FYL18 v Minister for Home Affairs

[2019] FCCA 2319

FEDERAL CIRCUIT COURT OF AUSTRALIA

FYL18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2319

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Fiji – applicant’s fears found not to be well-founded – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 5J, 36

Applicant: FYL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3183 of 2018

Judgment of: Judge Driver

Hearing date: 21 August 2019

Delivered at: Sydney

Delivered on: 21 August 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms D Stone of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3183 of 2018

FYL18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 October 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 14 August 2019.    

2. The applicant, a citizen of Fiji, most recently arrived in Australia on 19 December 2015 as the holder of a visitor visa.[1]  On 4 March 2016, the applicant lodged a protection visa application, which was found to be invalid.[2] On 1 April 2016, the applicant lodged a valid application for a protection visa.[3] The applicant attended an interview before the delegate on 1 August 2016, and the application was refused on 18 August 2016.[4]

   [1] Court Book (CB) 147

   [2] CB 48-50

   [3] CB 51-90

   [4] CB 115

3. On 7 September 2016, the applicant lodged with the Tribunal an application for review of the delegate’s decision.[5] On 19 October 2018, the applicant attended a hearing before the Tribunal to give evidence and present arguments.

   [5] CB 130

The applicant’s claims

1. In a written statement dated 29 March 2016 and included in her application for a protection visa, the applicant advanced in summary the following claims:[6]

   a)conditions were challenging in Fiji following tropical cyclone Winston, which left over 8,000 people homeless. The applicant was unable to return to Fiji “because of the consequences” of the cyclone;

   b)she was previously a bookkeeper in Fiji, and that job was no longer available because of “what happened to [her] as a result of the Winston Cyclone”;

   c)her life would be at risk and she would be subjected to harm and rape in Fiji as she had no source of income, accommodation or support;

   d)she would be subjected to discrimination on the basis of her being a Hindu of Indo-Fijian ethnicity, especially in circumstances where she had no “decent income”; and

   e)she was a young woman at risk without any protection or support, and was unable to relocate anywhere safe in Fiji.

   [6] CB 91

2. At an interview before the delegate on 1 August 2016, the applicant raised a new claim that her primary fear of returning to Fiji was falling victim to physical violence from her ex-husband, whom she divorced in 2008.[7]

   [7] CB 122

Tribunal decision

1. On 26 October 2018, the Tribunal affirmed the delegate’s decision to refuse the grant of the protection visa.[8]

   [8] CB 161-167

2. The Tribunal considered the applicant’s various and interrelated claims to fear harm under the following groupings:

   a)domestic violence at the hands of her ex-husband;

   b)fear of harm and being raped because she was a single, young woman who would have no income and would be homeless; and

   c)fear of harm due to her Indo-Fijian ethnicity and Hindu religion.

3. With respect to the domestic violence claim, the Tribunal accepted that the applicant had previously suffered some physical harm at the hands of her ex-husband, and that he had also harassed her to give him money following their divorce.[9]  However, the Tribunal found that despite having had opportunities to harm the applicant since their divorce in 2008, her ex-husband had not done so, and further, despite these claimed fears, the applicant had returned to Fiji a number of times between 2010 and May 2015.[10] The Tribunal also noted that the applicant had not lodged an application for a protection visa during her five previous visits to Australia.[11]

   [9] CB 164-165, [26]

   [10] CB 165, [27]-[29]

   [11] CB162, 164, [2], [26]

4. The Tribunal did not accept that the applicant’s ex-husband would attempt to physically harm or kill her if she returned to Fiji, and expressed its doubts that he would harass her for money so many years after their divorce in 2008.[12] In any event, the Tribunal was not satisfied that any future contact with her ex-husband would amount to serious harm per s.5J(5)(a)-(f) or significant harm per s.5(1) and s.36(2A) of the Migration Act 1958 (Cth) (Migration Act).[13]

   [12] CB 165, [29]

   [13] CB 165, [29]

