SZNWS v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1287

MIGRATION – Review of RRT decision – applicants born in Australia of Chinese parents – where actual bias alleged.

Migration Act 1958 (Cth) s.424A

Savic v Minister for Immigration [2001] FCA 1787
SCAA v Minister for Immigration [2002] FCA 668
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
NAJO v Ministerfor Immigration [2004] FCA 356
NBKT v Ministerfor Immigration [2006] FCAFC 195
SZEEU v Minister for Immigration (2006) 150 FCR 214

First Applicant: SZNWS

Second Applicant: SZNWT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2156 of 2009

Judgment of: Raphael FM

Hearing date: 18 December 2009

Date of Last Submission: 18 December 2009

Delivered at: Sydney

Delivered on: 18 December 2009

REPRESENTATION

For the Applicants: Applicants’ mother

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicants’ mother, as the litigation guardian for the applicants, to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2156 of 2009

SZNWS

First Applicant

SZNWT

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants in this case are two children born in Australia of Chinese parents, both of whom applied unsuccessfully for protection visas.  Because the children have never been to China, and are both very young, their claims to be persons to whom Australia owed protection obligations had, of necessity, to be reflective of their parents’ claims and the Chinese laws relating to persons who had more than one child.

2. Additionally, in this particular case, because the parents were not married, they both having spouses still living in China, and because the mother of the children no longer had any Chinese identification papers, it was suggested that the children were stateless.  Statelessness alone is not a ground for protection.  The applicants appeared before the Tribunal through their parents in order to raise the claims which I have set out above.  It was put by the children’s father that they would be imputed with an unfavourable political opinion because he had been a member of the armed forces who had been involved in parachuting into Tiananmen Square on 4 June 1999, and had eventually been cashiered from the army because of his refusal to shoot at demonstrators.

3. The Tribunal considered all these matters in a detailed and thorough reasons for decision. There had been two hearings before the Tribunal and after the second hearing the Tribunal sent to the parents a letter pursuant to s.424A Migration Act1958 (Cth) (the “Act”) [CB 156-168]. The letter sets out in detail all those matters upon which the Tribunal had concerns arising from the evidence given at the Tribunal hearings and from documentation previously provided. The applicants’ parents, through a migration agent, responded to this letter [CB 169-173]. The Tribunal came to conclusions…