MZXQZ v Minister for Immigration
[2008] FMCA 375
•3 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXQZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 375 |
| MIGRATION – Refugee Review Tribunal – unparticularised application – no error identified – application dismissed. |
| Applicant: | MZXQZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 746 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 8 February 2008 |
| Date of Last Submission: | 8 February 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 3 April 2008 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Ms James |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 4 June 2007 and amended on 18 August 2007 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 746 of 2007
| MZXQZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a 30 year old Fijian of Indian ethnicity. She claimed to fear persecution primarily at the hands of a native Fijian neighbour by the name of Emosi.
The Tribunal accepted that:
a)Emosi had harassed the applicant:
i)by teasing her when she was a schoolgirl;
ii)by trying to extort money from her when she began work in 1996;
iii)by catching her by the hands and grabbing her by the hair;
iv)by attempting to extort money from her father;
v)by destroying her father's sugarcane crop one year;
vi)by hiding in her house in 2004 and grabbing her when she returned from work; and
vii)by lying in wait for her around Christmas 2004, assaulting her and threatening to rape her;
b)the harassment of the applicant was for reasons of her ethnicity as an Indo-Fijian and her membership of a particular social group consisting of Indo-Fijian women;
c)the harassment of the applicant constituted persecution within the meaning of the Convention;
d)the applicant complained to the police about the harassment; and
e)one policeman, who was a friend of Emosi’s, had threatened to kill her.
However, the Tribunal considered that:
a)
Emosi did not harass the applicant between Christmas 2004 and
1 December 2006when she departed for Australia;
b)Emosi is no longer interested in harassing the applicant as he knows where she lives and could have found her there if he had wanted to;
c)the “gangster” friends of Emosi, who the applicant said took people's clothes and did bad things, had never done anything to the applicant, on her own evidence, and there was not a real chance that they would harm the applicant in the future;
d)the essential and significant reason for the threat by the policeman was because he was a friend of Emosi and the threat was not for a Convention reason;
e)there was not a real chance of serious harm in the future as a result of the threat;
f)the applicant was not denied state protection by reason of her ethnicity or membership of a particular social group;
g)the applicant would be afforded adequate state protection;
h)the applicant has tertiary qualifications and a good work record; and
i)the applicant would be able to relocate within Fiji if she wished.
Grounds of review
The applicant was unrepresented. She listed a number of grounds of review in her application filed on 4 June 2007 and some other grounds of review in her amended application filed on 18 August 2007. The applicant did not file any written contentions. She attended the hearing before this court on 8 February 2008 but made no oral submissions in support of her application.
The original application
The applicant said firstly that the Tribunal had not taken into account all relevant information but did not identify any information that was not taken into account. I am unable to detect any relevant information that was not taken into account.
The applicant said secondly that she was denied procedural fairness because the Tribunal:
a)did not believe her submissions and oral evidence;
b)used outdated materials to justify its decision; and
c)based its decision on one-sided information.
In fact, the Tribunal accepted most of the applicant's claims. In any event, it is not necessarily a denial of procedural fairness to reject an applicant's submissions and oral evidence. The applicant has not pointed to any way in which the rejection of some of her submissions and oral evidence amounted to a denial of procedural fairness. The Tribunal is not required to provide a running commentary on its thought processes.
The Tribunal did not rely on outdated country information. It cited reports from 2006 and 2007. In any event, it is a matter for the Tribunal to decide which country information, if any, it considers relevant and it is a matter for the Tribunal to give that country information such weight as seems appropriate to the Tribunal. In any event, the applicant did not produce any country information which gave a different “side” to the situation in Fiji. All in all, I am not persuaded that the Tribunal failed to afford the applicant procedural fairness in this case.
The applicant said thirdly that the Tribunal should not have rejected her claims simply because of vagueness or inconsistencies in recounting peripheral details. However, the Tribunal did not reject the applicant's claims on that basis. The Tribunal accepted as credible the vast bulk of the applicant's claims but took a different view of the future consequences of those claims.
The applicant said fourthly that the Tribunal did not give weight to her statements about harassment from the native Fijians. However, the Tribunal considered the applicant's claims about being verbally harassed by native Fijians and concluded that they did not give rise to a real chance of persecution in the future.
I am not satisfied that any of the grounds raised in the original application have been made out.
Amended application
The applicant in her amended application said firstly that the decision of the Tribunal was not made in good faith and was not made according to the rules of natural justice. It is a very serious matter to allege that the Tribunal's decision was not made in good faith. The applicant has provided no particulars of this allegation. I am unable to detect any basis upon which such an allegation could be sustained in the present case.
The applicant has provided no particulars of any denial of natural justice, other than those stated in the original application. Those matters have been addressed above. I am unable to detect any denial of natural justice in the present case.
The applicant secondly challenged the Tribunal's conclusion on relocation and appears to have included a quotation from a different decision. Be that as it may, the applicant has not explained how it is said that the Tribunal erred in its relocation finding. I am unable to detect any error in that finding.
The applicant thirdly said that the Tribunal had failed to give proper and adequate reasons. The applicant did not identify any particular deficiency in the reasons. I am unable to detect any deficiency.
The applicant said fourthly that the Tribunal had erred in failing to consider all the claims and issues that were put forward by the applicant. The applicant did not identify any claims or issues that the Tribunal allegedly did not consider. I am unable to detect any such claims or issues.
The applicant said fifthly that the Tribunal had failed to take into account the gravity of the situation involving the Emosi gangsters. The Tribunal did deal with the people the applicant described as gangsters and friends of Emosi. This ground is an attack on the merits of the decision. It does not give rise to a jurisdictional error.
The applicant said sixthly that she had “presented a vivid fear of persecution in front of the Tribunal”. However, even if the applicant had a genuine subjective fear of persecution, it does not mean that the applicant objectively had a well founded fear of persecution. The Tribunal was entitled to conclude that the applicant's fear, if any, was not well founded.
The applicant said seventhly that the applicant's fear of persecution was within the Convention and the Tribunal had misapplied the relevant law. The applicant did not identify any particular error of law allegedly made by the Tribunal. I am unable to detect any such error.
Conclusion
The applicant has not identified any jurisdictional error in the Tribunal's decision. I am unable to detect any such error. Accordingly, the application must be dismissed with costs.
And I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 3 April 2008
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