NBCD v Minister for Immigration
[2005] FMCA 423
•29 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBCD & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 423 |
| MIGRATION – Visa – Protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal – Applicants are citizens of Armenia. PRACTICE & PROCEDURE – Litigation guardian – where one of these applicants is a minor – circumstances justifying dispensation with requirement for appointment of a litigation guardian. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) s.475A Federal Magistrates Court Rules 2001 R. 11.08 |
| Yo Han Chung v University of Sydney [2002] FCA 186 SCAA v MIMIA [2002] FCA 668 A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 238 |
| First Applicant: | NBCD |
| Second Applicant: | NBCE |
| Third Applicant: | NBCF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1013 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 March 2005 |
| Date of Last Submission: | 29 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2005 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The requirement for a litigation guardian to be appointed for the second applicant NBCE a child born on 13 January 1998 is dispensed with.
The application is dismissed.
The applicants NBCD and NBCF are to pay the Respondent’s costs of these proceedings fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1013 of 2004
| NBCD |
First Applicant
And
| NBCE |
Second Applicant
And
| NBCF |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 7 January 2004, handed down on 18 February 2004. In that decision the tribunal affirmed the decision not to grant protection visas to the three applicants. The second applicant, known as NBCE, is the son of the first applicant, known as NBCD. He is a child who was born on 13 January 1998. Although he is a party to the proceedings he took no independent part in these proceedings either in this Court or before the Refugee Review Tribunal. His claim is dependent on that of his mother. In the circumstances I believe that it is appropriate to dispense with the requirement for him to have a litigation guardian as provided by rule 11.08.
Background
The applicants are citizens of Armenia. They arrived in Australia in December 2002 and applied for protection class XA visas on 29 January 2003. On 7 February 2003 a delegate of the minister refused their applications. On 3 March 2003 they applied to the Refugee Review Tribunal for a review of that decision. The hearing was scheduled for 9 a.m. on Monday, 8 December 2003. The Tribunal refused a written request for a postponement of that hearing date until 2004 on the basis that the applicant NBCD was waiting for important documents to arrive from Armenia. The hearing proceeded on
8 December 2003. The Refugee Review Tribunal was not satisfied that applicant NBCD had a well founded fear of persecution for a convention reason if she were to return to Armenia. The other two applicants did not make my specific claims in their own right.
On 18 February 2004 the Tribunal affirmed the decision of the delegate not to grant protection visas. Applicant NBCD is a woman who was born on 17 January 1965. Applicant NBCE is her son, who was born on 13 January 1998. Applicant NBCF is the mother of NBCD and the maternal grandmother of NBCE. She was born on 6 February 1933.
In the application for a protection visa, NBCD disclosed that her husband and father were both dead. She stated that she would provide copies of their death certificates at a later date. She stated that she could speak, read and write both the Armenian and Russian languages. She gave her occupation as a construction engineer and her marital status as engaged. She holds the degree of bachelor of engineering in construction, which she obtained in 1989 from the Yerevan Institute of Technology in Armenia.
Applicant NBCD stated that she feared the same fate that happened to her husband would also happen to her or her child. She claimed that she feared prosecution if she went back to Armenia simply because she is the daughter of a Turk. Her father was Turkish Armenian. His parents were Turks who had lived in Armenia for many years. NBCD claimed that it was because of her mixed race that her husband met a violent death. Her statement says, "He was attacked and brutally murdered simply because he was trying to protect my identity and honour." The applicant went on to say,
"For many years, especially after 1988 when Armenia began its nationalistic wars with Azerbaijan, my life has been a nightmare." (See page 17 of the Court book). The applicant went on to identify the organisation that she feared would harm her if she returned to Armenia:
Because I have the greatest suspicion that it was the powerful organisation called the EKM that was responsible for my husband's death. I fear that they know where I live and will harm me and my child. I fear for my child the most. The applicant claimed that the authority would not protect her if she went back. She said: "The Armenian authorities did absolutely nothing when my father was killed back in 1991. He was shot in the back and head. The same situation occurred to my husband. He was bashed to death and thrown on the street simply because he had chosen to marry a girl with a mixed race, and died defending his wife's and child's honour. On both occasions the police did absolutely nothing in order to try to find the person or persons responsible. They never even tried.
The applicant also attached a five-page typed statement to her application setting out her history in greater detail. I will not quote it at length here, but I note that Ms Wong of counsel who appears for the respondent has summarised the claims at paragraph 14 (a) through to (m) of her written submissions.
The application
On 25 February 2004 the applicant lodged an application on behalf of herself, her mother and her son. The application was originally filed in the Federal Court of Australia, although it has since been transferred to this Court by an order of Wilcox J on 24 March 2004. In the application the applicant claims:
- to appeal against the decision and reasons made against the application.
The applicant gives no grounds for the application, merely saying:
The reasons for our appeal will be presented by a hired Legal Aid or barrister on our behalf.
On 24 March 2004 the Federal Court made a direction by consent that the applicant file and serve any amended application and any evidence upon which she proposes to rely on or by 16 June 2004. No amended application has been filed.
Submissions
The applicant has not filed any written submission. Counsel for the respondent, Ms Wong, filed a written outline of submissions on
4 March 2005. In the proceedings before the Court today the applicant NBCD appeared. Her son, known by the code name NBCE for the purpose of these proceedings, did not appear. He is seven years of age. He is currently attending school. In my view it was a proper decision by the mother to let the child attend school in the normal way rather than coming here. The applicant NBCF, who is the grandmother, did not attend Court. She is 73 years of age, and I am told that she was very upset today. The applicant told the Court that, in respect of the country information from the Danish immigration service, the country may be peaceful now, but Armenian Christians and non-Armenian Muslims cannot live together. She said that if you are not an Armenian Christian you would have problems in Armenia. She sought to tender some fresh evidence relating to conditions in Armenia, which I declined to accept. It is clear to me that that material was not before the Refugee Review Tribunal, so I cannot consider it today.
The applicant said that there were medical records forwarded to the Refugee Review Tribunal which talked about her condition at the time. She said that for a year and a half in Australia she was being treated for her medical condition. She was receiving medication and was getting better because of the medical treatment that she had received in Australia. She said that at the time of the tribunal hearing she was not well. She told the Court that at the time in Armenia she felt she could not leave because her son was only two at the time. Her mother, who is an elderly lady, was very scared. The applicant said that her mother was too scared to give evidence to the Refugee Review Tribunal.
I note the tribunal did ask her a question, which she answered. She said that her son was too little to attend the tribunal. The applicant said that her mother could not talk much at the tribunal hearing and she cried most of the time. The applicant NBCE had lived in the one place for 30 years. She said she was born and had grown up in that house herself.
The applicant said that she and her mother and son did not originally plan to come to Australia and stay. They had come out for a family Christening. Once they were in Australia, her brother, who lives here, saw how ill and depressed she appeared to be and would not let her go back to Armenia. Since the applicants and her family came here the applicant's brother and his family have been looking after her. The applicant has also received some assistance from the government relating to medical expenses. She said that she will have to repay her brother for the good things he has done and provided for her. The applicant has also just started part-time work. In Armenia she said it was very different. Any medication that you are given you have to pay for it. That basically was the applicant's submission.
In her written submission Ms Wong points out that the applicants have failed to state any grounds upon which they seek review of the RRT's decision. Ms Wong did not, however, press for summary dismissal of the application. I quote paragraph 3 of her submission in its entirety:
In the absence of any grounds for review, the respondent would ordinarily be entitled to summary dismissal of the application. However, the applicants are unrepresented and in those circumstances the Court is required not only to consider the arguments put by the applicants but also independently consider whether an arguable case based on the material could be made out. I refer to Yo Han Chung v University of Sydney [2002] FCA 186, paragraphs 31 to 34. I propose to follow the decision in
Yo Han Chung v University of Sydney. Ms Wong submits for the respondent that a review of the RRT decision shows that the appropriate legal tests were applied to determine whether the applicant had a well founded view of persecution. The applicant claimed to fear persecution because of her mixed race. The tribunal considered this claim and concluded that there was no real chance of this persecution occurring. The tribunal considered the applicant's evidence and took it into account. There is no evidence to suggest that the tribunal did not consider any relevant material.
