Case: SZLWA v Minister for Immigration &amp; Anor [2008] FMCA 952
Outcome: cited
appellant, a minor, now aged 11, appeals from the decision of the Federal Magistrates Court of Australia published on 30 June 2008 ( SZLWA v Minister for Immigration &amp; Anor [2008] FMCA 952) dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") of 20 November 2007 affirming a decision of the Minister's delegate not to grant the appellant a protection visa. Background to the application for a protection visa The appellant arrived in Australia with her mother on 3 February 2001. Her mother applied for a protection visa on 19 March 2001 with the appellant included as a dependent without separate claims of her own. The application was refused on 2 April 2001. That refusal was affirmed by the Tribunal on 27 June 2003. The Federal Magistrates Court of Australia (the "Federal Magistrates Court") dismissed an application for review and the Full Court of the Federal Court of Australia dismissed an appeal from that decision. The High Court of Australia (the "High Court") refused special leave to appeal. The appellant's father arrived in Australia on 4 September 1997. He applied for a protection visa on 16 October 1997. The application was refused on 11 November 1997 and that refusal was affirmed by the Tribunal on 15 November 1999. An application for review before the Federal Court was dismissed on 15 August 2000. He made an application for Ministerial intervention. That application was refused. He lodged another application for a protection visa on 5 October 2001 on the footing that his original application was invalid. The application was accepted for consideration but was refused on 26 March 2002. That refusal was affirmed by the Tribunal on 30 June 2003. The Federal Magistrates Court dismissed an application for review and the Full Court of the Federal Court dismissed an appeal from that decision. The High Court refused special leave to appeal. Another application for Ministerial intervention was made by the appellant's mother and father on 4 January 2006. The application was unsuccessful. The appellant made an application for a protection visa on 17 May 2007 and lodged in support of that application a statement and other supporting information and documents. The appellant relies on the factual foundation previously identified by her parents as the basis for a claim that she holds a well-founded fear of persecution for a Convention reason, namely, her membership of a social group. On 15 June 2007, the appellant's application was refused. On 16 July 2007, the appellant applied for review of the delegate's decision before the Tribunal. On 17 August 2007, the Tribunal invited the appellant to give evidence at a hearing before the Tribunal and to provide further information in accordance with s 424 of the Migration Act 1958 (Cth) ("the Act"). On 22 August 2007, the appellant was invited to provide further information in accordance with s 424 of the Act and on 13 September 2007 the appellant gave oral evidence before the Tribunal. The appellant presented arguments in support of the application for review with the assistance of a Bengali interpreter. The appellant's father also gave oral evidence at the hearing. On 20 September 2007, the Tribunal wrote to the appellant in accordance with s 424A of the Act and invited the appellant to comment on a range of information which the Tribunal considered would be the reason or at least part of the reason for its decision. The Tribunal received a response to that letter on 15 October 2007. On 20 November 2007, the Tribunal affirmed the delegate's decision. The reasons for the decision were handed down on 11 December 2007. Short synopsis of the foundation facts relied upon by the applicant/appellant The appellant is a child. She is a member of the Bihari ethnic group. She has resided at the Mohammadpur Geneva Camp Dhaka from the time she was born until she left Bangladesh in January 2001 for Australia. She is stateless due to her membership of the Repatriate Bihari community. When her father left Bangladesh, the Bangladeshi community, supported by Awami League activists, harassed and tortured the appellant's mother on several occasions. On 29 July 1999, Bangladeshi locals together with Awami League activists attacked the camp and abducted the appellant and her mother together with some other females in the Bihari community. They were detained and tortured physically and mentally for three days before being thrown on the street unconscious. The police were reluctant to accept and register a complaint from the appellant's mother due to the support by the police of Bangladeshi locals.