SZEFG v Minister for Immigration
[2005] FMCA 427
•7 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEFG v MINISTER FOR IMMIGRATION | [2005] FMCA 427 |
| MIGRATION – Article 1A(2) of the Refugees Convention is qualified by section 91R of the Migration Act. |
| Migration Act 1958, s.47 Federal Magistrates Court Rules, Rules 21.02(2)(a) |
| Ngu v MIMIA [2004] FCAFC2 Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426 SJSB v MIMIA [2004] FCA FC215 MIMIA v Haji Ibraham [2000] 204 CLR 1 at [20] MIMIA v NAMW [2004] FCAFC 264 MIMIA v GUO and Others [1997] 191 CLR 559 at 574 |
| Applicant: | SZEFG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2577 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2005 |
REPRESENTATION
| Applicant appeared in person. |
| Counsel for the Respondent: | Ms R. Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay the respondent's costs set in the amount of $4500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2577 of 2004
| SZEFG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This judgment arises from an application filed in this Court by the applicant on 19 August 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 July 2003 and handed down on 27 August 2003 to affirm the decision of a delegate of the respondent Minister made on 7 March 2003, to refuse a protection visa to the applicant.
The applicant is a citizen of Fiji, of Indian ethnicity. He arrived in Australia on the most recent occasion on 12 October 2002 and lodged an application for a protection visa with the respondent's department on 28 November 2002.
On 7 March 2003 a delegate of the respondent minister refused to grant a protection visa and on 11 April 2003 the applicant applied for review of that decision with the Tribunal. I should note that the applicant's wife and three children were the subject of another application before the respondent's department and which subsequently was reviewed by the Tribunal and is now a matter before this Court.
At the hearing before me today the applicant also sought an adjournment. At first, he said, so he could file an amended application. At the first Court Date in this matter on 15 September 2004, the Court made orders, by consent, that the applicant file an amended application giving full particulars of each ground of review relied upon by 22 October 2004. At the hearing before me at first the applicant said that he had been unable to do so because two uncles had passed away and his wife’s brother-in-law had “bypass surgery”. The family difficulties did not account for all of the period since 15 September 2004, particularly as they appear to have occurred in late October, November 2004.
He then said that the difficulty was that he did not have a solicitor. At first he indicated he had asked to access the Court’s Legal Advice Scheme and that no one had contacted him. There is no record, however, that he actually made any such application. He then indicated that his difficulty in obtaining legal representation was financial. Finally, the applicant said that he was seeking an adjournment because a “friend of a friend”, who was a lawyer, was now helping him and it would be more convenient for this friend if the applicant’s case could be joined with the matter that the applicant’s wife and children had before the Court. In that case which had come before me this morning I had granted an adjournment. But as I explained to the applicant this was done for different reasons, there had been no mention of joining the two cases, nor of a friend assisting in these circumstances, and that each case needed to be treated on its own merits. The applicant told me that this friend was also helping with his wife’s case and that it was convenient for him. I also have before me an affidavit filed by the applicant on 19 August 2004. (The date of his application to this Court). The affidavit seeks to explain the delay between the Tribunal decision and the making of the application to the Court. It is clear that at that time the applicant did have access to legal advice and says:
“3. I was told by my former migration agent/solicitor that the only choice I have is to write to the Minister.”
I refused the adjournment request. The applicant has had the benefit of legal advice at the time preceding the making of the application to this Court. His explanation that deaths in the family prevented him from diligently pursuing his claim is not, in the circumstances, particularly satisfactory. His claims now that a friend of a friend who is a lawyer is now willing to help is also not satisfactory in circumstances where this person has not filed any appearances or made any other attempt to come before the Court to support the applicant. This applicant seeks an adjournment for the convenience of this person in circumstances where no attempt has been made to provide any evidence or real argument to link this case to his wife’s case.
As the respondent’s Counsel, Ms Francois, submitted, the applicant has had the benefit of some legal advice in relation to this matter and that advice was to pursue a “section 417” request to the [respondent] Minister. There has been no real evidence as to why this applicant has not sought and actively pursued other legal advice. What the applicant has put about the friend of the friend is entirely vague and uncertain. There is no idea about the friend’s skills in this area of law and applicant has said there are financial concerns to obtain better representation. What the applicant has said today in relation to the factual matters appears to reinforce the futility of this application. The significant incidents that the applicant complained of to the Tribunal which involved a level of assault occurred in November and December of 2000 and early 2001. [See CB 65]. The only incidents of concern after that, which are undated, are verbal abuse. It was after those incidents that the applicant came to Australia on the first occasion in October 2001. He made no claims to any fear of persecution at that time. He then returned to Fiji. There was no other evidence before the Tribunal in relation to other incidents subsequently. At paragraph 37 at CB 66 the Tribunal put to the applicant this line of reasoning and his answer was that he wanted to live in peace.
I explained to the applicant during the course of the hearing before me today that the two matters were separate and while the applicant made some claim before me today that the two matters should be joined, it is not appropriate that this be done. The husband and wife put different claims before the Tribunal, were dealt with separately by the Tribunal and made separate applications to this Court. I could see no utility at this late stage, and nor did the applicant provide any satisfactory argument, to support any adjournment to allow the matters to be joined and in all the circumstances it is appropriate that the two applications continue to be dealt with separately.
Another preliminary matter is that in looking at the documents before the Court prior to the hearing, and as I explained to the applicant, I noted that the applicant had made a request to the respondent Minister pursuant to s.417 of the Migration Act. Prior to my appointment as a Federal Magistrate I occupied the position of State Director of the respondent's department in New South Wales and one of my duties involved the endorsing of submissions to the Minister from time to time covering a small number of such requests. The respondent's counsel, Ms Francois, has advised that inquiries were made with the respondent's department and that her instructions are that the nature of the section 417 referral meant that I would not in my previous capacity have been involved in this matter which because of the relevant Ministerial guidelines was sent to the Minister as part of a schedule of cases rather than an individual submission. I could only have been possibly involved had the matter gone to the Minister by way of individual submission.
I needed to satisfy myself that I had no prior knowledge of this case. If I had any prior personal knowledge, I would have disqualified myself from hearing the matter. I am satisfied that I would have had no personal involvement or knowledge of this case, and nor do I have any personal recollection today of anything involving this matter. So, in these circumstances it is appropriate to continue with the case.
The applicant appeared before me today unrepresented. He was assisted by an interpreter in the Hindi language. The language used by the applicant was Fiji Hindi and I sought from the applicant advice at the beginning of the hearing whether he had any difficulties. His initial reply was that he had no difficulties for the purposes of seeking an adjournment. By the time that matter had been dealt with some 45 minutes had elapsed and it was clear during that 45 minutes that the applicant had no difficulty with the competence of the interpretation provided. On that basis and in the light of the refusal of the adjournment request the hearing continued.
The applicant claimed before the Tribunal that if he were to return to Fiji he would suffer serious physical harm and verbal abuse at the hands of indigenous Fijians because of his Indo/Fijian ethnicity and that there was not effective protection available from the police in Fiji. He claimed to have been robbed and to have been the subject of physical attack while in Fiji.
In his application to the Court the applicant relies on the following grounds:
(1)The Tribunal made jurisdictional error in finding that the applicant was only subject to low level harassment, therefore it misunderstood the level of harm required to constitute persecution and this is particularised by reference to paragraphs 44 and 31 of the Tribunal's decision;
(2)The Tribunal misinterpreted the meaning of persecution in s.91R of the Migration Act and as a result committed jurisdictional error by stating that the harm that the applicant was subject to was not systematic or discriminatory conduct. This also was particularised by reference to paragraph 44 of the Tribunal's decision record.
