SZOMU v Minister for Immigration and Citizenship

Federal Court of Australia|2011-02-23|Before: Lander J

REASONS FOR JUDGMENT 1 This is an appeal from an order of a Federal Magistrate made on 5 November 2010 dismissing the appellant's application for judicial review and ordering the appellant to pay $6,000 in costs. 2 The appellant is a two year old Bangladeshi citizen and has been represented in all relevant proceedings by his father as his litigation guardian. The appellant was born in Australia on 25 October 2008. Both of the appellant's parents are citizens of Bangladesh and arrived in Australia on 23 May 2008. The appellant's parents have previously made applications for protection visas in their own right but those applications were unsuccessful. 3 On 12 November 2009 the appellant's father applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on the appellant's behalf. On 16 February 2010 a delegate of the first respondent refused the appellant's application for a protection visa. On 23 March 2010 the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the first respondent's decision. On 31 May 2010 the Tribunal affirmed the decision under review. 4 On 28 June 2010 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. On 14 September 2010 an amended application was filed. The appellant sought an order setting aside the decision of the Tribunal, an order remitting the application to the Tribunal to be determined according to law; and costs. As noted above, the Federal Magistrate dismissed the appellant's application. 5 The appellant now appeals to this Court. The appellant seeks orders that the appeal be allowed; the decision of the Tribunal be quashed; the proceeding be remitted to the Tribunal to be determined according to law; and an order for costs.

Proceedings before the Federal Magistrates Court 23 The appellant relied on one ground in his amended application. It related to the Tribunal's consideration of the appellant's claim that his father would be subject to extortion if the family returned to Bangladesh. The ground was particularised as follows: 1. The Tribunal failed deal with an integer of the applicants' parent's claim, that they would be subject to extortion for a convention reason if they were to return to Bangladesh, constituting a jurisdictional error. PARTICULARS A. The Applicants claimed, and or the evidence clearly raised, that they feared that: (1) The applicant's parent would be subject to extortion if they returned to Bangladesh. (2) The applicant's who is now just nearly two years, he is in high risk of being kidnapping if he returned to Bangladesh with his parents. (3) The criminal activities targeted or to be targeted at the applicant's parent were based on political reasons. [See NABE V Minister for immigration and multicultural affairs (no.2) (2004) 114 FCR 1 at [63], and the several decisions of the federal court and dozens of decisions of the federal magistrates court which have applied it]. B. The tribunal then failed to consider at all the availability of State protection for the applicants. C. The tribunal's finding at [246] that "Document fraud in Bangladesh"…because of tribunal find some news from some source about document can made false in Bangladesh its does not mean that every document that delivered by the applicant will be false too. This fining too is accordingly infected with the error discussed above. D. At the hearing the applicant was wanted to submit some new document was from some newspaper the applicant was thinking may be those documents can support his application for protection visa. But the tribunal was denied to receive those documents. So, the tribunal made an error in these criteria. (Grammatical errors transcribed as they appear in original document.) The Federal Magistrate dealt with each particular.

Particular A 24 The Federal Magistrate found that the Tribunal had clearly dealt with the two extortion claims raised by the appellant. First, the Tribunal had considered the appellant's claim that "political people" had attempted to extort money from his father in relation to the development of land. It concluded that there was no evidence to indicate that the appellant's father had been targeted for any political reason. 25 Secondly, the Tribunal had dealt with the appellant's claim of extortion by kidnapping. The Federal Magistrate considered that, contrary to the appellant's allegation, the Tribunal did consider the risks associated with extortion of the appellant's parents and the possible kidnapping of the appellant himself but was ultimately not convinced. The Federal Magistrate considered that on this basis the Tribunal had not fallen into jurisdictional error in this regard.

Particular B 26 The Federal Magistrate did not accept the appellant's argument that the Tribunal's failure to consider the availability of State protection led it into jurisdictional error. The Federal Magistrate noted that a consideration of the availability of State protection would only arise if an applicant has a well-founded fear of persecution for a Convention reason which might not be addressed by the authorities in his country of nationality. As the Tribunal concluded that the appellant did not have a well-founded fear of persecution, the issue of State protection did not arise and the Tribunal was not required to consider that issue.

Particular C 27 The Federal Magistrate rejected the appellant's argument under Particular C. His Honour considered that the Tribunal's finding in relation to the authenticity of the letter submitted by the appellant was open to it on the evidence before it and as such, that finding was not reviewable.

Particular D 28 The Federal Magistrate rejected the appellant's contention that the Tribunal had refused to receive additional information. The Federal Magistrate noted that the appellant's father did not bring with him to the Tribunal's hearing the newspaper clippings which he claimed he wished to be before the Tribunal. Further, the appellant's father did not, at any later date, supply them to the Tribunal. His Honour also noted that the Tribunal had advised the appellant's father that he may submit further information. 29 The Federal Magistrate also considered that the appellant's father may have been dissuaded from submitting further documents because the Tribunal had informed him of its concerns regarding the genuineness of documents sourced from Bangladesh. His Honour did not consider that the Tribunal had "expressed itself in such a way as to indicate that there was no point in the applicant submitting further Bangladeshi documents to it for consideration". Further His Honour noted that under s 425 (sic) of the Migration Act 1958 (Cth) (the Act), the Tribunal had an obligation to identify issues of concern such as document fraud to the appellant's father so that he could address it. 30 The Federal Magistrate concluded that the Tribunal had not fallen into jurisdictional error and therefore that the application for review should be dismissed.

Appeal to this Court 31 The appellant's notice of appeal sets out four grounds of appeal: 1. The Appellant is not satisfied to the judgment from the federal magistrate court. 2. The appellant father made as to the matter to be considered as to the foreseeable future in Bangladesh by considering only harm from "Awami league government. 3. The federal magistrate court made jurisdictional error by determining that the tribunal did not made Any jurisdictional error that the appellant had a strong chance or fear of extortion or kidnapping, Because, of his father political profile. 4. The federal magistrate court made an error by deciding that the applicant's parent would not be Subject of extortion if they returned to Bangladesh while there a great chance of getting extorted in Bangladesh. Because, of recent situation in Bangladesh. (Grammatical errors transcribed as they appear in original document.) 32 Before I address the grounds, two matters occurred to me which were not raised on the appeal. The first was a procedural matter which had not been addressed by the appellant or by the first respondent. In the Court below the Federal Magistrate made an order appointing the appellant's father as the appellant's litigation guardian. In due course the Federal Magistrate made an order that the litigation guardian pay the first respondent's costs fixed at $6,000. The appellant purported to lodge an appeal to this Court in his own right. The appellant is a minor aged two and is only entitled to proceed in this Court if a next friend is appointed: O 43 r 1. I explained to the appellant's father that a next friend needed to be appointed. I also explained that if he consented to be the appellant's next friend he could become liable for the costs in the event that the appeal were dismissed. He consented to being appointed the appellant's next friend. I will make an order appointing the appellant's father as the appellant's next friend. 33 The second matter was more important. I raised with the first respondent's solicitor an issue which had not been previously considered by the first respondent, the Tribunal or the Federal Magistrate. 34 The appellant is aged two years. He was born in Australia and has never been to Bangladesh. The question arises whether a child of that age can have a well-founded fear of persecution so as to engage Article 1A of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 35 I adjourned the hearing of the appeal to allow her to address the point. 36 Article 1A(2) of the Convention defines a "refugee" as: … any person who … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. 37 The four elements which must be established to obtain refugee status were identified in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 570: (1) the applicant must be outside his or her country of nationality; (2) the applicant must fear persecution; (3) the applicant must fear such persecution for a Convention reason, namely "race, religion, nationality, membership of a particular social group or political opinion"; and (4) the applicant must have a well-founded fear of persecution for one of those Convention reasons. 38 There is nothing in the Act or Migration Regulations which would preclude a minor from making an application for a protection visa. 39 The fear of persecution in (2) and (3) above which is being addressed in a consideration of an application for refugee status is the subjective fear held by the applicant: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. To determine whether an applicant has a well-founded fear of persecution the Minister or the delegate must first be satisfied that the applicant has a subjective fear of persecution and then determine objectively whether that fear is well-founded. 40 There is authority for the proposition that a child may have the requisite subjective fear by virtue of the subjective fear of one or other of the child's parents. That is, a parent's own subjective fears may be imputed to a child for refugee law purposes. 41 In Minister for Immigration and Multicultural Affairs v Chen (1999) 92 FCR 333 the applicant/appellant child was a Chinese national born in Australia while his parents were in immigration detention. The majority in the Full Court (O'Loughlin and Carr JJ) said at [27]-[28]: There remains one further matter which, in our opinion, proffers some support for the view that we have taken: the appellant is a child who, because of his tender years, would have no knowledge of, or comprehension of the One Child Policy. This did not stop the learned judge in the Court below from holding that such a person could have the necessary subjective fear by virtue of the subjective fear of one or other of his parents. This is a very obvious attitude to adopt; to limit oneself to the fears of the individual child would otherwise deny children of tenders (sic) years the benefits of the Convention: see the remarks of Guy S Goodwin-Gill, The Refugee in International Law (2nd ed, 1996), p 357: "If the head of the family is recognised as a refugee then, all things being equal, the dependants are normally granted refugee status according to the principle of family unity: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1978), pars 181.8, 184." However, in this particular case, both parents sought, but were refused, refugee status. Hence, it must follow as a matter of logic, that if the parents cannot claim refugee status, then their child (who, in this particular case, is dependent upon their fears for his status) cannot succeed in a claim for refugee status. 42 Justice Nicholson also agreed that in the case of a child a well-founded fear could be derived from the fear held for the child by his or her parents: Minister for Immigration and Multicultural Affairs v Chen 92 FCR 333 at [66]. 43 The decision went on appeal to the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293. Because this point was not raised as a ground of appeal, the majority in the High Court did not specifically address the comments made by the Full Court relating to this issue. The majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) simply noted (at [4]): No point has been taken that, by reason of his age and circumstances, the appellant, himself, lacks the fear necessary to bring him with the Convention definition of "refugee". Rather, it is accepted that his parents' fears on his behalf are sufficient. 44 Justice Kirby noted at [77] that the majority in the Full Court "appear to have accepted that it was appropriate and necessary to attribute the fears of the parents to those of the child for refugee law purposes". His Honour disagreed however with the Full Court that if the parents' claim for refugee status failed so should the child's. 45 The comments by the majority in the Full Court indicate that an application should not be dismissed simply on the grounds that a child could not have formed a subjective fear of persecution. The Full Court endorsed the approach adopted by the trial judge of imputing a parent's fears of persecution to a child for the purposes of satisfying the Convention definition of "refugee". 46 I am of course bound by the decision of the Full Court and must follow it whether or not I would have reached the same conclusion.

