QAAW of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 572

FEDERAL COURT OF AUSTRALIA

QAAW of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 572

QAAW OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 198 OF 2003

DOWSETT J
8 APRIL 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 198 OF 2003

BETWEEN:	QAAW OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	8 APRIL 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant’s next friend pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 198 OF 2003

BETWEEN:	QAAW OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	8 APRIL 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth), seeking relief in connection with a decision of the Refugee Review Tribunal. The applicant was born on 5 February 1998 and so is presently six years of age. She brings the claim, as it is said, by her next friend. The matter proceeded in the Tribunal upon the basis that the applicant sought a protection visa, fearing persecution in Tonga. Her parents are apparently citizens of that kingdom, although the applicant and two of her three siblings were born in Australia. Her other sibling was born in New Zealand and therefore has a right to reside indefinitely in Australia. He is presently aged about fifteen years.

2. It is difficult for me, at least, to understand how a young child could ever successfully seek refugee status other than as the consequence of such status being granted to a parent or guardian, but it is not necessary to consider that matter for present purposes.  The Tribunal assessed complaints made concerning conditions in Tonga.  It is said that the King of Tonga has embarked upon constitutional reform which may lead to the Government of Tonga becoming more, rather than less authoritarian and less, rather than more democratic.  Whether that is so or not, the complaints and concerns were assessed by the Tribunal.  It concluded that there was no evidence suggesting that the applicant would be at risk of persecution if she were returned to Tonga.  The application which is before me asserts two grounds, namely, that the decision of the Tribunal was incorrect, and secondly that ‘the decision involved section 78B of the Judiciary Act 1903’. Neither assertion raises any appropriate ground for the grant of relief pursuant to s 39B.

3. Before me, the applicant’s mother, when asked to say whatever she wished to say about the application, addressed only questions concerning the welfare and future of the applicant. She said that she thought the educational and other opportunities in Australia exceeded those available in Tonga. It is likely that those submissions have validity. Nonetheless they do not constitute any ground for the grant of relief pursuant to s 39B. In those circumstances there is simply no basis for granting the relief sought and the application must be dismissed.

4. The case should be reported and referred to according to the name which appears on the notice of motion.

5. I will order that the applicant’s next friend pay the respondent’s costs of the application.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             7 May 2004

Counsel for the Applicant:	The Applicant appeared in person.  Her next best friend and mother made submissions on her behalf.
Counsel for the Respondent:	Mr M T Brady
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 April 2004
Date of Judgment:	8 April 2004