SZOMU v Minister for Immigration and Citizenship [2011] FCA 140 (23 February 2011)

Last Updated: 25 February 2011

FEDERAL COURT OF AUSTRALIA

SZOMU v Minister for Immigration and Citizenship [2011] FCA 140

Citation:		SZOMU v Minister for Immigration and Citizenship [2011] FCA 140
Appeal from:		SZOMU v Minister for Immigration & Anor [2010] FMCA 837
Parties:		SZOMU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1636 of 2010
Judge:		LANDER J
Date of judgment:		23 February 2011
Catchwords:		MIGRATION – appeal from Federal Magistrate – judicial review – whether Refugee Review Tribunal committed jurisdictional error. MIGRATION – appellant’s father acting as litigation guardian – whether validly appointed under O 43 r 1 of the Federal Court Rules 1979 (Cth). MIGRATION – appellant an infant – whether infant capable of having subjective fear of persecution – whether parents’ subjective fear can be imputed to infant.
Legislation:		Federal Court Rules 1979 (Cth) O 43 r 1 Migration Act 1958 (Cth) s 425
Cases cited:		Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 cited Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 cited Minister for Immigration and Multicultural Affairs v Chen [1999] FCA 381; (1999) 92 FCR 333 followed
Date of hearing:	15 & 18 February 2011
Place:	Adelaide (heard in Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	60
Counsel for the Appellant:	Litigation guardian in person
Counsel for the First Respondent:	Ms E Baggett
Solicitor for the First Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1636 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOMU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	23 FEBRUARY 2011
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appellant’s father be appointed the appellant’s next friend.
2. The appeal be dismissed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1636 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOMU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE:	23 FEBRUARY 2011
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from an order of a Federal Magistrate made on 5 November 2010 dismissing the appellant’s application for judicial review and ordering the appellant to pay $6,000 in costs.
2. The appellant is a two year old Bangladeshi citizen and has been represented in all relevant proceedings by his father as his litigation guardian. The appellant was born in Australia on 25 October 2008. Both of the appellant’s parents are citizens of Bangladesh and arrived in Australia on 23 May 2008. The appellant’s parents have previously made applications for protection visas in their own right but those applications were unsuccessful.
3. On 12 November 2009 the appellant’s father applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on the appellant’s behalf. On 16 February 2010 a delegate of the first respondent refused the appellant’s application for a protection visa. On 23 March 2010 the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the first respondent’s decision. On 31 May 2010 the Tribunal affirmed the decision under review.
4. On 28 June 2010 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. On 14 September 2010 an amended application was filed. The appellant sought an order setting aside the decision of the Tribunal, an order remitting the application to the Tribunal to be determined according to law; and costs. As noted above, the Federal Magistrate dismissed the appellant’s application.
5. The appellant now appeals to this Court. The appellant seeks orders that the appeal be allowed; the decision of the Tribunal be quashed; the proceeding be remitted to the Tribunal to be determined according to law; and an order for costs.

Proceedings before the Refugee Review Tribunal

6. The appellant’s claims for protection were based on the possibility that he would be kidnapped as a result from his father’s claimed involvement with the Bangladesh National Party (BNP). The appellant claimed that his father was politically well known and had been threatened because of his affiliation with the BNP. The appellant claimed that if it were necessary that he go to Bangladesh there is a possibility that he will be kidnapped and his parents subject to criminal extortion.
7. The appellant also claimed that he may be kidnapped and his parents held to ransom because of a perception that his parents were wealthy as a result of having spent a long time overseas.
8. The appellant also claimed that he would suffer indirect harm if he had to go to Bangladesh. He claimed that because his father is at risk of persecution, he is at risk of severe consequential harm in terms of significant economic hardship and denial of access to basic services.
9. Both claims revolve around the appellant’s father’s involvement with the BNP. The appellant claimed that his father had become involved with the student wing of the BNP in the early 1990s while at college. The appellant alleged his father was physically attacked in March 1993 by Awami League activists because of his political affiliation with the BNP. The appellant claimed that as a result of these attacks his father changed colleges and subsequently decided to leave Bangladesh.
10. The appellant admitted that his father had spent approximately 15 years living in Brunei. During this time the appellant’s father returned to Bangladesh on six occasions to visit family and to marry. The Tribunal noted that the appellant’s father returned to his home district during these visits but there were no serious incidents as a result of his return.
11. The appellant claimed that “political people” had tried to extort money from his father when he tried to build a house. His father consequently abandoned the project and bought another plot of land.
12. The appellant also alleged his father was targeted by the Rapid Action Brigade because of his political affiliations with the BNP. The appellant claimed that in 2007 the Rapid Action Brigade came looking for his father at his mother’s family home. The appellant claimed that his father had been charged with certain offences but that these charges were false and that it was a “political case”. The appellant relied on a letter purportedly sent by the Vice President of the BNP in Pabna in which the author attested to the fact that the charges against the appellant’s father were false.
13. The Tribunal did not accept that the appellant’s father was a political activist at risk of persecution or serious harm because of his affiliation with the BNP.
14. The Tribunal also rejected the appellant’s assertion that his father was an active and “politically well known” member of the BNP. The Tribunal found that the appellant’s father was at most “a low level BNP supporter and a person who may have followed Bangladesh politics and current affairs from afar”. The Tribunal did not accept that the appellant’s father had any real interest in Bangladeshi politics or that he would be motivated to engage with the BNP or other political activities if he returned to Bangladesh.
15. The Tribunal did not accept that the appellant’s father had been attacked by Awami League students in 1993. The appellant’s father did not report the incident to police even though the BNP was in government at the time. The appellant’s father did not leave Bangladesh until 18 months after the alleged attack. The appellant’s father admitted that there had been no further incidents during that 18 month period.
16. The Tribunal also rejected the appellant’s father’s claims that he had decided to leave Bangladesh in September 1994 because of the attack. The Tribunal considered the 18 month time delay indicated that the appellant’s father left Bangladesh for unrelated reasons.
17. The Tribunal questioned how the appellant’s father could have obtained a political profile given his extended periods of absence from Bangladesh. The appellant contended that his father remained intensively involved with the BNP by posting political comments on online forums such as blogs and Facebook. The Tribunal invited the appellant to adduce additional evidence in support of this claim, but none was received.
18. The Tribunal rejected the appellant’s claims that his father was targeted by the Rapid Action Brigade in 2007. The Tribunal found that the appellant’s assertions were vague and lacked corroboration. Further, the appellant’s father had not left Bangladesh for two months after the alleged visit by the Rapid Action Brigade, even though he claimed to have been in danger of harm. In relation to the alleged attempted extortion of the appellant’s father in 2005, the Tribunal found that there was no evidence to indicate that this was politically motivated.
19. The Tribunal placed no weight on the letter allegedly sent by the Vice President of the BNP in Pabna. The Tribunal concluded that because of errors contained in the letter and the prevalence of document fraud in Bangladesh no weight should be placed on the letter as a source of independent corroboration of the appellant’s father’s claim to be a BNP activist.
20. The Tribunal also considered that the country information did not support the appellant’s claim that he may be kidnapped if he were to go to Bangladesh. It noted that there are no reports of political parties having targeted family members of political rivals in any way including by kidnapping or extortion. Further, there was no information to indicate that the family of members of BNP or the Awami League would be targeted in this way, for either monetary or political ends.
21. The Tribunal rejected the appellant’s claim that he may be kidnapped and his parents held to ransom because of a perception that they were wealthy. In any event, the Tribunal considered that the appellant’s claims to fear harm from criminal extortion of this kind were not Convention-related. It was not satisfied that persons returning from abroad who are presumed to have money, or persons who are members of such families, share any characteristic or attribute that distinguishes them from society at large and as such could not constitute a discernible social group. Further, the only reported instances of child kidnapping and extortion relate to the families of wealthy businessmen. The Tribunal did not consider that the fact the appellant’s father claimed he was subject to an extortion attempt in 2005 supported the appellant’s assertion that he may be kidnapped.
22. As a result of its findings that the appellant’s father was not an activist with a genuine fear of persecution, the Tribunal found that the appellant was not at risk of consequential harm. The Tribunal consequently affirmed the first respondent’s decision to not grant the appellant a protection visa.

Proceedings before the Federal Magistrates Court

23. The appellant relied on one ground in his amended application. It related to the Tribunal’s consideration of the appellant’s claim that his father would be subject to extortion if the family returned to Bangladesh. The ground was particularised as follows:
    1. The Tribunal failed deal with an integer of the applicants’ parent’s claim, that they would be subject to extortion for a convention reason if they were to return to Bangladesh, constituting a jurisdictional error.
       

PARTICULARS

1. The Applicants claimed, and or the evidence clearly raised, that they feared that:
   

(1) The applicant’s parent would be subject to extortion if they returned to Bangladesh.

(2) The applicant’s who is now just nearly two years, he is in high risk of being kidnapping if he returned to Bangladesh with his parents.

(3) The criminal activities targeted or to be targeted at the applicant’s parent were based on political reasons.

[See NABE V Minister for immigration and multicultural affairs (no.2) [2001] FCA 1178; (2004) 114 FCR 1 at [63], and the several decisions of the federal court and dozens of decisions of the federal magistrates court which have applied it].

2. The tribunal then failed to consider at all the availability of State protection for the applicants.
   

100. The tribunal’s finding at [246] that “Document fraud in Bangladesh”...because of tribunal find some news from some source about document can made false in Bangladesh its does not mean that every document that delivered by the applicant will be false too. This fining too is accordingly infected with the error discussed above.
     

4. At the hearing the applicant was wanted to submit some new document was from some newspaper the applicant was thinking may be those documents can support his application for protection visa. But the tribunal was denied to receive those documents. So, the tribunal made an error in these criteria.

(Grammatical errors transcribed as they appear in original document.)

The Federal Magistrate dealt with each particular.

Particular A

24. The Federal Magistrate found that the Tribunal had clearly dealt with the two extortion claims raised by the appellant. First, the Tribunal had considered the appellant’s claim that “political people” had attempted to extort money from his father in relation to the development of land. It concluded that there was no evidence to indicate that the appellant’s father had been targeted for any political reason.
25. Secondly, the Tribunal had dealt with the appellant’s claim of extortion by kidnapping. The Federal Magistrate considered that, contrary to the appellant’s allegation, the Tribunal did consider the risks associated with extortion of the appellant’s parents and the possible kidnapping of the appellant himself but was ultimately not convinced. The Federal Magistrate considered that on this basis the Tribunal had not fallen into jurisdictional error in this regard.

Particular B

26. The Federal Magistrate did not accept the appellant’s argument that the Tribunal’s failure to consider the availability of State protection led it into jurisdictional error. The Federal Magistrate noted that a consideration of the availability of State protection would only arise if an applicant has a well-founded fear of persecution for a Convention reason which might not be addressed by the authorities in his country of nationality. As the Tribunal concluded that the appellant did not have a well-founded fear of persecution, the issue of State protection did not arise and the Tribunal was not required to consider that issue.

Particular C

27. The Federal Magistrate rejected the appellant’s argument under Particular C. His Honour considered that the Tribunal’s finding in relation to the authenticity of the letter submitted by the appellant was open to it on the evidence before it and as such, that finding was not reviewable.

Particular D

28. The Federal Magistrate rejected the appellant’s contention that the Tribunal had refused to receive additional information. The Federal Magistrate noted that the appellant’s father did not bring with him to the Tribunal’s hearing the newspaper clippings which he claimed he wished to be before the Tribunal. Further, the appellant’s father did not, at any later date, supply them to the Tribunal. His Honour also noted that the Tribunal had advised the appellant’s father that he may submit further information.
29. The Federal Magistrate also considered that the appellant’s father may have been dissuaded from submitting further documents because the Tribunal had informed him of its concerns regarding the genuineness of documents sourced from Bangladesh. His Honour did not consider that the Tribunal had “expressed itself in such a way as to indicate that there was no point in the applicant submitting further Bangladeshi documents to it for consideration”. Further His Honour noted that under s 425 (sic) of the Migration Act 1958 (Cth) (the Act), the Tribunal had an obligation to identify issues of concern such as document fraud to the appellant’s father so that he could address it.
30. The Federal Magistrate concluded that the Tribunal had not fallen into jurisdictional error and therefore that the application for review should be dismissed.

Appeal to this Court

31. The appellant’s notice of appeal sets out four grounds of appeal:
    1. The Appellant is not satisfied to the judgment from the federal magistrate court.
    2. The appellant father made as to the matter to be considered as to the foreseeable future in Bangladesh by considering only harm from “Awami league government.
    3. The federal magistrate court made jurisdictional error by determining that the tribunal did not made Any jurisdictional error that the appellant had a strong chance or fear of extortion or kidnapping, Because, of his father political profile.
    4. The federal magistrate court made an error by deciding that the applicant’s parent would not be Subject of extortion if they returned to Bangladesh while there a great chance of getting extorted in Bangladesh. Because, of recent situation in Bangladesh.

(Grammatical errors transcribed as they appear in original document.)

32. Before I address the grounds, two matters occurred to me which were not raised on the appeal. The first was a procedural matter which had not been addressed by the appellant or by the first respondent. In the Court below the Federal Magistrate made an order appointing the appellant’s father as the appellant’s litigation guardian. In due course the Federal Magistrate made an order that the litigation guardian pay the first respondent’s costs fixed at $6,000. The appellant purported to lodge an appeal to this Court in his own right. The appellant is a minor aged two and is only entitled to proceed in this Court if a next friend is appointed: O 43 r 1. I explained to the appellant’s father that a next friend needed to be appointed. I also explained that if he consented to be the appellant’s next friend he could become liable for the costs in the event that the appeal were dismissed. He consented to being appointed the appellant’s next friend. I will make an order appointing the appellant’s father as the appellant’s next friend.
33. The second matter was more important. I raised with the first respondent’s solicitor an issue which had not been previously considered by the first respondent, the Tribunal or the Federal Magistrate.
34. The appellant is aged two years. He was born in Australia and has never been to Bangladesh. The question arises whether a child of that age can have a well-founded fear of persecution so as to engage Article 1A of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
35. I adjourned the hearing of the appeal to allow her to address the point.
36. Article 1A(2) of the Convention defines a “refugee” as:

... any person who ... 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, owing to such fear, is unwilling to avail himself of the protection of that country.

37. The four elements which must be established to obtain refugee status were identified in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 570:

(1) the applicant must be outside his or her country of nationality;

(2) the applicant must fear persecution;

(3) the applicant must fear such persecution for a Convention reason, namely “race, religion, nationality, membership of a particular social group or political opinion”; and

(4) the applicant must have a well-founded fear of persecution for one of those Convention reasons.

38. There is nothing in the Act or Migration Regulations which would preclude a minor from making an application for a protection visa.
39. The fear of persecution in (2) and (3) above which is being addressed in a consideration of an application for refugee status is the subjective fear held by the applicant: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. To determine whether an applicant has a well-founded fear of persecution the Minister or the delegate must first be satisfied that the applicant has a subjective fear of persecution and then determine objectively whether that fear is well-founded.
40. There is authority for the proposition that a child may have the requisite subjective fear by virtue of the subjective fear of one or other of the child’s parents. That is, a parent’s own subjective fears may be imputed to a child for refugee law purposes.
41. In Minister for Immigration and Multicultural Affairs v Chen [1999] FCA 381; (1999) 92 FCR 333 the applicant/appellant child was a Chinese national born in Australia while his parents were in immigration detention. The majority in the Full Court (O’Loughlin and Carr JJ) said at [27]-[28]:

There remains one further matter which, in our opinion, proffers some support for the view that we have taken: the appellant is a child who, because of his tender years, would have no knowledge of, or comprehension of the One Child Policy. This did not stop the learned judge in the Court below from holding that such a person could have the necessary subjective fear by virtue of the subjective fear of one or other of his parents. This is a very obvious attitude to adopt; to limit oneself to the fears of the individual child would otherwise deny children of tenders (sic) years the benefits of the Convention: see the remarks of Guy S Goodwin-Gill, The Refugee in International Law (2nd ed, 1996), p 357:

“If the head of the family is recognised as a refugee then, all things being equal, the dependants are normally granted refugee status according to the principle of family unity: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1978), pars 181.8, 184.”

However, in this particular case, both parents sought, but were refused, refugee status. Hence, it must follow as a matter of logic, that if the parents cannot claim refugee status, then their child (who, in this particular case, is dependent upon their fears for his status) cannot succeed in a claim for refugee status.

42. Justice Nicholson also agreed that in the case of a child a well-founded fear could be derived from the fear held for the child by his or her parents: Minister for Immigration and Multicultural Affairs v Chen [1999] FCA 381; 92 FCR 333 at [66].
43. The decision went on appeal to the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293. Because this point was not raised as a ground of appeal, the majority in the High Court did not specifically address the comments made by the Full Court relating to this issue. The majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) simply noted (at [4]):

No point has been taken that, by reason of his age and circumstances, the appellant, himself, lacks the fear necessary to bring him with the Convention definition of “refugee”. Rather, it is accepted that his parents’ fears on his behalf are sufficient.

44. Justice Kirby noted at [77] that the majority in the Full Court “appear to have accepted that it was appropriate and necessary to attribute the fears of the parents to those of the child for refugee law purposes”. His Honour disagreed however with the Full Court that if the parents’ claim for refugee status failed so should the child’s.
45. The comments by the majority in the Full Court indicate that an application should not be dismissed simply on the grounds that a child could not have formed a subjective fear of persecution. The Full Court endorsed the approach adopted by the trial judge of imputing a parent’s fears of persecution to a child for the purposes of satisfying the Convention definition of “refugee”.
46. I am of course bound by the decision of the Full Court and must follow it whether or not I would have reached the same conclusion.

Ground 1

47. This ground simply asserts that the appellant is dissatisfied with the Federal Magistrate’s judgment. Nothing more needs to be said about it.

Ground 2

48. It is not entirely clear what the appellant means by this ground of appeal. His father’s case was that his father had been a member of the BNP since college and as a result had been subject to attacks by the Awami League. Those attacks had been physical and, as I understand it, led to the Rapid Action Brigade seeking him out and to false cases being made against him.
49. The Tribunal considered those matters but did not accept that the appellant’s father was a political activist at risk of persecution. The Tribunal gave extensive reasons for that conclusion which relied upon a factual rejection of the appellant’s case. To that extent the Tribunal decided that the appellant was not at risk of indirect harm by reason of his father’s involvement with the BNP.
50. The Tribunal also considered the appellant’s claim of direct harm and, in particular, the likelihood of being kidnapped for the reason of his father’s political associations.
51. The Tribunal concluded that the risk of kidnapping for the purpose of targeting political rivals was not known in Bangladesh. More particularly however, it found that because it had concluded that the appellant’s father was not a BNP activist there was no real chance of anyone targeting the appellant because of his father’s political profile.
52. Even though the appellant’s father did not urge this claim strongly, the Tribunal also considered the appellant’s claim that he might be kidnapped because it might be perceived, because his parents had lived overseas for some years, they were rich.
53. In any event, the Tribunal concluded that the appellant was not at risk for a Convention reason because of the fact his parents had lived overseas for a long time. Extortion of the kind postulated by the appellant was not a Convention-related reason. Moreover, there was no real risk of the appellant being kidnapped in any event.
54. In my opinion, the Tribunal considered the whole of the appellant’s claims but, unfortunately from the appellant’s point of view, rejected them.

Ground 3

55. This ground is not particularised in any way which makes it difficult to address, especially in circumstances where the appellant’s father who appeared on the appellant’s behalf was unrepresented.
56. However, I have looked at the Tribunal’s reasons and have considered the Federal Magistrate’s reasons on review of the Tribunal’s decision and, in my opinion, there is nothing in the papers which would suggest that the Tribunal committed jurisdictional error.

Ground 4

57. Ground 4 seeks to raise before this Court the merits of the decision made by the Tribunal by complaining that the Federal Magistrate failed to find that the appellant’s parents would be subject to extortion if they returned to Bangladesh.
58. The question of merits was for the Tribunal. The Federal Magistrate did not make the mistake of intervening in the merits of the matter. Not only did he not find that the appellant’s parents would be the subject of extortion if they returned to Bangladesh, he had no power to make such a finding.
59. His duty, which he discharged, was to determine whether the Tribunal had erred in committing jurisdictional error and not to review the Tribunal’s decision on its merits. This ground must be dismissed.
    
60. For all of those reasons, all four grounds of appeal must be dismissed and the appeal must be dismissed. I will hear the parties, including the appellant’s next friend, on the question of the first respondent’s costs.
    

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 23 February 2011