SZDUE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1262

FEDERAL COURT OF AUSTRALIA

SZDUE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1262

SZDUE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD668 OF 2005

EMMETT J
1 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD668 OF 2005

BETWEEN:	SZDUE APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the first respondent’s costs of the appeal. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD668 OF 2005

BETWEEN:	SZDUE APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	1 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Fiji and last arrived in Australia on 2 December 2001.  On 27 May 2002, she lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 4 June 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 19 June 2002, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 4 August 2003, the Tribunal affirmed the decision not to grant a protection visa.

2. The appellant then commenced a proceeding in the Federal Magistrates Court of Australia on 8 June 2004. That was some considerable time after the appellant was notified of the Tribunal’s decision on 1 September 2003. An amended application was filed by the appellant on 1 November 2004. After a hearing on 5 April 2005, the Federal Magistrates Court ordered that the proceeding be dismissed and that the appellant pay the Minister’s costs of the proceeding. The proceeding was dismissed as incompetent, on the basis that it was commenced more than 28 days after notification of the Tribunal’s decision and the Federal Magistrates Court was not persuaded that there had been any jurisdictional error. It followed that the proceeding was incompetent, by the operation of s 477(1)(a) of the Act.

3. On 27 April 2005, the appellant applied to this Court for an extension of time within which to file and serve a notice of appeal from the orders of 5 April 2005.  That application was supported by an affidavit sworn on 26 April 2005 indicating that the appellant had not received a transcript of oral reasons given by the Federal Magistrates Court for its orders of 5 April 2005.  On 23 June 2005, for reasons given on that day, Branson J ordered that the appellant have leave to file and serve a notice of appeal within 21 days from that date.  On 12 July 2005, a notice of appeal was filed in this Court, appealing from the whole of the judgment of the Federal Magistrates Court given on 5 April 2005, written reasons for which were published on 1 June 2005.

4. The appellant appeared in person before Branson J.  When the matter was called on for hearing today, Mr Toufic Laba-Sarkis sought leave to assist the appellant as a McKenzie friend.  The appellant has very little comprehension of English, although an interpreter was present during the hearing today.  The Minister objected to Mr Laba-Sarkis assisting but said that ultimately as it is it is a question for the Court.  Mr Laba-Sarkis assured the Court that he was receiving no remuneration for any assistance he might give the appellant in the course of the hearing.  I therefore heard submissions by Mr Laba-Sarkis.

5. The Tribunal accepted that the appellant has a subjective fear of returning to the chaotic situation that she experienced in Fiji during, and following, the coup of 2000.  The Tribunal accepted that the appellant fears persecution, now that she is alone and aged 63 years.  The Tribunal observed that the appellant’s fears are heightened by her claim that there was no one in Fiji who is responsible for her, or willing to take her in, following the death of her husband and her eldest son and the loss of her family home.  The appellant claimed that the land on which her former house stood is ethnic Fijian leased land and that the owners have reclaimed the site and do not want an Indian family back.

6. The Tribunal said that, in assessing the appellant’s chances of persecution on her return to Fiji, it had examined available country information relating to the current political situation in Fiji.  The Tribunal concluded, on the basis of the country information available to it, that there was a negligible chance of a repeat of the communal violence that occurred in 2000, either at the time of the Tribunal’s decision or in the foreseeable future. 

7. The Tribunal referred to the appellant’s claim that her home had been destroyed by unknown ethnic Fijians.  The Tribunal was shown photographs allegedly confirming that destruction but a police report that was also presented as evidence did not refer to the destruction of the house.  The Tribunal was not convinced that the alleged loss of the appellant’s house was reported to the police and the Tribunal was not satisfied that the appellant’s house was destroyed in the manner claimed.

8. The Tribunal accepted the appellant’s claim that she belongs to a particular social group, namely widowed elderly Indo-Fijian women.  The Tribunal also accepted that there is a Hindu social custom that requires the eldest son to accept responsibility for a widowed mother.  On the premature death of the eldest son, as in the case of the appellant, the responsibility falls on the next eldest son.  However, the Tribunal did not accept the appellant’s claim that she could not expect adequate family support if she returned to Fiji.  Further, the Tribunal did not accept that the appellant has a well-founded fear as a result of being a member of the particular social group identified.

9. The Tribunal then said as follows, and this passage is of some significance:

   ‘If she was totally dependent upon the generosity of her children in Fiji, her claim would have more weight.  However, the Tribunal noted the evidence of her eldest son who is resident in Australia, that he has continued to send money to help support his mother in Fiji and has enabled her to make ten visits to Australia to see her family since 1985.’

10. The Tribunal found that there was no evidence that the appellant could not be assisted by her surviving son to finance a modest but adequate lifestyle in Fiji.  Consequently, the Tribunal considered that there was no reason to conclude that the appellant’s family could not address the issue of their mother’s accommodation in a more co-operative way and to determine a satisfactory outcome.

11. The Tribunal then referred to a second ground, upon which the appellant claimed that the Fijian authorities were unable to provide her with protection at the time of the coup and since.  The Tribunal accepted country information that, for a period, law and order were seriously compromised in Fiji, both during and following the coup.  However, the Tribunal found that the situation had significantly improved and that the new government had committed itself to maintaining and protecting human rights and equal rights for all Fijian citizens.

12. The Tribunal did not consider that there was any evidence that would suggest that the appellant was at any time following the coup subjected to threats of violence by the police or any agency of the Fijian government.  The Tribunal accepted country information that suggests that, once the situation had stabilised, the coup ended, the caretaker government installed and a new government and parliament established, the law and order situation in Fiji rapidly improved.  The Tribunal did not accept that the situation facing the appellant in Fiji amounted to Convention based persecution.

13. Before the Federal Magistrates Court, the appellant relied upon five grounds, each of which was addressed individually by the Federal Magistrates Court.  No complaint has been made concerning the reasoning of the Federal Magistrates Court in dealing with those five grounds, except to the extent that I shall refer briefly in a moment.  The five grounds stated in the amended application, filed on 1 November 2004, were as follows:

    1.The Tribunal failed to address the circumstances of the appellant as per written statement and oral evidence. 

    That does not raise any question of jurisdictional error but seems to be a complaint about the Tribunal’s findings.

    2.The appellant’s status as a widow as a contributory factor to her subjective fear of persecution was not considered properly by the Tribunal. 

    Again it is clear from the Tribunal’s reasons that it did take into account the fact that the appellant is a widow and that that was a contributing factor to her subjective fear.

    3.The Tribunal erred in law by denying the appellant the right to comment on country information and the violence that occurred in 2000 and the foreseeable future. 

    As the primary judge observed, insofar as that ground is based upon the requirements of s 424A, it must be rejected since the country information clearly falls within the exception contained in s 424A(3)(a).  Mowbray FM observed that, to the extent that the appellant was denied procedural fairness at common law, the relevant country information relied upon by the Tribunal was referred to by the Tribunal during the course of the hearing attended by the appellant and made reference to pages of the transcript of the hearing which were in evidence before him.

    4.The rules of natural justice and fairness were breached as the Tribunal made the decision and false conclusion on behalf of the appellant’s family who in fact are present in Fiji and unable to protect and accommodate the appellant’s needs. 

    The primary judge had some difficulty in comprehending the ground.  It seems to be an assertion that the Tribunal made a wrong conclusion, which would not constitute jurisdictional error.

    5.The Minister failed to consider the circumstances under humanitarian grounds in which case the appellant merits Ministerial intervention. 

    Such a ground, of course, has no substance.  While it may be open to the Minister to make a decision on humanitarian grounds, the failure to do so has nothing to do with the Tribunal. 

    Branson J granted leave to appeal by reason of her Honour’s concern as to possible jurisdictional error, with reference to the passage that I have cited, in the light of the decision of the High Court in SAAP v The Minister [2005] HCA 24, a decision published after the judgment of the Federal Magistrates Court. Branson J was concerned that the Tribunal had regard to evidence from the appellant’s son as a reason for its adverse decision, but did not comply with s 424A in notifying the appellant in writing of that matter.

14. In her notice of appeal to this Court, the appellant specified only one ground of appeal, as follows:

    ‘The decision involves an error of law as the judgment is affected by jurisdictional error.  The RRT took evidence from the Australian son and erred where the reasons are open to be understood as showing that it regarded aspects of the evidence as a reason or part of the reason for its decision.’

15. While the Tribunal’s reasons refer to ‘the evidence of her eldest son’, that appears to be a misapprehension on the part of the Tribunal.  While the appellant’s son gave evidence, it was the appellant’s own evidence that was referred to in the passage cited of the Tribunal’s reasons cited above.  In the course of the hearing before the Tribunal, the following exchange occurred: 

    Tribunal:          ‘What is your financial situation?’

    Appellant:‘After my husband died my son was supporting me and I thought I would be with him all my life and when he passed away I was left with no money and my son in Australia was sending me some money from here.’

    The reference to the appellant’s son in her answer is clearly enough the matter taken up by the Tribunal in the passage cited.

16. That being so, insofar as the Tribunal accepted that material as part of the reason for affirming the decision under review, there was no failure to comply with s 424A(1)(a) by reason of the operation of s 424A(3)(b), which provides that s 424A does not apply to information that the applicant gives for the purposes of an application for review by the Tribunal.  On that basis, it may be that Branson J may have come to a different view in granting leave to appeal if her Honour’s attention had been drawn to the source of the information.  In the circumstances, I am not persuaded that there has been any failure to comply with s 424A.  The only ground of appeal specified in the notice of appeal is therefore not made out.

17. However, three other matters were raised in the course of oral submissions by Mr Laba-Sarkis.  The first was a repetition of the ground raised before the Federal Magistrates Court concerning failure to draw attention to country information.  For the reasons given by the Federal Magistrates Court there is no substance in that ground.  Section 424A(3)(a) obviates any requirement or need for written notification and the substance of the material was put to the appellant in the course of the hearing.  There is no substance in this ground.

18. Secondly, reference was made to an exchange between the Tribunal and the appellant’s son in the course of the hearing, in the following terms:

    Tribunal:‘In fact you do get support because once a person is deemed to be a refugee they are entitled to Social Security.  A lot of people unfortunately are aware of that and cheat the system.  They don’t get through other mechanisms, they try to get through the refugee mechanism because there are benefits being a refugee.’

    Answer:‘I wasn’t even aware of that.  I did not ask no one about this.  I said she is my mother, she has brought us up in the best way she could and it is my duty to support her for if there is a medical or anything.  I have a five bedroom house and she can live there forever.’

19. The complaint was that that indicates an attitude on the part of the Tribunal.  However, the matter was not taken any further.  There was no suggestion of bias, either apprehended or real, on the part of the Tribunal.  The Tribunal, in its reasons, observed that, while there was sympathy for the appellant’s situation and her wish to settle with her children in Australia, the appellant did not apply for refugee status on her last two visits since the coup.  The Tribunal observed that, while the appellant may have had a subjective fear at the time of the coup, it was not sufficient to cause her to apply subsequently for refugee status.

20. There has been no complaint that information concerning the appellant’s earlier visits came from a source other than the appellant.  I do not consider that the exchange, between the Tribunal and the appellant’s son, to which I have referred, indicates any jurisdictional error on the part of the Tribunal.  In particular, it does not constitute a failure to afford procedural fairness. 

21. The third ground raised orally by Mr Laba-Sarkis is that the decision of the Tribunal was so unreasonable, on the basis of the material before it, that no reasonable Tribunal could have made that decision.  Mr Laba-Sarkis referred to oral evidence given by the appellant before the Tribunal involving allegations that, in July 2000, her dogs were killed, her house was destroyed and bottles were thrown and she was very frightened.  He referred also to the claim by the appellant that her house and its contents had been lost and that if she stayed in Fiji:

    ‘…the would have continued to harass me, maybe they would have even harmed me.  They could have killed me, they could have done anything to me.’

22. The Tribunal dealt with the appellant’s claims and accepted her subjective fears.  However, it concluded, on the material before it, that there was no well-founded basis for her fears and that there was no well-founded basis that she could have a fear of persecution for a Convention reason.  While the Tribunal accepted that the appellant was a member of a group described as widowed elderly Indo-Fijian women, it found that there was no well-founded fear of persecution by reason of being a member of such a group.  The Tribunal assessed the material before it, consisting of independent country information and made a decision on the basis of that evidence.  I do not consider that the assertion of unreasonableness is established.

23. In all the circumstances, I am not persuaded that there was any jurisdictional error on the part of the Tribunal.  It follows that there was no error on the part of the Federal Magistrates Court.  The appeal must therefore be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             8 September 2005

The appellant appeared in person, with Mr Laba-Sarkis as a McKenzie Friend
Counsel for the Respondent:	Mr R. Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 September 2005
Date of Judgment:	1 September 2005