SZFGO v Minister for Immigration
[2005] FMCA 1750
•17 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFGO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1750 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicants are citizens of Fiji of Indian ethnicity claiming fear of persecution for reason of race and political opinion – where RRT found that adult Applicants were truthful in giving evidence – where RRT found that it was likely that the First Applicant was assaulted because of his political opinion – where RRT found that it was likely that the Second Applicant was assaulted because of her membership of a particular social group – where First and Second Applicants were found to have a strong subjective fear of harm from the individuals who had harmed them before – where Third Applicant had previously applied for protection visa and had been refused – application for protection visa not valid – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.46 (1) (d), 48A, 415, 424
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed.
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs and Jia, (2001) HCA 17
Paul v Minister for Immigration and Multicultural Affairs (2001) FCA 1196
SGLB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) HCA 32
Randhawa and Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 47
| First Applicant: | SZFGO |
| Second Applicant: | SZFGP |
| Third Applicant: | SZFGQ |
| Fourth Applicant: | SZFGR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3665 of 2004 |
| Delivered on: | 17 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 15 November 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicants: | First and Second Applicant in person |
| Counsel for the Respondent: | Mr Mantziaris |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed in respect of the Third Applicant.
The Application is dismissed in respect of the First, Second and Fourth Applicants.
The First and Second Applicants are to pay the First Respondent's costs fixed in the sum of $5,000.00.
I allow twelve (12) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3665 of 2004
| SZFGO |
First Applicant
And
| SZFGP |
Second Applicant
And
| SZFGQ |
Third Applicant
And
| SZFGR |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 26th October 2004.
The Refugee Review Tribunal handed down its decision on 18th November 2004.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the First, Second and Fourth Applicants. The Tribunal set aside the delegate's decision refusing to grant a protection visa to the Third Applicant, and substituted a decision that her protection visa application was not valid and could not be considered.
Background
The Applicants are citizens of Fiji. The First and Second Applicants are husband and wife, and the Third and Fourth applicants are their two daughters. The younger daughter, the Fourth Applicant, was born in Australia in 2001. The two parents have entered Australia on more than one occasion. They most recently arrived in Australia on 26th June 2002.
On 4th August 2004, the Applicants applied for protection (class XA) visas. A delegate of the Minister refused to grant those visas in a decision dated 10th August 2004. The Applicants claim a well founded fear of persecution as Fijians of Indian ethnicity from native Fijians arising out of the First Applicant's political opinions. He was a supporter of the Fiji Labour Party and claimed to have suffered serious violence as a result.
On 3rd September 2004, the Applicants applied to the Refugee Review Tribunal for a review of that decision. The Tribunal invited the Applicants to attend a hearing, and on 13th October 2004, the First and Second Applicants gave oral evidence to the Tribunal. The First Applicant's brother also gave evidence.
No specific claims have been made on behalf of the Applicant's younger daughter, the Fourth Applicant. Her application arises out of being a member of her parents' family unit.
The Refugee Review Tribunal’s Decision
The Third Applicant, the parties' elder daughter, previously applied for a protection (class XA) visa on 9th April 2001. That application was unsuccessful. The Refugee Review Tribunal differently constituted affirmed the decision of a delegate of the Minister not to grant a visa on 13th June 2002. As a result, the Tribunal found that this child was now prohibited from applying for a further protection visa, as s.48A of the Migration Act 1958 applies. That section provides that a non-citizen who, while in the migration zone, has made an application for a protection visa that has been refused, may not make a further application for a protection visa while in the migration zone.
The Tribunal in this case found that, as s.48A applied to the Third Applicant. Her further application for a protection visa was not a valid application. Subsection 46(1)(d) of the Migration Act relevantly provides that an application for a visa is valid if, and only if, it is not prevented by s 48A. As the Third Applicant's visa application is not a valid application, the Tribunal found that it had no power to consider it.
The Tribunal found that the First and Second Applicants had been truthful about their experiences of assault whilst in Fiji in 1997. The Tribunal found that it was likely that the First Applicant's political opinions were the reason why he was assaulted by indigenous Fijians. The Tribunal also found that it was likely that it was the Second Applicant's membership of a particular social group, her husband's family that was the reason for her being assaulted.
The Tribunal accepted that after she was assaulted, the Second Applicant was subject to incidents of stone throwing and other harassment by indigenous Fijian men at her home, over the three years or so before she came to Australia. The Tribunal accepted that the First and Second Applicants each had a strong subjective fear that they might be harmed by their previous assailants if they were to return to Fiji.
The Tribunal then went on to consider whether that fear was well founded. The Tribunal referred to a number of matters, and, taking those matters into account, found that it was a remote chance that either of the two adult Applicants would be subjected to serious harm again by those people.
After considering independent evidence, including a report that the Fijian government is pursuing the policy of affirmative action in favour of ethnic Fijians. The Tribunal found that the First Applicant did not have a well founded fear of being persecuted for his political opinion, and that the Second Applicant did not have a well founded fear of persecution by reason of her membership of a particular social group, being her husband's family. Accordingly, the Tribunal affirmed the decision of the Minister's delegate not to grant their applications for protection visas.