(3)The Tribunal made jurisdictional error in making a finding without evidence and this is particularised by reference to paragraph 47 of the Tribunal's decision record;
(4)The Tribunal was unreasonable to a degree of Wednesbury unreasonableness when it used the Amnesty International's Annual Report for 2002 in a very selective way to present a wrong picture of Fiji within it's decision and this is particularised by reference to paragraph 48 in the Tribunal's decision;
(5)The Tribunal made jurisdictional error in stating that the incidents of harm in the past are not determinative of a claim for a protection visa, although they may be useful indicators of the risk or nature of future harm. This is a quote from paragraph 45 of the Tribunal's decision record, and the applicant asserts that:
“In assessing whether a particular applicant will suffer harm in the future, one of the most important considerations is whether that applicant suffered persecution in the past. Whether an applicant will suffer in the future cannot be isolated from what has happened in the past.”
6)The Tribunal made jurisdictional error in advancing a proposition without evidence. This is particularised by reference to paragraph 32 of the Tribunal's decision record.
7)The Tribunal made jurisdictional error in advancing a proposition without evidence. This is particularised by reference to paragraph 30 of the Tribunal's record.
On 15 September 2004 the respondent filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to try this matter on the basis that the application for review was not filed within 28 days of the notification of the Tribunal's decision. The case of Ngu v MIMIA [2004] FCAFC2, a Full Federal Court decision upheld the judgment of Nicholson, J who at first instance held that an appeal against a privative clause decision lodged outside the time limits in s.477 of the Migration Act is in those circumstances incompetent unless a ground of review can be made out. In determining whether the Tribunal made a jurisdictional error regard must be had to s.474 of the Act in the way described by the High Court in the matter of Plaintiff S157 v The Commonwealth of Australia [2003 211 CLR 426. If the Tribunal's decision in the case before me is a privative clause decision pursuant to s.474 of the Act, then the time limit provided in s.477(1A) of the Act would apply. Also, pursuant to s.477(2) of the Act, the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit which is, of course, 28 days. The issue therefore of whether the respondent's notice of objection to competency should be upheld or not turns on whether the decision complained of is a privative clause decision and to determine this requires an examination of the grounds of review.
The applicant, as I have said, is of Indo/Fijian ethnicity. He claimed the he will suffer verbal abuse and physical harm at the hands of indigenous Fijians because of this ethnicity. He also claimed he did not feel safe anywhere in Fiji and suffered abuse both at work and in the street. He further claimed that the authorities would not protect him because they consist of racist Fijians.
The Tribunal accepted that the applicant was a truthful witness, although it recorded that at times he appeared to have some difficulty focusing on the question being asked of him. The Tribunal accepted that the applicant's home had been robbed by ethnic Fijians and that he had been subjected to verbal abuse and that he had been personally robbed and threatened by indigenous Fijians. But the Tribunal was not satisfied that the harm suffered in the past was of sufficient severity to amount to serious harm and systematic and discriminatory conduct as required by s.91R(1) of the Migration Act.
The Tribunal also looked at whether the applicant faced a real chance of persecution in the foreseeable future if he were to return to Fiji, and while it accepted that there were shortcomings in relation to the Fijian police, it was satisfied, based on independent country information, that the Fijian government is genuine in its attempts to restore the confidence of the Indo/Fijian community. See CB 68.1. It also found that order had been restored, and following the coup of May 2000, and that there was no evidence of any significant mistreatment of Indo/Fijians, see CB 68.8. It also considered the issue of protection by the Fijian police and again based on independent country information was satisfied that the Indian community in Fiji is protected by Fijian law and that the same protection is available to all Fijian citizens, see CB 69.9. It was not satisfied that the applicant faced a real chance of persecution on return and found the prospect of serious harm no higher than remote.
At the centre of the Tribunal’s decision is that it found that it was not satisfied that the applicant had established a subjective fear of persecution, and in this regard, see in particular paragraphs 58 and 59 at CB 70.1. It is clear that the Tribunal did not reach the requisite level of satisfaction as to the matters that must exist for protection obligations to be engaged, under the Refugee Convention. In this regard see the case of SJSB v MIMIA [2004] FCA FC215.
The applicant asserts seven grounds. Grounds (1) and (2), as the respondent's counsel has submitted in written submissions, can be dealt with together, in that they assert that the Tribunal misunderstood the meaning of persecution and that this is shown by the Tribunal's finding that the applicant's experience did not amount to persecution. The applicant points to paragraphs 31 and 44 in the Tribunal's decision record to support his claim.
The term persecution contained in Article 1A(2) of the Refugees Convention is qualified by s.91R of the Migration Act. Section 91R(1) provides that Article 1A(2) does not apply in relation to persecution for a Convention reason unless:
-the reason is the essential and significant reason,
-the persecution involves serious harm to the person, and
-the persecution involves systematic and discriminatory conduct.
Section 91R subs (2) gives examples of serious harm. In its decision record, the Tribunal did look at this issue, see in particular paragraph 12 at CB 62.9 and paragraph 14 at CB 63.4. In particular the Tribunal summarised the effect of the legislation on the Convention definition.
I can see no error in what the Tribunal has done in this regard.
Relevant to the paragraphs of which the applicant complains, the Act by way of s 91R(1)(b), requires that persecution must involve serious harm to the person. The Act requires, when less serious forms of harm are involved, a consideration of the degree to which a person is subject to that harm. McHugh, J in MIMIA v Haji Ibraham [2000] 204 CLR 1 looked at the degree of harm that would be required to constitute persecution and at [55] he said:
“The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and the extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purposes of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.”
His Honour noted that it would be impossible to frame an exhaustive definition of persecution. But what is clear is that whether particular conduct rises to the level of persecution is a question of degree and fact to be determined by applying the legislative “serious harm” test to the facts as found. In the case before me the Tribunal outlined the correct principles, and at paragraph 25, (CB 64.8):
“I put to the Applicant that, the central problems with his claims was that they were very general and lacking in particulars.”
At 65.8, that is paragraph 31, the Tribunal also said:
“I put to the applicant that the verbal abuse he had described did not seem to me to be serious physical harassment or serious physical mistreatment in a Convention sense.”
The Tribunal records that the applicant responded. Given the instances of mistreatment put forward by the applicant in his claims and the Tribunal's description of them as "the very general nature of these claims, lacking in particulars", the Tribunal's finding that it was not satisfied that the harm experienced or feared was sufficient to amount to serious harm was open to the Tribunal to make.
In relation to the contention that the Tribunal misinterpreted the meaning of persecution by stating that the harm the applicant was subject to was not systematic or discriminatory conduct, can also be seen against the Tribunal's outline of the meaning of persecution and an application of the claims as put by the applicant. Both the terms “systematic” and “discriminatory” have been the subject of judicial consideration and it is not really necessary to analyse such authority for the purposes of this judgment. It is clear, as Ms Francois for the respondent has submitted, that on the random acts of criminal behaviour described by the applicant that may befall the applicant on return to Fiji it was open to the Tribunal to find that they do not amount to systematic and discriminatory harm relevant to the Convention. In the circumstances of this case the finding that was made by the Tribunal was open to it to make. I can see no error in the statements or the relevant principles as set out by the Tribunal or the application to the claims made by the applicant and to the extent that these grounds may imply something more than a misunderstanding of the applicable law this would be a request for impermissible merits review.
Ground (3) as the respondent submits in written submissions, can be considered with grounds (6) and (7). These assert that the Tribunal made findings without evidence.
1)Firstly, in that at paragraph 47, (CB 68.1), the Tribunal said it was satisfied as to the Fijian government's genuine attempts to restore the confidence of Indo-Fijians.
2)At paragraph 32, (CB 65.9), the Tribunal made reference to the latest information from Fiji which seemed to suggest that wife burning was a greater problem than assault of Indo-Fijians. In this regard I note at 65.9 the Tribunal made reference to the latest information from Fiji and the applicant asserts that there was no evidence to support the suggestion that wife burning was a greater problem than assault of Indo-Fijians.
3)Thirdly, at paragraph 30 (CB 65.7), linked to paragraphs 54 and 55 according to the applicant, where the Tribunal records that there was no evidence that state protection through police is available in Fiji to Indo-Fijians.
4)In relation to the first matter, it is clear on the face of the Tribunal's decision record that the Tribunal relied on a number of independent country information sources and these are referred to by the Tribunal at CB 68.1, and at CB 80 and CB82. The applicant has not complained that this information was not put to him as perhaps may be required by s.424A(1) of the Act, but I note that in any event this information would be caught by the exception in 424A(3), and for authority refer to the preferred view of the meaning of this section in the case of MIMIA v NAMW [2004] FCAFC 264 .
5)The second example put forward by the applicant of the lack of evidence to support a finding, is the reference to wife beating at CB 65.9. However, this is not, as the respondent's counsel correctly submits, a finding made by the Tribunal, but rather something put to the applicant during the course of the hearing and as submitted in any event is supported by evidence. In this regard see CB 77 and CB 78, being part of the US State Department report and the reference to “bride burning”.
6)In relation to the third example of lack of evidence asserted by the applicant, that is that there was no state protection available through police, the respondent correctly in my view points to the evidence at CB 94 and CB 116 being independent country information to support the Tribunal’s findings.
The applicant also asserts Wednesbury unreasonableness on the part of the Tribunal in that it used an Amnesty International report in a very “selective way” to present a “wrong” picture of Fiji. The applicant refers to paragraph 48 of the Tribunal's decision record, this is at CB 68.2, and says that the Tribunal was selective and points to another part of the Amnesty report where it appears to state circumstances which support the applicant's claims about the situation in Fiji. The Amnesty Report 2002 is reproduced at CB 83 to CB 85 and the excerpt quoted by the applicant is at CB 83.6 in bold. It is clear that this is the heading summary of this report. But the applicant's complaint needs to be seen in the context of how this report has been used by the Tribunal:
1)The report also makes reference to, (at CB 84.5):
“For much of the year the police and military personnel maintained an increasing presence in some of the areas worst affected by post-coup racist violence. However, some police posts visited by AI lacked vehicles and communication facilities to respond promptly to security threats. In December, the military confirmed that an elite squad to combat internal security threats was being set up to replace the disbanded Counter Revolutionary Warfare(CRW) unit which was involved in the coup. Some senior police officers, local community leaders and government officials worked to reduce ethnic tension and helped to foster reconciliation at a local level. An unknown number of Indo-Fijian coup victims returned to their homes and tried to rebuild farms and businesses.”
2)This report covered events from January to December 2001.
3)The Tribunal relied on a number of other reports as recorded in paragraphs 47, 48 and 49. (CB 68).
4)A plain reading of the Tribunal's decision does not reveal that it necessarily rejected what is said in the quote put forward by the applicant. In fact, at 69.2 the Tribunal says:
“54. After the coup in May of 2000 there was unrest in many parts of the country accompanied by violence against Indo-Fijians. In that unrest and violence there is even evidence that some police participated. I accept that at that time police resources of both manpower and equipment were stretched to the limit and the police were simply unable to cope with all the calls for assistance made to them.”
5)The Tribunal also goes on to talk about evidence of corruption in the Fijian Police Force. But the plain reading of the Tribunal's decision record shows that the Tribunal was looking at an evolving situation. A situation where the coup had created political and economic difficulties, followed by attempts to restore the economic underpinning of Fiji and to re-establish a stable and inclusive society. It then says at CB 69.6:
“There is evidence that by April 2001increased police protection in trouble spots during the coup had led to a significant reduction in communal violence. (see DFAT CIR 104/01, dated 3 April 2000 (CX.52582) and see Amnesty International 2002 Work Report There is also evidence that senior police officers, local community leaders and government officials, have worked to reduce ethnic tensions and have helped to foster reconciliation at a local level. (Amnesty International Report 2002). While I'm prepared to accept that there are short comings in the Fijian police and they do suffer from a lack of resources, I am not satisfied that the protection which is available to all Fijians through the police force is so ineffective that it could be said to give rise to a real chance that the applicant would suffer Convention based persecution.”
In all these circumstances, I cannot see that the Tribunal's approach was so unreasonable that no reasonable decision maker could have come to the findings that it did in all the circumstances. The ground relying on Wednesbury unreasonableness cannot be made out.
The fifth ground asserts that the Tribunal made jurisdictional error in not understanding that in assessing whether an applicant will suffer harm in the future, that it is relevant to consider whether the applicant suffered harm in the past. The applicant complains that the Tribunal's comments at paragraph 45 (CB 67.8) where it says:
“Incidents of harm in the past are not determinative of a claim for a protection visa, although they may be useful indicators of the risk or nature of future harm.”
The question for the Tribunal is whether there is a real chance that an applicant would be persecuted for a Convention reason if they were to return to their country of nationality. In MIMIA v GUO and Others [1997] 191 CLR 559 at 574 the High Court said,
“the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned.”
The Court, however, went on to consider the issue of past events:
“In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do (s 116E(1) of the Act). It then used those findings as the basis for its conclusion that there was no chance of future persecution…
The course of the future is not predictable, that the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high -or low of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity…
It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”
It appears that the Tribunal's statement of understanding of the law complained of by the applicant, does not quite reflect the degree to which, the High Court has put it, of past events as being determinative of what will happen in the future. The High Court says that they are “ordinarily an integral part of the process”. The Tribunal in its decision record in the case before me puts it that they may be useful indicators. In this regard, the Tribunal's statement may have been of concern if the Tribunal had found that the events in the past did constitute serious harm. To have then considered this only as a useful indicator may have been to apply something less than that set out by the High Court. But in the case before me the Tribunal found at CB 67.5:
“However, I am also satisfied that looked at individually or in their totality the mistreatment suffered in the past by the Applicant was either criminal behaviour by private individuals which in the absence of support from the state or circumstances in which the state is powerless to prevent it falls outside the scope of the Convention. Further and in any event I am not satisfied that what the Applicant experienced between November 2000 and when he finally left Fiji is of sufficient severity to amount to serious harm and “systematic and discriminatory conduct” as required by paragraph 91R(1)(b) and (c) of the Migration Act.”
Further, the Tribunal found, and in this regard I refer particularly to paragraphs 58 and 59 at CB 70, and with reference to paragraph 37 at CB 66.7, that the applicant did not have a subjective fear of Convention based persecution in Fiji. Having made these findings, then the failure to articulate the test to the degree required, if that is indeed what the Tribunal has done, is irrelevant. If the harm in the past is not of “sufficient severity” then this cannot, of itself, translate to “sufficient severity” in the future.
It is clear that the applicant before me failed before the Tribunal because it found that he did not have a subject fear, or a well founded fear of persecution in Fiji. I accept the respondent's Counsel’s submissions that the Tribunal found the accounts claimed by the applicant, those which it accepted, did not amount to Convention based persecution and was not of sufficient severity to amount to serious harm and systematic and discriminatory conduct as required, and that the criminal behaviour by private individuals was not sanctioned by the State which the Tribunal found provides effective protection in any event. The Tribunal reviewed independent country information to support its findings in relation to effective State protection.
In any event, the Tribunal clearly found that the applicant did not hold, as I have said, a subjective fear of persecution in circumstances where, he left Fiji and visited Australia on two occasions since the coup in May 2000, and that the events claimed by the applicant relating individually to him predate the date of visits to Australia. The Tribunal concluded that the applicant after having obtained a redundancy package from his employer came to Australia to pursue better opportunities for his children.
All of these findings were open to the Tribunal to make on the evidence before it. I can see no jurisdictional error on the part of the Tribunal. This is a privative clause decision and as the application for judicial review was lodged outside the time limit prescribed in s.477(1A) of the Act, the respondent's notice of objection to competency must be upheld and for these reasons this application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Tanya Koens
Date: 7 April 2005
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