SZJXW v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-28|Before: Madgwick J, Branson J

INTRODUCTION 1 The appellant, SZJXW, is an infant having been born in Australia, to Ukrainian parents, on 9 February 2006. Her parents' application for protection visas under s 36 of the Migration Act 1958 (Cth) ("the Act") had been refused by a delegate of the Minister on 1 November 2000 and, on review, by the Refugee Review Tribunal ("the Tribunal") on 26 March 2002. 2 On 22 March 2006 an application for a protection visa naming SZJXW as the applicant was completed. It purports to be supported by a statement made by SZJXW. This statement commences: My name is [name omitted]. I was born in Australia less than two months ago. My parents are from Ukraine originally. They have been persecuted there for reasons of my father's ethnicity and his political opinion. 3 I proceed on the assumption that this statement was prepared by one or both of SZJXW's parents. It seeks to challenge the decision of the Tribunal, of which judicial review was not sought, that SZJXW's father does not have a well‑founded fear of persecution for a Convention reason if he returns to Ukraine. SZJXW's mother did not assert any independent claims of her own before the Tribunal. 4 The statement concludes: I believe that my life would be in danger in Ukraine - first of all, my parents did not return to Ukraine in time, they applied for Protection visas and if they went back to Ukraine they will be questioned about their overstaying their visas and it would be clear that they made an application for Protection. Second, I will be persecuted as a person of Caucasian ethnicity and because I am a member of political opponent's family. If I had to apply for travel document to go to Ukraine I will have to give detailed explanation as to why I am without a valid ID and it inevitably would result in my persecutions. Please refer to my parents' application for protection visa for detailed summary of their claims. 5 Both of SZJXW's parents completed fresh applications for protection visas identifying themselves as members of SZJXW's family unit who do not have personal claims to be a refugee. These applications were rejected by the Department of Immigration and Multicultural Affairs on the basis that their claims to be entitled to protection visas had already been determined adversely to them. 6 In Al Raied v Minister for Immigration and Multicultural Affairs [2000] FCA 1357 at [6] I deprecated the artificiality of a statement such as that purportedly made by SZJXW in this matter. I endorse the observation subsequently made by Madgwick J in SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 552 at [9]. His Honour there said: …there appears to be a need for legislative attention to the difficult and sensitive problem of dealing fairly and practically with the position, at various points - primary decision, the Refugee Review Tribunal review, and judicial review - of a child present in Australia who may be in need of asylum for reasons recognised by the relevant Convention. 7 Counsel for the Minister on this appeal was not able to advise me of any steps taken to address the problems identified in SBAH. It is presumably for this reason that officers of the Department of Immigration and Multicultural and Indigenous Affairs engaged in correspondence with SZJXW, addressed to her care of her parents, and officers of the Refugee Review Tribunal engaged in correspondence with her directly, including extending to her an invitation to attend a hearing. It would, I respectfully suggest, be in everyone's interest if provision could be made for a more sensible way of dealing with a claim for protection advanced on behalf of an infant.

APPOINTMENT OF NEXT FRIEND 8 Order 43 rule 1(1) of the Federal Court Rules provides that an infant may sue by his or her next friend. Order 43 rule 5(2) provides that a tutor (which term is defined by O 1 r 4 to include a next friend) must act by a solicitor. The tutor must not have an interest in the proceeding adverse to the infant (O 43 r 4(3)). This requirement might ordinarily be expected, in any case on which the Minister is the guardian of the infant pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth), to disqualify the Minister from assuming the role of next friend. I do not thereby imply that the Minister is the guardian of SZJXW. No submissions were advanced to the Court on that question. 9 In SBAH the Full Court, after considering the provisions of O 43 of the Federal Court Rules, took the view that an appeal instituted on behalf of an infant by her mother, who had not complied with the requirements of O 43 r 4, was not a nullity but that the mother's want of authority meant that the outcome of the appeal would not bind the infant. 10 In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619 Mansfield J referred to the judgment of the Full Court in SBAH and to other authorities concerning the situation of a child on whose behalf, and for whose benefit, an adult had commenced a proceeding. Having done so, his Honour dispensed with compliance with the "formal steps" by which such an appointment is ordinarily made and appointed the father of the child applicant in that case as her next friend. It would appear that the dispensation granted by his Honour extended to compliance with O 43 r 5(2). 11 Counsel for the Minister did not oppose my adopting a similar course in this case. SZJXW's parents wished to be appointed jointly as SZJXW's next friend. I considered it appropriate to respect their wishes in this regard. At the hearing of the appeal I ordered that they be appointed jointly as SZJXW's next friend for the purpose of this appeal and that the formal requirements of O 43, including the requirement of r 5 (2) that a tutor must act by a solicitor, be dispensed with.

HISTORY OF SZJXW'S APPLICATION FOR A PROTECTION VISA 12 A delegate of the Minister concluded, perhaps surprisingly in view of her age, that SZJXW fears persecution in Ukraine for one or more Convention reason. However, the delegate concluded that her fear is not well-founded. 13 An application was made on SZJXW's behalf to the Tribunal for review of the decision of the Minister's delegate. SZJXW's parents gave evidence before the Tribunal. 14 The reasons for decision of the Tribunal record that no specific Convention claims were made on SZJXW's behalf beyond those relating to her parents and her family membership. 15 The Tribunal did not accept SZJXW's father as a witness of truth; it was satisfied that he had created his claim, on behalf of his daughter, in order to obtain the visa sought. The Tribunal noted that he claimed that he and his daughter were dark skinned but that he had not earlier advanced that claim when seeking a protection visa in his own right. The Tribunal's reasons for decision summarise its consideration of this claim in the following way: I accept that the father's skin is more olive than his ethnic Russian wife. But I do not accept the father or the applicant have the appearance of a person of African or Asian or Caucasian or Chechen heritage. Even giving the father the benefit of the doubt and accepting that some persons may perceive him to be of dark skin and being imputed to be a Chechen or a Caucasian or Tartar or other dark skinned person, his claim of suffering ongoing harm for many years because of his dark skin does not ring true…I am of the view it is a late invention made to bolster his daughter's claim. 16 Additionally the Tribunal's reasons for decision state: I have no information before me to indicate that ethnic Armenians or Greeks or children of Ukrainian/Greek/Armenian parentage are targeted for their ethnicity or religion in Ukraine. Whilst the police and the judiciary suffer from inefficiency and corruption, all citizens are affected. I have no information before me that the Ukrainian police are unwilling or unable to protect ethnic Armenians or Russians or Greeks or Armenian/Greeks or Ukrainians married to Armenian/Greeks or children of mixed Armenian/Greek/Ukrainian ethnicity in the Ukraine. I am of the view that were the situation that a child of Ukrainian/Greek/Armenian ethnicity targeted for ethnicity in Ukraine it would be known to the independent sources such as Helsinki, US State Department, UK Home Office, Amnesty or DFAT. The applicant also claims that as her parents did not return to Ukraine in time, they applied for protection visas and if they went back to Ukraine they will be questioned about their overstaying their visas and it would be clear that they made an application for Protection. If she had to apply for travel document to go to Ukraine she will have to give a detailed explanation as to why she is without a valid ID and would result in her persecutions. I have no information before me to suggest that children born to Ukrainian citizens whilst abroad would have to explain why they do not have a valid ID or would suffer persecution. I am of the view that the Ukrainian Embassy in Australia, established on 3 March 2003 in Canberra, would issue relevant travel documentation for a child born in Australia of parents who are citizens of the Ukraine in accordance with 'The Law of Ukraine on Citizenship of Ukraine'. http://www.ukremb.info/index/php?p=2 I consider that the independent evidence indicates that the applicant and her family will receive the same degree of protection in respect of any threat they may face from ultranationalists or other persons as any other citizens in Ukraine and that the Ukrainian Government, which has adopted a consistent stance aimed at protecting the rights of minorities, will provide the applicant and her family with a level of protection sufficient to remove a real chance of their being persecuted if they return to Ukraine now or in the reasonably foreseeable future. 17 The Tribunal did not accept that there was a real chance that the applicant would be persecuted by reason of her ethnicity, or for any other Convention related reason, in Ukraine now or in the reasonably foreseeable future. 18 The Federal Magistrates Court dismissed an application for judicial review filed in that court on SZJXW's behalf. This is an appeal from the judgment of the Federal Magistrates Court brought on the following three grounds: (i) His Honour should have concluded that the Tribunal made an error by stating that the Appellant did not have an appearance of Caucasian person. (ii) His Honour should have concluded that the Tribunal failed to consider the issue of state protection properly. (iii) His Honour should have concluded that the Tribunal failed to comply with obligations under s. 424A(1) of the Migration Act.

GROUND I 19 The learned Federal Magistrate correctly noted that, while the Tribunal did not accept that SZJXW's father had the appearance of a person of African, Asian, Caucasian or Chechen heritage, it additionally rejected his claim to fear persecution because of his skin colour on the basis that it was a recent invention. For this reason the question of whether Ukrainians regard Caucasians as "dark" irrespective of the colour of their skin, as SZJXW's parents assert, is not material. In any event, no attempt was made to demonstrate that any relevant evidence on this issue was placed before the Tribunal or even that the Tribunal member was placed on notice that SZJXW's father's claim to be "dark skinned" should not have been understood literally.

GROUND II 20 The Federal Magistrate rejected the claim that the Tribunal failed to consider the issue of state protection noting that it expressly considered the issue. Before this Court a challenge was sought to be made to the merits of the Tribunal's decision in this regard by the identification of material before the Tribunal in which it is asserted that Ukrainian police had been involved in discriminatory policing. The material relied on was a passage in a US State Department Country Reports on Human Rights Practices for 2005 in Ukraine which stated: Harassment of racial minorities was a continuing problem. The police routinely detained dark-skinned persons for arbitrary document checks, whereas document checks of light-skinned individuals were rate. Although the authorities disciplined police who engaged in this harassment when incidents were brought to their attention, such behaviour remained common. There were multiple reports of racially motivated violence against persons of African and Asian heritage by skinheads. Representatives of minority groups claimed that police officials routinely ignored, and sometimes abetted, violence against them. 21 There is no reason to conclude that the Tribunal overlooked the above material. The Tribunal rightly concentrated on the characterisation of SZJXW and her family in concluding that state protection would be available to them. 22 This ground of appeal also fails.

GROUND III 23 The Federal Magistrate rejected the claim that the Tribunal was obliged to notify SZJXW pursuant to s 424A of the Act that it had information, obtained from its own observations, that neither she nor her father had the appearance of persons of Caucasian ethnicity. His Honour relied on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] in concluding that the Tribunal's observations were not "information" within the meaning of s 424A. His Honour was, I consider, right to do so. In any event, as indicated above, the Tribunal rejected for other reasons the claim that SZJXW's father had suffered harm because he had the appearance of a Caucasian. In the circumstances it would be inappropriate to grant the appellant any relief in respect of a breach of s 424A of the Act even if it be assumed that there was such a breach. 24 Ground III also fails.

CONCLUSION 25 The appeal will be dismissed. I will hear the parties as to costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 28 February 2008 Counsel for the Appellant: The appellant appeared by her next friend

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