Applicants’ Amended Application
In an Amended Application filed on 15th April 2005, the Applicant set out some 52 grounds for the application. Some of those grounds are in fact pro forma grounds, and some of them are no more than a challenge to the factual findings.
It is, of course, trite law that it is impermissible to conduct a merits review of a Tribunal's finding in proceedings involving judicial review findings. The grounds include errors of law and jurisdictional error, a misunderstanding of the definition of a well founded fear of persecution, a failure to consider the political and race aspect of the Applicant's claim, bias, failure to consider critical items of evidence, breach of procedural fairness through the conduct of the oral hearing, failure to provide information to the applicants, error of fact, incorrect application of the internal flight principle, breach of s.424B and s.425 of the Migration Act, being the final ground.
These grounds have been addressed in submissions by counsel for the Respondent Minister. Counsel for the Respondent, in respect of the well founded fear of persecution claim, did find that the Tribunal accepted that the Applicants had a subjective fear but considered it not to be well founded. The Tribunal noted that the Applicants put their claim on the basis that their sole fear was being persecuted by the people who had attacked them in 1997, and the period up to 1999.
By reference to the country information on the decline on the level of political violence, after the second coup d’etat which deposed the Fiji labour party, the Tribunal found that the chance that the Applicants would be subjected to serious harm by these people was remote.
As to the failure to consider the political and race aspect of the claim, counsel for the Respondent submitted that those allegations have no foundation, as the Tribunal did in fact consider the application on the basis of his membership of the Fiji Labour Party and as an Indian Fijian. With respect, I agree with that submission.
On the ground of bias, the Respondent submitted that a party asserting actual bias on the part of the decision-maker carries a heavy onus, and the allegation must be distinctly made and clearly proved. He referred to Minister for Immigration and Multicultural Affairs and Jia, (2001) HCA 17, (2001) 205 CLR 507 paragraph 69 and 127.
The Respondent submits that the evidence in support of the Applicant's allegations of bias is very thin, and noted that the Applicant had not put the transcript of the Tribunal hearing into evidence, but that the Respondent would file and serve an affidavit annexing the transcript of the hearing - prior to the hearing of this matter. That was, in fact, done.
The submission was that there was no evidence of bias, and with respect, I agree.
Turning to the ground of failing to consider critical items of evidence. Counsel for the Respondent submitted that the Tribunal did not disregard the Applicant's fears. The Tribunal fully accepted their strong subjective fear. Information provided by the male Applicant, the First Applicant in his protection visa application was considered by the Tribunal, as was documentary evidence provided by the Applicant, and country information.
Counsel for the Respondent submits that there was nothing in the Tribunal's reasons for decision that suggests that there was a failure expressly to mention or grapple with part of a competing body of evidence for the Tribunal relevant to a finding made in the circumstances, where the elements or integers of the claim for asylum are addressed. He referred to Paul v Minister for Immigration and Multicultural Affairs (2001) FCA 1196 paragraph 79.
As far as the ground of breach of procedural fairness through the conduct of the oral hearing is concerned, counsel submitted that no breach of the natural justice rule occurred. As far as the ground of failure to provide information to the applicants is concerned, which is ground F, counsel submitted that the Tribunal identified the information it used as part of the reasons for its decision, which included various parts of country information. There is no breach of s 424A.
As far as evidence of fact is concerned, counsel submitted that even if the Applicant had established that there was no evidence for a finding or an error of fact, this would not amount to jurisdictional error, unless the finding is a finding of jurisdictional fact, referring to SGLB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) HCA 32, 207 ALR 12 at [1] and [39].
In respect of the Applicant's claim of incorrect application of the internal flight principle, counsel submitted that in making a finding about the expiry of the Applicant's lease at page 112 of the Court Book, the Tribunal was not making a relocation finding under the principle in Randhawa and Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 47.
What the Tribunal was doing was merely assessing the objective basis of the Applicant's fear of future persecution. The Applicants had indicated that they could not return to the Nadi farm, so the Tribunal had to assess the objective basis of their fear of specific assailants, that is the 1997 to 1999 assailants, in a location other than the land at Namby.
Turning to allegations of breaches of s.424B and s.425, counsel submitted that there was no breach of s.425 as the Tribunal had invited the Applicants to appear. He also submitted there was no breach of s.424B, as the preconditions for the application of the section were not satisfied. In short he submitted that no jurisdictional error had been established on the part of the Tribunal and the Court should refuse the relief sought.
Turning first of all to the Tribunal's finding, that s.48A had applied to the Third Applicant, her further application for a protection visa was not a valid application. In my view, the Tribunal was correct. No jurisdictional error has been demonstrated.
For reasons which the Applicant explained during the hearing, but which I do not consider were well-founded reasons, an application had been made for a protection visa for the parties' elder daughter on 9th April 2001. The purpose of that was to permit her to remain in Australia at the time, whilst other applications were being considered.
