SZRGQ v Minister for Immigration
[2012] FMCA 638
•23 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRGQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 638 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Fujian province in China as a Christian and because of the Chinese one child policy – applicant leaving China on his own passport without difficulty but using a false passport to enter Australia – applicant’s claims of persecution in China rejected – dismissal of show cause application on account of the non appearance of the applicant. |
| Federal Magistrates Court Rules 2001 (Cth) |
| SZMLB v Minister for Immigration & Anor [2008] FMCA 1248 SZMLB v Minister for Immigration [2008] FCA 1921 SZOPW v Minister for Immigration & Anor [2011] FMCA 48 SZOUS v Minister for Immigration & Anor [2011] FMCA 166 |
| First Applicant: | SZRGQ |
| Second Applicant: | SZRGR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 598 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 23 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2012 |
REPRESENTATION
No appearance by or on behalf of the Applicants
| Solicitors for the Respondents: | Ms B Rayment Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the first applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 598 of 2012
| SZRGQ |
First Applicant
SZRGR
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 19 March 2012, seeking review of a decision of the Refugee Review Tribunal (the Tribunal) made on 27 February 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants. The first applicant is the principal applicant and the second applicant is his child. The first applicant is the litigation guardian of the second applicant.
The first applicant arrived in Australia from Fujian province in China on 26 February 2006. The second applicant was born in Australia on 29 December 2010. The applicants applied for protection visas on 4 May 2011. The Minister’s delegate refused that application on 25 July 2011. The delegate noted that the first applicant used a “fake” (presumably photo substituted) passport to enter Australia although he held a genuine Chinese passport which he had used to travel to Cambodia in 2006.
On 8 August 2011 the applicants applied to the Tribunal for review of the delegate’s decision. The Tribunal conducted a hearing with the first applicant on 5 October 2011. The first applicant admitted using a false passport to enter Australia after leaving China on his own passport. The first applicant said that everything had been arranged by Chinese criminal people smugglers known as “snakeheads”. The first applicant apparently obtained the false passport in Macau and used it thereafter.[1] The Tribunal found that the first applicant is of no interest to the Chinese authorities and that neither he nor the second applicant would suffer persecution in China.
[1] See the court book (CB) at [102], CB 117
The show cause application and its supporting affidavit are, on their face, an attempt to seek merits review. The first applicant had made claims based upon his asserted Christian religion and the Chinese one child policy. It was apparent from the terms of the show cause application and supporting affidavit that the first applicant is dissatisfied with the outcome of his claims before the Tribunal.
When the matter came before me on 11 April 2012, I listed the matter for a show cause hearing today, noting the unsatisfactory nature of the grounds advanced in the show cause application. The first applicant told me on that occasion that he was being assisted by a friend, who he did not name, who had undertaken to receive and pass on to the first applicant mail relating to the application.
I note from the Tribunal decision that the first applicant has been in Australia since 2006. Although claiming to be a Christian in China he only started attending church in Australia five years after his arrival and applied for a protection visa only last year. I note also that it was established at the Tribunal hearing, if not earlier, that the first applicant, while he left China on his own passport and apparently without experiencing any difficulty, used the services of snakeheads to obtain a false passport to gain entry to Australia[2]. The Tribunal, while accepting that the first applicant came to Australia on a false passport and had been apparently assisted by criminals in doing so, was not of any interest to the Chinese authorities either before he left China or as a result of leaving China.
[2] The Court has in the past expressed concern about the prevalence of people smuggling by air from China, particularly in respect of persons from Fujian province. See SZMLB v Minister for Immigration & Anor [2008] FMCA 1248, SZOPW v Minister for Immigration & Anor [2011] FMCA 48, SZOUS v Minister for Immigration & Anor [2011] FMCA 166. The Federal Court has made clear that it is not for judges in particular cases to attempt to inquire into the circumstances: SZMLB v Minister for Immigration [2008] FCA 1921
The first applicant elected to participate in the Minister’s panel advice scheme and the correspondence file records that Mr Norman Potts provided advice to him on 14 May 2012. The first applicant was given the opportunity to file and serve an amended application giving particulars of each ground of review relied upon, but has not taken up that opportunity.
There was no appearance by or on behalf of either applicant when the matter was called this afternoon. The matter has been called twice. There is no explanation for the non-attendance of the applicants.
Before I came on the bench, my deputy associate attempted to contact the first applicant on his nominated mobile telephone number. There was no answer other than by an automated answering service, providing the opportunity to leave a message.
In the circumstances, the Minister seeks the dismissal of the application on the basis of the non-appearance by the first applicant. I agree that that is the appropriate course to take. I will order that the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules).
I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I will direct that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the first applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 27 July 2012
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