Buksh v Minister for Immigration and Multicultural Affairs

[2001] FCA 762

FEDERAL COURT OF AUSTRALIA

Buksh v Minister for Immigration & Multicultural Affairs [2001] FCA 762

MIGRATION - no question of principle

Migration Act 1958 (Cth) s 476

FAIMUL FEROZA BUKSH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 426 OF 2001

STONE J
SYDNEY
20 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 426 OF 2001

BETWEEN:	FAIMUL FEROZA BUKSH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	20 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

the application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 426 OF 2001

BETWEEN:	FAIMUL FEROZA BUKSH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	20 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, a citizen of Fiji, arrived in Australia on 6 January 2000. On 14 February 2000, she lodged an application for a protection visa under the Migration Act 1958 (Cth) (“Act”). The application was refused by a delegate of the respondent on 28 February 2001 and that decision was upheld by the Refugee Review Tribunal (“Tribunal”). She applied to this Court for a review of the Tribunal’s decision.

2. The application filed by the applicant on 17 April 2001 does not state why the applicant is aggrieved by the decision (although that can be inferred) nor does it set out the grounds of review or the orders sought. No submissions have been filed by the applicant. In the section of the application in which the name and address of the respondent are to be stated, the applicant has written

   “I want to meet the judge in person to explain my circumstances. Thank you.”

3. At the hearing today the applicant did not attend. The only explanation offered for this was a facsimile of a handwritten note signed by the applicant that had been faxed from Villawood detention centre where the applicant is detained to the solicitors for the respondent. The note stated that:

   “I am Faimul Feroza Buksh from Fiji.
   I am refusing to attend the Federal Court of because I am sick. Please can my hearing date be extended.
   Thank you.”

   I do not regard such a note, unsupported by any medical evidence, as a sufficient reason to delay dealing with this matter.

4. It was submitted on behalf of the respondent that the proceedings ought to be dismissed under O 20 r 2(1)(a) which, when read in conjunction with O 54B r 5, provides that an application may be stayed or dismissed where no reasonable basis for the application is disclosed. In the alternative, it was submitted that no ground of review specified in s 476 of the Act arises. Before acceding to such a request it is common, although not mandatory, in the case of an unrepresented litigant, for the Court to review the Tribunal’s decision for obvious errors. I propose to adopt that course.

   DECISION OF THE TRIBUNAL

5. The Tribunal handed down its decision on 11 April 2000. In its reasons for decision, the Tribunal set out the criteria that must be satisfied before a person is to be granted a protection visa. Under s 36 of the Act it is a criterion for the grant of a protection visa that the applicant is a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

6. The Tribunal summarised the applicant’s claims and the evidence before it, which included the protection visa application, written submissions prepared on the applicant’s behalf and oral evidence given by the applicant at the Tribunal hearing. The applicant claimed, and the Tribunal accepted, that she was a Muslim of Indian ethnic background. The Tribunal found that the applicant was generally truthful although it felt she had exaggerated some of her claims to make them appear more serious.

7. The applicant claimed:

   (1)that Ethnic Fijians have broken into her parent’s home in Ba, Fiji on two or three occasions. On each occasion, her parents have been forced to wait in the street until the intruders departed;

   (2)that she may be raped or killed in Fiji because of her ethnicity. She was particularly concerned about returning to the Ba area;

   (3)that she may not be able to return to school;

   (4)that she may not be able to get a good job in Fiji;

   (5)that her family did not have enough money and this would affect her school studies in Fiji;

   (6)that on five or six occasions a male relative had come to her parents’ house and tried to talk to her and touch her. He had never been successful in sexually assaulting her. The applicant’s parents had reported this to the police, who had given him a warning in relation to his conduct;

   (7)that her parents were asked by ethnic Fijians to sign a document surrendering their land. The applicant was unsure whether the title was leasehold or freehold but was concerned that if the title was leasehold, the lease might not be renewed.

8. The Tribunal considered each of these claims as well as extensive independent evidence and rejected each claim. In relation to claim (1), the Tribunal accepted independent evidence to the effect that the authorities in Fiji do act when robberies and violence occur. It was satisfied that the applicant’s family would be able to report the incidents to the police and receive protection from the authorities.

9. In respect of claim (2), the Tribunal found that any fear the applicant might have concerning the Ba area could be cured by living elsewhere. It observed that she could relocate to Suva, where her sister lives, apparently without any problems in relation to her ethnicity. It also noted that any problems in the Ba area could be resolved by reporting any incidents to the police, who would be effective in providing protection.

10. The Tribunal rejected claim (3), relying on independent evidence that no student would be denied access to education in Fiji on the grounds of ethnicity. It referred to a letter the applicant had received from her school stating that she could not return to school in 2000 unless she started classes by 3 March 2000. It observed that the letter did no more than inform the applicant that the school authorities would not accept her enrolment for a particular academic year after that date.

11. The Tribunal found that claims (4), (5) and (6) were not related to any of the matters set out in [5] above. In relation to claim (4), the Tribunal noted that the applicant herself accepted that her inability to obtain a good job was related to the economic down turn that had affected the entire country. It did not accept that the applicant’s education would suffer because her family lacked sufficient funds, observing in this regard that the applicant and her parents had recently travelled to Australia on vacation.  The claim of potential sexual harassment was a personal matter in relation to which the applicant was currently receiving the protection of both her family and the police.

12. In relation to claim (7), the Tribunal accepted that the applicant’s parents might lease land, that they may have been asked to give the land back and that the lease may not be renewed. However, it did not accept that they would be forced to do anything in relation to the land. It also observed that, if the lease was not renewed, the applicant and her family would be able to buy or rent elsewhere. In reaching this conclusion, the Tribunal referred to independent evidence to the effect that there would be no problem for a Fijian of either ethnic group to rent or buy property, particularly on the main island of Viti Levu. It stated that non-renewal of the lease would be “unfortunate but is not of the type of harm or seriousness as could be considered persecution with in the meaning of the [Refugee] Convention”.

13. The Tribunal also considered the applicant’s claims cumulatively and did not accept that the harm feared was of the nature or seriousness to as to amount to persecution within the definition set out in [5] above. Having concluded that the applicant did not have a well-founded fear of persecution, the Tribunal affirmed the decision of the respondent’s delegate not to grant a protection visa.

    CONSIDERATION

14. In my opinion on the evidence before the Tribunal the findings made were open to it as was its conclusion from those findings that the application for a protection visa should be refused. Having reviewed the Tribunal’s reasons for its decision, I can discern no error that is reviewable by this Court. I must therefore dismiss the application with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             21 June 2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 June 2001
Date of Judgment:	20 June 2001