SZRLO v Minister for Immigration

Case

[2013] FMCA 107

22 February 2013


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRLO v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 107
MIGRATION – Review of decision of Refugee Review Tribunal – where applicant unregistered child of Chinese nationality – where Tribunal obtained information in accordance with s.424(1) of the Migration Act 1958 – where Tribunal made reference to information in decision but not in its reasons – whether Tribunal had regard to information – where integers of claim were considered – whether Tribunal failed to take into account relevant information.
Migration Act 1958 (Cth), ss.54(1), 424(1)
Minister for Immigration & Anor v SZKTI & Anor [2009] 238 CLR 489
NAJT v Minister for Immigration & Anor [2005] 147 FCR 51
Minister for Immigration & Anor v Khadgi (2010) 190 FCR 248
SZDXZ v Minister for Immigration & Anor [2008] FCAFC 109
Minister for Aboriginal Affairs v Peko-WallsendLtd (1985-1986) 162 CLR 24
Minister for Immigration & Anor v NZYHS & Anor (2011) 119 ALD 534
Minister for Immigration & Anor v Yusuf (2001) 206 CLR 232)
Applicant: SZOXK AS LITIGATION GUARDIAN OF SZRLO
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 986 of 2012
Judgment of: Raphael FM
Hearing date: 19 February 2013
Date of Last Submission: 19 February 2013
Delivered at: Sydney
Delivered on: 22 February 2013

REPRESENTATION

Solicitors for the Applicant: Kinslor Prince Lawyers
Counsel for the Respondents: Mr J Knackstredt
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. Application dismissed.

  2. The applicant’s litigation guardian SZOXK must pay the First Respond ent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 986 of 2012

SZOXK AS LITIGATION GUARDIAN OF SZRLO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The applicant is a Chinese infant born on 9 May 2011 in Australia to her litigation guardian.  Her parents are not married.  They are both Chinese.  They have both been declined protection visas.  The applicant made her claim for a protection visa on 11 August 2011.  Her claim was declined by a delegate of the Minister on 21 November 2011.  The applicant applied for review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing at which the applicant was represented by her mother.  On 20 April 2012 the Tribunal determined to affirm the decision not to grant the applicant a protection visa.

  2. The applicant had two bases for her claim that she was a person to whom Australia owed protection obligations.  Firstly, she said that her mother would suffer from religious persecution if she went back to China as a loyal and practising Roman Catholic.  Secondly, her parents were not married due to the attitude of the applicant’s grandparents and, as a result, she would be discriminated against under China’s family planning laws and would suffer social discrimination. 

  3. At the hearing before the Tribunal the applicant’s mother, when asked what she thought might happen to her daughter if she returned to China, said:

    “Because she is not married to her partner the relationship will not be accepted by the local community because everywhere she lives is a conservative area and people do not accept a child born out of wedlock and as a result her child will face discrimination in many areas…The Tribunal asked (the applicant’s mother) if she thought she would be able to pay the social compensation fee.  She said she would not …The Tribunal asked her what the social compensation fee was.  She said that her information is that in Fujian the fee is about RMB 10,000.  The Tribunal noted that this is less than Australian Dollars $2,000.00 and can be paid in instalments and asked if she was suggesting that she was unable to pay $2,000.00 in instalments over three years to register her child.”  [31-32] [CB 82-83]

  4. There was further discussion between the Tribunal and the applicant’s mother about payment of the social compensation fee and the Tribunal’s concern at the mother’s insistence that she and her partner would not be able to pay it and that neither sets of parents would provide any assistance to them [31-34] [CB 82-84].

  5. The Tribunal questioned the applicant’s mother about her claims arising from the convention ground of religion.  It did not consider her responses credible and found that the applicant would have no well founded fear on this basis.  The Tribunal’s findings in this regard are not the subject of the application presently before the court.

  6. The Tribunal reproduced and referred to in its decision record a considerable quantity of independent country information.  It first stated that in accordance with Article 5 of the “Nationality Law of the Peoples Republic of China” the applicant was a Chinese citizen.  This is not contested.  At [68] [CB 94] there commences a lengthy section on family planning policy including a section on the family planning laws in Fujian. [CB 94-100].  In the section headed “Black Children” there appears at [80] [CB 99] the following:

    “[80]…China has a “comprehensive system for birth registration” which requires parents (or other responsible persons) to report new children to the appropriate “household registration [hukou] organ” within a month of their birth.  DFAT has indicated that out of plan children can obtain hukou registration once their parents pay the appropriate social compensation fee.  Some parents choose not to register out of plan children in order to avoid “punishment for unsanctioned births”.  Alternatively, local governments may refuse to register unsanctioned births in order to meet family planning objectives[emphasis added]

  7. The emphasised section is footnoted with a reference to an article by Zhou, Y. in 2005 entitled “Uncovering Children in Marginalization: Explaining Unregistered Children in China” International Union for the Scientific Study of Population website, 14 June, p.6”.  The discussion of black children continues at [81]:

    “[81]Unregistered children, commonly known as black children, do not have the full rights of a registered child.  In particular, they are not entitled to public education and, as a result, they (or their parents) must pay for private education.  Fees charged by private education providers are usually higher than for public schools.  There is a degree of contradictory information in the sources with respect to whether the lack of registration affects a child’s access to healthcare, however the most recent advice from DFAT on this issue (from 2007) indicates that this is not the case and that a child’s registration status is not relevant to accessing medical services.  This is in contrast to 2004 DFAT advice which noted that, in respect to access to public health services for an unregistered child in Fujian, such a child would have access to private clinics and that the fees are not excessive.  The 2004 DFAT advice is consistent with information presented by Zhou in his 2005 report examining the situation of unregistered children in China, in which he states that unregistered children are “generally blocked from access to a series of basic social welfare benefits and state support, including health care.”

  8. In this paragraph footnotes referring to Mr Zhou’s paper are contained after the first sentence, the second sentence and the final sentence. The paper itself was reproduced in a Supplementary Court Book.  It is of 28 pages in length.  The author notes that an increasing number of children:

    “Often times are believed to be born in excess of birth plan or born out of wedlock, do not have a hukou, that is, are not officially registered in the national household registration system.  These children, referred to as “black children” in China, usually lack legitimacy and basic rights, and are not entitled to state benefits.”  [SCB p2]

  9. The thrust of the paper appears to be an attempt to calculate the true number of unregistered persons in China utilising the census records as opposed to the household registration records.  The introduction continues:

    “Household registration is connection to birth planning because local officials tend to block the registration of unplanned births… Nonetheless Chinese census counts are closely linked to the household registration system and both parents and officials may have reason to hide unregistered children from census enumerators.  The census is thus likely to undercount unregistered children.  Then the actual number of unregistered children could only be larger.  Note the adverse fortune that these children are facing: they lack legitimate identity and are generally blocked from access to a series of basic social welfare benefits and state support including healthcare, education and employment.”  [SCB p2]

    The paper continues:

    “However, given the significance of the problem of unregistered children, there are not many studies addressing this issue of children’s registration status, looking into parents’ registration behaviour for their newborn children.  There are only remained, in the limited literatures attempting to address the issue, some untested estimations, mostly based on some anecdotal reports or scattered qualitative date, that many of these unregistered children may be out-of plan births, female children, or children of migrants (Greenhalgh 2003, Chen and Wang 1997).  But there exist few academic studies based on date analysis examining the issue of un-registration.  Therefore, little is know about whom these unregistered children are, and what determined their unregistered status.  It is the task of this paper to contribute to a better understanding of this special group of unregistered children.”   [SCB p3]

    The questions the researcher attempts to answer are “Who are the unregistered children?” and “What are the broader-level social forces that shape their un-registration status?”

  10. At [SCB 6] it notes that research attributes un-registration mainly to out of plan births and seems to place the responsibility for this on the parents.  But it goes on to say:

    “Apart from individual intentional concealment of out of plan births it was reported in the articles that some local governments, in order to “achieve” their family planning objectives, refused to register children born in excess of birth planning regulations.  Even though such measures were criticised by the central disciplinary commission of the party refusing household registration for unauthorised children continued to be practiced in many regions as unwritten laws.

    According to these reports in national media, three situations mainly shape un-registration....Thirdly, given the autonomy of local governments in terms family planning implementation, many officials reject applications of registration for out-of-plan births, either as a punishment or as a means of improving their record of family planning work. [Emphasis added]

    The report continues:

    “These reports, however, base their findings on incomplete estimation, qualitative data, or anecdotal reports, while lack systematic data. The focus of these reports is on out-of-plan births and importance of family planning work, and other factors of un-registration tend to be neglected. The present study attempts to provide systematic analysis on the determinants of infants’ un-registration with a comprehensive model.  [Emphasis added]

    I categorize two types of factors that might deter the hukuo registration of infants: one has to do with the subjective choice of parents – parents intentionally want to avoid the registration of their children, which may suggest that the child is of unwanted birth; the other has to do with the objective, mostly institutional barriers that make registration inaccessible. Then community, parent, and child characteristics exert various effects that can be classified into the two types. Drawing on findings from previous research, we estimate that:

    “For most of the community characteristics, they tend to play the role of objective factors. Urban features of a community may suggest easier access to registration as compared with rural features. Stricter birth control program at the community tends to make implementation of residence registration due to lack of regulation. However, poor implementation of family planning and birth registration can also be translated into higher rates of registration because of underreport of un-registration that is usually associated with out-of-plan births.””   [As it appears in original]  [SCB pp6-7]

    Although the report continues for a further twenty or so pages there is no further discussion of the allegation that one of the factors influencing un-registration is the reluctance of local authorities to actually register out-of-plan births.

  11. In its Findings and Reasons the Tribunal discussed the applicant’s claims arising from her birth to her parents out of wedlock and her consequent “black child” status. At [105] [CB 105] the Tribunal said:

    “[105]The applicant also claims that she was born out of wedlock and therefore in breach of the family planning legislation.  The Tribunal accepts the claim that the applicant was born ‘out of wedlock’ as her parents were not married at the time of the child’s birth.  The information cited above indicates that having children out of wedlock is illegal and in breach of the family planning legislation.  The Tribunal accepts that the applicant’s birth breaches the Family Planning legislation and that the child’s parents may be required to pay a social compensation fee before the child can be registered.  The Tribunal accepts that unless a social compensation fee is paid, the applicant may not be registered and may not have equal access to the rights, privileges and services, which are commonly available to children in China.  However, for the reasons that follow, the Tribunal does not accept the applicants’ claim that her parents will not be able to pay the compensation fee.”

  12. Between [106-111] the Tribunal makes findings about the applicant’s parents’ ability and willingness to pay the social compensation fee including the ability and willingness of the applicant’s grandparents to assist.  At [110]:

    “[110]The Tribunal finds that the social compensation fee will be paid upon the family’s return to China.  The Tribunal finds that once the fee is paid, the child will be registered and, being registered, the child will be entitled to the same education rights as others if they have gained household registration since birth.  The Tribunal does not accept that the applicant will experience any form of harm as a result of being born out of wedlock and in breach of the family planning legislation.”

  13. In this court the applicant relies upon an Amended Application filed on 4 September 2012.  The grounds of that application are:

    GROUND ONE

    In deciding to affirm the decision of the First Respondent, the Second Respondent committed an error of law amounting to a jurisdictional error by breaching section 424 of the Migration Act 1958 (The Act).

    Particulars

    (a)As it was permitted to do so under s424 of the Act, the Second Respondent obtained country information it considered relevant to deciding the Applicant’s case. In particular, the Second Respondent obtained a report listed at footnote 56 of the decision record (CB 99) entitled, ‘Uncovering Children in Marginalisation: Explaining Unregistered Children in China’ (the report).

    (b)Having obtained the report the Second Respondent was obliged to have regard to the report in making the decision under review: s424(1) Act.

    (c)As noted by the Second Respondent the report included information that “local governments may refuse to register unsanctioned births in order to meet family planning objectives” (paragraph 80 decision record CB 99).

    (d)The Second Respondent accepted that the birth of SZRLO breached the Family Planning legislation of PR China (refer paragraph 105 decision record CB 105).

    (e)The Second Respondent found that unless SZRLO became registered she would not have access to the rights, services and privileges of other children in PR China (paragraph 105 decision record, CB 105).

    (f)The Second Respondent found that SZRLO would be registered because her family would be able to afford to pay the social compensation fee (paragraph 109, CB 107).

    (g)The Second Respondent failed to have regard to information in the report before it that “local governments may refuse to register unsanctioned births in order to meet family planning objectives”. The Second Respondent failed to make a finding as to the likelihood of that happening in the SZRLO’s case in the circumstances where a finding that it as likely to happen in the SZRLO’s case may have led to a different outcome.

    GROUND TWO

    In deciding to affirm the decision of the First Respondent, the Second Respondent committed an error of law amounting to jurisdictional error in failing to take into account a relevant consideration.

    Particulars

    (a)The Second Respondent failed to take into account the risk that local governments may reject an application for registration of SZRLO’s birth.”

  14. It is not suggested by the applicant’s mother that it was ever a claim of hers that the local authority might refuse registration of her child even if she should wish to pay the social compensation fee. The existence of this possibility was something discovered by the Tribunal and made reference to [80] [CB 89]. It is contained in some independent country information obtained by the Tribunal in accordance with s.424(1) of the Migration Act 1958, (Cth).   That section is in the following form:

    “Tribunal may seek information

    (1)  In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”

  1. Did the Tribunal “have regard” to the information contained in the Zhou paper as that phrase is understood in the context of these proceedings or did it fall into jurisdictional error by failing so to do? The applicant argues that the requirement in s.424(1) is that there should be more than identification of the relevant information, it must be taken into account. She argues that it was a relevant matter for the Tribunal to consider whether the applicant would be persecuted or suffer significant harm should no registration be forthcoming as a result of the actions of the local authority. She argues that there was no reference to this in the Tribunal’s reasoning process which would indicate that the information was not weighed up and a decision made upon it. She argues that if it had been it could have resulted in a different decision. She argues that the Tribunal’s sole concern in both the refugee status assessment and the complementary protection assessment was the parents’ ability to pay the fee and assumed that what would happen thereafter is that the child would be registered. In Minister for Immigration & Anor v SZKTI & Anor [2009] 238 CLR 489 at [501] the Court held at [37]:

    “[37]Section 424(1) confers a “general power” (46) on the RRT to “get any information that it considers relevant”. The only limitation on that power is that the RRT “must have regard” to that information in making its decision.”

  2. In NAJT v Minister for Immigration & Anor [2005] 147 FCR 51 a Full Bench of the Federal Court, Hill, Madgwick and Conti JJ dealt with s.54(1) of the Act which is in similar form. Hill J said at [46]:

    “[46]What s 54(1) when read together with s 55 requires is that the decision-maker engage in a real process of consideration of information submitted – an “active intellectual process directed at the information (see Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [50] and the cases there referred to).”

    And Madgwick J at [212] opined that:

    “[212] A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs[2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.

  1. A more recent consideration of “having regard” was given by another Full Bench of the Federal Court, Stone, Foster and Nicholas JJ in Minister for Immigration & Anor v Khadgi (2010) 190 FCR 248[1].  There under the heading “the relevant principles” the Court said:

    [1] ‘Khadgi’

    “[57]Section 109(1)(c) of the Act obliges the Tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker must engage in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration: Tickner at 462 (per Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (p 540) (per Gleeson CJ and Gummow J).

    [58]In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.

    [59] Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Cmr of Taxation (2002) 123 FCR 499 at [62] (p 512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.

    [60] In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338. As his Honour’s reasons in R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [57] (p 164) (per Sackville J).

