SZBEF v Minister for Immigration (No.2) - [2005] FMCA 817

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBEF v MINISTER FOR IMMIGRATION (No.2)

[2005] FMCA 817

MIGRATION – Review of decision of RRT – where applicant seeks merits review.

Migration Act 1958, ss.91R, 424A

Federal Magistrates Court Rules 2001

SZBEF v Minister for Immigration [2005] FMCA 133
Minister for Immigration v NAMW [2004] FCAFC 264
Minister for Immigration v NAMW [2004] FCAFC 264
SAAP v Minister for Immigration [2005] HCA 24
SZDFO v Minister for Immigration [2004] FCA 1192
NARE v Minister for Immigration [2004] FCA 554
NAAH v Minister for Immigration [2002] FCAFC 354

Applicant:

SZBEF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1584 of 2003

Judgment of:

Raphael FM

Hearing date:

7 June 2005

Date of Last Submission:

7 June 2005

Delivered at:

Sydney

Delivered on:

7 June 2005

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant pay the respondent's costs assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1584 of 2003

SZBEF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Fiji. He arrived in Australia on 23 December 2001. On 7 January 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 10 April 2004 a delegate of the Minister refused to grant a protection visa and on 14 May 2002 the applicant applied for review of that decision by the Refugee Review Tribunal.
On 6 May 2003 the Tribunal advised the applicant that it had considered all the material before it in relation to his application but was unable to make a decision in his favour on that information alone. He was invited to a hearing on 10 June 2003 which he attended. On 20 June 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 16 July 2003.
On or about 11 August 2003 the applicant filed an application in this court seeking judicial review of the decision of the Tribunal. He was then represented by a firm of solicitors. On 22 October 2003 a directions hearing was held which was attended by the applicant or his solicitor and the hearing date of 2.15p.m. on 9 February 2005 was set.
An amended application was filed by the solicitor. On 17 May 2004 a notice of ceasing to act was received from the solicitor. An address for the applicant was given in that notice. When the matter was called on for hearing on 9 February 2005 the applicant failed to attend and in a judgment under the title SZBEF v Minister for Immigration [2005] FMCA 133 I dismissed the application for non-attendance. The applicant has since issued an application to set aside that judgment on the grounds that he had changed his address and was not aware of the hearing. I determined to consent to that application and to hear the matter instanter.
The applicant claims to have a well-founded fear of persecution for the Convention reasons of race and religion. He is an Indian Fijian of the Hindu race. He also claimed that he was entitled to the protection of Australia based upon his political opinion as a member of the Fijian Labor Party. He claimed that in June 1999 he was attacked by a gang of indigenous Fijian youths and the police did not investigate because of lack of evidence [CB 13] and [72].
He said that in March 2001 he was again attacked and "no further actions could be pursued because of the lawlessness of the nation" [CB 26]. He said that he had been abused and threatened at work by indigenous Fijians and when he reported this to management those abusing him denied the allegations and the abuse worsened.
He told the Tribunal he had witnessed indigenous Fijians destroying homes in his village and had been told that if he reported the crimes his life would be in danger and he felt that he had been victimised and further condemned because of his Hindu beliefs and practices.
These matters were taken up by the Tribunal and discussed with the applicant. The Tribunal accepted that he had a subjective fear of returning to Fiji because of the assaults which took place in June 1999 and March 2001 but it found that the essential and significant reason for the assaults was robbery and not the applicant's race or religion. The Tribunal took the view that the law and order situation in Fiji had by that time become stable and that adequate state protection was provided to Indo-Fijians. The Tribunal had come to this view from consideration of independent country information which it discussed with the applicant.
The Tribunal determined that in regard to the problems that the applicant had complained about at work this did not amount to persecution within the meaning of s.91R(1) of the Migration Act 1958 (Cth) (the “Act”) and it also noted that the threats which had been made to the applicant's life had not been acted on and did not cause him to go into hiding or to leave his employment and therefore they were not so serious or were not taken so seriously by the applicant and did not thus fall within section 91R(1)(b) of the Act.
The Tribunal found that the actions of the indigenous Fijians, in particular in relation to their disrespect for the Hindu religion and the Hindu temples, was not sufficient to hinder the practise of that religion and that there was adequate state protection available.
The Tribunal also dealt with claims that the applicant might be prevented from earning a living and that his parents might be evicted from their current land holding.
The amended application filed by the applicant cannot be said to be a model of precision. He argued that the Tribunal ignored relevant material and relied upon irrelevant material that he did not particularise. To the extent that there was a complaint that the material relied upon by the Tribunal was out of date I am unable to accept this. The reports referred to by the Tribunal were dated between 2001 and May 2003 [CB 78-83] and this information appears to me to be relevant to the assessment of the applicant's claims of the current situation in Fiji. In reality, the claim is no more than one seeking impermissible merits review.
The next complaint is that there was an incorrect application of the law to the facts. In order to succeed in a claim such as this one the court must be told exactly what the law is and what the facts were. Regrettably, neither is done.
Finally, there is an allegation that the Tribunal failed to accord the applicant procedural fairness. This seems to be based upon the failure of the Tribunal to provide the applicant with all the independent country reports upon which it relied but the provision of such information is not governed by s.424A of the Act: Minister for Immigration v NAMW [2004] FCAFC 264. The information seems to me to be that information which is excluded by s.424A(3) of the Act. The information is just about a class of persons and not about the applicant personally. Insofar as I would say that it is about a class of persons it is information about the situation pertaining to Indo-Fijians within Fiji. I do not believe that the recent decision of the High Court (SAAP v Minister for Immigration [2005] HCA 24) affects this matter.
When the applicant appeared before me today he told me that his life was still in danger and that people such as himself were still not safe in Fiji. He told me that there was no religious freedom and that Indo-Fijians were not safe in their own houses, that they were attacked at their places of gathering and that the police did not assist.
It seemed to me that his recitation of these matters, understandable as it may be, merely reinforced his view that the task of the court was to conduct a re-hearing on the merits. As has been explained on numerous occasions and in particular by Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 and NARE v Minister for Immigration [2004] FCA 554 and also by the Full Court in NAAH v Minister for Immigration [2002] FCAFC 354 the court cannot engage in merits review and it is not part of its task so to do.
For all these reasons I am unable to find any grounds upon which I can review the decision of the Tribunal in this case. I must therefore dismiss the substantive application and order that the applicant pay the respondent's costs. I had already made an order in relation to costs when this matter first came before me. I vacate that order and make a combined order that the applicant pay the respondent's costs in respect to the application assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: