SZCKE v Minister for Immigration

[2005] FMCA 1633

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCKE v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1633

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming racial discrimination in Fiji – findings of no Convention nexus and adequate State protection open to the RRT on the evidence – no reviewable error found – application dismissed.

NACZ v Minister for Immigration [2003] FCA 457

Applicant: SZCKE

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG35 of 2004

Judgment of: Driver FM

Hearing date: 9 November 2005

Delivered at: Sydney

Delivered on: 9 November 2005

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent to the proceedings.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG35 of 2004

SZCKE

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 19 November 2003 and handed down on 11 December 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Fiji and had made claims of racial persecution in that country on the basis that she was the victim of sexual assaults or attempted sexual assaults.  Mr Reilly deals briefly with the relevant background information in his written submissions.  I adopt as background, for the purposes of this judgment, paragraphs 2 and 3 of those written submissions:

   The applicant applied for the visa on 8 January 2003: court book, pages 1-33.  The delegate’s decision refusing the visa was made on 26 June 2003: court book, pages 36-47.  The applicant applied to the RRT for review on 28 July 2003: court book, pages 48-51.  The RRT held a hearing on 14 November 2003.

   The applicant claimed to fear persecution in Fiji for reason of her race.  She claimed to be a Muslim Indo-Fijian and to have been sexually harassed by native Fijian boys in 2000, and that she feared rape from young native-Fijian men who had come to her house in 2002.  She claimed to fear further such treatment if returned to Fiji.  See generally court book, pages 25-26, 50, 70-72.  The RRT accepted the applicant’s claims but found on the basis of her own evidence that the young men in 2002 were not motivated by her race but by a perception of her as a easy target for an opportunistic assault and would be if they made a similar attempt in future, so no Convention nexus existed for this fear.  The RRT also found in any event that state protection was available to the applicant.  See generally court book, pages 78-79.

2. The applicant relies upon the amended application filed on 6 July 2004.  Although that amended application was apparently not brought to the attention of the Minister's solicitors, Mr Reilly dealt with it today in his oral submissions.  The asserted jurisdictional errors are not clearly apparent from the amended application, although Mr Newman has attempted to flesh them out in his written and oral submissions. 

3. It is clear that the applicant is concerned both with the RRT’s finding that the essential and significant reason for the harm suffered by the applicant at the hands of young ethnic Fijian males was not her race but that rather, she was the victim of opportunistic criminal activity. 

4. Secondly, the applicant is concerned at the RRT finding that in any event, adequate State protection is available to the applicant in Fiji because, although there are resource constraints upon the Fijian authorities, the Fijian police force is willing and, subject to economic constraints, able to deal with crimes of violence and would not refrain from offering protection by reason of the applicant's race. 

5. In the course of argument Mr Newman drew my attention to the decision of his Honour, Madgwick J, in NACZ v Minister for Immigration [2003] FCA 457. The published judgment annexes to it what is described as draft reasons for judgment. In those draft reasons His Honour expresses certain views about the situation in Fiji and the reliability of information about Fiji from the Australian Department of Foreign Affairs and Trade. Mr Reilly pressed upon me, and I accept, that I should not adopt those views as having any judicial authority. In any event, I see no real conflict between the description of the situation in Fiji put by His Honour and the description in the country information available to the presiding member in this case. The country information, both as to the risks confronting ethnic Indians in Fiji and the availability of protection from police, was equivocal. The US and Canadian information pointed to problems of significance. The Australian and New Zealand information was rather more positive. The presiding member had regard to all of the information that appeared to be relevant and appears to have preferred the information available from the Australian Department of Foreign Affairs and Trade. In my view there was no reason why she was not entitled to do so.

6. Secondly, the presiding member at the hearing conducted by the RRT also questioned the applicant in some detail about her claims.  As a result of that questioning it was open to the presiding member to conclude on the evidence that the applicant had not been the victim of a racially targeted sexual assault but rather that she had been the victim of opportunistic criminal activity to which other racial groups were also subject.  I see no legal error in that conclusion by the presiding member. 

7. Likewise, on the information available to the presiding member, it was open to her to conclude that adequate State protection was available to the applicant in Fiji, notwithstanding the admitted limitations imposed by financial and practical strictures.  The available information did not point to an unwillingness on the part of the Fijian authorities to provide protection because of the race of the applicant.  I see no other arguable jurisdictional error in the decision of the RRT. 

8. I find that the decision is free of jurisdictional error.  In the circumstances, the decision is a privative clause decision and the application must be dismissed.  I will so order.

9. I will also order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,200.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  21 November 2005