SZAPH v Minister for Immigration
[2004] FMCA 291
•7 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAPH & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 291 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicant claiming ethnic persecution in Fiji – claims rejected on credibility grounds and on the basis of country information – no reviewable error found – application dismissed. |
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 424A, 474
Minister for Immigration v Guo (1997) 191 CLR 559
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
R v Hickman; Ex parte Fox & Clinton(1945) 70 CLR 598
| Applicant: | SZAPH SZAPI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ828 of 2003 |
| Delivered on: | 7 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 7 May 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Applicant SZAPH is appointed as litigation guardian of SZAPJ and SZAPK pursuant to rule 11.11 of the Federal Magistrates Court Rules 2001 (Cth).
Applicant SZAPH 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 costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ828 of 2003
| SZAPH, SZAPI, SZAPJ, SZAPK |
Applicants
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 27 March 2003 and handed down on 16 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are four applicants. The first applicant is a father. The second applicant is his wife and the other two applicants are their two minor children.
I appointed the first applicant the litigation guardian of the two children. The applicants are from Fiji and make claims of ethnic and religious persecution. The first applicant also referred to his political association.
The relevant background information is set out in written submissions prepared on behalf of the Minister by Mr Wigney. That is an accurate summary of the background facts. I adopt paragraphs 1-3 of those written submissions for the purposes of this judgment:
The applicants are citizens of Fiji. They arrived in Australia on 4 January 2002 and applied for Protection (Class XA) Visas on 22 January 2002. Applicants SZAPH and SZAPI are husband and wife and the other applicants are their children. Only the husband, SZAPH, made specific claims for protection. The other applicants applied for the visa as part of their family unit.[1] For convenience applicant SZAPH will be referred to as the applicant in these submissions.
[1] The visa applications are at court book, pages 1-42.
Section 36(2) of the Migration Act 1958 (Cth) (“the Act”) provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). In general terms Australia has protection obligations to refugees. A refugee is a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, unwilling , to avail himself or herself of the protection of that country.[2]
[2] Article 1A(2) of the Convention.
The applicant’s application for a protection visa was based on a claim that he feared persecution in Fiji on the grounds of his race and religion and the inability or unwillingness of the Fijian government to offer him protection.[3] The applicant was of Indian ethnicity and a Hindu. He claimed that in four separate incidents that occurred between October 1993 and October 1998 he was subject to thefts, threats and violence at the hands ethnic Fijians. On one occasion in December 1999 ethnic Fijians set fire to a house next door.
[3] The applicant’s claims were initially set out in a letter prepared by a migration agent and in a one page statement which accompanied his visa application: court book, pages 1-2; 44.
On 21 March 2002 the applicant’s visa applications were refused by a delegate of the respondent (court book, pages 60-70). The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention. Prior to making this decision, the delegate forwarded a letter to the applicant advising him of certain “country information” in its possession and invited his comment (court book, pages 55-60). The delegate noted that the reports “suggest that the security authorities are currently maintaining law and order and that the Fijian government is committed to the protection of all its citizens regardless of their ethnicity.” The applicant did not respond to this letter.
Refugee Review Tribunal proceedings
On 12 April 2002, the applicants applied to the RRT for a review of the delegate’s decision.
On 13 February 2003, the RRT invited the applicant to attend the RRT hearing and to give oral evidence and present arguments in support of his application. The applicant responded to this notice by indicating that he wanted to come to the RRT hearing and a hearing was convened on 17 March 2003 at which the applicant gave oral evidence before the RRT. Prior to the hearing the applicant’s migration adviser sent detailed written submissions to the RRT. These submissions commented on, inter alia, the country information referred to in the delegate’s decision.
On 16 April 2003 the RRT handed down its decision affirming the decision of the delegate refusing the applicant’s visa application.[4]
[4] court book, pages 106-116. The decision was made on 27 March 2003.
The RRT’s decision and reasons
The RRT provided detailed reasons for its decision. In its reasons the RRT made the following findings:
a)it was not satisfied that the applicant had a genuine fear of persecution on his return to Fiji and did not accept as credible the applicant’s claim that he and his family would suffer an “absolute chance” of persecution on account of his ethnicity and religion; (court book, page 114.1)
b)its finding in (a) was largely based on the fact that there had been a three year gap between the last relevant incident and the applicant’s departure for Australia; (court book, page 114.2)
c)it was not satisfied that the applicant or his family were specifically targetted by ethnic Fijians on the grounds of their ethnicity or religion;
d)it was not satisfied that any lack of police activity was due to their anti-Indian bias as had been claimed; (court book, page 115.4)
e)the harassment of Indo-Fijians and the destruction of their property that occurred during 2000 did not continue during 2001 and the present democratically elected government is fully committed to protection of all citizens regardless of their ethnicity; (court book, page 114.6)
f)id did not accept an additional claim (apparently made at the hearing) that the applicant was closely identified with the Fijian Labour Party and accordingly did not accept that the applicant had a well-founded fear as a result of his political opinion.(court book, page 115.5)
The RRT’s ultimate factual finding was that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason and as a result the RRT was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention and that therefore they does not satisfy the criterion set out in s.36(2) of the Act.
