NBCD v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBCD & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 423

MIGRATION – Visa – Protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal – Applicants are citizens of Armenia.

PRACTICE & PROCEDURE – Litigation guardian – where one of these applicants is a minor – circumstances justifying dispensation with requirement for appointment of a litigation guardian.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A
Federal Magistrates Court Rules 2001 R. 11.08

Yo Han Chung v University of Sydney [2002] FCA 186
SCAA v MIMIA [2002] FCA 668
A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 238

First Applicant: NBCD

Second Applicant: NBCE

Third Applicant: NBCF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1013 of 2004

Judgment of: Scarlett FM

Hearing date: 29 March 2005

Date of Last Submission: 29 March 2005

Delivered at: Sydney

Delivered on: 29 March 2005

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The requirement for a litigation guardian to be appointed for the second applicant NBCE a child born on 13 January 1998 is dispensed with.

2. The application is dismissed.

3. The applicants NBCD and NBCF are to pay the Respondent’s costs of these proceedings fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1013 of 2004

NBCD

First Applicant

And

NBCE

Second Applicant

And

NBCF

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal made on 7 January 2004, handed down on 18 February 2004.  In that decision the tribunal affirmed the decision not to grant protection visas to the three applicants.  The second applicant, known as NBCE, is the son of the first applicant, known as NBCD.  He is a child who was born on 13 January 1998.  Although he is a party to the proceedings he took no independent part in these proceedings either in this Court or before the Refugee Review Tribunal.  His claim is dependent on that of his mother.  In the circumstances I believe that it is appropriate to dispense with the requirement for him to have a litigation guardian as provided by rule 11.08. 

Background

1. The applicants are citizens of Armenia.  They arrived in Australia in December 2002 and applied for protection class XA visas on 29 January 2003.  On 7 February 2003 a delegate of the minister refused their applications.  On 3 March 2003 they applied to the Refugee Review Tribunal for a review of that decision.  The hearing was scheduled for 9 a.m. on Monday, 8 December 2003.  The Tribunal refused a written request for a postponement of that hearing date until 2004 on the basis that the applicant NBCD was waiting for important documents to arrive from Armenia.  The hearing proceeded on

   
   

   8 December 2003.  The Refugee Review Tribunal…