SZALW v Minister for Immigration
[2004] FMCA 258
•28 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZALW & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 258 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming racial and political persecution in Fiji – whether the RRT ignored relevant country information or dealt with it unreasonably considered – whether the RRT breached s.430(1)(b) of the Migration Act 1958 (Cth) considered – whether relief should in any event be refused in the exercise of discretion considered. COSTS – Reduction in costs award where the RRT decision defective, although within jurisdiction. |
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 430
Arumugam v Minister for Immigration [1999] FCA 251
Kord v Minister for Immigration (2002) 125 FCR 68
Prahostono v Minister for Immigration (1997) 77 FCR 260
Rahem v Minister for Immigration [2000] FCA 940
Shah v Minister for Immigration [2000] FCA 489
| First Applicant: Second Applicant: | SZALW SZALX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ691 of 2003 |
| Delivered on: | 28 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 28 April 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr T Silva Silva Logan Solicitors |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Applicant SZALW is appointed as litigation guardian of SZALY pursuant to rule 11.11 of the Federal Magistrates Court Rules 2001 (Cth).
Applicant SZALW is relieved of the obligation to file a written consent or to serve written notice on the respondent.
The application is dismissed.
The first and second applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
The Court notes the undertaking of the first and second applicants to pay the setting down fee of $327 or obtain a waiver within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ691 of 2003
| SZALW, SZALX, SZALY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 11 March 2003 and handed down on 1 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants, a father, a mother and one child. At the commencement of the hearing today the father was appointed litigation guardian of the child. The applicants are from Fiji and made claims of racial or ethnic persecution in Fiji. The applicant father also referred to his membership of the Fiji Labour Party although, as will appear, that was not a substantial part of his claims to a protection visa.
The applicants proceed on the basis of an amended application filed on 21 April 2004. Three grounds of review are advanced in that application. These are
(1)The RRT failed to take into consideration relevant vital country information, some provided by the applicant, one other from Amnesty International's Annual Report for 2002 which is part of the RRT’s country information. The particulars given refer to pages 61, 62 and 63 of the court book and page 18 of the supplementary court book.
(2)The second ground is that the RRT misinterpreted the meaning of persecution in s.91R of the Migration Act 1958 (Cth) (“the Migration Act”) and, as a result, committed jurisdictional error by asking a wrong question in relation to the applicants' claims of being persecuted in the past and to fear persecution in the future.
(3)The third ground is that the RRT was unreasonable to a degree of Wednesbury unreasonableness when it used the Amnesty International Annual Report for 2002 in a very selective way to present a wrong picture of Fiji within its decision. The particulars given are that the RRT's summary, given on page 80 of the court book, differs significantly from the report itself appearing on page 18 of the supplementary court book.
Mr Silva, for the applicants, prepared written submissions which were filed on 21 April 2004 and also relied upon an affidavit by the first applicant annexing an extract of transcript from the RRT hearing.
I accepted the affidavit and transcript as evidence relevant to the issue of whether the RRT had misapplied s.91R of the Migration Act. The transcript annexed to the affidavit contains a significant number of omissions. Mr Silva told me that this was because the audio tape of the RRT hearing was of very poor quality and it was impossible to understand much of what the presiding member said. That necessarily reduces the weight that I can attach to the transcript and points to a possible need on the part of the RRT to address the quality of sound recording. However, there is sufficient in the transcript to establish what the principal applicant was saying concerning his fear of persecution and what the wife said in support of his claims.
In relation to the first and third grounds of review, Mr Silva submits that the RRT ignored favourable country information relied upon by the applicants. Mr Silva submits that the RRT had an obligation to deal with that country information. The relevant country information set out on pages 61 to 63 of the court book, referred to in the particulars, is a collection of newspaper extracts referring to a dispute in Fiji in 2002 concerning the participation of former Prime Minister Chowdhury of the Labour Party in the Fijian Government.
The nature of the dispute appears to have been that the then Government of Fiji did not accept Mr Chowdhury into the Cabinet and political commentators expressed the view that the action was in conflict with the then Government's Constitutional obligations which would need to be addressed either politically or legally if ethnic Indian-Fijians were to have confidence in the Government and the political process. Mr Smith, in his written submissions, filed in chambers on 27 April 2004, states in paragraphs 2-4 of those submissions that the RRT did have regard to the relevant country information.
As is noted by Mr Smith, the RRT states, on page 76 of the court book, that it had before it the Department's file which included the protection visa application and the delegate's decision record as well as the applicant's submission in support of the application. Mr Smith submits, and I accept, that it follows that the press articles referred to, which were included in the material submitted by or on behalf of the applicants, were before the RRT. The articles were not expressly referred to by the presiding member in his reasons for decision but that does not necessarily mean that they were ignored.
The articles point to a political dispute with ethnic or racial overtones. On page 77 of the court book the presiding member states:
The Applicant husband states that he was a member of the Fiji Labor (sic) Party. He organised meetings for the FLP at his home compound and he wrote the letters to the newspaper.
I think different letters were being referred to there.
All this was known to the local native Fijians. Following the coup the native Fijians harassed and threatened the Applicants. The native Fijians threw stones into the Applicant’s house and broke into the Applicant’s car.
Later on on that page the presiding member states:
It was put to the Applicants that there did not seem to be any evidence that Fiji Labor (sic) Party members were at risk of persecution. The applicant husband said that this was true though, as he pointed out, many such members had left Fiji. He was worried about what might happen in the future if the High Court upheld the case brought by the Labor (sic) Party.
It follows, in my view, that the applicant was not asserting that he faced a risk of persecution simply because he was a member of the Fiji Labour Party, but he was asserting that the role that the Fiji Labour Party played in Fijian politics was a relevant factor in considering the risk of ethnic or racial persecution.
The discussion on page 77 of the court book indicates that the issue was before the RRT and appears to have been taken into account. The presiding member on pages 78 and 79 refers to other country information which was obviously of significance to him in reaching his decision. The ground of review advanced in the amended application is a failure to take into consideration the specified relevant country information. Mr Smith submitted that it might more properly be seen as an asserted breach of s.430(1)(d) of the Migration Act.
If, as appears on the face of the amended application, the asserted ground is to fail to take into account a relevant consideration the ground cannot be sustained. It is plain from a fair reading of the RRT decision that all elements or integers of the applicants' claims were considered. Mr Silva conceded that it was not part of the applicants' claims that the Government of Fiji was defying its constitutional obligations. The most that could be said was that the first applicant considered the political role of the Labour Party to have some relevance to the risk of ethnic or racial persecution of ethnic Indians in Fiji.
That issue was considered by the presiding member. The conclusion drawn by the presiding member was that the situation in Fiji was “stable except for some isolated minor harassment, and that democracy is being restored”. That appears at the top of page 81 of the court book. I regard those words as significant. It appears to me from those words that the presiding member was stating that the restoration of democracy was evolving process which had not yet been complete but that the movement was positive. That conclusion was reasonably drawn from the country information referred to by the presiding member on pages 78 and 79 of the court book.
There is no substance to the claim that the country information at page 18 of the supplementary court book was not taken into account. It was specifically referred to by the presiding member at page 80 of the court book. The real issue is whether that country information was dealt with reasonably. I deal with that issue below.
If, contrary to the terms of the amended application, the ground of review is really an asserted breach of s.430(1)(d) of the Migration Act, it likewise has not been made out. The reasons for decision of the presiding member, while brief on this point, provide an adequate explanation of the decision and reasons of the RRT.
Mr Silva dealt with the third ground of review immediately after the first ground. The assertion here is that the decision of the RRT was unreasonable insofar as it relied upon the Amnesty International report which is referred to by the presiding member on page 80 of the court book. The presiding member stated:
Amnesty International's Annual Report for 2002 indicates that there has been an improvement in the security situation in Fiji subsequent to the coup. There was no reported violence resulting from political or ethnic tensions. Some Indo-Fijians were threatened with violence when they gave evidence against indigenous Fijians accused of looting or driving them from their homes during the coup. For much of the year police and the military maintained an increased presence in areas worst affected by violence around the time of the coup. However, some police stations lacked the equipment necessary to allow them to respond to security threats.
Mr Silva submits that the conclusions drawn by the presiding member from the Amnesty International report were simply not there to be drawn. He took me to the report appearing on page 18 of the supplementary court book. The report deals with the political situation in Fiji, the rule of law, human rights restrictions and the issue of impunity enabling coup leaders to escape punishment. Mr Silva submits, and I accept, that, read as whole, the Amnesty report is a negative assessment of the human rights situation in Fiji and is critical of defects in the rule of law.
The report does not purport expressly to deal with the security situation in Fiji, although it is the security situation in Fiji which the presiding member chose to focus on in dealing with the report. The presiding member draws from a single paragraph on the first page of the report a conclusion that there has been an improvement in the security situation in Fiji subsequent to the coup. He notes that there was no reported violence resulting from political or ethnic tensions and indeed the report does not identify any acts of physical violence although, as is noted by the presiding member, there were threats of violence.
The greater part of the paragraph on page 80 of the court book is a fair summary of the last paragraph on the first page of the Amnesty International report. Nevertheless, the use of the report by the presiding member does give me some disquiet. The presiding member puts a positive spin on the report which, arguably, was a misuse of it. However, the assertion in the amended application is that the treatment of the report renders the decision unreasonable. That is not an easy ground of review to establish. There is also a question whether Wednesbury unreasonableness is available as a ground of review where one is dealing with a fact finding exercise as opposed to an exercise of discretion.
Whether the ground of review is properly characterised as Wednesbury unreasonableness or whether it is an attack on a fact finding exercise as irrational, absurd and perverse, the ground in my view has not been sustained. Although the presiding member may have misused the report it is but a small part of his overall assessment of the improving situation in Fiji following the coup. The reliance placed by the presiding member on the Amnesty report must be balanced by the reliance placed on the presiding member on the other country information referred to in the decision.
As a whole, the conclusions reached by the presiding member on page 81 of the court book were reasonably open to him on the material before him. It cannot be said either on a global examination of the reasons or on an examination of the reasons in relation to the Amnesty International report that the assessment was irrational, absurd or perverse. The presiding member placed a positive emphasis on a part of the Amnesty International report arguably taken out of context, but that does not in my view equal irrationality, absurdity or perversity. Neither does it satisfy the test of Wednesbury unreasonableness.
The final ground of review is the second. The issue here is whether the RRT misinterpreted the meaning of persecution in s.91R of the Migration Act. If it did, this would be an error of law going to the jurisdiction of the RRT. It is clear that the correct definition of “refugee” is set out on pages 75 and 76 of the court book. The presiding member then proceeded to consider the claims made by the principle applicant and his wife and considered the country information. The presiding member accepted that the applicants are Fijian citizens of Indian ethnicity.
The presiding member accepted that the applicants have a genuine fear that if they return to Fiji they will be harassed, threatened and abused by native Fijians. They had a genuine fear that they may be physically harmed. The presiding member then said on page 80 of the court book:
I accept that both before, during and after the coup in Fiji in May 2000, many Indo-Fijians were subjected to verbal abuse, harassment, robbery, assault; the homes of some Indo-Fijians were vandalised; and some houses built on land owned by native Fijians were destroyed.
I am satisfied that the Applicants were harassed and threatened; their business was harmed by native Fijians behaving badly and not paying. The police did nothing to help them. I am not satisfied that the harm suffered by the Applicants amounts to persecution in the terms of s.91R(1) of the Act.
The presiding member then went on to consider whether the applicants had a well founded fear of persecution should they return to Fiji, having regard to the then present situation in Fiji and concluded that the fear held by the applicants was not well founded.
Section 91R(1) of the Migration Act provides that:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
Subsection 2 provides a non-exhaustive list of examples of instances of serious harm for the purposes of Subsection 1.
The essence of Mr Silva's submissions on this point is that the material before the RRT pointed overwhelmingly to a conclusion that the applicant's had been persecuted in the past. In the circumstances, in Mr Silva's submission, the finding by the presiding member that he was not satisfied that the harm suffered by the applicants amounts to persecution in the terms of s.91R(1) of the Act indicates a misunderstanding or misapplication of the definition of “persecution” in the section.
For his part, Mr Smith, in his written submissions, submits that the finding was open on the material before the RRT. I adopt for the purposes of this judgment the statement of general principles contained in paragraph 5 of Mr Smith's written submissions:
The RRT found that, while the applicants had been harassed and threatened, they had not, in the past been persecuted [court book, page 80.10]. The applicants say that this reveals an error of law in that the RRT misconstrued the meaning of the word “persecution” in the Convention. It is not in question that the question of whether particular conduct constitutes persecution is one of fact and degree: Prahostono v Minister for Immigration (1997) 77 FCR 260, 268 per Hill J; Arumugam v Minister for Immigration [1999] FCA 251 at [37] per Lindgren J; Shah v Minister for Immigration [2000] FCA 489 at [7] per Tamberlin J and Rahem v Minister for Immigration [2000] FCA 940 at [31] per Stone J. It is as much for this reason as for the other complexities involved in Article 1A(2) of the Convention that there has been no attempt by the High Court to arrive at a definition rather than a description of what may constitute persecution: see also Kord v Minister for Immigration (2002) 125 FCR 68 at [35].
The difficulty I have with this aspect of the RRT’s reasons, which is a critical aspect, is that the presiding member did not explain why he was not satisfied that the harm suffered by the applicants amounts to persecution in the terms of s.91R(1). Mr Smith submits, and I accept, that it could not have been on the basis of paragraph (a) of the subsection. There was ample evidence to establish a Convention nexus with the harm suffered by the applicants which was accepted by the presiding member. Mr Smith submitted that it was apparent that the presiding member was focusing on paragraph (b) of subsection (1), that the persecution must involve serious harm. However, he agreed with me that it was also possible that the presiding member was having regard to paragraph (c), which requires that the persecution involves systematic and discriminatory conduct.
The available evidence indicated that the harm suffered by the applicants was discriminatory. It did not necessarily follow that it was systematic. It may have been regarded by the presiding member as merely random. The presiding member might also have taken the view that the harm was not of sufficient seriousness to satisfy the test in paragraph (b) of subsection (1). I am left to speculate because the presiding member did not explain his finding. This raises some question in my mind whether the presiding member fulfilled the obligation in s.430(1)(b) of the Act to record its decision in a reasoned way.
However, that ground of review is not advanced by the applicants in relation to the alleged misapplication of s.91R and the applicants are legally represented. It is not for me to make their case for them. Secondly, even if the presiding member did fall into error in providing reasons for the finding by not sufficiently explaining those reasons, the following finding that the applicants would not suffer persecution in the future, was properly explained on page 81 of the court book. Even if the presiding member had concluded that the applicants had been persecuted in the past, it remained open to him on the information before him to conclude that they would not be persecuted in the future.
While I have some doubt about the compliance by the presiding member with s.430(1)(b) of the Migration Act in relation to this aspect of the decision, I am not persuaded that the presiding member misunderstood s.91R of the Migration Act. The section was accurately summarised earlier in the reasons for decision. On the material before the presiding member, it was probably open to him to conclude either that the harm suffered by the applicants was not sufficiently serious or was not sufficiently systematic. It might have been either; it might have been both.
It would have been of assistance if the presiding member had explained his reasons. However, if his failure to do so constituted jurisdictional error, which has not been asserted by the applicants, I would in the exercise of my discretion withhold relief on the basis that the presiding member reasonably concluded on the material before him that the applicants would not be persecuted in the future.
For those reasons, I have decided that I should dismiss the application.
If the decision subject to review, although within jurisdiction, is defective, it is open to the Court to decline to make a costs order. The rationale for this assessment would be that if the decision had not been defective, the legal proceedings would not have been necessary and the defects in the decision invited the application for judicial review. There is some authority, both in this Court and in the Federal Court in support of that contention. However, that judgement ought to be sparingly exercised. In this case, the concerns I have regarding the decision of the RRT centre upon the presiding member’s use of the Amnesty International report and his failure to explain clearly why he was not satisfied that the applicants had suffered past harm amounting to persecution.
It is certainly arguable that these proceedings may not have been necessary if those problems had been avoided. However, the applicants advanced grounds of review which went significantly beyond those concerns and addressed different arguments. The applicants have been unsuccessful on those grounds.
I have formed the view that in the circumstances of this matter a costs order should be made, but the amount of costs awarded should be reduced from what might otherwise have been appropriate on an ordinary party-party assessment. I will order that the first and second applicants pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 April 2004
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