    [61]We respectfully agree with Sackville J in Singh where his Honour pointed out that the expression “have regard to” is capable of different meanings depending on its context. As his Honour said at [54] (p 163):

    “… a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.”

    [64] In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, at [46] (p 641), the Full Court held that:

    (a)  It is not necessary for an administrative decision-maker such as the Tribunal to refer in its written reasons to every piece of evidence and every contention made by an applicant;

    (b)  It may be that some evidence is irrelevant to the criteria and some contentions misconceived; and

    (c)  The reasons of a tribunal such as the Tribunal in the present case should not be scrutinised “with an eye keenly attuned to error” nor is it necessary to provide reasons of a kind that might be expected of a court of law.””

    And at [65]:

    [65] At [47] of its reasons in WAEE, the Full Court said:

    “47.  The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

  2. The respondent argues that the question of whether or not the Tribunal had regard to the particular matter is one of fact “which would usually have to be determined by the court undertaking a close analysis of the decision maker’s reasons without the benefit of other evidence” Khadgi at [71].

  3. The respondent points to the fact that the Zhou paper was clearly something to which the Tribunal had given serious consideration because other relevant contentions made in that report are noted and footnoted.  I think there is force in this submission.  The inference that the report was not just read but was “considered” is strengthened by the notation at [81] [CB 99]:

    “There is a degree of contradictory information in the sources with respect to whether the lack of registration affects a child’s access to health care.” [81] [CB 99]

  4. Having drawn the inference from this evidence that the Tribunal has read the Zhou report the court is entitled to consider  it itself and take into account its findings (or lack of them) in coming to a conclusion as to whether the Tribunal had regard to it.  For the court accepts that the failure to make reference in the findings and reasons to the information which suggests that registration may not only be in the hands of a parent has an obvious importance.  Having read the report in full, and noted both the concerns expressed by the author as to the validity of the evidence upon which the assertion was based extracted at [10] of these reasons and, at least equally importantly, the author’s failure to include it as a factor in his own findings, the court is able to come to the conclusion that the Tribunal was entitled to, and by inference did, consider it of no value and thus was not required to make further comment upon it.  The effect of this finding is that the first ground of application cannot succeed because the court is of the opinion that the Tribunal had regard to the information in making the decision under review, it is of the view that this finding is consistent with the authorities extracted in these reasons.

  5. The second ground of application must also fail on the findings made above.  But there is an additional reason why this would be the case.  The existence of jurisdictional error as a result of an administrative body failing to take into account a relevant consideration is generally considered to be most authoritatively expressed in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-WallsendLtd (1985-1986) 162 CLR 24 where his Honour said at [39]:

    “[39]The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision… what factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion… If the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.”

    The way in which these principles have been applied in migration matters was comprehensively discussed by Kenny J in Minister for Immigration & Anor v NZYHS & Anor (2011) 119 ALD 534 at [23] and [24]. Her Honour said at [24]:

    “The Minister drew a distinction between a failure to consider an integer of a claim to be a refugee (or a contention that, if accepted, might establish a well-founded fear of persecution) and the failure to take into account evidence that, if accepted, might have lead to a different finding of fact. As the Minister submitted, and I accept, the failure to refer to, or adequately to consider evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have lead to an erroneous finding of fact [authorities then quoted].”

  6. The integers of this claim, that the applicant child had a well-founded fear of persecution, arose out of the alleged religious beliefs of her mother and of the fact of her being a child born out of wedlock.  Both of those integers were considered thoroughly by the Tribunal.  The impugned report was a piece of evidence that went to the second integer, it did not constitute the integer itself and for that reason failure to consider it would not amount to a jurisdictional error in the Peko-Wallsend or Yusuf (Minister for Immigration & Anor v Yusuf (2001) 206 CLR 232) sense. For that reason, the second ground of application must fail.

  7. In the circumstances, I am unable to provide the applicant with the relief sought.  The application is dismissed. The applicant’s litigation guardian SZOXK must pay the First Respondent’s costs assessed in the sum of $6,471.00.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  22 February 2013


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