SZBPM v Minister for Immigration - [2005] FMCA 1083

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPM v MINISTER FOR IMMIGRATION

[2005] FMCA 1083

MIGRATION – Application for review of decision of RRT – where applicant had suffered sexual assault in the past – whether she was likely to be given adequate state protection – whether Tribunal wrongly preferred some country information over other.

Migration Act 1958, s.430(1)(d)
Federal Magistrates Court Rules 2001

NAHI v Minister for Immigration [2004] FCA FC 10
SZBBE v Minister for Immigration [2005] FCA 264
Minister for Immigration v Respondents S152/2003 [2004] HCA
SHKB v Minister for Immigration [2004] FCA 545

Applicant:

SZBPM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2106 of 2003

Judgment of:

Raphael FM

Hearing date:

27 July 2005

Date of Last Submission:

27 July 2005

Delivered at:

Sydney

Delivered on:

27 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr T Reilly

Solicitors for the Applicant:

Sparke Helmore

Solicitors for the Respondent:

Newman & Associates

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2106 of 2003

SZBPM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicants in this case are a family of Indo-Fijians who arrived most recently in Australia on 22 January 2002. They had on 5 January 2001 lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural Affairs. On 16 January 2001 a delegate of the Minister refused to grant them protection visas and on 7 February 2001 the applicants applied for review of that decision.
The decision was reviewed by the Refugee Review Tribunal on 17 October 2001. That review was the subject of Federal Court proceedings when the matter was remitted by consent to the Tribunal pursuant to orders of Madgwick J made on 30 April 2003. The matter was then heard by a Tribunal differently constituted and decided on 26 August 2003 with the decision being handed down on 23 September 2003.
Although the applicants are a family, the ground upon which asylum was sought was the fact that the wife had experienced a sexual assault in Fiji on 25 July 2000 when she was attacked in her home by an Indigenous Fijian male. There were also some claims relating to harassment and bullying of her children at school.
It is important to note that the grounds upon which the matter was remitted to the Tribunal were that it was conceded that the original Tribunal member had not adequately considered the question of whether or not the applicant was likely to have a well founded fear of persecution in the foreseeable future should she return to Fiji. That matter was referred to by the second Tribunal member and discussed at [CB 195-197].
The Tribunal accepts that the applicant wife suffered from the sexual assault, which she reported to the police, although it makes no finding as to whether it was racially motivated. The Tribunal based its decision and its views as to the availability of state protection for the applicant wife on the assumption that the assault may have been racially motivated.
The assault in question occurred at the height of the problems that afflicted Fiji following the coup led by Mr George Speight. The applicant had reported the incident to the police but was ignored and indeed insulted by the Indigenous Fijian police officer to whom she spoke. The applicant reported the matter to the newspaper but the newspaper refused to deal with it unless she had a police report. When she went back to the police station to obtain a report she was dealt with in an equally dismissive manner.
The Tribunal questioned the applicant as to whether she had reported the matter to other authorities and the applicant indicated that she had not because there were so many problems around at the time that she did not consider it worthwhile.
In the end the case before the Tribunal turned on the availability of adequate state protection and the possibility of this event re-occurring in the future given the level of protection of available. The Tribunal quoted at length at [CB 192-194] from independent country information which it had in its possession and which it raised with the applicant, about the changes that had occurred in Fiji since the putting down of the George Speight coup. She also made reference to recent reports in the Sydney Morning Herald and said at [CB 197]:
“I have been able to reach a decision in this matter on the basis of an assumption that the applicant's claims are true and that she is genuinely in fear of returning to Fiji.”
At [54] of [CB 198], the Tribunal says:
“I accept the independent information that Fiji is now stable in terms of law and order and has been since the second half of 2000, that the new government, which international observers are satisfied reflects the will of the electors, is committed to equality and to the safety of all its citizens, that the normal forms of protection against harm are available to the applicant and there is nothing to suggest that such protection would be ineffective or that it would be withheld by the Fijian authorities.
There is nothing in the independent information available to me to suggest that the Fijian authorities would withhold effective protection for the applicant from harm inflicted by members of the Indigenous Fijian Community because of her ethnicity or for any other Convention reason.”
The applicant's complaint about the reasoning of the Tribunal and her submission that it fell into jurisdictional error is based upon what Mr Newman, who appears on her behalf, refers to the Tribunal's "collective sanguinuity". He rightly points out that almost all of the country information provided to the Tribunal and referred to in its decision is qualified. He argues that what the Tribunal has done is to take only those pieces of the information which are favourable to a finding that there is adequate state protection for Indo-Fijians and rely upon that. However, he specifically denies any suggestion of bias on the part of the Tribunal with the result that all that can be said is that the Tribunal has preferred optimistic evidence over the pessimistic.
Mr Newman also suggests that the Tribunal has not complied with its obligation properly to refer to the evidence or other material on which the findings of fact were based (s.430(1)(d) of the Migration Act 1958) (“the Act”) but his real complaint is that he does not see any weighing up of the factors and a clear statement by the Tribunal that it prefers one part of the information to another.
That would seem to me to be inferred in the decision of the Tribunal.

