SZAEY v Minister for Immigration - [2003] FMCA 426

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAEY v MINISTER FOR IMMIGRATION

[2003] FMCA 426

MIGRATION – Review of decision of RRT – where alleged persecution may have a racial element – where allegations of failure to consider long term psychological effects of alleged persecution are made – whether Tribunal was required to consider these matters in the context of this applicant’s complaints.

Migration Act 1958 (Cth), s.91R

Htun v Minister for Immigration [2001] 194 ALR 244
FCAT v Minister for Immigration [2003] FCFCA 80
SGBB v Minister for Immigration [2003] FCA 709

Applicant:

SZAEY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 209 of 2003

Delivered on:

22 September 2003

Delivered at:

Sydney

Hearing date:

22 September 2003

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Mr Michael Jones

Counsel for the Respondent:

Mr Robert Bromwich

Solicitors for the Respondent:

Clayton Utz

OR+-DERS

Application dismissed.
Applicant pay the respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 209 of 2003

SZAEY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Fiji of Indo-Fijian ethnicity. He arrived in Australia on 12 May 2002. On 11 July 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 27 August 2002 a delegate of the Minister refused to grant him a protection visa and on 17 September 2002 the applicant applied for review of that decision by the Refugee Review Tribunal. The applicant made submissions to the Tribunal and attended upon it. On 12 December 2002 the Tribunal came to its decision to affirm the original decision of the delegate and it handed down that decision on 15 January 2003.
The applicant applied to this court for review of the decision of the Tribunal and submitted an original application on 21 February 2003. Mr Jones, who appears on behalf of the applicant, today filed in court without objection, an amended application and the submissions which he had served spoke to that document. The applicant's written statement which was provided to the Tribunal can be found between [CB 51] to [53]. It sets out those matters which he considered established that he had a well founded fear of persecution for the convention reason of race. He states:
“That on many occasions he was threatened by extremely fierce indigenous Fijian youths, that he would be killed because he could not resort to their request to share his nominal income with them.”
He says:
“That these people made demands of money almost every pay day.”
He states:
“That his residential house was located in the dense concentration of Fijian population, a Fijian village surrounded him. He was confronted by unemployed youths on a regular basis and on each encounter they demanded cash, cigarettes and petty things.”
The applicant claims that he was manhandled a few times, money was forcibly picked from his pocket by Fijian youths. He indicated at [CB 51] that he reported the matter to the police and that the youths were being interrogated when he decided to travel to Australia. He also states that a property he wished to purchase in another part of Fiji within the Indo-Fijian community had been reverted to the Native Land Trust Board and he was unable to acquire it.
This information came to him in Australia and he states that his hopes for returning to Fiji were shattered. The applicant indicated that he believed that his association with the Fijian Labor Party might also have contributed to the racial harassment which he had suffered. The Tribunal did not accept this. At [84] it says:
“When asked why he had not mentioned, prior to the hearing, that he believed that these problems were directed at him because of his support for the FLP the applicant said he had not known what to write. I do not accept this explanation. .... I do not accept that the applicant would have failed to mention that there was a political dimension to the harassment he suffered prior to the hearing if this was really the case.”
The applicant made a claim that he had been seriously assaulted on three occasions in 2001. But at [85] the Tribunal dismisses this claim. Once again the reason was that the applicant did not mention those assaults in his protection visa application or in his application for review.
What the Tribunal did accept was that the applicant had experienced low level criminal harassment comprised of stoning of his house, low level theft, and demands for money or goods accompanied by threats. The Tribunal stated at [CB 85]:
“I am satisfied that such harassment is not of such significance, and has not resulted in sufficiently serious harm, to be considered persecution within the meaning of the Refugees Convention and s 91R of the Act. While there may be some racial component to the harassment, I am not satisfied, based on the evidence before me, that the applicant's race is the essential or significant reason for the harassment. I consider that the harassment described by the applicant is essentially random criminal conduct.”
The Tribunal goes on to come to the view that, partly as a result of the evidence the applicant gave himself regarding the investigations into these matters and partly from his reading of the country information, the applicant would not be denied the same protection from the authorities against criminal attacks or racially or politically motivated violence or harassment as any citizen of Fiji. At [CB 86] the Tribunal says:
“On the basis of the credible evidence before me, including the independent material referred to above, I conclude that the prospect of the applicant facing harm amounting to persecution if he were to return to Fiji for reason of his membership of the FLP or his race or for any other Convention reason, is remote and that is fear of persecution for these, or for any other Convention reasons, is not well-founded.”
Mr Jones makes two points in his submissions; the first is one which I believe does require some further consideration by the courts but probably not in this particular case; that is that the dismissal of harassment and harm as well as criminal actions against a particular community on the grounds that it is merely a matter of criminal activity ignores the racial element in the actions of those causing the applicant distress.
Whilst there may very well be, in the appropriate case, a good argument to be made that the racial element cannot be ignored I do not think this is the case in which it can be put. I say this because the Tribunal found, as a matter of fact, that the serious allegations put forward by the applicant were not credible and the Tribunal was left with what, by any account, could be considered to be a low grade and petty intimidation. This is not to say that it was not unpleasant but it would not come, to my mind, within the definition of serious persecution required by s.91R of the Migration Act 1958 (Cth).
The remarks which I have just made deal with the activity occasioned against the applicant on a physical level. Mr Jones raises an additional point and that is that the activity could be considered to have a psychological effect on the applicant. He goes further. He says that the Tribunal did not consider that possible psychological effect and therefore failed to complete the exercise of the jurisdiction upon which it embarked (see Htun v Minister for Immigration [2001] 194 ALR 244 at 259).
The most persuasive support that Mr Jones obtains for his submission is found in the case of FCAT v Minister for Immigration [2003] FCFCA 80 whereby majority the Full Bench of the Federal Court came to the view that the Tribunal had not taken into account the possibility of severe psychological harm to a family of Mandians in Iran.
The difference between that case and this is that in FCAT the issue was considered by the Full Bench to have been squarely raised and some supporting evidence, albeit not of a qualified nature, was provided. Nothing of that type has been done here. In SGBB v Minister for Immigration [2003] FCA 709 at 17 His Honour says:
“As Kirby J noted in Dranichnikov v The Minister 197 CLR at 405, "The functions of the Tribunal, as of the delegate, is to respond to the case that the applicant advances"; see also von Doussa J in SCAL v The Minister [2003] FCA 548 at 16. "Neither the delegate nor the Tribunal is obliged to consider claims that have not been made but this does not mean that the application is to be treated as an exercise in 19th century pleading.”
I really do think that where a case is being advanced that has no obvious connection with the facts in the way it is now being suggested that the applicant may have suffered from long term psychological harm as a result of the minor incidents found by the Tribunal to have occurred, then something more than the existence of those facts is required before a tribunal can be impugned for not considering a form of persecution that might be available to the applicant to claim.
In all the circumstances, there being no other complaint made by Mr Jones concerning the Tribunal's decision, I have come to the view that the application must be dismissed. I so order and I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: