MZXQZ v Minister for Immigration and Citizenship

[2008] FCA 1314

FEDERAL COURT OF AUSTRALIA

MZXQZ v Minister for Immigration and Citizenship [2008] FCA 1314

MZXQZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP

VID 228 of 2008

RYAN J
25 AUGUST 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 228 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZXQZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
JUDGE:	RYAN J
DATE OF ORDER:	25 AUGUST 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal, to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 228 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZXQZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	RYAN J
DATE:	25 AUGUST 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from orders made by Riley FM on 3 April 2008, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  By a decision handed down on 14 May 2007 the Tribunal had affirmed a refusal on 9 February 2007 by a delegate of the Minister for Immigration and Citizenship (“the Minister”) to grant a protection visa to the appellant.

2. The appellant is a national of Fiji, who arrived in Australia on 1 December 2006.  The appellant claimed that she had a well-founded fear of persecution by reason of her membership of a particular social group comprising Indo-Fijian women and her Indian ethnicity.  The appellant claimed in her application for a protection visa that she had been the victim of repeated attempted sexual assaults by a native Fijian boy from her neighbourhood (“the neighbour”).  The neighbour was supported in his harassment of the appellant by a gang.  The appellant further claimed that, on occasions, the harassment amounted to actual physical assaults.  She said that the same gang had also threatened her family and that she feared that they would kill her.  The appellant claimed that the police could not protect her as they supported native Fijians. 

3. At the hearing before the Tribunal, the appellant made additional claims including that the neighbour had attempted to extort money from her and her father, had set fire to her father’s sugar cane crop and had threatened her father.  She also claimed that a police officer, who was a friend of the neighbour, had threatened to kill her if she complained again.

4. The Tribunal accepted the appellant’s evidence that she had been subjected to sexual harassment and assault by the neighbour.  It also accepted that the neighbour had attempted to extort money from her and her father, and destroyed her father’s crop.

5. The Tribunal did not accept that the police had harassed and threatened the appellant and her father.  However, it did accept that a policeman had threatened to kill the appellant if she complained again, and it found that police had not always assisted her as they should have.

6. The Tribunal accepted that the appellant belonged to the particular social group of “Indo-Fijian women,” and found that the incidents to which she had been subjected constituted serious harm and persecution.  However, it found no evidence that protection was systematically denied in Fiji to ethnic Fijian or Indo-Fijian women, and therefore did not accept that the appellant had been denied protection for a Convention reason.  The Tribunal was satisfied that the appellant could relocate within Fiji if she were to choose to do so.

7. The Tribunal found that there was no real chance that the appellant would face persecution for a Convention reason in Fiji in the foreseeable future, and noted that independent country information revealed that the situation for Indo-Fijian women had improved.  The Tribunal therefore affirmed the decision not to grant the appellant a protection visa.

8. On 4 June 2007 the appellant filed an amended application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  Before Riley FM the appellant contended that the Tribunal had failed to take into account relevant information because it had not accepted the appellant’s submissions and oral evidence, had relied on vagueness and inconsistencies in evidence and had not given weight to particular statements about harassment by native Fijians.  The appellant also contended that the Tribunal had relied on “outdated and one-sided” material in reaching its decision.

9. On 10 August 2007 the appellant filed a further amended application in which she asserted that the Tribunal’s decision had not been made in good faith and that the Tribunal had failed to consider the principles governing relocation to avoid persecution.  The appellant also contended that the Tribunal had failed to exercise its jurisdiction and consider all of the claims put forward.

10. The learned Federal Magistrate considered all of the grounds in both the appellant’s original and amended applications.  Her Honour was unable to find any relevant information which had not been taken into account by the Tribunal.  Nor was she satisfied that the appellant had been denied procedural fairness by the Tribunal’s rejection of some of the appellant’s submissions and evidence, and its reliance on certain parts of the independent country information.  Her Honour found that the Tribunal had not rejected the appellant’s claims due to vagueness and, in fact, had accepted the bulk of her claims.  Further, the learned Federal Magistrate noted that the Tribunal had considered the appellant’s claims about harassment but had concluded they did not give rise to a real chance of persecution in the future.

11. Her Honour found no basis for the claims that the Tribunal had not acted in good faith and had denied the appellant natural justice.  Her Honour rejected the other grounds of appeal and was unable to identify any jurisdictional error in the Tribunal’s decision.

12. The appellant’s notice of appeal filed in this Court on 17 April 2008 asserts that the Tribunal erred in failing to consider all of the appellant’s claims.

13. On 28 April 2008, Registrar Josan directed that the appellant file and serve written submissions no later than five clear working days before the hearing of the appeal.  That was not done, and the appellant explained the omission by saying that she had sought additional information from Fiji, but when that was not forthcoming, had been unable to prepare any written submissions.

14. At the hearing of the appeal before me, the appellant, through an interpreter, indicated that she required more time to remain in Australia as she thought it was still unsafe for her to return to Fiji.  When this Court’s function on the hearing of an appeal from judicial review of a decision of the Tribunal was explained to her, she was able only to repeat that the police had continued to disregard her complaints about ongoing persecution by the neighbour.  She did not articulate any error of law, let alone any jurisdictional error, which she claimed the Tribunal had committed when it refused her application for a protection visa.

15. In particular, she did not impute any error of law to the Tribunal in its finding that whatever harassment the appellant had suffered had not been visited on her for a Convention reason.  She merely repeated her assertions that the police had continually failed to take action or afford her protection on each occasion when she complained of assaults or other harassment and intimidation by the neighbour.  Nor did the appellant contend that there was any error of law in the Tribunal’s consideration that she could have relocated within Fiji to an area where she would not be exposed to injury or threats by the neighbour.

16. She confined herself to asserting that relocation would be difficult for her as a single woman in Fiji because of obstacles in the way of her obtaining, away from her home town, a house or land on which to live.  In any event, as Ms James of Counsel for the Minister has pointed out, the Tribunal’s finding as to relocation was strictly unnecessary because of its prior finding that there was no relevant link between the acts of harassment or failure to afford protection and any Convention reason.

17. Counsel for the Minister contended that the appellant had failed to identify any error in the decision of Riley FM that would provide a basis for judicial review.  It was submitted that the grounds of appeal are founded on fact-finding processes such as the weighing of evidence and making of findings based on credibility and that such findings are within the Tribunal’s jurisdiction and ought not to be disturbed by this Court;  see Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407, at 67. The Minister submitted that the Tribunal was entitled to find that the appellant did not satisfy the criteria for a protection visa and that, accordingly, the appeal should be dismissed.

18. It will be apparent from my summary of what the appellant has said in support of her appeal that there has been no error of law or jurisdictional error which would have warranted the learned Federal Magistrate in setting aside the decision of the Tribunal.  The appellant stressed that she needed more time in Australia until her father could become settled in another area where tensions between the Indian-Fijian community and indigenous Fijians are less pronounced.  However, that is a discretionary consideration which is not available to this Court or the Federal Magistrates Court in exercising the strictly limited jurisdiction conferred by the Migration Act 1958 (Cth) to grant judicial review of a decision of the Tribunal. It follows that I have been unable to discern any appellable error in the reasons of the learned Federal Magistrate and the appeal against her orders must be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        26^th August 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr E James
Solicitor for the Respondent:	DLA Phillips Fox

Date of Hearing:	25th August 2008
Date of Judgment:	25th August 2008