SZAYT v Minister for Immigration
[2005] FMCA 256
•17 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAYT v MINISTER FOR IMMIGRATION | [2005] FMCA 256 |
| MIGRATION – Review of Refugee Review Tribunal decision – Muslim woman – Fijian Indian – persecution – “serious harm” – real chance of future persecution – findings without evidence – unreasonableness – particular social group – privative clause decision – no error of law – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.91R |
| VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927 VBAO v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 182 FLR 446 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Ethnic Affairs v Guo WeiRang (1997) 191 CLR 559 Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487 SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZAYT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SZ1372 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing date: | 1 October 2004 |
| Date of Last Submission: | 1 October 2004 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2005 |
REPRESENTATION
| Advocate for the Applicant: | Tony Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Rachel Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1372 of 2003
| SZAYT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 18 July 2003 the applicant applied to this Court under s.39B of the Judiciary Act 1903(Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 16 May 2003 and handed down on 11 June 2003. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) not to grant the applicant a protection visa.
Background
On 19 January 2002 the applicant arrived in Australia lawfully on her own passport. She lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) on 5 March 2002. This application was refused by a delegate of the Minister on 11 June 2002. The applicant then appealed to the Tribunal on 10 July 2002. The Tribunal conducted a hearing on 1 May 2003 at which the applicant gave oral evidence. I have already noted that on 11 June 2003 the Tribunal handed down its decision affirming that of the delegate not to grant a protection visa.
Claims before the Department and the Tribunal
The applicant is a Muslim Fijian of Indian origin. Her parents and siblings live in Australia. She claims she was harassed and frightened by indigenous Fijians banging on her door, stealing clothes she had hung up to dry and stealing money from her. Her family had to close their restaurant because of harassment. She told the Tribunal that the most serious harassment she faced was some indigenous Fijians snatching her purse, pushing her, physically assaulting and kicking her. They also threw stones at her house and set on fire some boxes that were outside her house.
On one occasion indigenous Fijians gained entry into the applicant’s compound. They started drinking alcohol in the compound and when she inquired why they were sitting there they threatened her and began fighting. She says, according to the transcript of the Tribunal proceedings:
They threatened me that if I complained to the police they would kill me.
The Tribunal decision
The critical findings of the Tribunal are found in its decision at pages 121-122 and 124 of the Court Book:
Even accepting at face value the claims of the Applicant that in December 2000 her purse had been snatched and she had been assaulted, that stones had been thrown on her home every second or third day, that clothes were stolen from her clothesline, that boxes which were lying in the yard were set on fire, that indigenous Fijians came drinking in her compound and that threats had been made that she would be killed if she complained to the police, I am not satisfied that looked at individually or in their totality the mistreatment suffered by the Applicant in the past is any more than low level harassment. I am satisfied that it is not of sufficient severity to amount to serious harm as discussed in paragraph 12 above.
…
While I am prepared to accept there are shortcomings in the Fijian police and they do suffer from a lack of resources, I am not satisfied that the protection which is available to all Fijians through their police force is so ineffective that it could be said to give rise to a real chance that the Applicant would suffer Convention based persecution. I am satisfied that, generally speaking, the Indian community is protected by the existing laws of Fiji which include a sophisticated criminal justice system and I am further satisfied that effective protection is available to all Fijian citizens, particularly in or near the major centres, in the case of the present Applicant, Nadi.
For all the above reasons, I cannot be satisfied that the Applicant faces a real chance of Convention related persecution upon her return to Fiji. I find that the prospect of the Applicant suffering serious harm amounting to Convention based persecution upon her return to Fiji for any Convention reason is no higher than remote. Her fears of persecution are not well founded. She is not a refugee.
The respondent in her submissions summarised the critical findings as follows:
The RRT held that the Applicant was not entitled to a protection visa because:
(a) the Applicant’s experiences amounted to “low-level harassment” and did not constitute ‘serious harm’ under s. 91R (1) of the Migration Act, 1958 (the “Act”);
(b) the independent country information also indicated that currently there was no evidence of any significant mistreatment of Indo Fijians other than localised low level harassment and theft; and
(c) there is effective state protection in Fiji.
It is important to note that the Tribunal accepted that the applicant was a truthful witness. In addition, it accepted a number of claims that she made, although somewhat conditionally. These claims included the fact that the indigenous Fijians came drinking in her compound and made threats that she would be killed if she complained to the police.
Consideration
The amended application contained six grounds of review. At the hearing the applicant’s counsel sought leave to add three new grounds and to withdraw one ground from the amended application. Although the respondent objected, I gave leave to the applicant to add two of the three new grounds.
I refused leave to add a ground which alleged bias in the way the Tribunal handled the case. The applicant did not specify whether it was actual or apprehended bias which was being alleged and the particulars were meaningless. The ground was clearly futile. More importantly, it was far too late to add such a serious ground, that of bias, on the day of the hearing.
Persecution
Ground 1 alleges:
The Tribunal made jurisdictional error in finding that the applicant was only subject to low level harassment. Therefore it misunderstood the level of harm required to constitute persecution
The Tribunal had accepted the applicant as a truthful person and had found that a series of incidents occurred, particularly one suggesting that if the applicant had complained to the police she would be killed. On the basis of these findings, the applicant, through her advocate Mr Silva, contended that the Tribunal could not have concluded consistent with the law that these incidents constituted nothing more than low-level harassment and were not of sufficient severity to amount to serious harm.
Mr Silva asserted that the Tribunal had failed to look at the impact of all the incidents on the applicant as a whole. He added that it was important to note that under the legislation serious mental harm was classified as serious harm and that it was not necessary that there be significant physical ill-treatment. In particular he asserted that it was sufficient that the applicant had suffered a threat to her life.
Ms Francois for the Minister submitted there had been no misunderstanding of the requirements of the Migration Act 1958 (Cth) (the Act), in particular ss.91R(1) and (2). The Tribunal set out in its decision at paragraph 12 its understanding of the requirements of these provisions and that formulation was indisputably correct. No error could be discerned from its application to the facts as found. It was open to the Tribunal to find that the incidents which had been described by the applicant were not of sufficient severity to amount to serious harm as required by s.91R. In particular it was within the Tribunal’s powers to find that the threat to kill the applicant was not a genuine threat.
Section 91R relevantly provides:
(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.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of “serious harm” for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person …
In my view what the Tribunal has said at paragraph 12 about this section is both unexceptional and correct. It does not fall into the error which Merkel J identified in VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927, starting at paragraph 60. That is, the Tribunal did not treat s.91R(2) as an exhaustive statement of what amounts to “serious harm” for the purposes of s.91R(1)(b). Rather it looked at the incidents described by the applicant individually and in their totality and reached the conclusion that the incidents amounted to low-level harassment. It then found that they were not of sufficient severity to amount to serious harm.
Implicit in this finding is one that any threat to the applicant’s life was not a genuine threat. As accepted by Walters FM in VBAO v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 182 FLR 446:
Not all death threats or threats of imprisonment made against a person will necessarily constitute “serious harm”. Such threats may (for example) be patently hollow, or they may even have been made in jest.
…
… the threat constituted by words or actions must be a real threat to the person’s life or liberty.
Although the Tribunal could have spelt out its reasoning more carefully, on a fair reading of the Tribunal’s decision it is clear that it did not accept that the threat to kill the applicant was a serious or genuine one. It amounted to no more than “low-level harassment”. Such a finding was clearly open to the Tribunal. This Court is enjoined in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 not to examine the reasons of the Tribunal with a fine-tooth comb.
Furthermore, even if the applicant suffered a subjective fear for her life, the Tribunal was unable to find anything higher than a remote prospect of her “suffering serious harm amounting to Convention based persecution upon her return to Fiji”. The Tribunal said that “[h]er fears of persecution are not well founded.” There was no objective evidence to support her fear.
I do not accept therefore that the Tribunal misunderstood and misapplied the concepts of “serious harm” and “persecution”.
I note in passing that ground 5, which was not pressed at the hearing, similarly challenged the Tribunal’s understanding of the meaning of persecution in s.91R. This ground set out particulars that appear to have been copied from someone else’s application. For example, reference is made to “paragraph 44” which is not in the terms described in the particulars, and the applicant is described as male not female.
Past to indicate the future
Ground 2 states:
The Tribunal made jurisdictional error in stating that the “incidents of harm in the past are not determinative of a claim for a protection visa, although they may be useful indicators of the risk or nature of future harm.”
Particulars
In assessing whether a particular applicant will suffer harm in the future one of the most important considerations is whether that applicant suffered persecution in the past. Whether an applicant will suffer in the future can not be isolated from what happened to her in the past.
Ground 8 added by leave at the hearing provides:
The Tribunal made jurisdictional error by not assessing the real chance of persecution in the foreseeable future.
The additional particulars in ground 8 which seem to be somewhat inconsistent with those provided for in ground 2 are:
… the Tribunal did not engage in looking at the future and assessing the real chance of persecution. It only decided based on the present. What it should have done is to look at the past and present and make an opinion as to the future which it failed to do thus it did not exercise its jurisdiction.
In para 54 the Tribunal only refers to what will happen on her return and has not looked at what will happen in the foreseeable future.
Mr Silva’s submissions on these two grounds at the hearing added nothing of substance to the scant particulars.
At paragraph 40 of its decision the Tribunal said:
Incidents of harm in the past are not determinative of a claim for a protection visa, although they may of course be useful indicators of the risk or nature of future harm. The issue remains whether the Applicant faces a real chance of Convention based persecution in the foreseeable future upon her return to Fiji.
This statement is an entirely correct understanding of the law and of the task set for the Tribunal (Minister for Immigration & Ethnic Affairs v Guo WeiRang (1997) 191 CLR 559 at 574-575). A reading of the Tribunal’s decision in its totality provides no suggestion of any legal error on this aspect of the law and in its application.
Findings without evidence
Grounds 3 and 6 assert the Tribunal made jurisdictional errors in making findings or advancing propositions without evidence.
Mr Silva advanced no further submissions at the hearing in support of ground 3. The particulars for this ground refer to the Tribunal’s view that the Fijian Government was genuine in its attempts to restore the confidence of the Indo-Fijian community. Evidence to sustain this finding can be found at least at pages 134 and 156 of the Court Book. For example, at page156:
Like its predecessor, the new Qarase caretaker government has publicly committed itself to maintaining and protecting human and equal rights of all Fiji’s citizens. In his address to the nation (16 March) after being appointed caretaker Prime Minister, Qarase reminded the people of Fiji that he took seriously the importance of bringing Fiji’s different communities together, and of moving Fiji’s multi-racial and multi-cultural society forward as a united country.
In ground 6 the applicant asserts that there is no evidence that state protection through police is available in Fiji to Indo-Fijians. As best as I can ascertain from his submissions at the hearing, Mr Silva had two concerns. Firstly, that the applicant had never been protected by the police. The evidence supporting police protection in the decision was in too general terms and did not address protection for individual claimants. Secondly, the Tribunal did not consider whether the level of police protection met an international standard.
As the High Court has made clear, there is no requirement that all citizens will be guaranteed protection at all times and in all circumstances (Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487). Although there was some conflicting evidence, there was abundant material before the Tribunal in support of its claim that generally speaking the Indian community was protected by the existing laws of Fiji. The Tribunal found the institutional arrangements included a sophisticated criminal justice system, particularly in or near the major centres such as Nadi. Supporting material can be found at pages 49, 136, 156 and 158 of the Court Book.
Any complaint that the Tribunal failed to make a positive finding that the police force was of international standard is misconceived. As Selway J said in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at paragraph 32, referring to Respondents S152/2003:
In my view their Honours have concluded that the relevant State is required to provide a ‘reasonably effective police force and a reasonably impartial system of justice’ (at [28]). ‘Reasonably effective’ in this context is to be determined by ‘international standards’. Their Honours have not specified what those international standards are, but have made it clear that the Tribunal could not be satisfied that those standards had not been met unless there was evidence to that effect. (Emphasis added).
In this case as there was no evidence before the Tribunal that the Fijian police were not of an international standard. It was for the applicant to provide such evidence. She did not do so.
Both of the grounds alleging no evidence, grounds 3 and 6, must be rejected.
Unreasonableness
Ground 4 asserts:
The Tribunal was unreasonable to a degree of Wednesbury Unreasonableness when it used the Amnesty International’s Annual report for 2002 in a very selective way to present a wrong picture of Fiji within its decision.
The particulars refer to paragraph 43 of the Tribunal’s decision which points to a number of sources including the Amnesty Report 2002 as evidence that law and order had been restored in Fiji and the general situation in Fiji had become stable. The summary from the Amnesty Report as quoted by the applicant in her outline of final submissions suggests that the situation in Fiji was vastly different. The Tribunal was said to have put a positive spin on the report, which the applicant asserts was a misuse of the report.
As the respondent has submitted, the Amnesty Report is indisputably negative in some respects, but not in all. However, the use of this document by the Tribunal was quite proper. Furthermore, having regard to the Report together with the other material referred to in paragraph 43, the Tribunal’s finding of effective state protection was clearly open to it. That finding cannot be said to be unreasonable, let alone so unreasonable that no reasonable decision maker could have reached it, in the terms understood in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. I agree with the respondent that this ground is really a challenge to the merits of the Tribunal’s decision and should be rejected.
Particular social group
At the hearing I granted leave for the applicant to add an additional ground 7:
The Tribunal failed to consider her claim based on her belonging to a particular social group
The particulars provided suggest that the social group was either of
(a) Single young Indian women living alone in Fiji
(b) Single Indian woman living alone in Fiji
Mr Silva for the applicant referred me to a number of passages in the transcript of the Tribunal hearing, including at page 21:
I thank you very much for your support and help and I really want to close with these lines, that since I am all alone and in our culture when a woman is all alone she faces so many difficulties and since I am facing that difficulty in Fiji that is why I request Australian Government to help and protect me.
At page 27 of the Court Book in her original statement to the Department the applicant said:
She told me that Indian Fijians are being terrorized and single girls are being raped so that Indian originated community can be eliminated. Some of Indian girls has [sic] committed suicide because of ashamed to face the society. It is very hard and difficulty [sic] even walk to the bus Stop to catch a Bus. I have no relative in Fiji any more and if I have to go back, I have a very real fear of persecution and my life will be in real danger.
At the hearing the Tribunal reported at page 120 of the Court Book:
I asked the Applicant to summarise for me in her won words why she believed she should be granted a protection visa. She said that in Fiji indigenous Fijians came to know that she was living alone. They harassed her.
On page 121 the applicant further countered
that she is alone and that these things were more serious for her. …
The Applicant said that she had been ill on one occasion for two days. She said that when she was living in Fiji she suffered a great deal of anguish.
Reading the transcript in context of the applicant’s statements to the Department and at the hearing, I do not agree that the claims were based on membership of any particular social group. Rather, her claims clearly related to her membership of a particular race - Indo-Fijian.
The passages in the transcript do not suggest that the applicant was alleging that she was targeted because she was alone or because she was a woman. Rather she was putting the entirely reasonable proposition that it was more difficult for her to cope with the harassment she suffered because she was living alone and not with any immediate family. It was more difficult for her because of her personal circumstances. For example on one occasion she reports that as a result of the harassment she became sick but there was no-one there to take her to hospital (transcript page 17).
Her statutory declaration to the Department, properly read, amounts to a claim of harm where race is the motivation not her membership of any particular social group. For example, she referred to her family business having to be closed down because of attacks by native Fijians on Indian Fijians.
More fundamentally, in view of the Tribunal’s findings that the mistreatment that the applicant had suffered was nothing more than low-level harassment and did not amount to serious harm, and that effective protection was available to all Fijian citizens, this ground can not succeed.
In my view, the Tribunal adequately and satisfactorily addressed the case raised by the written and the oral evidence provided by the applicant. That case did not include one based on membership of a particular social group. This ground must also be rejected.
Conclusion
The Tribunal found that the mistreatment that the applicant had suffered was nothing more than low-level harassment and did not amount to serious harm, that effective protection was available to all Fijian citizens, and that the prospect of the applicant suffering Convention based persecution on her return to Fiji was no higher than remote. These findings were reasonably open to the Tribunal on the material before it.
Having considered all the grounds in the amended application, I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. I find the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
The application must be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 17 March 2005
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