SZSXP v Minister for Immigration

[2013] FCCA 1628

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSXP v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1628

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – dismissal of show cause application on account of the non appearance of the applicant’s litigation guardian.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZSXP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1259 of 2013

Judgment of: Judge Driver

Hearing date: 15 October 2013

Delivered at: Sydney

Delivered on: 15 October 2013

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents:

Ms A Carr

DLA Piper

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

4. 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 applicant’s litigation guardian by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1259 of 2013

SZSXP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 6 June 2013, seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 14 May 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The following statement of background facts relating to this matter is derived from the Minister’s written submissions, filed on 8 October 2013. 

2. The applicant is a female citizen of the People's Republic of China (China).  The applicant was born in Auburn, New South Wales, on 10 August 2011 to Chinese national parents.[1]

   [1] Court Book (CB) 30-32.

3. The applicant's mother applied on the applicant's behalf for a protection visa on 19 October 2012.[2]  The applicant's mother set out the applicant's claims for protection in a translated statement included with the application titled “Daughter's statement for protection”:[3]

   a)the statement claimed that the applicant's mother had been baptised in June 2010 and that she had attended a Christian church in Australia;

   b)for reason of the applicant's mother's residence in rural China, if she was forced to return to China it was claimed that the applicant's mother would be subject to fines and sterilisation.  It was further claimed that the family would face discriminatory harm because they could not afford to pay the family planning fine and, consequently this, along with the lack of societal sympathy, would traumatise the family.

   [2] CB 1-26.

   [3] CB 27-29.

4. The application was refused on 4 December 2012.[4]

   [4] CB 41-64.

5. The applicant's mother applied on the applicant's behalf to the Tribunal for review of the original decision on 18 December 2012.[5]

   [5] CB 66-71.

6. The Tribunal accepted evidence from the applicant's parents on the applicant's behalf on 30 April 2013.[6]  The Tribunal handed down its decision on 14 May 2013.[7]

   [6] CB 86-88.

   [7] CB 94.

The decision of the Tribunal

1. The Tribunal found that the applicant's parents lacked credibility.  The Tribunal noted that the parents' evidence was internally inconsistent and contradictory, lacked detail and was vague.[8]

   [8] See [12] at CB 97.

2. The Tribunal found that if the applicant and her family were to return to China her parents may be subjected to a registration fee because the applicant was born in breach of the family planning laws (out of wedlock).  However, based on country of origin information, the Tribunal found that the applicant's parents would not be forced to make the payment and, further, it noted that the fee was not imposed on those who became parents while overseas as students.[9]

   [9] See [28] at CB 100.

3. In any event, even if the applicant's parents were required to pay the social compensation fee, the Tribunal found that it would not be in the amount as claimed and, further, the applicant's parents would have the option of paying the fee over a period of time.[10]

   [10] Ibid.

4. The Tribunal accepted that the applicant's mother had been baptised and had attended Church in Australia on occasions.  However, it did not accept that the applicant's parents were Christians nor that they had a real or genuine interest in Christianity.  Consequently, the Tribunal found that the applicant and/or her parents would not be involved with a Christian church if they returned to China nor would they face harm due to their limited contact with the church in Australia.[11]

   [11] See [38] at CB 102.

5. The matter came before me for first court date directions on 9 July 2013.  At that time, I appointed the applicant’s mother as litigation guardian and made orders for the preparation of the matter for a show cause hearing today.

6. It does not appear that the applicant has taken advantage of the opportunity I afforded to provide an amended application or any further affidavit evidence.  I note from the affidavit of Joseph Smith-Davies, filed in Court today by leave, that the Minister’s solicitor wrote to applicant, care of her litigation guardian, on 8 October 2013, providing the Minister’s outline of submissions and list of authorities and warning that if there was no attendance at today’s hearing, the Minister might seek to have the case dismissed on account of a non-appearance.  That letter was not returned and no response was made to it.

7. Neither the applicant nor her litigation guardian has appeared for this afternoon’s hearing.  The matter has been called twice.  There is no explanation for the non-appearance.  My deputy associate, as well as the Minister’s solicitor, have made attempts to contact the litigation guardian on her nominated mobile telephone number, but the phone has apparently been disconnected. 

8. I will order that the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

9. I will order that the application be dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

10. I will order that the applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

11. 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 applicant’s litigation guardian by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 23 October 2013