FEDERAL COURT OF AUSTRALIA

NARF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 685

NARF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N655 OF 2003

SACKVILLE J

SYDNEY

4 JULY 2003

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant to pay the respondent’s costs.
3. Costs be quantified in the sum of $2500.

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 6 May 2003. The RRT’s decision affirmed a decision of a delegate of the respondent (“the Minister”) to refuse to grant the applicant a protection visa. The applicant is an infant. The proceedings are brought by the applicant’s next friend, his mother.

background

2                     The applicant was born in Australia on 9 November 2001 to Tongan parents. The applicant lodged his application for a protection visa on 28 March 2003. The application was signed on his behalf by his mother. The applicant’s mother also sought to be included in the application as a dependent family member. However, she had previously applied for a protection visa on 1 September 1995, and that application had been refused on 17 December 1996. The applicant’s mother was prevented from being included in the application by s 48A of the Migration Act 1958 (Cth) (“the Act”) which provides that a person who has made an application for a protection visa that has been refused, may not make a further application for a protection visa while in the migration zone.

3                     The application for a protection visa claimed on behalf of the applicant that because he was born in Australia, he should be permitted to remain here. It was also said that Tonga is a poor country and is not free; that the applicant did not trust the authorities who were corrupt; and that when he grew up, the applicant would publicly support the democratic movement led by MP Akilisi Pohiva to “overthrow the public system in Tonga.”

rrt’s reasoning

4                     The applicant lodged an application for review with the RRT on 11 April 2003, stating that the decision of the Minister’s delegate was “incorrect.” It was said that a statement would be filed later. In fact, it appears that no further written claims were provided to the RRT.

5                     The applicant attended a hearing before the RRT on 6 May 2003, where his parents gave evidence and made submissions on his behalf. The RRT explained the definition of  “refugee” used in deciding whether an applicant is entitled to a protection visa.  The RRT advised the applicant’s parents that from the information provided in his application, he did not appear to meet the definition. The applicant’s parents both made submissions that their children were accustomed to living in Australia and would have a better future if permitted to remain here. The RRT explained that this did not constitute a ground for granting a protection visa since there was nothing to suggest that any difficulties that they or their children might face would be caused by their race, religion, nationality, membership of a particular social group or political opinion.

6                     In response to the claim that the applicant would oppose the government when he grew up, the RRT found this to be mere speculation about the distant future and that it was not possible to say who would be in government when the applicant grew up or how he would feel about that government. Ultimately, the RRT concluded that there was nothing in the evidence to suggest that the applicant was a person who satisfied the criterion for a protection visa set out in s 36(2) of the Act for a protection visa.

reasoning

7                     The application for review filed in this Court simply states that the RRT’s decision was “incorrect and wrong in law”. Not surprisingly, the applicant’s mother, who was not legally represented, was not able to develop arguments in support of this ground.  There is, however, in my view, no basis for finding any jurisdictional error on the part of the RRT. The RRT member explained to the applicant’s parents why his circumstances did not satisfy the criterion for the grant of a protection visa. Nothing was put to the RRT that could have supported a conclusion that the applicant is at risk of persecution for a Convention reason if he returns to Tonga. I am unable to discern any grounds for challenging the RRT’s decision.

8                     The application filed in this Court purports to identify a constitutional issue. The applicant’s mother handed up written submissions which also purport to identify a constitutional issue. However neither document is framed in terms that put forward a genuine constitutional argument. It is not enough that a party to litigation forms a genuine or bona fide belief that the litigation involves a matter arising under the Constitution to make it such a matter for the purposes of s 78B(1) of the Judiciary Act 1903 (Cth). That provision operates only where the circumstances it postulates are made to appear to the Court. It does not apply simply because a party asserts those circumstances: Narain v Parnell (1986) 9 FCR 479, per Burchett J at 489. For that reason, I took the view that it was not necessary for notices to be given to Attorneys-General pursuant to s 78B(1) of the Judiciary Act.

conclusion

9                     The application should be dismissed with costs.

Associate:

Dated:              10 July 2003