NANB v Minister for Immigration

[2003] FMCA 603

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANB & ORS v MINISTER FOR IMMIGRATION [2003] FMCA 603

MIGRATION – Application for review of Refugee Review Tribunal decision – whether denial of procedural fairness or other jurisdictional error.

Migration Act 1958

Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244

Applicant: NANB, NANC, NAND & NANE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1219 of 2003

Delivered on: 27 November 2003

Delivered at: Sydney

Hearing Date: 27 November 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the Applicants pay the Respondent's costs set in the amount of $4,500, pursuant to Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1019 of 2003

NANB, NANC, NAND & NANE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 6 March 2003 affirming a decision of a delegate of the respondent to refuse to grant protection visas to the applicants.  I refer for convenience to the first applicant (the husband) as the applicant.  No specific Convention claims were made by or on behalf of the applicant’s wife or two children in the original protection visa application.  The applicants applied for the visas on 31 October 2001.  On 17 December 2001 the delegate refused to grant the visas.  The applicants sought review by the Tribunal on 14 January 2002.  The Tribunal held hearings on 18 December 2002 and 5 February 2003. 

2. The applicants are Fijians of Indian ethnicity.  The applicant husband claimed to fear persecution for reason of his race in Fiji.  He claimed that he was forced by ethnic Fijians to leave the land he was working on in mid-2000.  He originally claimed that he had been forced to leave inherited ancestral property which he owned, that the property had been looted, that he had not received police protection and that his life and the lives of his family were in danger.  In an interview with the delegate of the respondent the applicant indicated that he did not actually own the land but leased it from traditional land owners and worked elsewhere in Fiji.  He also told the delegate that his wife had been threatened with rape and kicked and beaten by indigenous Fijians when they were evicted.  In submissions to the Tribunal the applicant and his wife claimed that they could not return to Fiji as he had no work there, having lost his job as a motor mechanic and that his wife had been raped and the family attacked with weapons.  Their claims were elaborated on in the Tribunal hearing.  The applicant also claimed that his son was hit and mistreated by Fijians at school. 

3. The Tribunal found that the applicant and his wife (who had both given evidence in the hearings) were not credible witnesses.  It found that the applicant’s claims had changed significantly over time and that there were internal inconsistencies in the evidence that he had given in a number of aspects which are detailed in the Tribunal reasons for decision.  In particular the Tribunal found that, contrary to the assertions of the applicant, the claim in relation to the alleged rape of his wife was not raised until after the delegate's decision.  There were also inconsistencies in the evidence of the applicant and his wife as to who reported the alleged rape and other incidents to the police.  The Tribunal found that this claim was contrived to enhance the applicant's claims.  The Tribunal was not satisfied that the applicant's wife had been raped or beaten as claimed. 

4. In relation to the applicant's treatment associated with eviction from the property, the Tribunal found that he did not own the land in question, that he had admitted that he had no claim on the land and that he and his family were evicted as persons who had no claim to the property, not for any Convention reason. 

5. The Tribunal accepted that the applicant and his family had suffered some harassment and threats from ethnic Fijians, specifically that they had been asked for money, threatened and that their son had been subjected to what the Tribunal described as ‘trials’ at school. The Tribunal had regard to numerous articles provided by the applicant supporting his view of the unrest in Fiji and also documents relating to his son as well as independent evidence. It found that the threats and harassment of the applicant and his family did not amount to persecution involving serious harm within section 91R(1)(b) of the Migration Act 1958 (the Act) and hence did not constitute persecution.  The Tribunal had regard to independent evidence in relation to the present situation in Fiji and accepted on the basis of that evidence that democracy and law and order had been restored to Fiji, that the military and the police had safeguarded public security and restored confidence and that Fijian authorities had made genuine and effective efforts to stabilise the country and to maintain and protect human rights.  Hence the Tribunal was not satisfied that the applicant faced a real chance of serious harm in the future. 

6. The Tribunal also addressed the applicant's concerns about earning an income if he were to return to Fiji.  It had regard to the information  he had provided in that respect.  It found this to be a genuine concern but was not satisfied that the applicant as a 39 year old motor mechanic who had supported a family and who spoke, read and wrote Hindi and English could not find employment.  In any event the Tribunal found that the poor employment situation was as a result of Fiji's economic situation and was not Convention related. 

This application

1. The applicants raised a number of grounds for review in an amended application and in written submissions.  As counsel for the respondent suggested, the applicants’ written submissions did not address the grounds pleaded in the amended application and were a not unfamiliar ‘template’ form of submissions.  However as the applicants are self-represented I have considered the grounds raised in the amended application, the submissions and also the material before me to determine whether any jurisdictional error is apparent. 

2. As to the specific grounds raised in the amended application, grounds 1, 4 and 5 are related. The applicant claimed generally that the Tribunal exceeded its jurisdiction in failing to accord him procedural fairness as required under section 424A(1) of the Migration Act.

   
   

   I have considered both whether there was any failure to comply with section 424A and whether there was any lack of procedural fairness.  Associated with this claim was the claim that the Tribunal erred in not providing the applicant with particulars of information forming part of its reasons for decision, namely that violence against minority groups had subsided.  It was contended that such information was not just information about a class of persons.  There was no elaboration of this contention.  It was also complained that the Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from different sources in Fiji and that those doubts formed part of the reasons for the decision. 

3. However, the country information in issue, including information as to whether violence against minority groups had subsided in Fiji, is information which would fall within section 424A(3) of the Migration Act being about a class of persons of which the applicant is a member and not specifically about the applicant or another person. Furthermore, insofar as it is claimed that there was a lack of procedural fairness, it is apparent from the Tribunal reasons for decision that in the hearing the Tribunal raised with the applicant information in independent country information in relation to the current situation in Fiji. The reasons for decision detail particular information discussed with the applicant including information relating to the treatment of Indo-Fijians and stabilisation of the country. There was no lack of procedural fairness in this respect.

4. The applicant also claimed that Tribunal doubts about documents submitted on his behalf were not put to him during the hearing. However the Tribunal reasons do not record any doubt about the authenticity of documents submitted by the applicant. The Tribunal acknowledged that the applicant had submitted evidence in relation to some of the matters on which he based his claims, such as the harassment of the applicant and his family and threats they claimed to have received. The Tribunal found, however, that such threats and harassment did not amount to persecution amounting to serious harm within s.91R(1)(b). There is nothing to suggest that ‘doubts’ about the documents submitted by the applicant formed part of the reason for the Tribunal’s decision (and see s.424A(3)(b) in relation to information provided by the applicant). Insofar as the Tribunal preferred independent country information to information provided by the applicant this is a matter of the weight to be given to particular items of evidence and is a matter for the Tribunal.

5. Furthermore, the Tribunal is not bound to put its reasoning processes to the applicant under section 424A or, without more, as part of its obligation to afford procedural fairness.  In this case I am satisfied that the Tribunal did, as is necessary, put the critical issues to the applicant and his wife in the hearing.  No lack of procedural fairness or breach of s.424A is established in this respect. 

6. The applicant also submitted that there was actual bias on the part of the Tribunal constituting a denial of procedural fairness in that it ignored relevant material and made findings in the face of contradicting evidence.  No particular material or findings were identified in support of this claim.  There is no substance in this claim on the material before me.  Nor is there anything to suggest that the situation is such as to constitute apprehended bias. 

7. It was also claimed by the applicant that the Tribunal did not complete the exercise of its jurisdiction, as it made no findings as to what socio-political and ethnic changes might occur in Fiji in the reasonably foreseeable future.  It was claimed that the Tribunal thus failed to assess whether the applicant’s fears of persecution for being ethnic Indo-Fijian were well founded in the reasonably foreseeable future.  However, the Tribunal did engage in the necessary speculation about future conditions in Fiji on the basis of independent country information before it.  The Tribunal considered evidence of the restoration of democracy and law and order and safeguarding of public security and the efficacy of the efforts of the authorities to stabilise the country and protect human rights.  It accepted the independent evidence to this effect and concluded that it was not satisfied that the applicant faced a real chance of serious harm in the future.  It also addressed the applicant’s concerns about future employment prospects and earning an income in Fiji but found that such concerns were not Convention related. 

8. It was submitted by the applicant that the Tribunal erred in failing to carry out a further investigation of his specific claims.  However, the Tribunal is not obliged to seek further information in relation to the particular case of the applicant in the manner suggested.  It is for the applicant to make his or her case and while the Tribunal may choose to make further inquiries it was not, in the circumstances of this case, under an obligation to do so (see Stone J in Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244 at [74]).

9. The Tribunal did consider the elements or integers of the applicant’s claims.  It is not necessary for the Tribunal to address specifically every item of supporting evidence put by the applicant as was suggested in his submissions.  It does not follow that because the Tribunal has not specifically mentioned a matter in its reasons it has failed to consider it.  Furthermore, the Tribunal did have regard to the material submitted by the applicant as is clear from its reasons for decision. 

10. The applicant claimed that ‘The… decision was not based upon circumstances giving a rational foundation for the belief entertained as the RRT’s findings, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria’.  This ground seeks merits review.  It takes issue with the factual findings of the Tribunal.  It does not establish a ground for review.  The court cannot review the merits of the Tribunal's decision (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). It is not apparent from the Tribunal reasons for decision that there was a jurisdictional error by reason of irrationality or illogicality or otherwise (see MIMA, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59).

11. The applicant essentially was unsuccessful because of the view the Tribunal took of the facts, in particular its findings that the applicant and his wife were not credible and that his claims as to the assault and rape of his wife were not established.  Findings of credibility are findings for the Tribunal, par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). In this case the Tribunal's findings were open to it for the reasons that it gave.

12. Similarly, the Tribunal conclusion that the harassment the applicant and his family suffered from ethnic Fijians was insufficiently serious to amount to persecution within section 91R of the Act is a finding of fact that was open to the Tribunal.  No error is apparent in the manner in which the Tribunal approached its fact finding task. 

13. On balance then, having considered all of the claims put by the applicant and the material before me I am not satisfied that any jurisdictional error, whether consisting of lack of procedural fairness or otherwise, has been established.  Accordingly, the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks that the applicants pay costs of $4,500.  As the applicants have been unsuccessful it is appropriate in this case that they meet the respondent's costs.  The applicants' impecuniosity is not a reason for not awarding costs, but is a matter that the Minister may choose to take into account in relation to whether and how costs are sought to be recovered.  I consider that in this case, the amount of $4,500 is appropriate and that costs should be set under the Federal Magistrate's Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  27 November 2003