I also think that a distinction must be drawn between the independent country information concerning the likelihood of further attacks by Indigenous Fijians upon Indian Fijians and the ability of the Fijian state to provide protection to all of its citizens without any ethnic distinction. The country information that is contained in the report and the green book would appear to indicate that the latter is far more certain than the former.
In NAHI v Minister for Immigration [2004] FCA FC 10 the Full Bench of the Federal Court considered the question of reliance upon country information between [11 and 14]. At [13] the court says:
“- - - it is clear from its reasons for decision that the Tribunal did rely on country information in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The court cannot substitute its own view of the material, even if it had a different view to that reached by the Tribunal.”
This seems to me to answer the complaint made by Mr Newman about the selectivity or sanguinuity of the Tribunal's decision.
In SZBBE v Minister for Immigration [2005] FCA 264 Jacobson J considered the test of adequate state protection making reference to the decision of the High Court in Minister for Immigration v Respondents S152/2003 [2004] HCA 18 and the views of the Full Bench of the Federal Court in SHKB v Minister for Immigration [2004] FCA 545 at [32]. At [46] his Honour said:
“- - - it was not suggested either before the Federal Magistrate or on appeal that there was evidence put before the RRT of a failure to adhere to international standards which the RRT should have taken into account. As Heerey J said in MZRAJ at [26], the ratio of S152 does not include the proposition that there will be jurisdictional error unless the RRT identifies and specifies the content of "international standards” of protection and matches the law enforcement machinery of the state against those standards. It is for an applicant to put forward international standards of protection with which the state failed to comply”.
Perhaps the most significant and important part of the Tribunal's decision for the purposes of this application is that found at [CB 199] where the Tribunal says:
“It is generally accepted that crime has been a serious problem in Fiji, and that police do not always respond quickly or effectively. The police have been ineffective as they are under resourced and poorly trained. However, this is clearly a problem for Fijians generally and the country material does not indicate that the authorities condone (or specifically refuse to provide protection in relation to) crimes against Indo Fijians.”
The effect of this finding is to take the question of state protection out of the area of Convention relation. This does not mean that the applicant may not have good reason for not relying upon the state of her nationality for protection but in those circumstances the tests suggested in S152 become more important and the requirement for some indication that the police force fails some unspecified international standard becomes more necessary.
Finally, I would say that although it is not perfectly expressed in the Tribunal's reasons, I read paragraph 59 [CB 199] as inferring that the applicant is not in any serious danger of this assault being repeated because if she returns to Fiji she could complain about the assailant and that the Tribunal expected that adequate state protection would ensure that he was dealt with in respect of the last offence. It would be for that reason that the Tribunal had found that the applicant is not in need of Australia's protection from convention related persecution:
“- - - because she is able to access effective protection from harm in Fiji.”
I believe that, taken as a whole, the Tribunal's findings indicate the Tribunal was of this view not only for the immediate future but also for the reasonably foreseeable future. For all these reasons I am unable to find any grounds upon which the Tribunal fell into jurisdictional error in this case and I am obliged to dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 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: