SZBAR v Minister for Immigration

[2007] FMCA 1166

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBAR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1166

MIGRATION – Review of Refugee Review Tribunal decision – where applicant made application as a family member of a person who had been persecuted for a Convention reason – where applicant failed to attend hearing before the Federal Magistrates Court – where applicant claimed she was advised by migration agent not to attend hearing – where applicant had no independent claim for protection.

Federal Magistrates Court Rules, Pt.13 r.13.03A

SZFDE v Minister for Immigration [2006] FCAFC 142
SZCBM v Minister for Immigration [2007] FMCA 1169

Applicant: SZBAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1459 of 2003

Judgment of: Raphael FM

Hearing date: 6 July 2007

Date of last submission: 6 July 2007

Delivered at: Sydney

Delivered on: 6 July 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay First Respondent’s costs assessed in the sum of $500.00.

3. The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1459 of 2003

SZBAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant who comes before me this morning first arrived in Australia on 29 October 1998.  She lodged an application for a protection visa together with her husband on 27 November in that year.  The application was refused by a delegate of the Minister on 9 December 1998 and on 6 January 1999 she applied for review to the Refugee Review Tribunal.  The Tribunal noted that the person who appears before me today had no independent claim for Australian protection stating at [CB73]:

   “Only the applicant husband made specific claims under the Refugee Convention.”

2. On 7 July 1999 the Tribunal determined to affirm the decision not to grant the protection visa.  I understand that the applicant and her husband joined the Muin and Lie class action.  They did not take advantage of the specific orders of McHugh J made after the conclusion of those proceedings, but commenced independent applications to the Court on 29 July 2003.  Someone, either the husband or the wife, attended the callover before a Registrar of this Court when the matter was set down for hearing on 1 December 2004.

3. Neither the applicant, who appears before me today, nor her husband attended on that day and the proceedings were dismissed pursuant to Part 13 rule 13.03A of the Federal Magistrates Court Rules.  The applicant has remained in Australia but she tells me that her husband has left.  First, she told me that he had returned to China.  When I expressed some views about that and its effect upon any application which she might have she told me that he had not returned to China but he had gone to England.  In her affidavit in support of the application she states:

   “I have lodged an application to the FMC for review of the RRT decision by the migration agent to act on my behalf.  I have attended the direction hearing day for my final hearing but the migration agent not allow me to attend the decision hearing day.”

4. In SZFDEv Minister for Immigration [2006] FCAFC 142 an applicant was similarly advised by her migration agent not to attend the hearing. In a full bench composed of Allsop, Graham and French JJ the majority held that the decision of the Tribunal consequent upon the action of the migration agent was a decision not affected by fraud. Even if I was satisfied that the applicant received the instructions from the migration agent that she tells me in her affidavit that she received I would be reluctant to consider that sufficient excuse for not attending the hearing in this Court, particularly after she had attended the directions hearing.

5. The applicant has not explained in any detail why she has waited nearly two and a half years since her application was dismissed to bring this application to have the matter reinstated.  She says that she contacted her migration agent regularly.  She does not give me the name of the migration agent.

6. There is, however, a much more substantive reason why I should not accede to the applicant’s request.  There would be no utility in sending back to the Tribunal an application for a protection visa made by a person whose sole claim for protection was that she was a family member of a person who has been persecuted for a Convention reason and where that person is no longer in Australia.  If the applicant had indicated to me that she had any independent claims for protection these would have to have been taken into account but she has not done so.

7. In those circumstances I am not prepared to exercise my discretion to set aside the orders which I made on 1 December 2004.  I therefore dismiss the application and order that the applicant pay the respondent’s costs which I assess in the sum of $500.00.

8. I repeat the concerns which I expressed in the decision in SZCBM v Minister for Immigration [2007] FMCA 1169 made immediately before this decision that persons who have failed in their applications for review of decisions of the Tribunal and who thereby become illegal non-citizens should remain in this country for such significant amounts of time.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  6 July 2007