SZBDI v Minister for Immigration

[2005] FMCA 1084

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBDI v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1084

MIGRATION – Review of decision of RRT – where the mother of the applicant is his litigation guardian as well as an applicant with a separate application before the court – whether the applicant was offered a meaningful hearing invitation – whether the Tribunal considered the applicant’s claim to be a member of a particular social group – whether the Tribunal considered that the applicant might have a political opinion imputed to him by virtue of being the child of a member of a particular social group – whether there is any utility in referring the matter back to the RRT.

Migration Act 1958, s.91R

SZBDG & SZBDH v Minister for Immigration [2005] FMCA 1079
Htun - disp2#disp2 v Minister for Immigration [2001] FCA 1802
Minister for Immigration v Yusuf (2001) 206 CLR 231

Applicant: SZBDI BY HIS LITIGATION GUARDIAN SZBDG

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG 1559 of 2003

Judgment of: Raphael FM

Hearing date: 1 August 2005

Date of Last Submission: 1 August 2005

Delivered at: Sydney

Delivered on: 8 August 2005

REPRESENTATION

Counsel for the Respondent: Ms R Henderson

ORDERS

1. Application dismissed.

2. Applicant’s litigation guardian to pay the respondent’s costs assessed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1559 of 2003

SZBDI BY HIS LITIGATION GUARDIAN SZBDG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is the infant child of applicant SZBDG in respect of whose application for review of a decision by the Refugee Review Tribunal I have given judgment: SZBDG & SZBDG v Minister for Immigration [2005] FMCA 1079. The infant child was born in Australia on 29 August 2002. His mother lodged an application for a Protection (Class XA) Visa on his behalf on 1 November 2002. On 17 December 2002 a delegate of the Minister refused to grant a protection visa and on 9 January 2003 the applicant applied for a review of that decision. The Tribunal offered the applicant an opportunity to attend a hearing. His mother attended on his behalf although he was present on 24 March 2003. The Tribunal determined on 30 June 2003 to affirm the decision not to grant a protection visa and handed that decision down on 25 July 2003.

2. Prior to making her application for a protection visa on behalf of her son the mother obtained for him an Indian passport. This was sent to the delegate together with the application. At CB [15] there is found part of the application for a protection visa. In answer to Question 39 the applicant states:

   “I am seeking protection in Australia so that I do not have to go back to India as there is none for me and as my parents are applicants of refugees pending decision with RRT”

   In answer to Question 40: Why do you leave that country? The applicant has said:

   “My parents have applied for protection visas in Australia, which is having direct impact on me

   I cannot go to India as I am born in Australia and I cannot survive as a child by myself in India

   My parents cannot return to India for fear of persecution and so am I as there is not for me other than my family members in Australia.”

   In answer to the Question: What do you fear may happen to you if you go back to that country? The applicant responded:

   “1. My parents are in Australia

   2. I am a child with no support or relatives in India

   3. I cannot survive in India and born in Australia”

   In answer to the Question: Who do you think may harm or mistreat you if you go back? The applicant responded:

   “Cannot go back to India”

   In answer to the Question: Do you think the authorities of that country can and will protect you if you go back? If not way not? The applicant responded:

   “No I cannot go to India as it is beyond my capacity and my life is in danger there with no support or relatives”

3. The delegate of the Minister considered the application and at CB [44] states:

   “Whatever the interest of the Indian authorities may be in the applicant’s parents, I do not consider that the applicant himself is a risk of persecution based on their political opinion, at least while he is an infant and for the foreseeable future. The applicant is too young to have his own political opinion or to have an imputed political opinion based on that of family members. The applicant’s mother made no indication that her siblings or other family members were involved in PWG. I find that if the applicant did return to India and was cared for by a relative, he would not be denied his life or freedom , he would not be physically harassed or harmed, he would be able to commence his schooling at the appropriate age, he would not be denied access to basic services, and he would not be denied the means to a livelihood. I there find that the applicant does not have a fear of serious harm if he were to return to India.”

   The delegate also noted that the applicant’s mother had applied for a passport on his behalf and stated at [44]:

   “…this is indicative that the applicant (and presumably his mother) does not fear persecution or an adverse interest by the Indian authorities. It is also indicative that the applicant’s mother is willing to engage the protection obligations of the Indian government for both herself and the applicant, her son.”

4. The applicant through his mother then applied for a review of that decision by the Tribunal. She submitted a statement found between CB [50] and [52]. The gravamen of that submission is that the applicant child could not live without his parents in India:

   “When my parents are here and an infant cannot live away from his mother in the event of no foster patents are available as in my case. Hence it is highly dangerous and it is practically impossible to live a life in India without any relative support of foster parent.”

   The statement makes a number of criticisms of the delegate’s decision particularly concerning his mother.

5. At CB [68] the Tribunal states:

   “The applicant who is an infant attended a hearing with his mother on Monday, 24 March 2003. His mother gave evidence on his behalf. She stated that if the applicant were to return to India there would be no one to care for him and she fears for his safety if he goes back without a parent. The Tribunal put it to the applicant’s mother that the child’s life was not in danger for any of the reasons set out in the Convention. The Tribunal put it to her that the child was not going to be targeted for harm. The applicant disagreed and stated she could not know whether he would be targeted. The Tribunal asked the applicant’s mother why she had applied for an Indian passport for her child. She told the Tribunal it was necessary for the provision of a Medicare card for the child.

   Findings and Reasons

   “The Tribunal is satisfied that the applicant child is a citizen of India.

   The Tribunal is not satisfied that the applicant child faces a real chance of persecution for any Convention related reason should he return to Indian now or in the foreseeable future. The applicant’s mother claims that he will be at risk of harm if her returns without his parents. As a matter of practical reality the Tribunal accepts that ti will be difficult for an infant child to return to India without parental or adult care. However this fear of failure of care is not Convention related. He is not claiming by reasons of his birth to belong to a group which faces harm for any of the Convention reasons.

   The Tribunal is not satisfied on the information before it that the applicant has any claims which would fall within the refugee definition and the applicant’s mother’s ear for her son is not Convention related. Accordingly the Tribunal is not satisfied that the applicant has a well founded fear of persecution for any Convention related reasons.”

6. On 3 August 2003 the applicant through his mother lodged an application for judicial review of the decision of the Tribunal. The application is in the following form:

   Firstly there is no need to take care of him back in India. Since my mother belongs to a particular social PWG group I will be easily targeted by my parent’s enemies.

   The hygienic and other living conditions in India cannot be coping up for infants who is born in Australia hence the harm for my health. As an infant it is impossible to live without the parents. As my mother has turned up a Christian community my life is in danger from the Hindu community. All this was not properly to arrive at a decision by DIMIA and RRT…

7. On 17 January 2005 the applicant’s mother filed an affidavit on his behalf. In that affidavit she made a number of complaints concerning the conduct of the Tribunal hearing. In particular she was concerned that the hearing had lasted some four hours, she had only been given one break and that her child was continually crying throughout it. She was effectively arguing that she was not given the opportunity of a meaningful hearing invitation. For the reasons that I have give in proceedings in SZBDG & SZBDG I must decline to provide judicial review on that basis. It seems to me that the only area in which it might be said that the Tribunal fell into jurisdictional error was in whether or not it considered the applicant’s claim to be a member of a particular social group, namely a child of a PWG member, or whether he would have a political opinion imputed to him by virtue of being the child of a PWG member and if so whether that would involve persecution under the Convention and the Migration Act provisions including s.91R. I have come to the view that the Tribunal (as opposed to the delegate) has not considered this matter. The Tribunal may have been influenced by its view that the applicant’s mother was not a member of the PWG but it does not say so. In fact what is says is that “he is not claiming by reason of his birth to belong to a group which faces harm for any of the Convention reasons” but in fact he is saying that. See Para 8 CB [50-51].

8. Although the Tribunal has not completed the task upon which it set out and has therefore fallen into jurisdictional error: Htun v Minister for Immigration [2001] FCA 1802; Minister for Immigration v Yusuf (2001) 206 CLR 231, I am required to considered whether there is any utility in referring the matter back to the Tribunal to be heard and determined according to law. As things stand at present I cannot see that there will be. The Tribunal has made a finding that the mother is not or was not a member of PWG. I have declined to give review of that decision. Unless my decision is overturned there is no factual substratum of possible Convention based persecution for the Tribunal to consider. If I am shown to have erred in my interpretive task then this decision will likewise be overturned. But until that happens I believe the Tribunal’s decision should remain as made.

9. I dismiss the application. I order that the applicant’s litigation guardian, his mother, pay the respondent’s costs which I assess in the sum of $2,000.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: