FEDERAL COURT OF AUSTRALIA NAKH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 431 NAKH v Minister for Immigration and Multicultural and Indigenous Affairs n1557 of 2003 ALLSOP J 16 APRIL 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1557 of 2003 BETWEEN: NAKH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 16 APRIL 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 N 1557 of 2003 BETWEEN: NAKH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE: 16 APRIL 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate in which the Federal Magistrate dismissed an application for review under s 39B of the Judiciary Act 1903 (Cth) of a decision handed down by the Refugee Review Tribunal (the "Tribunal") on 6 February 2003. 2 Pursuant to the provisions of s 25(1A) the Chief Justice made a direction on 3 February 2004 that the appeal be heard by a single Judge of the Court. 3 The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse the appellant a protection visa. The appellant in this matter is a two year old child. She is the daughter of citizens of Bangladesh. 4 At the commencement of the appeal I made an order under Order 43 rule 1 that the appellant's mother be appointed next friend of the appellant to prosecute the appeal. The mother is not a party in her own right to these proceedings. She and her husband have failed in their attempts to obtain protection visas and have litigation on foot contesting those matters. 5 I delivered an ex tempore judgment during the hearing in relation to s 91X of the Migration Act 1958 (Cth) (the "Act") in connection with closing the Court. It was necessary to close the Court to the public so that I might take evidence from the appellant's mother to ascertain her identity and to ensure that I had a basis to make an order under Order 43 rule 1 in her favour as the next friend. 6 The appellant was born on 30 July 2002, while the parents were in Australia. The application for a protection visa made on behalf of the appellant identifies the appellant as a female. I note that the Tribunal referred to the appellant child as a male. This would appear to have been an oversight by the Tribunal. 7 The delegate of the Minister refused the parents' applications on 14 January 2000 prior to the birth of the appellant. The Tribunal affirmed the decision of the delegate to refuse the parents protection visas on 25 October 2002. The Federal Court dismissed the parents' applications for judicial review on 9 April 2003: NAFW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 311. A Full Court dismissed the parents' appeals from those decisions on 12 August 2003: NAFW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 174. Ms François, who appeared for the Minister, informed me that special leave had been applied for in the High Court. 8 The appellant's protection visa application did not identify any particular ground peculiar to the child herself; rather, there was written in the form the words "please see the parents file". 9 The appellant's application for a protection visa was refused by a delegate of the Minister on 14 October 2002. 10 The appellant applied to the Tribunal for review. The Tribunal which was constituted to deal with the appellant's review was the same Tribunal member as dealt with the parents' applications. 11 In response to the invitation to the hearing the Tribunal was sent a document, which indicated that the appellant's parents would be witnesses and would give evidence as to the position of the mother and father in Bangladesh by reference to the political situation in Bangladesh and that the mother and father were not safe there. Only the appellant's mother attended the Tribunal hearing. After the Tribunal hearing the appellant's mother sent the Tribunal a document in support of the application of the appellant. 12 The Tribunal found that it was not satisfied that the appellant had a well-founded fear of persecution. It noted that the appellant relied upon her mother's claims and that there was no fresh evidence that would cause the Tribunal to reconsider the previous decision. Further, it did not accept the new document sent to the Tribunal by the mother as genuine, but held that even if it were genuine, it was not relevant. Further, insofar as during the hearing the appellant's mother said that the appellant had a separate claim based on a fear of generalised violence in Bangladesh, the Tribunal found that general fear was not based on a Convention reason and that independent country information indicated there was effective State protection insofar as the fear was said to based upon an imputed political opinion by reason of the grandmother's political affiliations. 13 The Federal Magistrate dismissed the application. The learned Federal Magistrate found that the mother's complaints on behalf of the appellant were a re-agitation of the claims made before by the Tribunal in the appellant's application and in hers. Paragraphs 3 to 10 of the Magistrate's decision set out the reasons, which led to the conclusion that the application be dismissed. [3] The application was treated both by the delegate and the tribunal as a form of hybrid in that there were considered the applicant's claims as a member of her parent's family unit and also her independent claims to have a well founded fear of persecution for convention reasons. The claims arising out of membership of a family unit evolved from the mother's claimed fear of persecution from the Awami League. The mother told the tribunal that she had written articles about the criminal activities of the Awami League which was in government at the time the mother left Bangladesh in 1999. [4] The mother also claimed to fear persecution because of articles which she had written about the noted Bangladeshi writer, Taslima Nasreen, who is the subject of a Fatwa declared at the request of the Jamaat-e-Islami Party. The JI is now in the ruling coalition with the BNP, a party the applicant's mother indicated she supported. [5] The claims made independently for the applicant were a fear arising out of the general level of violence in Bangladesh and a fear of persecution allegedly based upon her grandmother's political beliefs. These beliefs had featured in the application made by the applicant's mother. [6] There was also raised at the tribunal as evidence of the persecution which either the applicant or her parents might encounter if they returned to Bangladesh, certain documentation which purported to be related to the disappearance of a young girl