QAAA of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 993

FEDERAL COURT OF AUSTRALIA

QAAA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 993

Statutes

Migration Act 1958 (Cth) ss 476(1)(e), 474(2), 474(1)

Cases

NABO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 178 Discussed

R v Hickman;  Ex parte Fox & Clinton (1945) 70 CLR 598 Cited

QAAA OF 2002 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Q 22 of 2002

KIEFEL J
BRISBANE
9 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q22 OF 2002

BETWEEN:	QAAA OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	9 AUGUST 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q22 OF 2002

BETWEEN:	QAAA OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	KIEFEL J
DATE:	9 AUGUST 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicants before the Tribunal were a husband and wife and each of their children except for a son who held a student visa.  They are Fijian nationals of Indian ethnicity and of the Muslim faith.  The Minister’s delegate refused to grant protection visas (Class XA) to them.  On 8 January 2002 the Refugee Review Tribunal affirmed that decision.  An application for review is now sought by the wife, whose claims were presented to the Tribunal (“the applicant”).

2. The applicant’s claim to refugee status was based upon her fear of mistreatment by native Fijians of Indian Fijians, the group to which her family belongs.  She referred to the events surrounding the coup of May 2000 as providing examples of what might occur if she was to return, given that native Fijians are in power.  She claimed that women had been raped, but that this was not publicised.  She feared for herself and her daughters.  The applicant did not accept the Tribunal’s suggestion that the situation had changed in Fiji and that the country had returned to normal.  She stated that it was a political facade and that native Fijians steal from and intimidate Indo-Fijians and she believed her life would be in danger if she returned.  She referred to her husband being robbed and bashed while attending a mosque and rocks being thrown on her house and her vehicle broken into.  Police response on these occasions was slow or non-existent.  She also stated that there was no work available in Fiji and no opportunities for her children.

3. The Tribunal accepted that, from time to time, Indian Fijians have been subjected to harassment of the kind described by the applicant and that the situation deteriorated during the attempted coup.  It found that the situation had been brought under control and that the authorities were providing protection regardless of a person’s race or religion. Although it accepted that occasionally Indian Fijians might come to harm at the hands of native Fijians, it was not of such a type or severity to amount to persecution. Although the Tribunal accepted that the applicant had a genuine subjective fear, it was not a well-founded fear of persecution for a Convention reason (1951 Convention Relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees).

4. In her application for an order for review the applicant’s principal complaint was that not all aspects of her case were taken into account. In her written submissions the applicant pointed to an error of law under s 476(1)(e) of the Migration Act 1958 (Cth) which I take to refer to the ground which was provided for prior to the amendments of October 2001, namely that the decision involved an error of law, being an incorrect interpretation of the law, or an incorrect application of the law to the facts as found by the person who made the decision.

5. The applicant observed that the Tribunal relied upon information from DFAT;  and that it failed to conclude that there was persecution or discrimination by the government against Indian Fijians.  I add here that the information gained by the Tribunal was not to that effect.  I understand the applicant to contend that the Tribunal’s conclusion ought to have been reached by reference to the evidence presented by her, and that the Tribunal did not properly address the question of state protection and how she would be adequately protected.  It was also contended that it should also have enquired as to whether there was a reasonable level of efficiency of police, judicial and allied services.

6. In the latter respect the applicant relied upon NABO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 178. The question there was whether the Tribunal should have addressed both the question of the authorities’ capacity to protect, and their willingness to do so. The Full Court found that it had addressed both and that there was no error of law affecting the Tribunal’s conclusion that persecution was not shown. The Court reiterated that the requisite error of law does not arise for the purpose of judicial review, because a different view might be taken about the issues and the evidence.

7. In my view no legal error has been identified in the Tribunal’s decision.  I have perused the claims put forward by the applicant to the Tribunal and do not consider the charge that it failed to understand or address her case to be substantiated.  The Tribunal was entitled to the view it reached about the change in the circumstances prevailing in Fiji on the evidence before it.  It has not accepted the applicant’s contention that nothing, in reality, has changed.  The Tribunal understood the fear expressed by the applicant, but did not consider it was one which could reasonably now be held.

8. I have dealt with the applicant’s argument on the supposition that the grounds for review of the Tribunal’s decision are available. However the decision is a “privative clause decision” within the meaning of s 474(2) of the Migration Act.   Section 474(1) has the effect that the decision cannot be challenged in the way sought if certain conditions are met: see R v Hickman;  ex parte Fox & Clinton (1945) 70 CLR 598. These conditions namely, that the decision be bona fide and apparently within the power given to the Tribunal, were met.

9. The application will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             9 August 2002

For the Applicant:	In Person
Counsel for the Respondent:	Ms E Ford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 July 2002
Date of Judgment:	9 August 2002