SZADZ v Minister for Immigration - [2003] FMCA 346

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADZ & ORS v MINISTER FOR IMMIGRATION

[2003] FMCA 346

MIGRATION – Review of RRT decision – application for protection visas – where the applicants claim to have a well-founded fear of persecution for reasons of their ethnicity – dispute as to whether their fear is Convention related – whether the applicants have a real chance of persecution in the future – whether there is any jurisdictional error in the Tribunal’s decision.

Migration Act 1958, s.91R(1)(a)

SCAM v Minister for Immigration (2002) FCA 964

Applicant:

SZADZ, SZAEA and SZAEB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 162 of 2003

Delivered on:

7 August 2003

Delivered at:

Sydney

Hearing date:

7 August 2003

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Michael Jones Solicitors

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
First and second applicants to pay the respondent’s costs assessed in the sum of $4,250.00 to be paid from the $25,000 bond the applicants have paid to the Commonwealth of Australia.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 162 of 2003

SZADZ, SZAEA and SZAEB

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicants in this matter are a married couple and their child who are citizens of Fiji. On 21 June 2001 they arrived in Australia on a strictly limited visa for which they had to pay a bond of some $25,000.00. On 2 August 2001 they lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 17 December 2001 a delegate for the Minister refused to grant the protection visa and on 11 January 2002 the applicants applied for review of that decision by the Refugee Review Tribunal.
The Tribunal considered the papers and invited the applicants to attend upon it for the purposes of giving evidence. This occurred on

2 December 2002. On 3 December 2002 the Tribunal made its decision and handed that decision down on 8 January 2003. The decision of the Tribunal was to affirm the original decision of the delegate of the Minister not to grant the applicants protection visas.
The applicants’ seek review of the decision of the Tribunal. They are represented by Mr Jones who has today before me mounted an eloquent case that the Tribunal made a jurisdictional error by not asking itself whether, in the context of the Fijian situation, the events which the applicants claim constituted evidence to support their well founded fear of persecution for the Convention reason of race were manifestations racial persecution.
The applicants’ family are traders in a family motor parts company in Naursori. They gave a history of troubles that they had experienced with ethnic Fijians commencing in 1994. In June 1994 an attack was made upon their home in which a gas canister was thrown and exploded affecting quite seriously all the people in the house. The evidence was that Fijians brandishing knives and wearing army fatigues and gas masks then came into the house and robbed it. One of the women who was living in the house was in the third trimester of her pregnancy and it appeared that she lost the baby as a result of the shock. The applicants claimed that although the police were contacted and spoken with, they did not take any steps to assist and indeed, were initially sceptical of the applicants' story.
Another incident occurred in August 1995 at the applicants' shop which was robbed by approximately five Fijians. The applicant was assaulted and attended at the hospital. Once again, he gave a statement to the police and nothing occurred.
About six months later, in early 1996, the male applicant claims that eight or nine Fijians entered their compound one evening and beat up himself and his wife who was pregnant at the time. He told the Tribunal that one of the Fijians had said that he was being targeted because they were regarded as being anti-Fijian. Again, a complaint was made to the police but no one was arrested, even though the applicant said that he told police that he recognised at least three of the men as being from a nearby village.
Some minor incidents occurred between 1996 and 1999 and the applicant claimed that the situation deteriorated in the months leading up to the May 2000 coup. In May, some 10 days after the coup commenced, the applicant claimed that a number of Fijians entered their house during the night, again dressed in army fatigues and with black paint on their faces, they were armed with guns and knives. The applicant heard one of the men tell his colleagues that the applicant was a Fiji Labor Party supporter (which he was). The family were held throughout the night, allegedly as hostages, and in the morning the group took the male applicant to his shop and there stole a considerable quantity of motor parts, which the applicant was told were required for the rebel vehicles. The applicant again told the police, he was informed he was lucky to be alive and there was nothing the police could do. The applicant considered this incident the last straw and made every effort thereafter to obtain a visa to travel to Australia. This he eventually did.
The Tribunal in its findings and reasons says at [CB 128]:
Having carefully considered the significant incidents relied upon, the Tribunal accepts that the applicant and his family on several occasions over a period of six years experienced criminal acts which were serious and traumatic. However, the Tribunal is not satisfied that the applicants' ethnicity (or political opinion or any other Convention reason) was the essential or significant reason for these incidents. The first three were opportunistic criminal acts aimed at gain through theft; the fourth was more organised and occurred in a political context of the May 2000 coup. But the rebel group was clearly motivated by the desire to seize specific material required in their illegal enterprise and not by any intention to harm or mistreat the applicant and his family for any Convention reason.
The Tribunal has given weight to consistent reports from independent sources that the security situation in Fiji has improved significantly since the May 2000 coup and it's immediate aftermath.
The Tribunal has carefully considered the independent information cited concerning the present situation in Fiji and, in particular, whether the situation is such that (having regard both to the country information and the applicants' own particular circumstances), he would face a real chance of persecution for a Convention reason on return to Fiji now or in the reasonably foreseeable future.
The Tribunal goes on to consider the situation in Fiji as it is at present and the improvements that have been made since the coup in the year 2000.
I am quite satisfied that the Tribunal, when considering the nature of the persecution allegedly suffered by the applicants, considered it in the context of s.91R(1)(a) of the Migration Act 1958 (“the Migration Act”). But the protocol does not apply in relation to persecution for one or more of the reasons mentioned in Article 1A(2) of the Refugee’s Convention unless that reason is the essential and significant reason or those reasons are the essential and significant reasons for the persecution.
Mr Jones argues that when the Tribunal approached this question it did not look at the general context of the situation in Fiji as it related to Indian Fijians and did not consider whether the attacks were a manifestation of a form of racial persecution which, it is notorious, has existed in that country between ethnic Fijians and Indian Fijians.

I think this is an argument that Mr Jones is entitled to make but after consideration of the whole of the reasons for decision I am of the view that it is not one that I would consider to be successful.
I think that in considering the voluminous country information and the very detailed statement of the applicant which certainly alludes to these activities being brought against them because of their ethnicity that it would be difficult to say that the Tribunal did not take this matter into account.
There is perhaps a more cogent reason why this application must be dismissed and that is because the Tribunal was no doubt mindful of the test set out in SCAM v Minister for Immigration (2002) FCA 964:
The real chance of persecution necessary to meet the objective element of the definition of refugee must be present at the time when the claim for refugee status is determined. I consider it follows that where the threat of persecution that calls an asylum seeker to hold a well-founded fear at the time of departure from the country of nationality has in the meantime evaporated, and the circumstances pertaining in the country are so changed that there is no longer a real chance that the asylum seeker would risk persecution for a convention reason, if he or she were to return, any persisting fear of persecution held by that asylum seeker does not have the objective quality of being well founded.
The Tribunal addresses this issue at [CB 128 to 129] where it makes a specific finding that it is not satisfied that the authorities provide ineffective protection to Indo-Fijiians for Convention reasons. Then it finds that the applicants would not have a well-founded fear of persecution if they were to return to Fiji now or in the reasonably foreseeable future.
It seems to me in this case that is the essential question, and even if one was minded to grant review on the basis requested by Mr Jones then such a review would be of little benefit to the applicants given the finding concerning the current situation.
For these reasons I must dismiss the application. In regard to the question of costs, whilst I am prepared to order that the first and second applicants pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 rule 21.02 (2)(a) of the Federal Magistrate's Court rules I believe that these costs should be met first from the $25,000 bond the applicants have apparently paid to the Commonwealth of Australia as a condition of their obtaining their original visa.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: