SZBNL v Minister for Immigration
[2004] FMCA 439
•19 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBNL & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 439 |
| MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for convention reason of race – whether applicant’s submission that the Tribunal failed to take proper account of country information was an attempt at merits review – whether Tribunal considered well-founded fear in terms of s.91R Migration Act – whether Tribunal was adequately equipped to reach state of satisfaction regarding existence or otherwise of protection obligations – where Tribunal found there was little or no likelihood of the applicant facing persecution due to improved conditions in country of nationality. |
Migration Act 1958 (Cth), ss.65, 91R, 477
NAHI v MIMIA [2004] FCAFC 10
Applicant S70 of 2003 v MIMIA [2004] FCA 84
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIMIA v Respondents S152/2003 [2004] HCA 18
Sunarso v Minister (2000) 99 FCR 125
MIEA v Guo (1997) 191 CLR 559
Re MIMIA; Ex parte Applicant S134/2002 (2003) HCA 1
S20/2002 (2003) 198 ALR 59
NAZZ v MIMIA [2004] FCA 278
| Applicants: | SZBNL, SZBNM, SZBNN, SZBNO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ2014 of 2003 |
| Delivered on: | 19 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 7 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Solicitors for the Applicant: | Adrian Joel |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicants SZBNL and SZBNM to pay the respondent’s costs, including reserved costs, assessed in the total sum of $6,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2014 of 2003
| SZBNL, SZBNM, SZBNN, SZBNO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicants before me today are a husband and wife and two of their four children all of whom are citizens of Fiji. They, together with two other siblings, applied for protection visas on 6 April 2001. On
12 April 2001 a delegate of the Minister refused to grant protection visas and on 4 May 2001 the applicants and the two siblings applied for review of that decision. The Tribunal arranged a hearing on 30 April 2002 which the male applicant and a son attended. On 7 June 2002 the Tribunal determined to affirm the decision not to grant protection visas and handed that decision down on 2 July 2002. On 24 July 2002 the applicant’s former solicitor filed an affidavit in the High Court in relation to High Court proceedings no A131/2002 which had on
7 February 2002 been remitted to the Federal Court of Australia. On
3 June 2003 a notice of discontinuance was filed in the Federal Court of Australia and leave was granted by his Honour Justice Mansfield for the proceedings to be discontinued on 6 June 2003. Proceedings were commenced in this Court on 27 September 2003 and a notice of motion to dismiss came before me on 29 March 2004. At that time I made orders requiring an amended application to be filed. That occurred on 21 April 2004 and it is pursuant to this application that the four applicants are currently proceeding. They seek review of the original decision of the Tribunal. It follows from the chronology which I have set out that the application is out of time: see s.477 Migration Act. But that would only be an obstacle to the proceedings if I found that there was an error in the Tribunal which did not constitute a jurisdictional error and therefore that the decision was a “privative clause decision.”
The applicants are Indo-Fijians of the Muslim religion. Their claim to have a well-founded fear of persecution for the Convention reason of race is based upon their concern that a number of incidents which occurred to them in Fiji before they left constituted persecution and that there was a real chance that further persecution would occur if they were to return. The evidence which was led and which is found between [CB 106] – [CB 111] was that native Fijians had made continuous threats against the father and his family and included a threat of rape which had been made against his daughter. After the coup in Fiji his once flourishing business began to deteriorate and he no longer had sufficient funds to pay protection to native Fijians. He was concerned that since the coup he was unable to identify the appropriate officers within the Fijian police who he felt may be able to protect him. The Applicant father ran an earth-moving business and his home was on industrial land. Everything apart from his house had been repossessed or sold in order to make the trip to Australia. His home could not be sold and it had been abandoned. In its abandoned state it had been vandalised.
In regard to specific incidents the applicant father said at [CB 109]:
“Rebels would come and demand money by gun and take $1,000 or $500. The police station was taken over and gunfire was once heard near his house and he said his family thought they were going to die. When the coup stared they had a frightening experience trying to get the children from school and they had to be collected as the native Fijians wanted to rape his daughter. They were serous threats. The applicant was taken during the coup to the rebel army camp and asked if he would support them. He agreed he would and the applicant and his family were left alone after that.”
and —
“The applicant stated that there was a lot of mistreatment of Indo-Fijians. He asked what he could do on return to Fiji as he had no source of income … The applicant stated his employment prospects were poor and he had no source of income and he was concerned about the stability of the country in the future although things settled down after the coup. He had lost $750,000 Fijian dollars and stated he could not survive. His son told the Tribunal that nothing is left for them. …The Tribunal asked the applicant about any neighbours or friends of his that had been harmed. He replied that they were forced out of their homes by high rents and he cannot afford to live on $60-$70 in Fiji. He stated that everybody says that you could go back but that the country is going down day by day. He said “the government says you can go back and we can but there is no source of income.””
The tribunal considered country information which included a US State Department country report released on 4 March 2002 and various DFAT telegrams and information from 2000 through to late 2001. It took into account some relevant information provided by the applicants including an extract from the Desi News of 19 May 2002 which threatened that Indians would have a bleak future in Fiji unless Prime Minister Quarase included Mahendra Chaudhry’s Labour Party in his cabinet, according to former Prime Minister Rabuka. In its findings and reasons which commence at [CB 125] the Tribunal said at [CB 126]:
“The Tribunal accepts the applicants’ claims that following the May 2000 coup they experienced harassment, demands for money, a break in at their home and threats from native Fijians on account of their Indian ethnicity that they were in business and that they were perceived to have money. It also accepts that the applicant husband/father’s business collapsed shortly after the May 2000 coup and that he fell into serious financial difficulties and that his business equipment was repossessed as a result of the economic downturn that followed the coup. The Tribunal considered the applicants’ evidence of the nature and extent of the harassment, threats and intimidation experienced by them. The Tribunal finds that the degree of harm and threats of harm, harassment and discrimination suffered does not amount to persecution under the Convention. No physical harm was suffered by the applicant husband/father or any member of his family, although a threat to rape his daughter was made but not carried out.
The Tribunal accepts that the applicants have faced financial hardship, the failure of their business shortly after the May 2000 coup and the loss of their residential property following their abandonment of it to come to Australia. The Tribunal accepts that the applicants fear the possibility of harm from native Fijians if they return to Fiji and that they would experience hardship re-establishing themselves in Fiji and that they have apprehensions about their personal security and accommodation. The Tribunal accepts that, because of the economic downturn caused by the May 2000 coup in Fiji the applicant husband/father may face difficulties in re-establishing another business and that his children will experience difficulty in getting suitable employment immediately but does not accept that these difficulties fall within the scope of the Convention.”
The Tribunal did not accept that the economic hardship which the applicants had previously faced amounted to persecution or that they would face upon return to Fiji financial hardship amounting to persecution under the Convention. It then turned to consider the physical elements of persecution and stated:
“On the country information the Tribunal is satisfied that the Fijian authorities will afford adequate protection to the applicant and his family if they should need it upon return to Fiji and in the reasonably foreseeable future. Indeed, the applicant agrees that the Fijian authorities do respond to crime reports and that some protection is available but suggests that the police response may depend on who in the police force receives the crime report.”
The Tribunal then went on to cite country information from which it concluded at [CB 128]:
“The above mentioned country information indicates, and the Tribunal finds, that the applicants and their property were entitled to the effective protection of the authorities and that effective protection is available. The Tribunal finds on the country information that racially motivated crimes and violence and criminal activities which occurred during the period of the coup and which occurred principally against property have long since been brought under control by the police and military.”
Finally the Tribunal concluded at [CB 129]:
“Having closely considered the claims of the applicants and the country information the Tribunal is of the view that if the applicants were to return to Fiji they would not face persecutory harm or mistreatment from native Fijians. … The tribunal is not satisfied that there is a real chance that the applicants will suffer persecution for reasons of their race or any other Convention reason in the reasonably foreseeable future if they return to Fiji.”
The applicants were represented at the hearing and counsel had filed a helpful outline of submissions. He argued on their behalf that the Tribunal’s decision was vitiated by jurisdictional error in that the Tribunal:
1.Either failed to take account or did not properly take into account the country information either obtained from within the Tribunal or received from the then agent of the applicants.
2.Made a legal error in its application of s.91R as regards to what constitutes persecution.
3.Failed to apply the legal test for a well-founded fear.
4.Did not consider the applications for protection visas in accordance with s.65 Migration Act
First ground of review – how the Tribunal dealt with country information
In their submissions the applicants set out a short history of the situation in Fiji, an extract from the US Department of State report, they discusses the DFAT cables before saying:
“The question for the Tribunal was whether the applicants had a well-founded fear of persecution. The above country information is inadequate to base a finding that the applicants fear is not well-founded. The Country information only suggests that there should be no risk of institutionalised mistreatment by the authorities and that the risk of significant communal mistreatment was low.
But the submissions go on to say:
“The applicants do not seek judicial review on the grounds that the Tribunal based its purported decision on an inadequate basis. Rather the applicants say that the Tribunal simply did not consider the applicants case. In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119 Dixon CJ, Williams, Webb and Fullagar JJ said:
“The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the Tribunal is applying the wrong test or is not in reality satisfied of the relevant matters. If there are other indications that this is so or that the purpose of the functions committed to the Tribunal are misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for the exercise do not exist in law and fact.”
The applicant then submits that the further indications are provided by matters within the US State Department country report and the Desi News article which he said highlighted why the threat of rape of the daughter of the family – a fact accepted by the Tribunal – contributed to the applicant’s having a well-founded fear.
“This is more recent country information, the accepted fact of the threat of rape coupled with the inadequacy of the earlier country information supports the inference that the Tribunal was not in reality satisfied of the requisite matters.”
It seems to me that once an applicant begins to quote extensively from country information to indicate that there is another side of the coin which the Tribunal utilised to reach or not reach its state of satisfaction, he is effectively indulging in a request to the Court to give merits review. The weight to be given to country information, its interpretation and accuracy are all factual matters with which the Court cannot interfere: NAHI v MIMIA [2004] FCAFC 10 at [11]-[14]; Applicant S70 of 2003 v MIMIA [2004] FCA 84 at [27]-[28]. Applicant S70 is a case very similar in its factual context and grounds for review to this one. At [44] – [45] Hely J said:
“The applicant’s complaint is that the RRT did not refer in its reasons for decision to the press clippings submitted by the applicant. In RRT’s letter of 14 May 2002 the RRT stated that it had looked at all the material relating to the application and at the hearing on 20 June 2002 the RRT member said that she had read all of the material which the applicant had provided to the Department and to the RRT. The applicant submits that I should find, contrary to the statements, that the RRT has not read this material, but there is no reason why I should draw that conclusion.
The RRT was not obliged to deal with every piece of “evidence” that was before it: Muralidharan v Minister (1996) 62 FCR 402, 414. It does not follow that because the RRT does not mention particular pieces of evidence in its reasons it has failed to consider that evidence.”
I see no reason why I should not take the same approach to this case as his Honour did in Applicant S70.
In his submissions on the first point the applicant makes reference to the threats of rape and the manner in which it was considered by the Tribunal. That is also dealt with in the second ground of review and I propose to deal with it there.
Second ground of review – the application of s.91R as to what constitutes persecution
The applicant father states that the threat of rape must be viewed in the context of s.91R(2) and in particular a reference to a threat to the person’s life or liberty. He argues that in circumstances where the possibility of the threat being carried out is far from fanciful, this threat is serious harm amounting to persecution. He also argues that the significant economic hardship already suffered by the applicants and with which they continue to be threatened amount to persecution. Dealing first with this latter point I would say that the Tribunal was provided with such evidence as the applicants wished to give it as to their financial situation. It compared that with the country information which indicated that whilst financial conditions for Indo-Fijians were seriously affected by the coup they had been steadily improving ever since. The Tribunal weighed the evidence and came to the conclusion that it did not amount to serious harm within s.91R(2) and that is a matter exclusively with in its domain. It is a factual question to be answered by the Tribunal not to be interfered with by this court.
The situation of the threat of rape is somewhat different. That rape can constitute persecution for the purposes of the Convention is clear: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Callinan J at [296]. If an applicant is threatened with rape and a Tribunal finds that there is a “real chance” that on return such threat may be repeated and carried out it would be in error if it did not find a well-founded fear of persecution. In this case the Tribunal appears to have accepted that any threats made to the applicants daughter were made for the Convention reasons of race or religion but what it did not do was find that there was a “real chance” that the threats might be repeated or carried out. It came to the view that this would not be the case given the improvement in conditions, in particular, conditions which established effective protection. This is discussed in detail in the findings and reasons at [CB 127] - [CB 128]. The High Court made it clear in MIMIA v RespondentsS152/2003 [2004] HCA 18 per Gleeson CJ, Hayne and Heydon JJ at [28] that:
“A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection.”
But there is another problem with the claims regarding a threat of rape. The applicant’s daughter made this complaint within the context of a claim for asylum of part of her father’s family unit. There was no separate claim made by her individually based upon this fact. In these circumstances, her claim is to be assessed as a member of her father’s family unit and the RRT is under no obligation to deal with any specific claims made by her: Sunarso v Minister (2000) 99 FCR 125; Applicant S20 (2003) supra at [36].
Third ground of review – the Chan test for well-founded fear
The applicant in his submissions deals in some particularity with the decision in Chan but his first quotation from that case points out the error into which I believe he fell.
“In Chan Yee Kin v MIEA (1989) 169 CLR 379 Mason CJ at 388 said:
“In deciding that Mr Chan’s fear of persecution was not “well-founded” the delegate did not make a finding that since Mr Chan escaped from China the conditions there had so changed and improved that there was little or no likelihood of persecution on political grounds. The delegate appears to have accepted Mr Chan’s account of the measures taken and threatened against him by the authorities and to have regarded as the critical issue the question whether those measures amounted to persecution or persecution for reasons of political opinion or gave rise to a well-founded fear of persecution.””
In this case the Tribunal did make a finding that the conditions in Fiji had so changed or improved that there was little or no likelihood of persecution being inflicted if they should return to Fiji. In its findings and reasons the Tribunal at [CB 130] specifically indicated that it was not satisfied that there was a real chance that the applicants would suffer persecution for reasons of their race or any other Convention related reason in the reasonably foreseeable future if they were to return to Fiji. It seems to me that the Tribunal having clearly posited the appropriate test must, in the absence of clear evidence, be taken to have applied it. I am likewise unconvinced by the submission of the applicant that the Tribunal erred as discussed in MIEA v Guo (1997) 191 CLR 559 at 572 by using the real chance test as a substitute for the Convention term “well-founded fear”. The arguments put forward by the applicant in this regard and found in his submissions between paragraphs [40] and [44] (a copy which is kept with the papers) constitute an argument as to facts and weight that would better have been put to the Tribunal.
Fourth ground of review – the failure in regard to s.65 Migration Act
In support of this contention the applicant cites the judgments of Kirby and Gauldron JJ in Re MIMIA; Ex parte Applicant S134/2002 (2003) HCA 1 at [73]-[76]. The applicant then contends that the Tribunal failed to give effect to the Convention by misunderstanding the nature of the persecution and the failure to apply the Chan test, instead impermissibly weighing the possibility of persecution. Because of this the Tribunal could not be said either to have been satisfied or not to have been satisfied that the applicants were persons to whom Australia owed protection obligations. As I have stated, I do not believe that the Tribunal did misunderstand the nature of persecution or failed to apply the Chan test. I am of the view that the Tribunal weighed all the necessary issues and came to a particular decision. It was a decision with which the applicants disagreed but this does not alone constitute a ground for review: S20/2002 (2003) 198 ALR 59 at [5]; NAZZ v MIMIA [2004] FCA 278 at [18].
In all the circumstances I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it came to its decision in this case. I dismiss the application. I order that applicant SZBNL and applicant SZBNM pay the respondent’s costs including reserved costs which I assess in the total sum of $6,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 19 July 2004
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