It is apparent that the applicant failed before the RRT for two reasons. The first was that the RRT did not accept as credible their claims of past persecution. The second was that the RRT, based on country information, did not accept that the applicants faced a real risk of persecution in the future.
The principal applicant relies upon the application filed on 14 May 2003. The grounds set out in that application are brief. The application is accurately described in paragraphs 4.1 and 4.2 of Mr Wigney's written submissions. I adopt those paragraphs for the purpose of this judgment:
The applicants filed an application for review of the RRT’s decision on 14 May 2003. The application contained a number grounds which may be summarised as follows:
a)the RRT did not consider and enquire into his claim and affirmed the matter on the basis of DIMIA’s information;
b)the RRT’s decision was affected by error of law and lack of procedural fairness and denial of natural justice;
c)there was no evidence or other material to justify the decision.
No proper particulars of these grounds have been provided. There is no indication of the error of law or the basis upon which it is contended that there was a denial of procedural fairness. The applicants have not filed and served written submissions as directed by the Court.
Mr Wigney also correctly summarises the effect of s.474(1) of the Migration Act in paragraph 5.1 of his written submissions. I also adopt that paragraph for the purposes of this judgment:
The RRT’s decision is a privative clause decision as defined in s.474(1) if the Migration Act unless the applicant is able to demonstrate that it was a decision affected by jurisdictional error.[5] In determining whether the RRT made a jurisdictional error, regard must be had to s.474 of the Act in the way described by the High Court in Plaintiff S157 v Commonwealth of Australia.[6] As a privative clause decision, the constraints on review or challenge to the decision in s.474(2) of the Act apply so long as the decision was made bona fide, relates to the subject matter of the legislation and is reasonably capable of reference to the power given to the decision-maker.[7]
[5] Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476.
[6] (2003) 211 CLR 476 - see esp at [21], [26], [60], [76]-[77].
[7] R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598.
In the various components of paragraph 6 of his written submissions Mr Wigney deals with the application. I agree with the submissions set out in those paragraphs and adopt them for the purposes of this judgment:
The applicant has not demonstrated that the RRT’s decision involved any error which would justify intervention by this Court, let alone a jurisdictional error in the light of s.474 of the Act or a contravention of any of the Hickman conditions. There is no basis for disturbing the RRT’s decision. The RRT’s reasons show that the RRT considered the applicant’s visa application and all of the material put forward by him and reached a state of non-satisfaction concerning the relevant criteria for the grant of a protection visa. The RRT’s non-satisfaction concerning the relevant criteria was based entirely on factual findings that were open to it to make on the material before it.
Ground 1 - no consideration/enquiry into claims
The RRT considered and enquired into the applicant’s claims. It just did not accept that his claimed fear was genuine or that his claimed fears were well-founded. The applicant’s real complaint is with the merits of the decision. The Court has no jurisdiction to review the merits of the RRT’s decision.
Ground 2 - error of law / procedural fairness
The applicant has provided no particulars of the alleged error of law. A fair reading of the decision discloses no error of law. Even if there was an error of law, it does not necessarily follow that there was a jurisdictional error.
Nor have any particulars been provided of the alleged denial of procedural fairness. There is no evidence of any denial of procedural fairness. Nothing in the decision and reasons provides any basis for concluding that the applicant was denied procedural fairness.
Ground 3 - no evidence
Findings of fact in relation to factual claims made by applicants and the credibility of evidence given by applicants are entirely matters for the RRT. Where such findings are open on the materials, there is no basis upon which a Court can intervene.[8]
The factual findings made by the RRT, including its finding that the applicant did not have a genuine fear of persecution and its findings about the current political and security situation in Fiji, were open to the RRT on the evidence and information before it. The RRT gave logical and probative reasons for these findings. The applicants’ contention that there was no evidence to justify the RRT’s decision must be rejected.
[8] See inter alia: Minister for Immigration v Guo (1997) 191 CLR 559 at 574.
It is clear that contrary to the assertions in the application the RRT did consider the applicants' claims. It is also clear that there was evidence supporting the findings made by the RRT in the application. Those findings were reasonably available to the RRT on the material before it. The claims made by the principal applicant were on their face claims of harm which was limited in degree, in part not directed at him or his family and somewhat stale as to time. The RRT was entitled in my view to take the view that the allegations made by the principal applicant did not establish a credible claim of past persecution.
The assertion of a lack of procedural fairness in the RRT proceedings, is as noted by Mr Wigney, unparticularised. The principal applicant was ordered on 19 June 2003 to file and serve any evidence on which he wished to rely on or before 1 October 2003. The applicant has not filed any evidence. The only evidence before me is what appears in the court book.
The only issue of substance in relation to procedural fairness arising from the court book is whether the country information relied on by the RRT in reaching its conclusion that there is no real chance that the applicants faced persecution in the future was disclosed to the applicants. The written submissions relied upon by the applicants do make a general claim of a failure to disclose country information. It could only be a reference to the country information referred to by the presiding member in his decision and reasons, in particular the US State Department Country Report on Human Rights Practices in Fiji in 2001. However, the presiding member also had regard to earlier US State Department reports and reports from the Australian Department of Foreign Affairs and Trade. That country information all pointed to an improving and relatively stable situation in Fiji in recent years.
The picture presented by that country information was one that reasonably led the RRT to the view that Indo-Fijians generally did not appear to face a serious risk of persecution in Fiji. With that in mind the applicants needed to persuade the presiding member that they faced a risk of harm greater than that of ordinary Indo-Fijians. They failed in that task.
The applicants bear the onus of persuading me that there was a lack of procedural fairness by reason of non-disclosure of country information. The country information relied upon by the presiding member would, in my view, fall within the terms of s.424A(3)(a) of the Migration Act. In the circumstances, any obligation to disclose it would derive from the general law rather than from the Migration Act. Under the general law, there is no obligation to disclose information which is already known to the affected party, either because it is notorious or because it has already been disclosed.
The country information referred to by the presiding member was information which, if not notorious, was certainly generally well known. In addition, however, the relevant issues dealt with in the country information were previously raised with the applicant by the Minister's Department. This is identified in the letter and following country information extracts appearing from page 55 of the court book. The applicants were given the opportunity to comment on that information and, indeed, they took that opportunity. From page 85 of the court book is a submission prepared by the applicant's agent, which takes issue with the positive assessments appearing in the country information which the applicant had been referred to.
I find that the relevant particulars in the country information relied upon by the presiding member were known to the applicant and his migration adviser prior to the RRT hearing. I find that there was no practical unfairness if the particulars were not further disclosed by the RRT for the purposes of the RRT decision. I say "if" because there is no concession by the Minister that in fact there was non-disclosure. The principal applicant, while generally asserting non-disclosure of country information, has not gone into particulars. The absence of any evidence from him as to the circumstances renders his position somewhat weaker than it might otherwise be.
Nevertheless, as I have noted, even if the principal applicant were able to persuade me on the facts that there was a non-disclosure of the relevant country information, my conclusion would still be that there was no want of procedural fairness as no practical unfairness resulted from that non-disclosure.
I gave the principal applicant the opportunity to put oral submissions to me. In that regard, I should note that although a Hindi interpreter had been booked for these proceedings, no interpreter appeared. The principal applicant had indicated a wish for an interpreter and it is unfortunate that no interpreter was available at the time of the hearing. I spoke to the principal applicant, who was the only applicant in attendance at the hearing, to satisfy myself whether or not he could understand and speak English. On the basis of that discussion, I did satisfy myself that the principal applicant had a reasonably good command of conversational English. Having made that conclusion, I elected to continue with the hearing in the absence of an interpreter.
I invited the applicant to tell me if he was not able to understand what was being said or if he was unable to express himself clearly.
The principal applicant was self represented and, to that extent, was clearly at a disadvantage. He would have been, even in his native language, at some difficulty in presenting legal arguments. That difficulty was increased by his having to express himself in English. Nevertheless, I am satisfied that he was able to put to me, in terms that I could understand, the issues that were important to him. In his oral submissions, the principal applicant told me that he disagreed with the RRT decision. He considers that the wrong decision was reached. As I explained to him, however, I am unable to review the decision of the RRT on its merits.
The principal applicant told me also that he felt that the presiding member had a fixed view about the situation in Fiji and had an unbalanced view. His migration agent had certainly taken issue with the country information relied upon by the delegate. There is always room for debate about the assessment of country information. The principal applicant, through his agent, entered into that debate with the RRT. However, discussion with the presiding member on the significance and interpretation of country information simply indicates that the RRT did not have a closed mind.
The fact that the applicants were invited to a hearing indicates that the RRT had reached a preliminary view. However, there is a marked difference between a preliminary view and an immoveable view. The applicants had the opportunity to persuade the RRT to their point of view and did not succeed. There is nothing, in my view, on the face of the record of the RRT proceedings that indicates, let alone establishes, that the RRT presiding member had a fixed or immoveable view on the question of the position of Indo‑Fijians in Fiji. The available country information, as I have already noted, pointed to an improving and relatively stable position rendering it unlikely that Indo-Fijians, as a class, faced a significant risk of persecution in Fiji. The presiding member was perfectly entitled to come to the view he did on the risk of future persecution. I find that there was no pre-judgment on the part of the presiding member. I find that there was no other jurisdictional error committed by him.
In the circumstances, the decision of the RRT is a privative clause decision. I must dismiss the application.
On the question of costs, I am satisfied that costs should follow the event. Mr Wigney tells me that, on a party/party basis, the Minister's costs are in the order of $4,500. That estimate is, in my view, somewhat high in a straightforward matter of this nature. The applicant did not wish to make any submissions on the question of costs. 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 $3,000.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 May 2004
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