SZDXS v Minister for Immigration
[2005] FMCA 896
•16 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXS v MINISTER FOR IMMIGRATION | [2005] FMCA 896 |
| MIGRATION – RRT decision – Indian Fijian – feared persecution on religious and political grounds – no error found. |
| Migration Act 1958 (Cth), s.474, 477(1)(a), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 |
| Applicant: | SZDXS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1958 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 16 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1958 of 2004
| SZDXS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 24 May 2003 and handed down on 19 June 2003. The Tribunal affirmed a decision of a delegate refusing the applicant a protection visa.
The applicant's present application for judicial review was filed in this Court on 25 June 2004 almost a year after the Tribunal's decision. No explanation for that delay has been given, but the respondent has not taken issue with the delay except to the extent of relying on s.477(1A) of the Migration Act, which imposes a time limit in relation to applications concerning privative clause decisions. However, the time limit does not apply if I am satisfied that the Tribunal's decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). Nor, on the interpretation of the High Court in that case and subsequent cases, does s.474(1) prevent my giving a remedy if I am so satisfied.
The effect of Plaintiff S157/2002 (supra), and the nature of the Court's judicial review jurisdiction under s.483A of the Migration Act and s.39B of the Judiciary Act 1903 (Cth), is that I must dismiss the present application unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant qualifies for a refugee visa or for any other permission to stay in Australia.
In the present case, the applicant arrived in Australia on a visitor's visa in December 2001. He lodged a protection visa application on
14 January 2002, in which he indicated he was a 22 year old Fijian of Indian ethnicity with trade qualifications as a plumber. He gave no details in his reasons for claiming Australia's protection, but claimed:
I left Fiji with the fear of being physically harmed due to my race, religion and political opinion.
As to who he thought might harm him, he said:
People with different political views, different race & religion, natives, also law authorities.
He said he thought this would happen to him because:
My strong belief of my religion and political involvement -
without giving any details of those beliefs or of his political involvement.
He said that he thought the authorities in Fiji would not protect him because:
Right now, Fijian law authorities have not been treating people equally, specially if you are of Indian culture.
The delegate in the Department sent the applicant an invitation to comment on country information concerning the situation of Fijian citizens of Indian ethnicity, which might suggest that there was not systematic harm or mistreatment by, or condoned by, government authorities against Indo-Fijians and people of Hindu religion. It seems no response was made by the applicant. The delegate refused the visa application on 21 March 2002.
The applicant sought review by the Refugee Review Tribunal on
26 April 2002, and did not provide any more details. He said:
My further case which will supported by documents which is in process of coming to Australia from Fiji will be forwarded to the Refugee Review Tribunal within the next couple of week upon arrival of all the relevant documents from Fiji to support my case.
One such document was forwarded to the Tribunal on 20 June 2002. This was a letter purporting to be signed by a member of parliament in Fiji, who said that the applicant was known to him since his parents were his family friends. The MP said the applicant's family had supported him in campaigning for the 1999 general election, and that the applicant had: “used his father's transport in my election campaign. He became very well known in the camp.” The MP said:
After the overthrow of the government, many Indo Fijians were subject to brutal assault, violence, and burning of their properties. These Indo Fijians were mainly Fiji Labour Party voters and supporters.
(The applicant) was also humiliated, harassed, abused, threatened and his life was put to risk. I am told he left because his felt insecure in the country.
No further details of the applicant’s claims were provided in any documentary material provided to the Tribunal.
The applicant attended a hearing on 7 May 2003, but the only evidence of what was said at the hearing is in one paragraph of the Tribunal's decision:
At the hearing, the applicant was asked what harm he had suffered in Fiji. He said that he used to work on a farm along with others of his family and that indigenous Fijians had thrown stones at him and tried to stab him. They had broken into the family home and stolen goods. They had stolen animals from the farm. The police would make a report but would not be able to help the family because the animals would have disappeared. When he went to worship at his Hindu temple people would throw stones at him.
The Tribunal's conclusions about the applicant's claims were presented at the start of its findings and reasons:
I accept that the applicant is concerned about violence in Fiji and I accept that his race causes him to feel particular concern given the determination of the indigenous Fijian community that non-indigenous Fijians not be allowed to gain the upper hand in Fiji. However, for the reasons given below, I am not satisfied that the applicant has a well-founded fear of persecution in Fiji.
The Prime Minister, Mr Qarase, has assured the nation that his Government would “enforce law and order, care for the needy and …. be a caring government for all citizens, irrespective of where they live in Fiji and irrespective of their ethnic, cultural and social background” (DFAT Country Information Report No. 270/01 of 2 October 2001, CX58065). Despite the presence of some societal tension and discrimination between the indigenous and Fiji-Indian communities, and isolated acts of negligence by the authorities, the totality of the country information before me indicates that Mr Qarase’s attitude is demonstrated in practice in Fiji.
The Tribunal then referred to country information from a variety of sources and concluded:
The above independent evidence shows that the applicant can avail himself of the protection of the authorities if threatened with harm and that the protection available is reasonable and effective.
In my view, the Tribunal's discussion leading to that conclusion shows no error of its appreciation of the relevant law concerning effective protection from harm by non state agents (see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 and also Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18.)
In its reasons, the Tribunal accepted that there were places in Fiji that were more prone to violence than others, and that the applicant's family village may have been one such place. However, the Tribunal found:
…that he can put himself with reach of adequate protection by relocating to an area where the authorities are present in more strength than in his village. ...
There is no evidence before me that suggests that internal relocation in Fiji is an unreasonable option for the applicant. He does not have to work on a farm. He has, in fact, held non farming jobs. He has trade qualifications. This makes him very mobile in employment terms.
The Tribunal then addressed other aspects of the applicant’s claims.
It referred to affirmative action favouring indigenous Fijians and said that it was not satisfied that this: “causes the applicant significant hardship in obtaining employment.”
The Tribunal addressed the applicant's claims arising from his participation in politics, and accepted that there was a level of harassment and antagonism between supporters of rival parties but concluded: “the country information before me does not indicate that such harassment rises to the level of persecution.” The Tribunal accepted that the applicant might have suffered abuse in the 1999 campaign, but was not satisfied that it was serious nor that he had a well founded fear of persecution if he engaged in political work in the future.
The Tribunal also said that it had considered the applicant's claims regarding religion. It said that it was not satisfied that attacks on Hindu temples gave the applicant a well founded fear of persecution over his religion, since in the Tribunal's view the attacks were minor and isolated and not condoned by the Fijian authorities.
The Tribunal said:
Having considered all the evidence before me, I am not satisfied that the applicant has a well founded fear of persecution under the convention in Fiji.
I have considered the Tribunal's reasoning, and have been unable to identify jurisdictional error affecting its decision.
The applicant has filed two documents, which were been prepared by somebody with some understanding that jurisdictional error needs to be located, but I do not detect significant legal input into the applicant's case. His original application gave no particulars of claimed jurisdictional errors of failure to take into account relevant considerations and procedural unfairness. However, an amended application, which had been sent to the respondent prior to the hearing but was only filed at the hearing, contains a two page argument under the heading "Grounds" which attempts to give particularity to some arguments criticising the Tribunal's decision.
I have carefully considered those arguments. Many of them make factual challenges to some factual assessments and opinions of the Tribunal, and do not in my opinion give rise to a ground of jurisdictional error. There also appears to be a claim that the Tribunal had applied an incorrect test in relation to effective state protection.
As I have indicated above, I do not think such error has been made by the Tribunal.
The written argument also refers to a number of matters which it is argued were not taken into account by the Tribunal. However, on the evidence before me, I am not satisfied that they were not taken into account by the Tribunal when it reached its decision.
The applicant has appeared today in person without assistance, and has not attempted to elaborate any of the arguments made in this document, nor to make a substantive submission to me. I can understand his difficulty, but ultimately I have not been able to find a ground allowing me to set aside the Tribunal decision.
For the above reasons I must dismiss the case.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 30 June 2005