NAKH v Minister for Immigration - [2003] FMCA 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAKH v MINISTER FOR IMMIGRATION

[2003] FMCA 452

MIGRATION – Applicant minor whose parents’ application had been dismissed – whether applicant had objective claim to a well founded fear of persecution – whether the Tribunal could accept the evidence of her mother – where no grounds for review are shown in application.

Judiciary Act 1903 (Cth), s.39B

Applicant:

NAKH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 558 of 2003

Delivered on:

29 September 2003

Delivered at:

Sydney

Hearing date:

29 September 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

R Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 558 of 2003

NAKH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is just over one year old. She was born in Australia on 30 July, 2002 whilst her Bangladeshi parents were pursuing an application for protection visas. Her parents arrived in Australia on 3 December, 1999. Their applications for protection visas were refused by the delegate and that refusal was confirmed by a Refugee Review Tribunal.
At the commencement of these proceedings I ordered that the applicant be represented by her litigation guardian, her mother, who informed me that she understood that she would be responsible for any costs order made against the applicant.
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.
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.
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.
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.
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.”
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.
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.
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.
I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) in the Federal Magistrates Court Rules.
These costs will be paid by the applicant's mother whose name will appear in the order that I have made concerning the appointment of a litigation guardian, such order to be kept on the court file and not released without my leave.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: