SZEFP v Minister for Immigration - [2004] FMCA 880

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEFP & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 880

MIGRATION – Protection visa refused by delegate – Fiji woman fearing domestic violence – Appeal mistakenly filed in MRT – Expiry of time for appeal to RRT – no jurisdictional error in delegate’s decision – no power to deem or order an RRT appeal.

Migration Act1958 (Cth), ss.40B, 57, 348, 411(1)(c), 412, 412(1)(b), 483A
Judiciary Act 1903 (Cth), s.39B

“Applicant A” and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
Minister of Immigration v Khawar (2002) 210 CLR 1
WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220

Applicants:

SZEFP & SZEFQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1346 of 2004

Delivered on:

17 November 2004

Delivered at:

Sydney

Hearing date:

17 November 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the Respondent:

Mr R. Beech-Jones

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicants to pay the respondent's costs in the sum of $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1346 of 2004

SZEFP & SZEPQ

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to the Court under s.483A of the Migration Act1958 (Cth) brought by a lady on behalf of herself and her daughter in unfortunate circumstances. Unfortunate, because she may or may not have a good claim to Australia's protection under the Refugee's Convention, but she did not put that claim forward with sufficient material when she made her protection visa application and, due to a misunderstanding on her part as to her avenue for merits review, she has lost the chance for her claims to be given further consideration by the Refugee Review Tribunal.
The circumstances are as follows. The applicant lodged an application for a protection visa on 9 December 2003 without apparent assistance but attaching a letter in which she described her circumstances. In short, she claimed to be a Fijian woman of Indian ethnicity and Islam religion, who had been seriously abused in the course of a marriage to which she was committed at the age of 16, and from which she escaped by divorce in September 2003 after forming a new relationship.
In her letter she refers to her divorce and says:
My ex-husband's attitude worsened after the divorce and his threats increased towards my children and me. To his family and my extended family it was a matter of shame that I had done this and this was against the principles of the Islamic religion. My extended family and ex in-laws continually abused me verbally even after my divorce and my relationship with Mr M... was not acceptable to them.
I was threatened for my safety by my ex husband and in-laws and was told that if I defied them and did anything they did not like I would have to suffer the consequences brought about by them.
…
I see a threat to my life if I were to go back to Fiji. It would affect me psychologically and physically based on the threats that have been made to me.
In the application form she responded to a question:
Do you think the authorities of that country can and will protect you if you go back? If not, why not?
No, because I have a large extended family who are all against me. The authorities can't keep an eye on everyone. Some of the family members will harm me and my kids. See letter attached.
She did not put forward any further information concerning her dealings with the Fijian authorities in the course of her abusive marital relationship or after her divorce.
A delegate of the Minister in a letter dated 24 December 2003 informed the applicant that her application had been refused, and gave reasons indicating the delegate's application of the definition of refugee in Article 1A(2) of the Convention. The delegate correctly identified that a central issue for determination was: “whether the harm feared by the applicant was or would in the future be inflicted for a Convention reason” and reasoned as follows:
The applicant has claimed that she fears harm from her ex-husband who has in the past subjected her to emotional and physical abuse and continued to harass and intimidate her after their divorce. On the basis of the information presented, I am satisfied that the applicant’s reluctance to return to her country is based solely on personal considerations and as such is not referable to any Convention reason. I find that the harm that she fears she will be individually subjected to arises due to her actions, namely having an extra-marital affair and will not be imposed upon her for reasons of her race, religion, nationality, membership of a particular social group or her political opinion. I therefore conclude that there is no evidence to suggest that any harm she fears upon return to her country would be imposed on her due to a Convention-specified reason. It is also clear that the applicant will not herself be chosen for the infliction of harm for any of her characteristics that link to a Convention reason.
Moreover, persecution by private individuals and groups does not fall within the scope of the Refugees Convention unless it is officially tolerated or unable to be controlled by the authorities. In the case of Applicant A, it was stated that:
Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent the private persecution.
The Convention definition of the refugee is concerned with a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities. In determining the availability of adequate state protection, the relevant issue is whether the State is prepared to protect its citizens and has the means available to do so, even if it cannot guarantee the effective protection from harm of every citizen at every place in the country at a given time. I note the adequate state protection does not involve a guarantee that the applicant will no suffer harm.
There is no evidence before me to indicate that the persecution feared by the applicant is official, or officially tolerated or uncontrollable by the authorities. On the basis of the information available, I am not satisfied that the applicant has been singled out and persecuted by or with the tacit acceptance of the authorities or that the state is powerless to prevent the private persecution of the applicant. Country information indicates that the government in Fiji provides a reasonable level of protection to its citizens through police, judicial and paramilitary services within the resources available to it.
The available information also indicates that there are avenues for recourse available to all citizens through the Fiji Human Rights Commission. The applicant has not claimed that she contacted the authorities or complained to the Human Rights Commission. According to the available information, were she to lodge a complaint with the Commission about any criminal activity, it would be followed up by the authorities and the perpetrators prosecuted. I am therefore satisfied that the applicant would have protection from the state in the event that she was the victim of a criminal act.
I concede that the authorities may not be able to guarantee the applicant’s absolute safety from all harms, however it can be argued that the Convention was never intended to provide a governmental guarantee that its nationals will suffer no harm.
I am not satisfied that the harm that the applicant claims to fear will be inflicted upon her for a Convention reason or that the authorities will be unable or unwilling to provide protection to the applicant from this private harm.
I had a concern whether the delegate fully appreciated that a woman in the applicant's circumstances might be able to be characterised as having fears referrable to membership of a particular social group (see Minister of Immigration v Khawar (2002) 210 CLR 1 at [33-35], [81] and [126-131]). However, even if there was error at this point in his or her reasoning, I consider that the delegate made no error when also (in the paragraphs starting “Moreover…” extracted above) addressing an additional essential issue arising out of the applicant’s claims.
I consider that the delegate correctly identified that, where her fears were based on harms which would be inflicted by non-State agencies, the applicant must also satisfy the ingredient which Kirby J has described as “the failure of State protection” (see Khawar's case (supra) at [118], and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [100]).
Other Justices in the High Court have, in different ways, accepted that where harm is feared from private individuals in the country of nationality it is necessary for an applicant to show the unwillingness or inability of the State to provide measures of protection against those harms. The delegate in the present case has shown an awareness of this element, and in my opinion the tests he or she has applied in the passage set out above are not inconsistent with the relevant tests described in Khawar’s case, for example, by Gleeson CJ at [26], [30], [31], McHugh and Gummow JJ at [79] and [85] and Kirby J at [117] and [121]. Indeed the test of whether the harm or persecution that is feared is “official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality” is taken from a judgment of Brennan CJ in “Applicant A” and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 233 [6], which is given approval in the majority judgment in Respondents S152 at [18]. In my opinion, the reasoning of the delegate shows no material error of law in his or her appreciation of the requirements of the Convention definition in relation to the issue of State protection. I consider that he or she has reached a decision on this issue in a manner which was open to the delegate on the evidence before him or her.
I therefore am unable to find a material error of law in the reasoning of the delegate and certainly not a jurisdictional error of law.
I am also unable to find any procedural error leading to the making of the decision. The application to this Court contains a general allegation of breach of rules of natural justice, but without particulars. I am unable to find any such breach.
There is also an allegation that the respondent failed to put to the applicant adverse information that formed the basis of the delegate's reasons. Although this ground is not particularised, it may be a reference to some information that the delegate took into account concerning the protection offered by the government of Fiji to citizens fearing harm of the sort claimed by the applicant. However, the delegate was under no statutory obligation to give the applicant opportunity to comment on that material. The obligation to raise information under s.57(1) is confined to information which is “specifically about the applicant or another person and is not just about a class of persons of which the applicant or another person is a member” (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [128], [132] and [138]).
Furthermore, an additional “common law” obligation to put the information to the applicant is negatived by s 51A, which provides that "This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.” I consider that, on current authorities, this provision has the effect that s 57 is “exhaustive” of the delegate’s obligation to give the applicant an opportunity to respond to the Fiji country information upon which he or she relied (c.f. WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 at [57], and NAMW (supra) at [139]).
The application to this Court raised no other allegation of error of law or procedure in the delegate’s decision, and the applicant's submissions to me today were unable to address the legality of that decision. Her submissions were, in effect, a repetition of her claims to have fear for her life if returned to Fiji, and claims that she now has corroborative evidence of a failure by the police force to provide protection to her in the past. However, that evidence had not been put forward previously, and is irrelevant to the legal questions I must address today.
For the above reasons, I am unable to provide relief in relation to the decision of the delegate by setting it aside, or ordering that further consideration be given to her application for a protection visa.
The applicant’s application to this Court also sought review of what happened to her subsequent to the delegate’s decision.
The letter informing the applicant of the delegate's decision stated to her:
You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you a protection visa. Information about applying for review is included with this letter. Please note there are time limits on applying for review. If you decide to apply for review, you must lodge your application with the RRT within 28 calendar days of receiving this letter. You are taken to have received this letter seven working days after the date of this letter. The RRT cannot accept late applications.
It is reasonable to assume that the information included with the letter provided details of the location of the RRT, although there is no evidence directly to that effect before me. Unfortunately, in circumstances that the applicant has not explained in evidence to me, she lodged an application for review in the wrong Tribunal. She lodged an appeal in the Migration Review Tribunal on a form published by that Tribunal. As completed by the applicant, the form was somewhat unclear as to what immigration decision she wished to have reviewed. On one reading of it, it concerned a bridging visa decision. However, a closer reading shows that it seeks a review of the delegate’s substantive decision on her protection visa application. Certainly, the applicant today did not contend that she had sought review of any other decision.
That application form was lodged in the MRT on 12 January 2004. On 3 March 2004, the applicant was told: “Your application for a review has been found to be ineligible”. The attached reasons state merely:
The applicant has sought review of a decision to refuse a protection (class XA) visa.
The decision you sought to review is only reviewable by the Refugee Review Tribunal.
This is not an MRT-reviewable decision under section 338 of the Migration Act 1958. Therefore, the Tribunal is not authorised under section 348 to review the decision.
Counsel for the Minister has taken me to the provisions of ss.348, 338 and 412 of the Migration Act, which indeed make it clear that the MRT does not have jurisdiction to review a decision defined in s.411(1)(c) as “a decision to refuse to grant a protection visa”.
It therefore appears to me that the Migration Review Tribunal decision was plainly correct, and that it did not have jurisdiction. Further, I unable to locate in the Act any power in the MRT or RRT to deem the erroneous application to have been an application to the RRT under s 412 “given to the (Refugee Review) Tribunal within the period prescribed”. I do not consider that this court has any power to rectify this situation. Accordingly, at the time that the MRT rejected the applicant’s appeal and at all times subsequently, she was out of time for applying to the RRT due to the strict 28 day time limit in s.412(1)(b).
I can find no error of law vitiating the action of the Migration Review Tribunal, and I can find no power in this Court to grant relief to the applicant in her present situation. I must therefore dismiss her application.

RECORDED : NOT TRANSCRIBED

Although I have sympathy for the situation in which the applicants find themselves, this is without fault on the part of the Department or its officers, and I consider that the usual approach to costs should be followed in this case. I order the applicants to pay the respondent’s costs in the sum of $3,500.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 30 November 2004