SZLWM v Minister for Immigration
[2008] FMCA 1217
•20 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLWM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1217 |
| MIGRATION – Judicial Review of decision of Refugee Review Tribunal. |
| Federal Magistrates Court Rules 2001, rr.13.03A, 16.05 |
| First Applicant: | SZLWM |
| Second Applicant: | SZLWN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 56 of 2008 |
| Judgment of: | Howard FM |
| Hearing date: | 22 August 2008 |
| Date of last submission: | 22 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2008 |
REPRESENTATION
| The First Applicant: | No appearance |
| The Second Applicant in person: | SZLWN |
| Counsel for the First and Second Respondents: | Ms Sirties |
| Solicitors for the First and Second Respondents: | DLA Phillips Fox |
ORDERS
That the Application of the First Applicant is dismissed.
That the First Respondent provide a copy of these Reasons for Judgment and the Order dismissing the Application to the First Applicant within 28 days of the date of the Order.
That the First Respondent must include with the copy of the Order a letter informing the First Applicant of his rights pursuant to Rule 16.05 of the Rules.
That the Second Applicant’s Application is dismissed.
That the Second Applicant pay the First Respondent’s costs to be agreed and failing agreement to be assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 56 of 2008
| SZLWM |
First Applicant
| SZLWN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The First Applicant is a male born 7 November 1970. He is a Chinese national and speaks Cantonese.
The Second Applicant is a female born 5 November 1963. She is also a Chinese national and speaks Cantonese.
The Applicants departed Hong Kong on 24 June 2007. The Applicants arrived in Australia on 25 June 2007. The First and Second Applicants are de facto husband and wife.
On 29 June 2007 the First Applicant lodged an application for a Protection (class XA) Visa.
The Form C completed by the First Applicant is entitled, “Application for an Applicant who wishes to submit their own claims to be a refugee”.
The Second Applicant also lodged an application for a Protection (class XA) Visa on 29 June 2007. The form completed by the Second Applicant is Form D entitled, “Application for a member of the family unit”. The form also states in the heading:-
“This part is for a member of the family unit who does NOT have their own claims to be a refugee, but is included in this application.
If you DO have your own claims to be a refugee, complete a Part C instead”.
The Minister’s delegate refused to grant the Protection Visas to the Applicants on 17 July 2007 and the Applicants were notified of that decision by letter bearing that same date.
The reason for the Minister’s delegate’s refusal to grant the Protection Visas was that the First Applicant was not a person to whom Australia had protection obligations under the Refugees Convention. As the Second Applicant had submitted no claim to be a refugee her application was refused because the First Applicant’s application failed.
On 17 August 2007 the Applicants applied to the Refugee Review Tribunal (hereinafter “the Tribunal”) for a review of the decision of the Minister’s delegate.
The Applicants attended a hearing of the Tribunal on 2 October 2007. Both Applicants gave evidence with the aid of a Cantonese interpreter.
On 4 December 2007 the Tribunal handed down its decision affirming the earlier decision of the Minister’s delegate. The Applicants filed an Application for Judicial Review on 10 January 2008.
The Judicial Review Application came on for hearing in Sydney on Friday 22 August 2008.
The First Applicant failed to appear at the hearing. But the Second Applicant appeared with the aid of a Cantonese interpreter.
Initially, at the hearing, counsel for the Respondents had submitted that it was appropriate for the Court to dismiss the First Applicant’s Application pursuant to Rule 13.03A(c) of the Rules of the Federal Magistrates Court of Australia (hereinafter “the Rules”). Subsequently counsel for the Respondents submitted that the hearing should proceed in the absence of the First Applicant and the matter determined on its merits.
The hearing had to proceed in any event because the Second Applicant was present at Court.
If I proceed to deliver Reasons for Judgment in respect of the First Applicant’s Application such judgment and any order entered is liable to be set aside upon an Application made pursuant to Rule 16.05(2) of the Rules.
Furthermore, if I treat the hearing that took place as a hearing of the First Applicant’s Application on its merits – I am concerned that such a course of action could be seen as failing to accord procedural fairness to the First Applicant.
I have therefore determined that the approach I initially foreshadowed on 22 August 2008 at the hearing should be adopted. That is, the First Applicant’s Application should be dismissed in default of appearance pursuant to Rule 13.03A. I will make an order that the First Respondent provide a copy of these Reasons for Judgment and the Order dismissing the Application to the First Applicant within 28 days of the date of the Order. There will be a further order that the First Respondent must include with the copy of the Order a letter informing the First Applicant of his rights pursuant to Rule 16.05 of the Rules.
The Second Applicant
As noted earlier, the Second Applicant does not have any of her own claims to be a refugee. This is confirmed by the Original Application for a Protection Visa lodged by the Second Applicant on 29 June 2007. Furthermore, I note on page 4 of the Tribunal’s Statement of Decision and Reasons, inter alia:-
“Only the first named applicant has submitted claims to be a refugee.”
Furthermore, under the heading “Conclusions” the Tribunal stated:-
“Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.
No specific Convention claims were made by or on behalf other applicant. The fate of the other applicant’s application therefore depends on the outcome of the first named applicant’s application. As the first named applicant cannot be granted a protection visa, it follows that the other applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.”
The Second Applicant adduced no evidence at the hearing on
22 August 2008and nor did she provide any submission on 22 August 2008 that could be construed as a separate claim on her own behalf to be a refugee.
Conclusion
The Second Applicant has not made any claim or claims to be a refugee. There is no jurisdictional error in the Tribunal’s decision so far as it relates to the Second Applicant. As already noted, the First Applicant’s Application for judicial review of the Tribunal’s decision is dismissed for want of appearance.
It follows from what I have stated above that the Second Applicant’s Application for judicial review must be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: J Witenden
Date: 20 November 2008
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