Ms Wong submitted that the decision did not show any lack of good faith or prejudgment of the issues. She referred the Court to the decision of von Doussa J in SCAA v The Minister for Immigration and Multicultural Affairs in [2002] FCA 68 at paragraph 38, and to
SBBF v The Minister for Immigration, Multicultural and Indigenous Affairs[2002] FCAFC 358.
Ms Wong also submitted that the decision shows that the applicants were accorded procedural fairness by the tribunal. Both the adult applicants gave oral evidence to the tribunal at the hearing and the applicant was given an opportunity to respond to independent country information that contradicted the applicant's claims. The RRT also gave the applicant additional time to submit original documents to support her claims.
Finally, it was submitted from the respondent that the RRT decision demonstrated a careful analysis of the evidence and is not therefore amenable to any challenge. The Court does not have the jurisdiction to reconsider the merits of the RRT decision. Ms Wong relied on
A v Minister for Immigration and Multicultural Affairs[2002] FCAFC 232.
Counsel for the respondent provided a well written and well prepared submission that clearly encapsulated the facts and concisely stated the relevant law. I am satisfied that I should follow it.
In her oral submissions, Ms Wong pointed out that the applicant sought to have fresh evidence admitted, that that evidence related to the cruel treatment of Armenian Christians. That was not a claim made before the Refugee Review Tribunal.
As far as the applicant's medical condition is concerned, Ms Wong submitted that the tribunal was aware of her condition, but no medical certificate was sought and no adjournment was sought for that reason.
The Refugee Review Tribunal made a finding of fact that the applicant was able to give evidence on that day. That is a finding of fact that is not challengeable in Court. The applicant's mother's application relates to her relationship to the applicant. The applicant did not complain to the tribunal that her mother was unwell on the day and no medical certificate was provided. The applicant submitted that she was not aware that she could apply for a medical adjournment. If she had have known, she would of course have applied to the Court. She did not know the rules, she said, as she was not legally represented. The mother had been to a lawyer on the duty lawyer roster, but only once. The lawyer said that if he was to appear for her in Court they would have to pay for that and she said her family did not have the money.
The situation here is that the applicant is in effect seeking a review of the Refugee Review Tribunal's decision. There has not been shown to be any procedural unfairness or denial of natural justice. The applicant was able to give oral evidence to the tribunal and was given the opportunity to respond to independent country information contrary to her claims. She was given additional time to submit original documents. The Court does not have the jurisdiction to reconsider the merits of a decision of the Refugee Review Tribunal. I'm satisfied that A v the Minister for Immigration and Multicultural Affairs is good law. As such, the Court has no power to review the matter on the facts.
It is hard not to have sympathy for the applicants in this case. Applicant NBCD is a widow and has lost her father. In each case the man concerned met a violent death. Quite clearly, the acts which caused their deaths would be a homicide under our law. The applicant has claimed that the authorities did little or nothing to bring the perpetrators to justice. I do not challenge any of that and I notice that these facts were not challenged by the respondent. It is certainly clear that in Armenia at the local level there is a degree of discrimination and violence.
In each case the applicant's husband and her father were murdered. It is hardly surprising that the applicant and her mother would wish to leave an area where their husband and father had suffered a violent death. I am aware that the parties have bad memories of their home because of these violent deaths and it would be surprising if they did not. It is certainly not surprising that they would not wish to return home but would live in a country like Australia where they could be free from tension and free from the racial violence that seems to have taken the lives of the applicant's father and husband.
Unfortunately that does not make them refugees in the sense referred to by the refugee's convention. All of this material, which I accept to be true, does not provide evidence of a well founded fear of persecution for a convention reason.
I am satisfied from independent examination of proceedings that there is no evidence of lack of good faith or evidence of any prejudgment of the issues. There is no evidence from which an apprehension of bias can be drawn. It follows that there is no reviewable error. The proceedings therefore must be dismissed. I will require a transcript of my reasons for this decision.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 April 2005
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