SZDUE v Minister for Immigration - [2005] FMCA 597

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDUE v MINISTER FOR IMMIGRATION

[2005] FMCA 597

MIGRATION – Review of decision of Refugee Review Tribunal – citizen of Fiji – Indian Hindu – weight to be placed on evidence – opportunity to comment on adverse information – irrelevant considerations – merits review – humanitarian needs – privative clause decision – no jurisdictional error – lodged out of time – application incompetent – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

SZDUE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1757 of 2004

Judgment of:

Mowbray FM

Hearing date:

5 April 2005

Date of Last Submission:

5 April 2005

Delivered at:

Sydney

Delivered on:

5 April 2005

REPRESENTATION

Advocate for the Applicant:

In person

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1757 of 2004

SZDUE

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 a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 4 August 2003 and handed down on

1 September 2003.
The applicant is a citizen of Fiji of Hindu-Indian background, who arrived in Australia on 2 December 2001. On 27 May 2002 she applied for a protection visa. This application was refused by a delegate of the Minister on 4 June 2002. On 19 June 2002 the applicant applied for review in the Tribunal. A hearing was held on 6 May 2003 which the applicant attended with some of her children.
On 23 June 2003 the Tribunal wrote to the applicant asking her for details as to the timing of her visit to the Fijian Police and further explanation as to why there was evidence that on the date of the report the applicant was already in Australia. She was also asked to explain why she did not claim refugee status during her other visits to Australia after the coup. By letter dated 2 July 2003 the applicant’s son replied in full to those requests
As I have indicated, on 4 August 2003 the Tribunal affirmed the decision of the Minister’s delegate, and that decision was handed down on 1 September 2003. On 8 June 2004 the applicant sought judicial review of the Tribunal’s decision in this Court.

Claims before the Department and the Tribunal

The applicant claims that she was badly harassed in Fiji. She was driven away from her home and her human rights were violated. She says she is a woman at risk, being 62 and a widow. Since the 2000 coup in Fiji she says harassment, violence and burglary have increased. She alleges that the native Fijians will harass her if she returns.
At the Tribunal hearing she stated that she feared for her safety on a number of occasions when ethnic Fijians threw rocks and bottles at her home, stole her possessions and poisoned her two dogs. She was so frightened that she slept under the bed on many nights.
She claimed that she had been unable to receive protection from the Government and police because she had been to the police station many times and the police did nothing to help her. They did produce a report stating that they were patrolling the area, but they did not reassure the applicant as to their effectiveness.
She alleged that when she had left her home on one occasion she returned to find that the house had been destroyed. The applicant provided photographs and statutory declarations which attested to her having no home and having been harassed.
She has two daughters in Fiji, but in the Hindu culture a daughter and son-in-law have no obligation to help the daughter’s mother. She does not have a home now and even if she managed to establish one again in Fiji she fears for her life.

Tribunal decision

The applicant’s claims before the delegate and the Tribunal centred upon her concerns for her safety as a widowed elderly Indo-Fijian woman.
The Tribunal accepted that the applicant had a subjective fear of Fiji as a result of the chaotic situation which she experienced during and after the 2000 coup and that she feared persecution as a result.
The Tribunal stated that:
Now she is alone and aged 63 years, her fears are heightened by her claim there was no one in Fiji who was responsible for her, or willing to take her in following the death of her husband and eldest son and the loss of her family home.
The Tribunal concluded on the basis of the available country information that there was a “negligible chance” of communal violence as witnessed in 2000 in the foreseeable future.
The Tribunal accepted that the applicant was a member of a particular social group, widowed, elderly, Indo-Fijian women who must rely on their sons. But it found her fears of persecution as a member of that particular social group were not well-founded.
The Tribunal questioned why the applicant had not applied for refugee status before. It did not accept her claim that she was unaware of the migration regulations in Australia. The Tribunal dealt briefly with the protection offered by state authorities and found that the new caretaker government had established a new government and parliament and that law and order had improved.
The Tribunal was satisfied that the applicant went to the police and that they reported on the thefts in the applicant’s house. But it was not satisfied that the applicant’s house was destroyed in the manner claimed.
The Tribunal did not accept that the situation facing the applicant amounted to Convention based persecution. It considered that the applicant could not claim that the police or other authorities had subjected her to violence.

Consideration

The amended application filed on 1 November 2004 set out five grounds for review, which I will deal with in turn.
Ground one is:
The Tribunal failed to address the circumstances of the applicant as per written statement and oral evidence and recognise her as a refugee as a result of the true facts listed and acknowledged by the Tribunal.
It is obvious from the submissions put to the Court by the applicant’s daughter that the applicant’s dispute is with the facts as found by the Tribunal.
The Tribunal did not accept that the applicant’s fear was well-founded. The submissions before me were directed towards satisfying me that that finding was wrong. These were presented under the guise of a number of alleged legal errors. Nothing that was articulated at the hearing identified any such legal error. The Court was invited to enter into merits review of the Tribunal’s findings, something which, as

I emphasised to the applicant and her daughter at the hearing, the Court is not empowered to do.
To the extent that the applicant questions the weight placed by the Tribunal on the elements of the evidence her submissions are misconceived. The weight is not a matter for this Court, but is a matter for the Tribunal to determine.
Ground two is:
The applicant’s status as a widow as a contributory factor to her subjective fear of persecution was not considered properly by the Tribunal while on one hand the Tribunal accepts the applicant’s claim that she belongs to a particular social group, namely an elderly widow, of Hindu Fijian background who suffered and whose human rights had been violated the Tribunal did not accept her as meeting the definition simply her subjective fear of persecution has not been considered as well founded. Such conclusion is a denial of fairness and justice.
This ground is far from clear. But to the extent that it complains that the Tribunal ought to have placed more weight on the applicant’s status as a widow the complaint is without substance. It is clear from the Tribunal’s reasons poorly articulated though they are that the Tribunal did take into account that the applicant was a widow and also noted that this was a contributing factor to her subjective fear. For example, at Court Book page 99 the Tribunal says:
The applicant’s status as a widow as a contributory factor to her subjective fear of persecution as an aged single woman living alone.
Again that is poorly expressed, but I take it to mean that the applicant’s status as a widow was a contributing factor to her subjective fear.
I also gave careful consideration to whether the Tribunal adequately dealt with the applicant’s claim that she was a member of a particular social group: that is a widowed elderly Indo-Fijian woman.
Although, as I have indicated, the Tribunal’s reasons are not well expressed, I have reached the conclusion that in dealing with this claim the Tribunal did not commit any jurisdictional error. It identified the social group as follows:
While the Tribunal accepts the applicant’s claim that she belongs to a particular social group; namely a widowed elderly Indo-Fijian woman …
The Tribunal does not accept her claim that she cannot expect adequate family support if she returns to Fiji, nor that she has a well founded fear as a result of being a member of this group.
Further the Tribunal had regard to the applicant’s principal concern that the chaos and communal violence which occurred in the 2000 coup might return and that she would suffer as a result. The Tribunal found that there was a negligible chance of such a reoccurrence.
It was therefore not necessary for the Tribunal to examine whether there was any Convention nexus associated with this fear.
Ground three is:
The Tribunal erred in law by denying the applicant the right to comment on country information (Fiji) and the violence which occurred in 2000 and foreseeable future.
Insofar as this ground relies on the obligations under s.424A of the Migration Act 1958 (Cth) (the Act) it must be rejected as the country information clearly falls within the exception in s.424A(3)(a) (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264).
To the extent that this ground suggests that the applicant was denied procedural fairness at common law, the relevant country information relied on by the Tribunal was referred to by the Tribunal during the course of the hearing attended by the applicant. This is evident from the transcript of the Tribunal proceedings which I received into evidence. Sections at pages 6, 8, and 12 of that transcript indicate that the Tribunal made the applicant aware of the specific information.
Furthermore, the applicant was put on notice of the country information by the delegate’s decision which referred at Court Book pages 70 and 71 to the DFAT Country Information Report, Fijian Asylum Seekers in Australia, issued on 3 April 2001. This is the report referred to in the Tribunal’s decision at Court Book page 101.
Ground 4 states:
The rules of natural justice and fairness were breached as the Tribunal made a decision and false conclusion on behalf of the applicant’s family who in fact are present in Fiji and unable to protect and accommodate the applicant’s needs.
I assume from this that the applicant is referring to the parts of the Tribunal’s decision at Court Book page 100 where the Tribunal says it does not accept her claim that she cannot expect adequate family support if she returns to Fiji.
There was some consideration of the issue of family support in the decision of the Tribunal. That consideration does not suggest any breach of the rules of natural justice or procedural fairness.
I have also given thought to whether or not it was an irrelevant consideration for the purposes of a decision under the Refugees Convention. In the circumstances I am not satisfied that it was irrelevant. The issue was not a critical factor in the decision that was reached by the Tribunal. The decision, as I have said, turns on whether or not the applicant’s fears were well-founded.
I have not been able to discern any jurisdictional error in the Tribunal’s consideration of family support for the applicant.
Ground 5 states:
Even the Minister failed to consider the circumstances under humanitarian grounds in which case the applicant merits ministerial intervention
Although the Tribunal did refer to humanitarian considerations at Court Book page 102, it made the point, which is entirely correct, that humanitarian grounds are a matter for the Minister and not for the Tribunal. There certainly is no legal error in this.

Conclusions

The Tribunal’s reasons are in my view badly written and poorly articulated, and at times quite confusing and inconsistent. It is nevertheless clear from them that the Tribunal addressed the correct issues and reached conclusions that were open to it on the evidence.
The applicant’s concerns before the Court were obviously ones which went to the findings of fact made by the Tribunal. The Tribunal found that although the applicant exhibited a subjective fear of persecution in returning to Fiji that fear was not well-founded.
In my view, these findings were reasonably open to the Tribunal on the material before it. I am not satisfied the Tribunal made any legal error going to jurisdiction in coming to its decision.
The applicant essentially invited the Court to enter into merits review, something which the Court is not empowered to do. Furthermore, the applicant’s real needs are ones of a humanitarian nature. Again, that is something on which neither the Court nor the Tribunal has any powers.
Having found that the Tribunal made no legal error going to jurisdiction I am therefore satisfied that its decision is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Applications to the Court for review of privative clause decisions must be lodged within 28 days of the notification of the decision by the Tribunal under s.477(1A) of the Act. In this case the applicant filed an application in the Court on 8 June 2004, well outside the 28 day period. The Court has no power to extend the time for filing applications in the Court pursuant to s.477(2).
In the circumstances the application is incompetent and the Court has no jurisdiction to hear it. Having considered the merits of the claims made to this Court, I therefore dismiss the application.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: K Thynne

Date: 1 June 2005