NABV v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 Before the Court is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") of 4 January 2002 which affirmed the decision of a delegate of the Minister refusing to grant the applicant a protection (Class XA) visa. The application to this Court was made after 2 October 2001 and accordingly the application is one made under s 39B of the Judiciary Act 1903 (Cth) in respect of which the Court would have jurisdiction, but subject to s 474(2) of the Migration Act 1958 (Cth) ("the Act") which provides that the decision of the Tribunal is a "privative clause decision" and the consequences that the Act prescribes where a decision of the Tribunal is such a privative clause decision. 2 The applicant is a minor. She was not legally represented. For the purpose of these proceedings her mother was appointed as her next friend and appeared with the child's father and with he aid of an interpreter at the hearing.

Background 3 The applicant's mother ("the mother") is an Indonesian citizen of what the Tribunal referred to as "purported Chinese ethnicity". The applicant's father ("the father") is a citizen of the Peoples Republic of China. They arrived in Australia within a month of each other in November and December 1996 and both the mother and the father applied for protection visas. The applications were unsuccessful. 4 The mother and father have been living together in a de facto relationship for more than four years. The applicant was born to them in August 1999 and an application for a protection (Class XA) visa was lodged on her behalf in February 2000. The application was refused and an application was made to the Tribunal for review of that decision. That application was likewise unsuccessful. Accordingly judicial review is sought of the Tribunal's decision. 5 The case for the Applicant before the Tribunal was that she had a well-founded fear of persecution on a ground stipulated in Article 1(A)(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967. The Convention and the Protocol are compendiously here referred to as "the Convention". It is a criterion for the granting of a protection visa that the applicant for the visa be a person towards whom Australia has protection obligations under the Convention. Australia will have such protection obligations if the person falls within the definition of "refugee" in Article 1(A)(2) of the Convention. 6 It was claimed that the applicant feared persecution on three grounds.