SZHAF v Minister for Immigration
[2005] FMCA 1944
•13 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1944 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicants a protection visa – applicants are twin children less than a year old – applicants did not attend RRT hearing and their parents elected not to attend or provide any further evidence – no reviewable error. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister For Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 37
M55 of 2002 v Minister for Immigration and Multicultural Affairs [2005] FCA 131
SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998
SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
SZFKL v Minister for Immigration and Multicultural Affairs [2005] FCA 931
| First Applicant: | SZHAF |
| Second Applicant: | SZHAG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2349 of 2005 |
| Delivered on: | 13 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 13 December 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicants: | Litigation guardian attended |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
There be no order for costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2349 of 2005
| SZHAF |
First Applicant
| SZHAG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 29 June 2005 after a hearing scheduled for that day. The Applicants are twin girls who were born in Australia on 10 December 2004. The Applicants’ mother advised the Tribunal that the children would not be attending the hearing and consented to the Tribunal making a decision without taking any further action to allow the Applicants to appear. This is hardly surprising in one sense, as the Applicants themselves were only six months old at the date of the hearing. It would have been open to the children’s parents to have presented evidence or made submissions on their behalf.
The Refugee Review Tribunal handed down its decision on 19 July 2005, affirming the delegate’s decision not to grant protection visas to the Applicants.
The Tribunal was differently constituted from the Tribunal that heard the Applicants' parents case. The Tribunal noted at page 19 that the claim made on these Applicants' behalf is that their parents applied for protection visas and that they fear harm because of their parents.
The claims made by the parents in their own protection visa applications were in fact set out in the children's application. There were no separate claims made in respect of the children. The Tribunal member said at p.21:
My task in determining this review is not to make another decision in relation to the Applicants' parents claims. This has already been done.
The Tribunal went on to say:
No information was provided to the Department or the Tribunal which had not already been considered in determining the Applicants' parents case. In addition no information has been provided to the Tribunal which could lead to a conclusion that the Applicants would face harm amount to persecution for any reason unconnected with the claims made by their parents. Through the Tribunal's letters to the Applicants the Applicants' parents are aware that the Tribunal was unable to make decisions in favour of the Applicants on behalf of the written material, but did not take up the opportunity to attend the Tribunal hearing and give further oral evidence.
Counsel for the Respondent Minister rather bluntly in her submissions said that the grounds of review are hopeless. The Tribunal could not have made a decision in favour of the Applicants, the Applicants' claim rested upon their parents’ unsuccessful claim. The grounds given in the application are:
a)the Tribunal member did not follow the proper procedure and improperly exercised their powers;
b)the RRT did not give me the time to provide the evidence.
The grounds are unparticularised and do not establish an error. I am mindful of the fact that the Tribunal in its decision referred to the material contained in the protection visa application and to the Tribunal's decision in the parents’ application. Counsel for the Respondent, Ms Clegg, quite correctly drew the Court's attention to whether a question arises as to whether the combined effect of the decisions of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 79 ALJR 1009, 215 ALR 162, and Minister For Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 37, has any impact on the decision.
Ms Clegg submits that it does not, saying the Respondent submits that there was no reliance upon a protection visa application information nor reliance upon the Tribunal's decision in their parents application, which required compliance with s.424A sub-s.(1) and (2). That is because the information provided by the Applicants in the protection visa application was republished by the reference in the application to the Tribunal to the parents previous Tribunal hearing.
The claims of the parents attached to the protection visa application became information provided by the Applicants to the Tribunal for the purposes of the review. Furthermore all the material before the Tribunal in the parents review and the resulting Tribunal's decision became material provided for the purpose of the children's application. The exception is s.424A(3)(b) applies to this information.
The references are to M55 of 2002 v Minister for Immigration and Multicultural Affairs [2005] FCA 131, SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998 per Lindgren J at para.27; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 per Giles J, and SZFKL v Minister for Immigration and Multicultural Affairs [2005] FCA 931 per Madgwick J at para.7. All of these decisions I note are appeals from decisions of Federal Magistrates and are binding on this Court.
Ms Clegg submits that in this case no error of law has been identified by the Applicants. She submits that no error of law may be discerned. I have read through each case the Tribunal decision and I can discern no error of law. It is submitted that this application should be dismissed with costs. I propose to dismiss the application, but I am most reluctant to make an order for costs in respect of two infant children who have only just turned 1 year of age.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 23 December 2005
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