SZAHE v Minister for Immigration

[2003] FMCA 535

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAHE & ANOR v MINISTER FOR IMMIGRATION [2003] FMCA 535

MIGRATION – Application for review of decision of RRT – where applicants are critical of Tribunal’s factual findings – where grounds of application and submissions do not identify jurisdictional error.

Migration Act 1958 (Cth), s.91R
Federal Magistrates Court Rules, Part 21 Rule 21.02(2)(a)

Abebe v The Commonwealth (1999) 197 CLR 510

First Applicant: SZAHE

Second Applicant: SZAHF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 412 of 2003

Delivered on: 19 November 2003

Delivered at: Sydney

Hearing date: 19 November 2003

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 412 of 2003

SZAHE

First Applicant

SZAHF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicants in this matter are a Fijian husband and wife of Indian ethnicity.  They first came to Australia on 4 May 2001 but they left on 30 May and then returned on 26 September.  On 12 October 2001, they lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs.  On 20 December 2001 a delegate of the Minister refused to grant them protection visas and on 7 January 2002 they applied for a review of that decision.  The applicants were invited to a hearing before the Tribunal which took place on 14 February 2003. The Tribunal made its decision on 18 February and handed it down on 11 March.  The Tribunal affirmed the decision not to grant protection visas. 

2. The applicants claim to have a well founded fear of persecution for the convention reason of race because as Indo-Fijians they had been subjected to certain actions by the indigenous population.  Two main complaints were made.  Firstly the male applicant was employed in a senior position as a chef/food and beverage manager at an hotel in Sigatoka.  On or about 3 June 2001, a letter was delivered from a man signing himself as spokesman for Mataqali advising the managing director of the hotel that the employment of three persons, including the applicant, breached a lease agreement between the landowners and the hotel.  The letter demanded the removal of the three persons and their replacement by indigenous persons who are members of the landowning unit.  As a result of this letter, the applicant lost his position.

3. The second matter complained of by the applicants was that a farm which belonged to the male applicant's uncle had been forcibly retaken by the indigenous population notwithstanding that the lease had a year and a half to run and that they were therefore deprived of an income.  The applicants also made general allegations about the situation of Fijian Indians within Fiji, although no specific reference to particular acts of persecution against them were made. 

4. In respect of the first complaint the Tribunal states:

   “ The applicant had complained of the loss of his employment, a matter of only weeks before his eventual departure from Fiji, although the letter from the landowners had been sent to the employer some three months earlier.  It is clear from the document submitted that a legal agreement governing the land occupied by the resort specified that the first preference in employment should be given to members of the landowning unit.  In these circumstances, the enforcement of this agreement does not necessarily amount to persecution.  In any event, the applicant has not been precluded from all employment and indeed, has detailed prior positions where he was engaged as a chef or a cook.  The Tribunal is not satisfied that loss of a particular job in the circumstances described amounts to persecution or a convention reason.”  [CB 73-74].

5. In relation to the second complaint, the Tribunal says:

   “The applicant has also complained of the loss of land.  It is clear that this was not land owned or leased by the applicant, but land where he worked part time for a relative.  The Tribunal accepts the evidence of the applicant's wife that the land was reclaimed by the native landowners when the lease expired in 2000 and not including 2001 (after the applicants returned from Australia) and while the lease was still current, as claimed by the applicant himself .”  [CB 74].

   The Tribunal also stated:

“ The Tribunal is satisfied that the applicant has not had his property confiscated and that he has not been precluded from all reasonable employment.  Indeed, he has particular employment skills and experience which would give him an edge in the difficult Fiji employment market.”

1. The application, which was filed in this court on 21 March 2003 states only that “the decision of the RRT has got some errors, as all materials have not been taken into account before making the decision.” 

2. When he appeared before me, the male applicant provided a written submission of four paragraphs which made the following points:

   “(1) The Tribunal failed to understand that he was forced to leave his job under pressure from the indigenous Fijians;

   (2) The Tribunal misunderstood his occupation in the hotel industry and his farming background and disregarded the importance of his income from sharing the farm;

   (3) The Tribunal misunderstood the purpose of him coming to Australia in May and that his problems only really started after he returned;

   (4)The Tribunal failed to understand the real political situation in Fiji and in particular the manner in which the Fijian politicians influence ordinary indigenous Fijians to take persecutory or discriminatory action against Indo-Fijians.”

3. It will be clear from this recitation of the facts and of the submissions that the applicants have not articulated any basis on which the Tribunal's decision can be impugned for jurisdictional error.  Making a mistake of fact is not such an error Abebe v The Commonwealth (1999) 197 CLR 510. The matters about which the applicant complains are matters in respect of which he believes the Tribunal has made a wrong finding of fact. It is also appropriate to say that the Tribunal had evidence upon which it could make the findings that it did, whether they be right or wrong.

4. The Tribunal is entitled to make conclusions from the letter. The Tribunal is entitled to accept the evidence of the applicant's wife over his own evidence and therefore to conclude that his problems may have commenced earlier than he indicated. The Tribunal was also entitled to take into account the detailed country information concerning the political situation in Fiji in recent times and so come to a conclusion that the applicant did not have a well founded fear of persecution in that country, that he had not been persecuted and that even if the situation in his home area was unsatisfactory he could relocate to a larger town without suffering from the type of activity that would fall within s.91R of the Migration Act 1958 (Cth).

5. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: