The decision of the Federal Magistrate at [14]-[18] deals with these matters in detail, and I can see no error in his Honour’s or the Tribunal’s reasoning.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

The appellant appeared in person

Counsel for the Respondent:	Ms B. Nolan

Solicitor for the Respondent:	Sparke Helmore Lawyers

Date of Hearing:	20 February 2008

Date of Judgment:	20 February 2008

Federal Court of Australia

SZJLV v Minister for Immigration and Citizenship [2008] FCA 121 (20 February 2008)