SZDLU v Minister for Immigration
[2004] FMCA 1034
•2 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDLU v MINISTER FOR IMMIGRATION | [2004] FMCA 1034 |
| MIGRATION – Review of Refugee Review Tribunal decision – Hindu Fijian Indian – humanitarian grounds – no legal error – privative clause decision – application dismissed. Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZDLU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1296 of 2004 |
| Delivered on: | 2 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 2 December 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Margaret Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1296 of 2004
| SZDLU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (Tribunal) handed down 25 March 2004.
The applicant is a citizen of Fiji who arrived in Australia on 20 December 1999. She lodged an application for a protection visa on 27 October 2003. She had already applied for an aged parent visa in December 2000.
On 28 October 2003 a delegate of the Minister refused the protection visa application. On 20 November 2003 the applicant applied to the Tribunal for review. The applicant attended a hearing of the Tribunal on 2 March 2003 and the Tribunal affirmed the decision of the delegate on 3 March 2004 and refused to grant a protection visa to the applicant.
The claims before the Department and the Tribunal
The applicant’s concern was that as an Indo-Fijian of Hindu religion she feared persecution by native Fijians. Her claims included assertions that the Fijian Parliament, public administration and law and order services racially favoured Fijian natives and prejudiced persons of Indian ethnic origin.
She says that she has been subject to racial prejudice all her life along with other Indo-Fijians, young and old. She says that other Indo-Fijians have been bullied, beaten, robbed and raped and sometimes murdered by native Fijians.
The applicant claims she fears for her life if she were to return to Fiji. She states that the authorities are not successfully dealing with the problems and, in particular, she is afraid of living on her own in Fiji. In 1997 she was followed by three indigenous Fijians who snatched her watch. She did not report the matter to the police as she feared reprisals.
At the time of the Tribunal decision she had two daughters who lived in Australia, one son in New Zealand, another son who had married an Australian and was waiting for a spouse visa. I accept that that son has now received a visa for Australia.
The applicant says there is now no one in Fiji to look after her.
The decision of the Tribunal
The Tribunal’s reasons are accurately recorded in the submissions of the respondent at paragraphs 2.3 to 2.5. Paragraph 2.3 states:
The Tribunal accepted the applicant’s evidence that in 1997 her watch was snatched by native Fijian men but this was an isolated criminal act and did not amount to serious harm for a Convention reason. Moreover there was no evidence of any similar harm prior to the applicant’s departure from Fiji in 1999.
Furthermore, the Tribunal found that independent country information showed that there was no present evidence of any significant mistreatment of Indian Fijians and that the law and order situation in Fiji was stable.
The Tribunal also found that the risk of the applicant facing persecution by reason of her ethnicity was remote. Her age and status as a widow did not exacerbate her chances persecution. Any difficulty faced by the applicant in finding a place to live would not be related to Convention grounds. The Tribunal therefore concluded that the applicant was not a person to whom Australia had protection obligations.
The Tribunal did say that there might be a humanitarian issue because of her age and the fact that her daughters and son lived in Australia and in New Zealand making her fearful of living alone in Fiji. But that was not a matter for the Tribunal.
Consideration of the issues
The application filed in the court on 5 May 2004 contained no grounds for review. The accompanying affidavit referred to the Tribunal having accepted all of the applicant’s assertions yet having given them no weight. It also said that the Tribunal did not properly take the applicant’s circumstances into account and that it failed to act in accordance with natural justice.
In a later affidavit filed on 29 September 2004 the applicant repeats the claims of failure to take relevant circumstances into account and to act in accordance with natural justice.
Today the applicant handed up a document which referred to the migration of her son to Australia. That document is not relevant to the matters which this Court has to consider.
At the hearing today all that the applicant was able to say was that her immediate family was in Australia and she wanted to stay with them, something which I might say at her age of almost 68 years is entirely understandable. But such a statement does not identify any particular legal error for consideration by the Court.
Turning to the two legal errors which might be inferred from the affidavit accompanying the initial application. The first is failure of the Tribunal to take relevant circumstances into account. No details or particulars have been provided. The applicant clearly is concerned with the factual findings made by the Tribunal. I am satisfied that the Tribunal carefully considered all the claims made by the applicant and in particular her family circumstances.
The Tribunal also considered carefully the one incident in which she could claim she had suffered harm by reason of a criminal activity when her watch was taken. Having regard to these circumstances it is still concluded that Australia does not owe protection obligations to the applicant.
The second ground claimed by the applicant was a lack of procedural fairness. This ground also is not detailed or particularised. The applicant did not assert that there had been any breach by the Tribunal of the code set out in Part 7, especially Division 4 of the Migration Act 1958 (the Act), nor was there any evidence to support a finding of procedural unfairness at common law. Even if there were such an assertion, it may not be a valid ground for review having regard to section 422B of the Act which provides that Division 4 of Part 7 is to be taken as an exhaustive statement of the requirements of procedural fairness in relation to the matters with which it deals.
Conclusion
The application and the supporting affidavits are deficient in that they do not identify anything in relation to the decision of the Tribunal or its proceedings with the necessary detail or particularity which would assist me in determining whether there is any reviewable or legal error.
I invited the applicant at the hearing to put anything to me that might identify a legal error but she was not able to expand upon her application and affidavits. As the applicant is unrepresented I have also carefully examined the decision myself and I cannot detect any errors of law.
Counsel for the Minister has submitted to me that the application must be dismissed as no reviewable or legal error has been disclosed.
I agree.The Tribunal found that the applicant had made out no substantive protection grounds. These findings by the Tribunal were reasonably open to it on the material before it
I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act and also to the powers conferred on the Tribunal.
In essence, the applicant’s dispute was not really with the factual findings of the Tribunal but with the result. Although I would not normally make the following suggestion, in view of the applicant’s age and family circumstances, this case may well be one in which the Minister might consider the exercise of her powers under section 417 of the Act. But that is a matter for the Minister and not for this Court.
In the circumstances I must dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 12 January 2004
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