5. The applicant confirmed that she had never experienced any physical harm or abuse in Fiji, other than from her ex-husband, when she was variously single, married or divorced, and the Tribunal noted that she did not provide any evidence in support of her claim to fear harm on these grounds.[14]  The Tribunal again noted that the applicant had voluntarily returned to Fiji a number of times since her divorce. With regard to her claim that she would become homeless if returned to Fiji, the Tribunal found that her qualifications and work experience would assist her to find employment in Fiji. Further, the Tribunal noted that the applicant’s parents and relatives lived in Fiji and that she could reside with them, removing any risk presented by her living on the streets.[15]  In view of this, the Tribunal was not satisfied that there was a real chance or risk that the applicant would be physically harmed, assaulted or raped on return to Fiji. The Tribunal accepted evidence that physical and sexual violence against women was widespread in Fiji, especially in intimate partner relationships, but did not accept that the applicant was at risk of being personally targeted for physical or sexual assault because she was single or divorced, without an income and/or homeless.[16]

   [14] CB 165, [30])

   [15] CB 165-166, [31]

   [16] CB 166, [32]

6. The applicant resiled from her claim to fear harm due to her being a Hindu of Indo-Fijian ethnicity, and acknowledged that she did not genuinely fear, nor had suffered, harm on this basis.[17] The Tribunal acknowledged a DFAT[18] Country Information Report on Fiji which indicated that Indo-Fijians and indigenous Fijians co-existed amicably and overall it was assessed that Indo-Fijians faced a “low level of official and societal discrimination based on their race/ethnicity”.[19] The Tribunal found that even if the applicant encountered some low level official or societal discrimination on the basis of her race, religion and/or ethnic background, this would not amount to serious nor significant harm for the purposes of the Migration Act.[20]

   [17] CB 166, [33]

   [18] Department of Foreign Affairs and Trade

   [19] CB 166, [34]

   [20] CB 166, [36]

7. The Tribunal acknowledged the applicant’s residual claims with respect to her fear of being homeless, without possessions and an income in Fiji, and found that there was evidence that she could be accommodated at her parents’ home, and that her prior work experience would assist her to find new employment and re-establish herself in Fiji.[21]

   [21] CB 167, [37]

8. Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) or (aa) of the Migration Act, and affirmed the decision under review.[22]

   [22] CB 167, [38]-[39]

The present proceedings

1. These proceedings began with a show cause application filed on 15 November 2018.  There is a single ground in that application:

   1. Contrary to the finding of the Tribunal I do fear harm if I return to Fiji and I have a genuine fear to be exposed to serious harm because in Fiji there is no reasonable protection for women.

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 19 December 2018. 

3. Only the Minister filed written submissions in advance of today’s hearing. 

4. I invited oral submissions from the applicant this afternoon.  She read from a written statement.  She asserts a fear of serious harm which is genuine.  She referred to her status as a single young woman.  She referred to the loss of her family home in Cyclone Winston.  She also referred to problems with her former husband.  In her view, it was a failure of review by the Tribunal and the Tribunal did not pay proper regard to country information. 

5. As put in the application, the single ground of review merely takes issue with the merits of the Tribunal decision.  The submissions made orally by the applicant might be characterised as an asserted constructive failure of jurisdiction.  However, in my view, and as I put to the applicant, no arguable case of jurisdictional error has been established.  The Tribunal did have regard to each of the applicant’s claims and the available country material bearing upon an assessment of those claims. 

6. The Tribunal accepted some facts asserted by the applicant, but was not persuaded that any past incidents gave rise to a real chance or real risk of serious or significant harm in the future.  In my view, those conclusions were open to the Tribunal on the information before it for the reasons it gave.  I otherwise agree with the Minister’s submissions on the ground of review advanced. 

7. To the extent that the ground could be read as a contention that the Tribunal failed to adequately engage with the applicant’s claim to fear harm as a woman in Fiji, the Tribunal’s decision, read fairly and as a whole, reveals that it adequately considered the applicant’s claims as raised in her protection visa application and at the interview before the delegate, and made findings of fact that were open to it.

8. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

9. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  The applicant did not wish to be heard on costs.

10. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 August 2019