SZGUV v Minister for Immigration and Citizenship [2007] FCA 1775

FEDERAL COURT OF AUSTRALIA

SZGUV v Minister for Immigration and Citizenship [2007] FCA 1775

SZGUV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR NSD1630 OF 2007

EMMETT J

8 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1630 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGUV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 8 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs in the sum of $3,500. 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 NSD1630 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGUV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 8 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this appeal, the appellant asks the Court to set aside orders made by the Federal Magistrates Court on 27 July 2007, whereby the Federal Magistrates Court dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). 2 When the appeal was called on for hearing this morning, there was no appearance for the appellant. I have seen evidence that, by letter of 19 September 2007, addressed to the appellant at his address for service, the appellant was notified by the Court of the date fixed for the hearing as well as the time and place. In addition, on 30 October 2007, the solicitors for the first respondent, the Minister for Immigration and Citizenship (the Minister), wrote to the appellant at his address for service, enclosing a copy of the Minister's outline of submissions and notifying the appellant of the time and place for the hearing of the appeal. 3 The appellant is a citizen of the Peoples Republic of China who arrived in Australia on 12 December 2004. He applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act) on 20 January 2005. A delegate of the Minister refused to grant the visa on 24 February 2005. The appellant sought review of the delegate's decision by the Tribunal, which affirmed the delegate's decision on 7 June 2005. However, on 19 October 2006, the Federal Magistrates Court set aside the Tribunal's decision and remitted the matter to the Tribunal to be determined according to law. On 12 January 2007, the Tribunal, differently constituted, affirmed the decision not to grant a protection visa. 4 On 20 February 2007, the appellant commenced a further proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal's second decision. In his application, the appellant asserted the following grounds: "(1) The decision made an error of the law, being an error involving an incorrect application at the law to the facts as found by the respondent.