SZCBC v Minister for Immigration

[2006] FMCA 377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 377

MIGRATION – Practice and procedure – application for judicial review of the Refugee Review Tribunal decision – application dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 as the applicant did not appear.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 483A

SAAP  v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] HCA 24

First Applicant: SZCBC

Second Applicant: SZCBD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2618 of 2003

Judgment of: Lloyd-Jones FM

Hearing date: 15 March 2006

Delivered at: Sydney

Delivered on: 15 March 2006

REPRESENTATION

Applicants: No appearance by or on behalf of the applicants

Counsel for the Respondents: Mr J D Smith

Solicitors for the Respondents: Blake Dawson Waldron Lawyers

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent.

2. The application is dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 due to the failure of the applicant to appear.

3. The respondents by 22 March 2006 are to provide the applicants with written notice of today’s orders and to inform the applicants of the applicants’ rights under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001.

4. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2618 of 2003

SZCBC & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 1 December 2003 for judicial review of the Refugee Review Tribunal (“the Tribunal”) decision. The decision made on 7 October 2003 and handed down on 30 October 2003, affirmed the decision of the delegate of the first respondent (“the delegate”) made on 27 August 2002, refusing to grant the applicant a protection visa. The applicants seek relief against the decision of the Tribunal.

2. The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been granted the pseudonyms “SZCBC” and “SZCBD”.

3. The applicants have not sought to join the Tribunal as a party, however given that is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP  v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].

Background

1. The applicants are husband and wife. They claim to be citizens of the People’s Republic of China (“PRC”). The husband last arrived in Australia on 9 February 2001. On 16 April 2002, they lodged an application for a Protection (Class XA) Visas with the Department of Immigration & Multicultural & Indigenous Affairs under the Act. On

   
   

   2 August 2002, a delegate of the Minister refused to grant a protection visa and on 27 September 2002, the applicants applied to the Tribunal for review of the delegate’s decision (Court Book “CB” 82).

2. Only the first named applicant, (SZCBC), has made specific claims under the Refugee Convention, his wife relying on her membership of his family.  The first named applicant is a man from the PRC, born in April 1964 in Liaoning.  He has been married since 16 June 1987.  His son is living in the PRC.  His occupation before coming to Australia was noted as manager.  The applicant has had 13 years education and attended Fushun Commercial Cadre School from August 1981 to July 1983.  He speaks, reads and writes Mandarin.  He first came to Australia on a business visa.  He then travelled between Australia and China many times due to his business activities.  In May 2001, he lodged an application for a visa of subclass 457 because Terra Art Gallery, an Australian company, intended to nominate him as its manager, considering his qualifications and business skills.  However, he had to withdraw the application because the Australian company closed its business due to financial problems.  He did not return to the PRC because he feared persecution on his return.

3. The first named applicant stated that in 1991 he was employed as a Business Manager for Fushun Huashang International Economics and Trading Company.  One of his major duties was to plan, organise and conduct sales of art products, such as paintings, sculpture and other arts and crafts products.  He therefore got to know a lot of talented people who were involved in the art industry.  One of them was Mr Xue Zhi Qui, who was a freelance artist.  Mr Xue was born into an art family.  Both his parents were persecuted to death during the Cultural Revolution.  Mr Xue himself devoted everything in his life to pursuing art.  He struggled against the autocratic policies of the PRC authorities.

4. The first named applicant detailed his first involvement in an art salon, which was an informal organisation for discussions, meetings and seminars to exchange and discuss ideas for traditional Chinese art.  This led to the first-named applicant planning a ‘Cultural T-Shirt’ movement.  This activity led to investigations by the PSB.  The first named applicant also became involved in publishing ‘The True Art’ magazine, which also came to the attention of the Public Security Bureau (“PSB”).  The True Art publication was declared illegal, resulting in the first-named applicant deciding to move to Australia to avoid the persecution (CB 85-86).

Reasons

1. The matter was listed for hearing in this Court at 10.15am today.  It did not immediately proceed because the applicant did not appear.  The matter was stood down for approximately 15 minutes to provide the applicants with a period of grace should they be experiencing difficulties in locating the Court.  Neither the Court nor the respondent’s solicitors received notification from the applicants to indicate whether they intended to appear for the scheduled hearing. 

2. In the circumstances, it seems appropriate that in the absence of the applicants, I should dismiss the application pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”) which allows dismissal for default of appearance of a party. The applicants do not lose any substantive rights by this dismissal. They are entitled to apply to the Court to vary or set aside the orders if they wish to do so. It is then a matter of discretion whether or not the Court will set aside the order.

3. The respondents were ordered by 22 March 2006 to give written notice to the applicants of today’s order, the effect of r.16.05(2)(a) of the Rules.

4. I have been requested by counsel appearing for the respondent to make an order for costs.  I therefore order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application.  That order forms part of the orders that the applicants, if they choose, can apply to have set aside.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date:  23 March 2006