NANS v Minister for Immigration
[2003] FMCA 598
•22 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NANS & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 598 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming ethnic persecution in Fiji – no reviewable error found – application dismissed. |
Federal Magistrates Court Rules 2001 (Cth)
| First Applicant: Second Applicant: | NANS NANX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1226 of 2003 |
| Delivered on: | 22 December 2003 |
| Delivered at: | Sydney |
| Hearing date: | 22 December 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
NANS and NANX appeared in person
NANS appeared on behalf of NANY and NANZ
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Applicant NANS is appointed as litigation guardian of NANY and NANZ pursuant to rule 11.11 of the Federal Magistrates Court Rules 2001 (Cth).
Applicant NANS is relieved of the obligation to file a written consent or to serve written notice on the respondent.
The application is dismissed.
NANS and NANX are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1226 of 2003
| NANS, NANX, NANY, NANZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 5 March 2003 and handed down on 25 March 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicants protection visas. There are four applicants, a father, a mother and their two children. I appointed the first applicant the litigation guardian of the third and fourth applicants. The applicants proceed on the basis of an amended application filed on 31 July 2003. The first applicant also filed an affidavit in support of the application on 11 April 2003. In addition, the applicants rely upon written submissions by the first applicant filed in court this afternoon.
The applicants are from Fiji and sought protection visas on the basis of a fear of harm at the hands of ethnic Fijians in Fiji. The applicants are ethnic Indians. The real difficulty for these applicants is that there is nothing on the face of the amended application, the supporting affidavit and the written submissions which identifies any reviewable legal error in the decision of the RRT. The RRT accepted that the applicants had suffered harm following the Speight coup in May 2000. In the circumstances, they were able to demonstrate a genuine fear of harm.
However, the presiding member took the view that there was no real chance of the applicants suffering harm again should they return to Fiji, given the changed circumstances in that country. The first applicant told me that he put to the presiding member that the situation in Fiji is still unstable and emphasised the fear that he and his family have. The presiding member, however, adopted the view that the situation in Fiji had settled down significantly and that the harm which the applicants experienced should not recur. While the applicants are unhappy with the outcome of their proceedings before the RRT, they have not been able to identify any jurisdictional error committed by the RRT.
The RRT applied the correct legal tests in the assessment of whether the applicants should receive a protection visa. The conclusions reached by the RRT were reasonably open to it on the material before it. In the circumstances, the decision of the RRT is a privative clause decision and the application must be dismissed.
For completeness, I also adopt written submissions prepared by Mr Lloyd for the purposes of this judgment, in particular paragraph 1 through to paragraph 11 of those written submissions:
These proceedings arise from an application for judicial review filed in the Federal Court on 11 April 2003. The application concerns a decision of the RRT handed down on 25 March 2003, being a decision to affirm the decision of a delegate of the Minister not to grant the applicants protection visas.
Background
The applicants are a husband and wife and their two children. They are citizens of Fiji. They arrived in Australia on 17 December 2001 after having resided for a period in Papua New Guinea.
They applied for protection visas on 11 January 2002 (court book, pages 1-37).
This application was refused by a delegate on 18 March 2002 (court book, pages 44-53).
On 11 April 2002, the applicants lodged an application for review with the RRT, seeking a review of the delegate’s decision (court book, pages 54-57). They attended a hearing before the RRT on 5 March 2003 (court book, page 84).
The RRT handed down its decision on 25 March 2003 (court book, pages 89-100).
In essence, the RRT accepted the applicants’ claims that they suffered harassment and attacks during or immediately after the 2000 coup. However, it noted that nothing had happened to them in the seven months immediately before they left Fiji. It also referred to country information which suggested that the country was now stable. It did not accept that another coup might occur in the reasonably foreseeable future.
The application
The affidavit in support of the application simply contends that the RRT’s decision was wrong. Obviously, this does not identify a jurisdictional error.
On 15 December 2003, the applicants sent the Court (and the respondent) a letter containing submissions. It restates the factual claims which were accepted by the RRT and contends that this provides them with a basis for a genuine fear of harm in Fiji.
Even if this were so, the Convention definition does not turn solely upon whether an asylum seeker has a genuine fear of harm for a Convention reason; the fear must be objectively well-founded. The RRT found that the applicants’ fears are not well-founded.
The RRT made no jurisdictional error.
I will dismiss the application.
On the question of costs, the application having been dismissed, Mr Lloyd sought an order for costs on behalf of the Minister and submitted that party/party costs incurred are in the order of $3,900. The first applicant did not oppose an order for costs. This matter is a relatively straightforward one. Relatively little documentary preparation was required of the Minister and the legal issues were particularly straightforward.
In the circumstances, only a modest order for costs is called for. I will order that the first and second applicants pay the costs and disbursements of and incidental to the application incurred by the Minister, which I fix in the sum of $3,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 January 2004
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