SZASM v Minister for Immigration
[2004] FMCA 634
•24 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZASM & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 634 |
| MIGRATION – Review of Refugee Review Tribunal decision – affirming a delegate’s refusal of a protection visa – no reviewable error found. |
Migration Act 1958 (Cth), s.474
Judiciary Act 1903 (Cth) s.39(B)
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Multicultural Affairs v Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
| Applicants: | SZASM & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1011 of 2003 |
| Delivered on: | 24 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 August 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicants were represented by a next friend.
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $4,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1011 of 2003
| SZASM & SZASN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicants on 5 June 2003 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) on 14 April 2003 affirming the decision of the delegate of the Minister of Immigration & Multicultural & Indigenous Affairs to refuse to grant a protection (Class XA) visa.
The history
The applicants are sisters (minors) formerly residents of Fiji. They arrived in Australia on 5 March 2002. On 8 August 2002, with the assistance of a next friend, they lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”).
On 23 December 2002 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection (Class XA) visa and on 23 January 2003 the applicants applied for a review of that decision.
The first applicant is a girl from Nadi in Fiji who was born on 1 December 1993. She is a Fijian citizen of Fijian/Indian ethnicity and is also a Christian.
The second applicant is the sister of the first applicant who was born on 4 May 1995, being a Fijian citizen of Fijian/Indian ethnicity and a Christian.
Both applicants arrived in Australia on 5 March 2002 travelling on a visitor’s visa and accompanied by their paternal grandmother.
The applicants had been cared for in New Zealand by their paternal grandmother and their father. The applicants’ mother had died on 3 March 1998 as a result of severe burns received in a domestic house fire. The paternal grandmother brought them to Australia and left them in the care of relatives in Australia when she returned to Fiji.
An application for protection (Class XA) visa was lodged on behalf of the applicants on 8 August 2002. The applicants’ aunt, Miss Asinate Fotu, lodged a protection visa application on behalf of the first applicant, claiming protection based on a convention persecution, with the second applicant applying as a member of the first applicant’s family unit.
The application for protection visa, completed and submitted on behalf of the first applicant, made four claims. Those claims were that:
“I fear that there is no one in Fiji to look after us, our grandmother who is old and has a regular sickness cannot look after us, also our father is mentally ill.”
“I think we will be harmed or mistreated by the people as we cannot look after ourselves, there is no family that will take care of [sic] us.”
“This will happen to us if we go back, because we are young, our grandmother is old, our father is incapable [that is sick] the only person who can take care of us.”
“The authorities have no say in our day to day lives, so they cannot be able to protect us or care for us.”
In a statement accompanying the protection visa application dated 8 August 2002, signed by Miss Fotu on behalf of the first applicant, the first applicant states:
“I am a child of mixed ethnicity who has no competent parent or legal guardian in Fiji.”
“As such I shall not be able to live in Fiji without being subject to discrimination or persecution by other people in either my village or anywhere through Fiji. The other villagers, and/or the rest of the population, shall persecute me as I have no one to provide for me.”
“This discrimination is based on my mixed ethnicity and the fact that [sic] that I am a member of a social group, being, but not confined to, a child without parents or legal guardian who can provide me with protection.” (original emphasis)
“The authorities in Fiji are unable or unwilling to provide me with protection from the rest of the population who shall persecute me.”
In support of the first applicant’s original application, there were two statutory declarations, one from Miss Fotu, the aunt who had cared for the applicants for a few months and the uncle (the next friend) on behalf of he and his wife who had taken over the care of the applicants when Miss Fotu became ill.
A representative of the Department subsequently interviewed the uncle (next friend) and his wife and spoke with a Mr Graham Jones, a Solicitor from the Refugee Advice Centre Service who was providing informal assistance.
A delegate for the Minister refused the application for protection visa on 23 December 2002 on the grounds that the applicants had not advanced convention based claim. On 23 January 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
The application for review of Delegate’s decision
The application for review of the delegate’s decision was lodged on 23 January 2003 by a Ms Michelle Chandrasharman (also referred to as “Ms Sharma”) from the Human Rights Defendant – Amnesty International Organisation who was acting on behalf of the applicants. Attached to, and in support of the application, there was the following:
a)an undated letter from Ms Sharma, Human Rights Defendant, Amnesty International covering Australia international obligations of the rights of children;
b)a statutory declaration from the first applicant (SZASM);
c)a letter of petition from a religious minister containing the signatures of 59 persons in support of the applicants;
d)a statutory declaration by the next friend as custodial parent;
e)a statutory declaration from the aunt, Miss Fotu, transferring custody to the next friend;
f)a death certificate of the applicants’ mother;
g)a letter from the Fijian Ministry of Health regarding the father and grandmother’s health; and
h)a letter from the paternal grandmother regarding her health.
The Tribunal’s decision and reasoning
The Tribunal had before it the Department’s files, which included the original protection visa application, the material referred to in the delegate’s decision, the delegate’s decision record and other material available to it from a range of sources.
The first applicant (SZASM) gave oral evidence to the Tribunal on 25 March 2003. The carers of both applicants gave evidence on the applicants’ behalf.
Evidence was also given by the applicants’ father’s sister and her husband, both residents of Australia. They gave evidence to the Tribunal regarding the domestic family arrangements in Fiji.
Ms Sharma gave evidence particularly about the applicants’ father and his political affiliations. She also gave the Tribunal details of the historic ethnic tensions in Fiji and related these to concerns about the applicants’ future safety within that country.
The Tribunal also had an explanation of the applicants’ parents’ involvement in political activities that had resulted in some tension.
The Tribunal also had access to country information prepared by DFAT and UNICEF.
In the findings and reasons of the Tribunal, it found the applicant (SZASM) to be a citizen of Fiji who arrived in Australia on 5 March 2002 and remained in Australia as a non-citizen. The applicant, at that stage, was a ten year old and was dependent on adults to express her claim for protection. It was acknowledged that although a number of these adults were well intentioned, a number of the elements of the claim were presented and expressed in an inconsistent manner. Part of this can be attributed to the parties, who were putting forward the claim. It appears that they lacked first hand knowledge of the relevant circumstances and some of the inconsistencies in the claims can be attributed to this.
It was also noted that there had been a considerable change from the primary application to the arguments presented during the review. The initial application was that the applicants’ father and grandmother in Fiji were unable to care for the applicants. While at the review, this claim had changed to the issues that the applicants’ parents were attacked in Fiji resulting in the mother’s death, the father’s severe beating and the applicant and her sister being threatened with death.
The Tribunal found that it could not accept these very significant issues being overlooked in the initial claim if in fact they had occurred. Support for this view was that this information was being supplied to the Tribunal by a number of adults who had not actually witnessed the event but were recounting the circumstances as third hand news. The only witness, the grandmother, made no such claims of persecution.
The Tribunal could not accept the applicant’s claims, when considered with evidence provided by various adults and the independent information from its own sources, that her parents were attacked by unspecified Fijians for political or racial reasons and that the applicant was threatened by the same Fijians. Because the Tribunal could not accept that the applicant’s father suffered serious harm due to his ethnicity or political affiliations, it did not follow that the applicant suffered the same harm.
The Tribunal concluded that it was not satisfied that the applicant or her parents were persecuted in Fiji as claimed. It held the view that a number of the claims that were made after the initial application were fabrications to enhance the convention claimed. The Tribunal did accept that the applicant left Fiji because her father and her grandmother could no longer look after her and this is supported by the medical authorities. However, there was evidence to support the view that there was an institutional framework for the protection of children in Fiji and there were no indications that this would not be available to the applicant in the event that her father and grandmother proved unable to care for her.
The Tribunal concluded that the applicant was not persecuted in Fiji and would not face convention persecution if she returned to Fiji now or in the foreseeable future. The Tribunal also raised the issue of humanitarian considerations. However, the scope of the matter before the Tribunal was to determine whether the applicant satisfied the criteria for the grant of a protective visa. The issue of a visa on humanitarian grounds is a matter solely within the Minister’s discretion.
The first applicant, with her uncle, who was acting as her next friend, the applicant’s aunt and an adviser, Ms Sharma, attended a hearing before the Tribunal on 25 March 2003 at which all four gave evidence. On 6 May 2003 the Tribunal handed down its decision, affirming the delegate’s decision.
Application for review of Tribunal’s decision
The applicants, by Ms Sharma, filed an application in this Court on 5 June 2003 setting out the grounds for review as follows:
“1.[SZASM] and [SZASN] have no one to care for them in Fiji except grandmother 65 years old. Mother died of 100% body burns. They came to Australia with their grandmother who abandoned them with a friend and went back to Fiji. The father experiencing difficulties does not want to look after the girls which is a reminder of his wife’s death. Often neglected kids are very young to go through all this court cases. [The Uncle and Aunt of SZASM and SZASN] who have adopted the kids in their care. They also have seeked court advice for the adoption process which is on the way.
2.The officer at DIMIA should have adviced of the relevant application for the under age children so I blame the officer at the counter.
3.Loged the custody at local court 12/5/03 and registered mail to Fiji has not reached till today. Appeared in Court 2nd July adjourned till 23rd June.
4.All relevant custody papers will be submited ASAP on recieved by court. Request to court to interview and made a fair decision for the young girls.”
The applicants have not provided any further elaboration on their application whether by way of particulars or otherwise, nor have they filed written submissions as directed.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
At the hearing, the applicants were represented by their next friend however, he made no substantive oral submissions addressing the grounds of review. The next friend had failed to file an amended application supported by particulars or evidence to be relied upon. No written submissions were filed prior to the hearing.
The respondent’s Counsel filed a detailed written submission, which included a useful summary of the background and the sources of many claims made on behalf of the applicants. The primary submission was that the Tribunal rejected the applicants’ claim in part on credibility grounds. The Tribunal in its decision considered a range of documents submitted by the applicants and secondly by a range of family and friends. It also had available to it independent country information. A number of the inconsistencies between the claims and evidence is apparent. In the submission by a Miss Fotu on behalf of SZASM there is a discrete claim to discrimination and persecution. It is alleged that the discrimination will be due to the mixed ethnicity of the applicants and that children without parents or legal guardians would be left without protection. There is also the allegation that the Fijian Government was unable or unwilling to provide protection (Court Book p.36).
This is compared with the handwritten statement prepared by SZASM which focuses on the domestic environment that exists between her, her sister, her father and her grandmother, which makes a number of references to her being smacked by both of those adults. That statement by SZASM covers a number of issues expressing different emotions, which are essentially focused on their immediate domestic arrangements (Court Book p.67-72).
At the Tribunal hearing the applicant gave evidence not under oath because of her age but by invitation of the Tribunal to discuss her circumstances. In these discussions the focus was on the domestic environment with claims that their father and grandmother smacked them on a regular daily basis.
The Tribunal in its finding was not satisfied that the applicants’ claims that they were threatened by native Fijians was sustainable. A number of people who volunteered their support and provided their comments on the situation, were found often to be speculative, broad in their nature and lacking first hand knowledge. Many of these accounts were purely speculation. Confirmation of this view came from the grandmother who made no such claim of persecution. The grandmother was the only person other than the applicants who had first hand knowledge of the circumstances by being personally present.
The Tribunal makes reference to the demeanour of the applicant when discussing with the Tribunal member her circumstances in Fiji. This was done without any discernible sign of stress in relation to her life in Fiji. Although it is acknowledged that her circumstances were more enjoyable in Australia.
It was sumitted that it is the primary decision-maker’s function to determine credit.
“Findings of credibility are a function of a primary decision-maker ‘par excellence’: MIMA v Durairajasinghan at [67] per McHugh J.”
So long as the Tribunal’s credibility findings were open to it no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs at 558-559. The Tribunal member drew the following conclusions from the material before them.
“On the evidence I am not satisfied that the applicant or her parents were persecuted in Fiji as claimed. Rather it seems to me that the factual circumstances are more accurately reflected in the claim at the PV application made by the applicants’ grandmother, the only person with first hand knowledge of the applicants’ circumstances. It seems that the subsequent claims made by a succession of claimants without first hand knowledge, are fabrications to enhance the conventions claim and so achieve a consensus aim of the extended family to care for the applicants in Australia.”
The claim that the applicants left Fiji because of the medical condition of the father and grandmother was accepted.
The Tribunal also made findings of effective State protection which were open on the material before it. The information was available from various sources including DFAT which covered matters such as internal security within Fiji and the protection of minors in Fiji. Sections of these reports are reproduced in the Tribunal’s decision. The Tribunal came to the conclusion that
“There was no evidence before it to indicate that the framework of child protection within Fiji would not be available to the applicant in the event that her father and her grandmother were unable to care for her.”
It is the respondent’s submission that the Tribunal’s conclusions as to factual matters were open to it on the material before it and further, to engage in fact finding about the merits of the applicants’ case is not part of the function of the Court in dealing with an application for leave under s.39(B) of the Judiciary Act. When determining whether there has been judicial error, it does not encompass errors of fact as to the merits of the case put to the Tribunal.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs at Gray, Tamberlin and Lander JJ at [10]:
“… the applicant took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the applicant disagreed with the findings. In effect, the applicant sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact finding about the merits of an applicant’s case is not part of the function of the Court whether at first instance or on appeal, in dealing with an application for relief under s.39(B) of the Judiciary Act. As Stone J said Plaintiff S157 establishes that it is necessary for the applicant to show jurisdictional error on the part of the Tribunal, if they are to succeed whatever be the boundaries of jurisdictional error, they are not comprehended errors of fact as to the merits of the case put to the Tribunal.”
Conclusion
The Tribunal in its decision raises the issue of humanitarian concerns. The Tribunal points to a number of references where this issue of humanitarian rights are raised together with Australia’s obligation under International Convention of the Rights of Children. It was raised in the Tribunal hearing that consideration of humanitarian aspects is solely a matter within the Minister’s discretion and it is outside of the role or function of this Court.
The applicants have not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction or that it had breached any of the provisos. The application, without supporting written or oral submissions, is deficient in that they do not identify anything in relation to the decision of the Tribunal or the proceedings before the Tribunal to assist the Court in determining whether any review of jurisdictional error is disclosed in the decision. It is apparent that the Tribunal was unable to accept the credibility of the claims being made by the applicants. These findings by the Tribunal are reasonably open to it on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision.
I find that the decision of the Tribunal is a privative clause decision having regard to the decision of the High Court in S157/2002.
In the circumstances I will dismiss the application.
I am satisfied that an order for costs should be made in the circumstances of this matter. I order the applicant pay the Minister’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 September 2004
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