on 20 December, 2002. This young girl was said to be the applicant's aunt. The tribunal in this case was constituted by the same member who heard the applications from the applicant's parents. The tribunal noted at [CB 66] that he had concluded that the mother's claim lacked credibility but for the purposes of considering the applicant's claim, based upon her mother's claims, the tribunal had given careful and fresh consideration to the mother's situation. At [CB 67] the tribunal indicated that notwithstanding this it had come to the view that the applicant's mother did not have a well founded fear of persecution for a convention reason and that this included any fear based upon her own mother's history as a BNP activist. The tribunal explained its reasons for doing this and provided extracts from country information. [7] The tribunal considered the applicant's independent claims. As was recognised by the delegate, an infant cannot have a subjective fear of persecution but he or she may well have an objective fear. The tribunal considered this objective fear and came to the conclusion that whilst it accepted that the situation in Bangladesh was not ideal and that violence was prevalent this was not a matter which came within the range of the convention. To the extent that it might have been argued that the applicant could not receive effective state protection, the tribunal cited considerable independent country information which indicated that the current government in Bangladesh was making every effort to stamp out violence and this included arresting members of its own party and of its partner in coalition, JI. At [CB 70] the tribunal says: "The tribunal is not satisfied that the applicant, an innocent infant, lacks protection in Bangladesh from generalised criminal violence or rogue political elements no matter which party is in government and it finds it particularly implausible that the current BNP government ..... would deny protection to her if such protection was sought. In reaching the conclusion it is not satisfied that the applicant has a well founded fear of persecution in Bangladesh, the tribunal has had regard to the document dated 21 December, 2002, submitted apparently in support of the applicant's mother's evidence at the hearing four days earlier, relating to a continuing risk to her brother and sister and their continuing fear. This document is a photocopy of an alleged translation of a "GD form of a traceless person" and records the disappearance of a named person on 20 December, 2002 when she went to take a coaching class. There is nothing in the submitted material that specifies who this person is..... It appears that she is the applicant's aunt." [8] The tribunal then refers to the independent country information concerning the use of false documents amongst Bangladeshi asylum seekers and comes to the conclusion that it is not prepared to accept this document. However it also says that even if the document was accepted, there was no indication that the aunt's disappearance was for a convention reason, or was linked to claims made on behalf of the applicant. [9] The applicant's application gave no indication on its face of what it claimed to be the failure of the tribunal to act within its jurisdiction. The affidavit in support merely rehearses some of the mother's claims that were put in her own application. No further particulars were provided and no amended application was made. When she appeared before me the applicant told me that she had presented her documents and written submission to the tribunal. The tribunal had told her that it was going to consider them but nothing was done and her arguments were not accepted. She stated that she had problems, which the tribunal did not believe. She stated that her problems were her child's problems. She stated that if she returned to Bangladesh with her problems her child would suffer. She believed that another member of the tribunal may well have given a different decision. [10] Not one of the matters raised before me indicates an understanding of the task that is before this court. The applicant is essentially seeking a merit's review which it is not within the court's power to grant. I have considered the tribunal's decision and the court book in detail. The decision is adequately argued and reliant upon evidence. I'm satisfied on the face of the document there is nothing which would stir a court to grant review under s 39B of the Judiciary Act 1903 (Cth) and the applicant has certainly not pointed me in any direction that would assist. 14 The appeal was commenced by notice of appeal, which is relevantly in the following terms: Grounds: 2. The Single judge of the Federal Magistrate Court In his Honors Judgement delivered on the 29 September 2003 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act. 1903. 3. The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [202] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1). 4. Recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 5. Recent Federal Court of Australia judgement: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003). 6. I will file amendment of grounds soon. 15 No further grounds were filed. This was despite the fact that directions made on 18 November 2003 provided for any amended notice of grounds of appeal be filed by 24 January 2004. 16 I have read the decision of the Tribunal and the learned Federal Magistrate. I see no error of approach by the Magistrate in the approach adopted. 17 There was no evidence put before either the Federal Magistrate or before me which would indicate that the appellant or her mother or father was misled into believing that the Tribunal had considered particular information and that as a result someone held a relevant belief. I see no grounds for concluding any failure to afford procedural fairness. 18 Further, there has been no basis put forward before the Federal Magistrate or before me that the child was really putting forward any independent claim based upon her position. 19 I see no basis for the conclusion of any jurisdictional error on the part of the Tribunal. I do not see any error in the decision of the learned Federal Magistrate. 20 In these circumstances the appeal should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 16 April 2004 The appellant appeared by her next friend who was assisted by an interpreter. Counsel for the Respondent: Ms R François Solicitor for the Respondent: Clayton Utz Date of Hearing: 6 April 2004 Date of Judgment: 16 April 2004