B 49 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 833

FEDERAL COURT OF AUSTRALIA

B 49 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 833

Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 Refd

B 49 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q147 OF 2003

KIEFEL J
25 JUNE 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q147 OF 2003

ON APPEAL FROM A DECISION BY THE REFUGEE REVIEW TRIBUNAL

BETWEEN:	B 49 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	25 JUNE 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The time for bringing of the application be enlarged to 20 June 2003.

2.        The application is dismissed.

3.        The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q147 OF 2003

ON APPEAL FROM A DECISION BY THE REFUGEE REVIEW TRIBUNAL

BETWEEN:	B 49 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	KIEFEL J
DATE:	25 JUNE 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant is a national of Fiji.  She, her husband and two children arrived in Australia on 23 September 1998 and applied for protection visas on 27 October 1998.  Hers was the only substantive application.  The Minister’s delegate refused to grant the visas on 31 October 1998.  On 18 June 1999 the Refugee Review Tribunal (‘the Tribunal’) affirmed the decision of the delegate.

2. The applicant became a member of the representative action in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601, on 10 December 1999. Judgment was given by the High Court on 8 August 2002. Pursuant to orders made by Gaudron and McHugh JJ the application for orders nisi in relation to the Tribunal’s decision was filed on 20 June 2003 and was remitted to this Court.

3. The applicant requires an enlargement of the time within which she might bring her application.  Order 55 r 17 of the High Court Rules requires that an application for a writ of certiorari is to be made within six months and O 55 r 30 requires that an application for a writ of mandamus is to be brought within two months.  Time may however be enlarged.  The reason why the applicant did not file her application earlier, it may be inferred, was because she was awaiting the decision in Muin and Lie.  It would therefore seem appropriate to extend time.

4. The applicant and her family are ethnic Indians.  She told the Tribunal that they left Fiji because of problems with being Muslims in a predominately Hindu society.  She accepted that the political situation had stabilised since the 1987 coups.  She was concerned however that the Fijian Indians and minority social groups were disadvantaged under the new legislative arrangements.  Additionally, control over the land was held by native Fijians who were asking for high rents.  She also feared that they might not have their lease renewed.  The applicant was concerned that these matters might lead to further racial unrest.

5. The applicant did not refer to any immediate personal difficulty but she had a general fear of further inter-racial violence.  So far as concerned her family’s status as Muslims, she said she had had problems with the Christian native Fijians who had burned a mosque.  They had not had problems practicing their religion and their children attended Muslim schools.  There had been some problems with people stealing their shoes and damaging their cars whilst they were praying. 

6. The applicant and her husband did not want to return to Fiji, having regard to the cost of living and unemployment.  The husband told the Tribunal that he believed that there would be further racial unrest after the forthcoming elections that year (1999) because the ethnic Indians were not likely to do well. 

7. The Tribunal found that there was no evidence that Muslims are persecuted in Fiji.  Whilst the applicant said that ethnic Indians could not get employment she and her husband agreed that that group controlled the private sector. The applicant’s husband had been a supermarket manager for nine years before they left Fiji and this was not indicative of a difficulty with employment.  The Tribunal accepted that ethnic Indians might be discriminated against in employment in the public sector, but this was not considered to be of sufficient severity to amount to persecution in a Convention sense (the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees), nor did the control of Fijian landlords of land and rent amount to persecution.  Further, the authorities can and do protect tenants.  The fear of racial violence was not warranted, the Tribunal held. 

8. The applicant’s draft order nisi appears to be a pro forma document prepared to reflect the allegations in the cases of Muin and Lie.  In them it is alleged that the applicant (clearly another person) had been denied procedural fairness because he was misled into believing that it was unnecessary for him to refer to information favourable to his case and which was contained in the documents relied on by the delegate and because he was not given an opportunity to address adverse material.  I take the first allegation of breach of procedural fairness to be that the Tribunal had said that it had read the documents in Part B when it had not and that the applicant was thereby misled, as was the case in Muin.  This was confirmed by the applicant’s affidavit in support of the order nisi which also alleged that she was not given an opportunity of bringing further evidence before the Tribunal.

9. Neither document identified those documents said to be relevant and which were not read by the Tribunal, the information which the applicant was not able to be put before the Tribunal or the adverse information with which she would have dealt.  The applicant has filed a document entitled ‘Bundle of additional relevant documents’ which appears to be her submissions on the application.  It refers to the decision in Muin and Lie but again does not identify these documents or information as relevant in the sense I have discussed. 

10. At the hearing this morning, the applicant's husband made some further short submissions.  The facts which were maintained in the cases of Muin and Lee were outlined both by counsel for the Minister and myself.  The applicant's husband was unable to identify any documents which were favourable to the applicant and which were not taken into account by the Tribunal and he was unable to bring this case within the parameters of Muin and Lee.  Neither the applicant nor her husband was able to further advance her case by submissions.  I have, in any event, reviewed the Tribunal decision and I can find no error of law within it, nor any suggestion of a denial of procedural fairness.

11. My orders must therefore be that the time for the bringing of the application be enlarged to 20 June 2003 but that the application be dismissed.

12. I will order that the applicant pay the respondent's costs of the application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             30 June 2004

For the Applicant:	In Person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 June 2004
Date of Judgment:	25 June 2004