SZFJQ v Minister for Immigration

Case •

[2006] FMCA 671

•

27 April 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 671
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – nationality – nationality must be proved.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 474, 475A
NARV v Minister for Immigration & Multicultural Affairs (2003) 133 FCR 89
PlaintiffS157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Applicant: SZFJQ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 10 of 2005
Judgment of: Scarlett FM
Hearing date: 27 April 2006
Date of Last Submission: 27 April 2006
Delivered at: Sydney
Delivered on: 27 April 2006

REPRESENTATION

The Applicant: Appeared in person
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. Leave to join the Refugee Review Tribunal as a party.

  2. Refugee Review Tribunal is joined as Second Respondent to the application.

  3. That an order in the nature of certiorari issue quashing the decision of the Refugee Review Tribunal signed on 10 November 2004 and handed down on 10 December 2004.

  4. That an order in the nature of mandamus issue remitting the Applicant’s application for a protection visa to the Refugee Review Tribunal for determination according to law.

  5. That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 10 of 2005

SZFJQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.

  2. The decision was signed on the 10th November 2004 and was handed down on the 10th December 2004.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection Visa.

  3. The applicant is a child who was born in Australia on the


    9th February 2004.  His parents are citizens of Bangladesh.  The parents have previously applied for Protection Visas as has the parents' other child.  A Tribunal, differently constituted, on the 23rd October 2003 affirmed a decision of a delegate of the Minister not to grant the applicant's parents and brother Protection Visas.  Those proceedings were the subject of an application to the Federal Magistrates Court, the citation to which is SZCCA, SZCCB and SZCCB v Minister for Immigration & Multicultural Affairs, file number SYG2671 of 2003.  The applicant was unable to join in those proceedings.  He was not born until the following year.  It was therefore not possible for him to have been joined as an applicant for review of the delegate's decision relating to his parents and brother. 

  4. What happened in respect of the other proceedings was that the Minister instructed a particular firm of solicitors to act for the Minister in respect of the parents' application to this Court.  Apparently there was no cross-checking by the party and another firm of solicitors, being the solicitors on the record in this matter, received instructions to act for the Minister in these proceedings.  Quite clearly, neither firm of solicitors bears any responsibility for that situation.  What happened today was that the applicant's father, who is the applicant's litigation guardian, has produced a letter from the solicitors for the Minister in the parents' matter, indicating that consent orders were to be signed and by consent the matter would be remitted to the Refugee Review Tribunal to be heard and determined according to law.

  5. The application in respect of this child of course is a separate matter and the Minister's lawyers have no such instructions.  And indeed,


    I accept that it was not until today that they became aware of the decision that had been taken in respect of the other matter.  I am informed from the bar table that the Minister's lawyers, a little while ago, had become aware that another firm of solicitors was acting for the Minister in respect of the other matter and that there may have been some difficulties about the Tribunal decision but I accept that it was not until today that the Minister's lawyers in this case were made aware that the parents' matter was to be remitted to the Refugee Review Tribunal to be heard and determined according to law.

  6. The situation therefore is somewhat unusual and I expressed concerns during the afternoon that this applicant's situation could be somewhat precarious in that if his application were not successful he would,


    at least in theory, be in jeopardy of being removed from Australia whilst his parents' application went before the Refugee Review Tribunal. That of course does not take into account the fact that it would be open to appeal against a decision of this Court or that an application could be made under s.48B of the Migration Act.

  7. I make it quite clear however that it would appear to be quite unlikely for the Minister to take a decision to remove a child aged two from Australia if the child's parents had a case still to be determined by the Refugee Review Tribunal. 

  8. Nevertheless, short of staying these proceedings and the basis for such a stay at law would appear to be problematic, counsel for the respondent suggested the only alternative course is to hear this application. 

  9. The fact is that the claims advanced by the applicant are essentially the claims advanced by the father.  As the Tribunal pointed out at page 611 of the Court Book, the applicant has no other claims that are separate from his father's claims.  The much amended application filed on behalf of the applicant on the 22nd April 2005 refers in its particulars to matters that relate to the applicant's father.  Despite what the application says there is no evidence the child was ever a member of a political party known as the Awami League and supporting documents that fill a large part of the Court Book relate to the father and not to the child. 

  10. The reference in the application to the chance of the applicant being arrested and persecuted on return to Bangladesh relates to the father and not to the child and it is the father who claims to have been persecuted because of his political opinion and a family dispute in Bangladesh. 

  11. It is the father who claims to have been attacked several times by terrorists of BNP and Jamat-Shibia and it is the father who claims that he would be persecuted by false cases brought against him because of his political activity. 

  12. The applicant in this case, being a child, is essentially arguing a claim under s.36(2)(a); in other words, a claim in his own right, rather than a claim under s.36(2)(b); that is as a non-citizen in Australia who is a dependent of a non-citizen who was mentioned in paragraph (a) and also holds a Protection Visa.  The applicant's father of course does not at this stage hold a Protection Visa and is awaiting a further hearing. 

  13. The amended application seeks not only writs of certiorari and mandamus but also, rather strangely, a declaration of the Federal Court of Australia has jurisdiction to renew:

    Private clause decisions.

  14. As provided by s.474 of the Migration Act and also a declaration of s.474 of the Migration Act is invalid, being inconsistent with s.75(v) of the Constitution. The Court does not have jurisdiction to make either of those declarations and despite the applicant's claims that s.474 of the Migration Act is invalid as the submissions by counsel for the first respondent make it quite clear and correctly that it is not invalid. It has been made quite clear by PlaintiffS157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 that s.474 is valid and that is as far as that matter can go.

  15. The respondent's lawyers also point out the fact that the applicant relies upon the decision of NARV v Minister for Immigration & Multicultural Affairs (2003) 133 FCR 89 but again it is quite clear that the point made by the applicant, i.e. that sub-s.(3) of s424A relates to independent country information, is not the law. Section 424A(3)(a) excludes country information not specifically about an applicant and is now settled law and I am referred to Minister for Immigration Multicultural & Indigenous Affairs v NAMW (2004) 104 FCR 572 and a number of other authorities.

  16. The situation in this case is that there is no s.424A breach in the Tribunal's decision. It is apparent that the applicants harbour in bringing the claim to the Tribunal, specifically referred to his own claims and in fact included that information in a voluminous submission to the Tribunal. This is not a matter where there is a difficulty under s.424A(3) of the Act.

  17. There is however one matter which I raised with counsel for the respondent Minister which relates to the Tribunal's finding on page 607 of the Court Book and I quote:

    On the basis of the applicant's birth certificate and the passbooks of his parents, the Tribunal accepts that he was born in Australia in 2004 and is a citizen of Bangladesh. 

  18. In my view it is not sufficient for the Tribunal to make that finding based on the evidence that he had.  Article 1A(2) Convention defines a refugee as any person who:

    As a result of events occurring - - -

  19. That part does not apply.

    But owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owning to such fear, is unwilling to avail himself of the protection of that country or who, not having a nationality, being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling to return.

  20. It is not, to my mind, proof of nationality of Bangladesh to find that a child born in Australia of parents, who are the holders of passports of Bangladesh, is a citizen of Bangladesh.  The applicant has produced no passport of his own and indeed it appears that he may not have one. 


    It does not necessarily follow that a person born outside the country of the person's parents' nationality automatically becomes a national of that country.  The person may well be eligible to acquire that nationality, and in many cases what has to be done is for the birth of the child to be registered at the Consulate of the country of the parents' nationality.  In this case the Tribunal has, in my view, assumed, based on the applicant's claim, that the applicant is a citizen of Bangladesh. 

  21. It is not however sufficient to make a finding of nationality on the basis of a claim made by a person.  As I said; the nationality of the parents is not necessarily determinative of the nationality of the child.  It was put to me by counsel for the respondent Minister that this error, if it was an error of fact, is in fact an error in favour of the applicant because otherwise the applicant would appear to be stateless.  But to my mind this is not sufficient. 

  22. It is fundamental to the jurisdiction of the Tribunal to make a finding as to nationality.  If an applicant proves that he or she is a national of a particular country then he or she must be assessed, for Convention reasons, against that country.  If however, the person does not have a nationality and is outside the country of his or her former habitual residence, then a different set of criteria lie.  It is fundamental therefore to the jurisdiction of the Tribunal that it must make a finding as to the nationality of a person or a finding as to whether the person has a nationality or not.  As was put to me quite correctly; a stateless person is in a different situation and this is fundamental to the whole question of being assessed for Convention reasons against a particular country.

  23. In my view the failure to prove nationality or the failure to make a finding on appropriate proof of nationality is fundamental to the entire process and is a jurisdictional error.  As there is jurisdictional error, the application must be granted.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  4 May 2006

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