SHXB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1285

Federal COURT OF AUSTRALIA

SHXB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1285

SHXB and ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 425 OF 2003

SELWAY J
7 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 425 OF 2003

BETWEEN:	SHXB AND ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	7 NOVEMBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs to be taxed or agreed, save as to the notice of competency.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 425 OF 2003

BETWEEN:	SHXB AND ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	7 NOVEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for prohibition, mandamus and certiorari, made pursuant to s 75(v) of the Constitution and s 39B of the Judiciary Act1903 (Cth) in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 23 July 2002. It is accepted by the parties that the applicant can only succeed in this application if he can show that there was some jurisdictional error in the process, reasoning or decision of the Tribunal.

2. The applicants are husband and wife. They are Fijian citizens, of Indian ethnicity. They arrived in Australia on 12 April 2001. On 17 May 2001, they lodged an application for a protection visa under s 36(2) of the Migration Act 1958 (Cth). The applicants can only obtain such a visa if the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) is satisfied that Australia has protection obligations to the applicants by reason of the applicants having a well‑founded fear of being persecuted for a Convention reason. The applicants claim that they have such a fear, on the basis of their ethnicity. That fear is a fear of discrimination and persecution by indigenous Fijians. The applicants claimed that Fijian police and authorities were unable or unwilling to protect the applicants.

3. On 29 May 2001, the claim was dismissed by a delegate of the Minister on the basis that the delegate did not accept that at the time he made his decision the authorities in Fiji were unable or unwilling to provide the applicants with protection against ethnic persecution.  The applicants sought a review by the Refugee Review Tribunal of the decision of the delegate.  The Tribunal found as follows:

   ‘The Applicants have claimed that they feared persecution at the hands of young ethnic Fijian louts who attacked the Applicant, husband on the bus for the purpose of robbing him.

   In the case of the wife that these hoodlums create an unstable and insecure environment for women. 

   In determining this matter I have considered the Applicants (sic) claims and I have considered the main motivation of the people responsible for the harassment. 

   I have also considered the attitude of the state and its ability to provide protection.

   In regard to the nature of the attacks on the Applicant husband, by his own account the main motivation was robbery. 

   Although the Applicant (husband) claimed that ethnic Fijian drivers were not attacked I find that the main motivation for the attacks were robbery and under the terms of s. 91R(1)(a) of the Act this does not bring the Applicant’s claims within the ambit of the Convention.

   Similarly, in the case raised by the Applicant (wife), the description of these hoodlums was such that they are drunk and disorderly groups who create an insecure environment for women.  However, I find that this of itself does not amount to persecution for a Convention reason. 

   Furthermore I accept the independent material to the effect that the Fijian constitution provides protection against discrimination on the basis of race, religion or gender. 

   I also accept the DFAT advice and that of the US State Department Country Reports on Human Rights Practices 2001 to the effect that the government is committed to that constitutional guarantee and further that the courts operate independently.

   Accordingly, I am satisfied that the state will provide reasonable and effective protection. 

   While I am sympathetic to the Applicants’ frustration that the hoodlums who robbed the bus were not brought to justice I am not satisfied that the authorities had sufficient details to be able to identify them, and as is the case in all societies there will be a number of criminal incidents in which the perpetrators will not be brought to justice. 

   However, this does not lead to a conclusion that the state is either complicit or generally unable to protect.

   The Applicants left Fiji early in the year 2001 since that time George Speight has been tried and sentenced as have the key supporters in the coup, the country has returned to greater stability and the Constitution has been recognised as binding.

   In conclusion, I find that the acts of the Fijian hoodlums do not amount to persecution for a Convention reason.  Secondly, I find that the country has gone through substantial change since the George Speight coup and also since the Applicants left.  Finally I find that the state is willing, and able to provide protection to its citizens regardless of race, religion or gender.’

4. The following jurisdictional errors are alleged by the applicants:  first, that the Tribunal did not afford the applicant’s procedural fairness, in that the Tribunal failed to take into account the claims of racial discrimination.  The short answer to this is that it is simply incorrect.  The Tribunal clearly took account of the case presented.  The second alleged error, in effect, is that the Tribunal reached the wrong factual conclusion.  It is sufficient to say that that is not a jurisdictional error.

5. The third alleged jurisdictional error is that the Tribunal applied the wrong test as to whether the reason for persecution was ethnicity or not.  It is clear from the Tribunal’s reasons that the Tribunal applied the right test as it is set out in those reasons. 

6. Fourthly, it is objected that there was no evidence before the Tribunal that the Fijian government is able to provide protection.  It is true that the Tribunal does not identify any specific evidence that the Fijian government can and will protect persons of Indian ethnicity.  However, the Tribunal’s reasons need to be understood in a real context.  There is an obvious possibility that the Tribunal member, in relation to a country such as Fiji where existing conditions are well understood and reported in Australia, could have acted on his own knowledge and belief as to those conditions. 

7. In any event, the issue before the Tribunal was ultimately whether or not the Tribunal was satisfied that there was a well‑founded fear of persecution.  The fact still remains that unless there was some material before the Tribunal to suggest that the Fijian government was unable to protect the applicants, there was simply no basis upon which the Tribunal could reasonably be satisfied that a well‑founded fear exists.  In this case, as Mr Clisby has accepted, there was no evidence at all before the Tribunal, other than the allegation in relation to the assault on the bus, which might suggest that at the time of the Tribunal’s decision the Fijian authorities were unwilling or unable properly to protect Fijian Indians.  In the result in this case the applicants have failed to identify any jurisdictional error and the application must be dismissed. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             3 December 2003

Counsel for the Applicant:	MW Clisby
Solicitor for the Applicant:	MW Clisby
Counsel for the Respondent:	C White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 November 2003
Date of Judgment:	7 November 2003