SZDYQ v Minister for Immigration - [2005] FMCA 945

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDYQ v MINISTER FOR IMMIGRATION

[2005] FMCA 945

MIGRATION – RRT decision – Fijian Indian persecuted on ethnic and religious grounds – Tribunal found chance of further harm remote – no error found.

Migration Act 1958 (Cth), s.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZDYQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1996 of 2004

Judgment of:

Smith FM

Hearing date:

22 June 2005

Delivered at:

Sydney

Delivered on:

22 June 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms Adele Alex

Solicitors for the Respondent:

Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1996 of 2004

SZDYQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under section 483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 23 March 2004 and handed down on 13 April 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the court the same jurisdiction as the Federal Court in relation to a matter arising under this act. In a matter such as the present the relevant jurisdiction is under section 39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal's decision was affected by a jurisdictional error. I do not have power myself to decide whether the applicant's claims should be believed or whether he qualifies for a protection visa or any other permission to stay in Australia.
In the present case the applicant arrived in Australia on a visitor's visa on 26 September 2003. He lodged an application for a protection visa with the assistance of a migration agent on 4 November 2003. In his application he indicated that he was a young man aged 25, of Indian ethnicity and Hindu religion, and a national of Fiji.
In a statement included in his application he said he had left Fiji because he had “faced a lot of bad experiences after and before the coup in May 2000”. He said that, at the time of the coup, a Hindu temple was attacked by George Spate Fijian groups and that he was trying to resist their attacks. He said that he was attacked with knives, sticks, irons and spears, and that he suffered an injury to his hand and thigh and was admitted to hospital. He said:
I strongly believe that there is no legitimate government in Fiji, civil unrest, organised gang warfare against Fiji Indians and Hindus. My family being forced out of our land in (a location in Fiji), our family became refugees including myself.
He said his family's house was destroyed by the Fijians. He referred to the fact that although he was a citizen of Fiji, he had no right to purchase land and said that Fijian Indians who leased land were being given notice to vacate their land. He said: “I strongly believe the poor Indian in Fiji have no future.”
He said in answer to the question, “Who do you think may harm/mistreat you if you go back”:
I strongly believe that if I go back to Fiji, I will be killed by native Christian fanatic Fijians and Fiji authority won't give any protection for my life.
His application was refused by a delegate on 5 November 2003, and the applicant appealed to the Refugee Review Tribunal assisted by his migration agent on 20 November 2003. His application referred to the same concerns that he had previously indicated.
He attended a hearing conducted by the Tribunal on 12 March 2004.

A transcript of what was said at the hearing is not in evidence before me, but the Tribunal includes a description of his evidence in its reasons and I have no reason to doubt the accuracy of its account. The Tribunal says:
The applicant stated that his usual place of residence was his farm in (the location). However, from 2002 until his departure from Fiji in 2003 he was working as a courier in Nadi where he resided with his sister on weekdays. He travelled back home to (the location) every weekend. In 2001 he commuted to Nadi and back on a regular basis as he was working in a supermarket in that city. Prior to 2001 he was assisting his father on the farm in (the location).
He told the Tribunal that although following the coup the land leased by his father was taken away from his family, his father agreed to pay a higher rate demanded by the native owners and returned to the land where he continued to cultivate sugarcane. At present his father and one of his brothers lived on that farm. Another brother and a sister lived in Nadi and a third brother lived in Australia. His mother had passed away. He told the Tribunal that apart from the incident at the Hindu temple in May 2000 nothing had happened to him in Fiji.
The Tribunal said that it put information to the applicant indicating that the situation was now stable in Fiji and that Indo-Fijians were no longer in danger. The Tribunal continued:
The applicant stated he will be killed by native Fijians. When asked why, he was unable to provide a meaningful answer. He went on to state that life is hard in Fiji and the farm is not doing too well because of drought.
In its reasons, the Tribunal referred to the above claims and evidence of the applicant, and to reports mainly from the Department of Foreign Affairs and Trade concerning the situation in Fiji relevant to the applicant's case. Under the heading Findings and Reasons the Tribunal said:
The Tribunal accepts that the applicant was assaulted and stabbed in the leg around the time of the May 2000 Coup while he was praying in a Hindu temple in Nadi. The Tribunal accepts that the applicant’s injuries required him to seek medical attention. The Tribunal acknowledges the distressing effect of the attack on the applicant and his consequent subjective fear of returning to Fiji. The Tribunal, however, is of the view that this was an isolated criminal, cowardly and oppurtunistic act facilitated by the chaos and the mayhem of the Coup. The Tribunal notes that in the two years prior to his departure from Fiji he continued to work at the same place of employment in Nadi, resided with his sister on weekdays in that city and regularly travelled back to (the location) on the weekends. The applicant did not claim, and there was no evidence before the Tribunal to indicate, that he suffered similar harm in the three years following this incident. The Tribunal is satisfied that the applicant’s chances of facing similar harm, in the reasonably foreseeable future, for the reason of his ethnicity in Fiji are remote.
The Tribunal said that it accepted that the applicant's family had been forced to leave their land for a short period of time after the coup, but noted that a new lease had been negotiated. The Tribunal noted the applicant's concern that there was no guarantee that his father would be able to hold onto the lease, but thought that the family's difficulties in relation to leasing did not amount to "serious harm within the meaning of the convention". It also considered that based on country information -
effective and adequate protection is available to the applicant's family in Fiji should they be wrongfully evicted from their land.
The Tribunal thought that there was at present no evidence of any significant mistreatment of Indian Fijians, and said:
The Tribunal is not satisfied that Indo-Fijians are denied their basic rights or that persecution or mistreatment of them is permitted or condoned by the security authorities or the Fijian government. The Tribunal, based on the evidence before it, is satisfied that the applicant's chance of facing persecution for reason of his ethnicity is remote.
It noted that crime had been a serious problem in Fiji, and that the police were not always sufficiently resourced and trained. It said:
However, this is clearly a problem for Fijians generally and the independent information cited above does not suggest that the authorities condone crimes against or refuse to provide protection in relation to Indo-Fijians. The Tribunal is not satisfied that this systemic inefficiency or under-resourcing amounts to ineffective protection to Indo-Fijians by the authorities for a Convention reason. The Tribunal, based on the evidence before it, is satisfied that the applicant would not be denied state protection for a Convention reason in Fiji.
The Tribunal concluded that overall, based on the totality of the evidence before it, it was satisfied that the applicant did not have a well-founded fear of persecution in Fiji and was not a refugee.
I have considered the Tribunal's reasoning and have not been able to identify jurisdictional error materially affecting its decision. It appears to me to have made a careful assessment of the situation which would face the applicant in Fiji. The Tribunal might have been wrong in its assessment, but, in my view, any errors of fact or judgment made by it were made within its jurisdiction.
The applicant in this court has not been legally represented, although he has received advice under the funded legal advice scheme. In his application filed on 29 June 2004 three allegations are made in the following terms:
1)The RRT made a jurisdictional error, where applicant’s important materials on refugee claim were overlooked and RRT relied on other irrelevant information.
2)The decision of the RRT involved an error of law for being incorrect application of the law to the facts as found by the decision maker.
3)The applicant was denied procedural fairness.
These grounds might have been capable of showing jurisdictional error, however, in the absence of any particulars in the document or provided by way of written or oral argument I have been unable to give them meaningful application to the present Tribunal's decision and procedure.
An amended application filed on 1 October 2004 attempts to make complaints about the Tribunal's reasoning which are more specific. It alleges jurisdictional error in a number of forms including procedural fairness, failure to identify issues and applying a wrong test. However, the basis for these general complaints, suggested in particulars given in the document, do not establish jurisdictional error. They refer to the Tribunal’s reference to country information which it relied upon, and state:
Applicant claims that the country information is prepared by the Department of Foreign Affairs, the Australian government. It is not impartial. The country information on which the Tribunal relied for the decision is not complete. The Tribunal selected only negative part of the information to reject the applicant's application. It is well-known, that everyday the Fijian Indians become victim of racial violence.
I have considered how these criticisms might apply to the Tribunal's decision. I am not persuaded that the Tribunal has incorrectly or inappropriately selected the country information on which it has based its decision. But, in any event, I do not think the criticisms made by the applicant reveal error going to jurisdiction. I think they amount to no more than challenges to the Tribunal's factual assessment of that information. As such, they do not allow me to set aside the Tribunal's decision.
The applicant has appeared today in person with the assistance of an interpreter, but had no submissions whatsoever to make to me.
For the above reasons, I have not been able to find grounds allowing me to grant relief and I must dismiss the application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 7 July 2005