SZBXV v Minister for Immigration and Citizenship [2007] FCA 1286

FEDERAL COURT OF AUSTRALIA

SZBXV v Minister for Immigration and Citizenship [2007] FCA 1286

SZBXV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 469 OF 2007

MOORE J

22 august 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 469 OF 2007

BETWEEN: SZBXV

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J

DATE OF ORDER: 22 august 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to read "Minister for Immigration and Citizenship". 2. The applicant's father be appointed as tutor to act on behalf of the applicant pursuant to O 43 r 2(1) of the Federal Court Rules. 3. The application for an extension of time be allowed. 4. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 469 OF 2007

BETWEEN: SZBXV

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J

DATE: 22 august 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for extension of time to file and serve a notice of appeal from a judgment of aFederal Magistrateof 22 February 2007. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ("Tribunal") of 8 May 2006 and handed down on 25 May 2006. The Tribunal affirmed a decision of a delegate of the first respondent not to grant a protection visa. 2 The applicant is a male child born on 5 June 2001 in Australia. His parents are both citizens of the People's Republic of China ("PRC"). The applicant's father had arrived in Australia in 1997 on a student visa, with the applicant's mother arriving in May 1998 on a dependent student visa. The applicant has an elder brother who was also born in Australia. 3 On 4 November 2002 the applicant's parents lodged an application for a protection visa on the applicant's behalf with the Department of Immigration and Multicultural Affairs. Included in the application was the applicant, his parents and his elder brother. A delegate of the first respondent refused the application on 14 November 2002. A previous protection visa application had been filed by the applicant's mother for herself, her husband and the applicant's elder brother. That application was refused on 2 February 2000. The delegate noted that the other applicants had been involved in the earlier application and thus did not include them in the decision. The delegate assessed the applicant as a citizen of the PRC. 4 On 9 December 2002 the applicant, through his parents, applied to the Tribunal for a review of the delegate's decision. The Tribunal affirmed the delegate's decision in a decision signed on 26 September 2003 and handed down on 22 October 2003. The applicant sought review in the Federal Magistrates Court. On 22 December 2005, a Federal Magistrate quashed the decision of the Tribunal and remitted the matter for determination by the Tribunal according to law. The matter was then redetermined by the Tribunal, differently constituted. The Tribunal conducted a hearing which the applicant's parents attended and at which they gave oral evidence. The applicant's migration agents made oral and written submissions. In a decision signed 8 May 2006, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. An application for review to the Federal Magistrates Court was dismissed on 22 February 2007.