Ground 1 47 This ground simply asserts that the appellant is dissatisfied with the Federal Magistrate's judgment. Nothing more needs to be said about it.

Ground 2 48 It is not entirely clear what the appellant means by this ground of appeal. His father's case was that his father had been a member of the BNP since college and as a result had been subject to attacks by the Awami League. Those attacks had been physical and, as I understand it, led to the Rapid Action Brigade seeking him out and to false cases being made against him. 49 The Tribunal considered those matters but did not accept that the appellant's father was a political activist at risk of persecution. The Tribunal gave extensive reasons for that conclusion which relied upon a factual rejection of the appellant's case. To that extent the Tribunal decided that the appellant was not at risk of indirect harm by reason of his father's involvement with the BNP. 50 The Tribunal also considered the appellant's claim of direct harm and, in particular, the likelihood of being kidnapped for the reason of his father's political associations. 51 The Tribunal concluded that the risk of kidnapping for the purpose of targeting political rivals was not known in Bangladesh. More particularly however, it found that because it had concluded that the appellant's father was not a BNP activist there was no real chance of anyone targeting the appellant because of his father's political profile. 52 Even though the appellant's father did not urge this claim strongly, the Tribunal also considered the appellant's claim that he might be kidnapped because it might be perceived, because his parents had lived overseas for some years, they were rich. 53 In any event, the Tribunal concluded that the appellant was not at risk for a Convention reason because of the fact his parents had lived overseas for a long time. Extortion of the kind postulated by the appellant was not a Convention-related reason. Moreover, there was no real risk of the appellant being kidnapped in any event. 54 In my opinion, the Tribunal considered the whole of the appellant's claims but, unfortunately from the appellant's point of view, rejected them.

Ground 3 55 This ground is not particularised in any way which makes it difficult to address, especially in circumstances where the appellant's father who appeared on the appellant's behalf was unrepresented. 56 However, I have looked at the Tribunal's reasons and have considered the Federal Magistrate's reasons on review of the Tribunal's decision and, in my opinion, there is nothing in the papers which would suggest that the Tribunal committed jurisdictional error.

Ground 4 57 Ground 4 seeks to raise before this Court the merits of the decision made by the Tribunal by complaining that the Federal Magistrate failed to find that the appellant's parents would be subject to extortion if they returned to Bangladesh. 58 The question of merits was for the Tribunal. The Federal Magistrate did not make the mistake of intervening in the merits of the matter. Not only did he not find that the appellant's parents would be the subject of extortion if they returned to Bangladesh, he had no power to make such a finding. 59 His duty, which he discharged, was to determine whether the Tribunal had erred in committing jurisdictional error and not to review the Tribunal's decision on its merits. This ground must be dismissed. 60 For all of those reasons, all four grounds of appeal must be dismissed and the appeal must be dismissed. I will hear the parties, including the appellant's next friend, on the question of the first respondent's costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

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