SZBBL v Minister for Immigration - [2004] FMCA 185

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBL v MINISTER FOR IMMIGRATION

[2004] FMCA 185

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Fiji – motion by Minister for summary dismissal of the application as disclosing no cause of action and for failure to comply with court orders – applicant partially complying with court order – application doomed to fail – motion granted.

Federal Magistrates Court Rules 2001(Cth)
Migration Act 1958 (Cth), s.425

Applicant A135/2002 v Minister for Immigration [2003] FCA 708

Applicant A163 of 2002 v Minister for Immigration [2003] FCA 677

Chung v University of Sydney [2001] FMCA 94

Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Kosi v Minister for Immigration [2003] FMCA 340

Lee v Minister for Immigration [2002] FMCA 279

M172 v Minister for Immigration & Anor [2004] FMCA 23

Murex Diagnostics Australia Pty Ltd v Chiron Corp [1995] FCR 194

SZBWF v Minister for Immigration [2004] FMCA 83

Webster v Lampard (1993) 177 CLR 598

Xie v Immigration Department [1999] FCA 365 at [20] per Carr J

Yo Han Chung v University of Sydney [2002] FCA 186

Applicant:

SZBBL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1487 of 2003

Delivered on:

15 March 2004

Delivered at:

Sydney

Hearing date:

15 March 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent:

Mr R White
Sparke Helmore

ORDERS

The Court directs that the hearing date of 8 December 2004 be vacated.
The application is dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth), upon the basis that the application for judicial review fails to disclose a reasonable cause of action.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,847.50.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1487 of 2003

SZBBL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have before me a notice of motion filed on 12 January 2004 on behalf of the respondent Minister in this matter seeking that an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) filed on 1 August 2003 be dismissed on two grounds; namely, that pursuant to Part 13, rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) the applicant has failed to comply with an order of the Court and pursuant to Part 13, rule 13.10(a) of the Federal Magistrates Court Rules, the application fails to disclose a reasonable cause of action. Secondly, the notice of motion seeks that the applicant pay the respondent's costs and that the Court make any other order that it sees fit. The notice of motion is supported by an affidavit of Rebecca Kate Roberts made on 6 January 2004…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FMCA 185
Decision Date: 15 March 2004

CaseChat Overview and Summary

In the matter of SZBBL versus the Minister for Immigration, the Federal Court was presented with a case where the applicant, born in Fiji in 1982 and having arrived in Australia in 2000, sought a protection visa on the basis of fear of persecution due to her Indian descent. The case revolved around her claims of being robbed, attacked, and unable to access police protection, alongside fears arising from the 2000 coup led by George Speight and her subsequent activities as a social worker. The central legal issues before the court involved the validity of the applicant's claims and the Refugee Review Tribunal's (RRT) decision to decline her application for a protection visa. The court was required to determine whether the RRT's decision was lawful, rational, and supported by the evidence.

The court examined the RRT's assessment of the applicant's credibility and the sufficiency of the evidence provided. It found that the RRT had appropriately scrutinized the applicant's claims, noting inconsistencies and a lack of clarity in her statements. The RRT had considered independent evidence of the widespread terrorisation of Indo Fijians but concluded that such incidents were occasional and random, and that adequate state protection was available to the applicant. The court upheld the RRT's decision, finding that it was based on a proper consideration of the evidence and was not flawed by any jurisdictional error. Consequently, the court dismissed the applicant's appeal against the RRT's decision and the subsequent decision of the Minister for Immigration.

In light of the above findings, the court vacated the scheduled hearing date and dismissed the application in accordance with rule 13.10(a) of the Federal Court Rules. This decision underscores the importance of a thorough and rational assessment of refugee claims, ensuring that tribunals and courts carefully consider the credibility and sufficiency of the evidence presented by applicants. The dismissal of the appeal reinforces the principle that protection visas are not automatically granted and must be supported by credible and well-founded fears of persecution.

Orders

Orders of the court

The Court directs that the hearing date of 8 December 2004 be vacated.

The application is dismissed pursuant to rule 13.10(a) of the

Background

Background to the litigation

The relevant background facts appear in paragraphs 4-9 of the respondent's written submissions. I adopt those paragraphs for the purposes of today's judgment:The relevant background to this matter is contained in the [following] chronology:BackgroundApplicant born in Fiji 8 February 1982Applicant arrived in Australia 5 November 2000DIMIAApplication for protection visa lodged 25 July 2002Delegate’s decision 1 0 September 2002RRTApplication for review lodged 4 October 2002Applicant invited to hearing 1 May 2003Applicant declined hearing invitation 17 June 2003RRT decision handed down 22 July 2003Federal Magistrates CourtApplication for judicial review lodged 1 August 2003Directions hearing 1 October 2003Amended application due 26 November 2003Respondent’s notice of motion filed and served 12 January 2004The applicant’s claimsThe applicant claimed to fear persecution from ethnic Fijians because she was of Indian descent. She claimed that she was robbed and attacked and was unable to access police protection (court book, pages 26.5-26.8). She claimed that following the 2000 coup led by George Speight, she feared for her life and was forced into hiding (court book, page 26.3). She also claimed to fear persecution by supporters of George Speight because of her activities as a social worker. On 1 May 2003, the RRT invited the applicant to attend an oral hearing in accordance with s.425 of the Migration Act 1958 (Cth) (“the Migration Act”) (court book, pages 39-40). As the applicant subsequently declined that invitation (court book, page 41), she was not entitled to appear before the RRT [1].[1] ss.425(2)(b) and (3) of the Migration ActThe RRT’s FindingsThe RRT noted that the applicant’s statement left “much to be desired in terms of clarity and detail” (court book, page 57.7). The RRT expressed concerns that the claims advanced by the applicant may not relate to her because, although the applicant was 20 years old, she referred to herself as an “old woman” (court book, page 58.7). Without further information, the RRT could not be satisfied that the events claimed by the applicant actually occurred or that her fears of persecution were well-founded (court book, page 58.7).The RRT accepted the independent evidence detailing the “widespread terrorisation” of Indo Fijians during and after the coup (court book, pages 57.9 and 58.1). However, it noted that George Speight had been tried and sentenced for his role in the coup and the general lawlessness that followed the coup had ceased (court book, page 58.2). The RRT accepted that there was harassment of Indo Fijians by ethnic Fijians, but found that this occurred in an occasional and random manner (court book, page 58.3). Furthermore, the RRT was not satisfied that Indo Fijians were denied their basic rights or that persecution or mistreatment of them was permitted or condoned by the security authorities or the Fijian government (court book, page 58.8).The RRT was satisfied that even if the applicant were to face harm from private individuals on the basis of her ethnicity, adequate State protection was available to her (court book, page 58.9).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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