In retrospect, that seems to have been a tactically unwise decision, because the application was unsuccessful and the Refugee Review Tribunal affirmed the decision of the delegate of the Minister not to grant that visa back on 13th June 2002.
Thus the child was prohibited from applying for a further protection visa under the provisions of s.48A of the Migration Act. A non-citizen who, while in the migration zone has made an application for a protection visa that has been refused may not make a further application for a protection visa while in the migration zone.
There is no evidence that the Third Applicant had left the migration zone, and it is quite clear that the Tribunal correctly assessed that s.48A applied to her.
Thus, her application for a protection visa was not a valid application, and under subsection 46(1)(d) of the Migration Act, the application for a visa would only be valid if and only if it was not prevented by s.48A. The Tribunal correctly found that it had no power to consider that application, as it was not a valid application, and in my view no jurisdictional error is demonstrated.
Turning to the Applicant's numerous grounds, as set out in their application, it appears clear that a number of the grounds just do not apply, and others have just been shown to be ill-founded.
There is no evidence of bias, and in my view there is no breach of procedural fairness through the conduct of the oral hearing. My perusal of the Tribunal decision indicates quite the reverse. Indeed, it is set out in a written submission filed in Court by the Applicant on the date of the hearing that the Tribunal was sympathetic, and had accepted that both the First and Second Applicant had a strong subjective fear of persecution.
In my view, that sympathy on the part of the Tribunal member is readily apparent, and indeed it is clear that the Tribunal considered by means of speaking to the Applicants about matters of a humanitarian nature, which the Tribunal did not have the jurisdiction to consider.
At page 113 of the Court Book the Tribunal member says:
A number of matters of a humanitarian nature have been raised in relation to this family. However, as I advised the adult Applicants, the Tribunal does not have jurisdiction to consider those matters.
This was a way for the Tribunal member to indicate to the adult Applicants that should other grounds within the judicial system fail, they may be able to make an application to the Minister for substitution of a favourable decision under s.417 of the Migration Act.
I am also of the view that the Tribunal in the conduct of the hearing went to some trouble to give the applicants the opportunity to present their evidence, and the Tribunal also heard evidence from the First Applicant's brother. There are many cases before this Court where Applicant's complain that they ask the Tribunal to hear evidence from a particular person and the Tribunal declined.
In this case, the Tribunal had no hesitation in hearing the evidence from the Applicant's brother, and the Tribunal clearly considered that evidence as forming part of the Applicant's case.
In my view it is unfortunate that allegations of bias and breach of procedural fairness through the conduct of the oral hearing have been made, because this particular Tribunal member seems to have gone to a great deal of trouble not to allow any suggestion of bias or procedural unfairness to taint the Tribunal proceedings.
Bias, of course, involves an imputation of personal fault on the part of a decision maker, and it is quite clear that there was none.
I indicated on the day of the hearing that there were matters that required some consideration. There really is only one. I am satisfied that the Tribunal's finding in respect of the Third Applicant, the parties' elder daughter, is correct, and there is no suggestion of jurisdictional error.
It is in respect of the claim by the other Applicants, in particular the First and Second applicant, relating to their fear of persecution that has caused me to take longer than usual to reflect on this matter.
It is quite clear that the Tribunal accepted in each case that the two adult Applicants had shown that in 1997 they had been subjected to violence for convention reasons, and that the Tribunal accepted that there had been ongoing harassment of the Second Applicant, the wife, from 1997 up to approximately 2000. This also appeared to be for a convention reason.
What the Tribunal then did was look at the Applicant's fears of persecution in the future, accepting that they were subjective fears, and strong subjective fears, that looked as if - but looked at the situation of whether they were objective. In other words, whether those fears were well founded.
The Tribunal member referred to the passing of time and to a variety of parts of country information.
I am mindful of the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. There is a passage, 575, where the Court said:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that theme. In many, if not most, cases, determining what is likely to occur in the future will require findings as to what has occurred in the past, because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily and integrally part of the process for making a determining concerning the chance of something occurring in the future, that conclusions are formed concerning past events.
To summarise that crudely, the phrase could be taken as best way of ascertaining future behaviour is to examine past behaviour. What the Tribunal did was examine, and accept, the Applicant's account of past behaviour by their assailants.
In assessing the Applicant's fear of future behaviour, the Tribunal looked at independent country information. It appears to me that what the Tribunal largely did was use the country information, which is, of course, general information, as a way of assessing the Applicant's fears of persecution by particular individuals in the future.
But what the Tribunal also did was then to assess, as counsel for the Respondent has submitted, the objective basis of the Applicant's fear of the specific assailants in a location other than the land at Nadi, being the farm at Nadi.
The Applicants had indicated that they could not return to that farm at Nadi, the lease had expired. And so they would have to, in any event, relocate within Fiji.
That is not, of course, a relocation finding under the Randhawa principle to which I previously referred, but an assessment of fear based on a fact situation, i.e., a changed fact situation.
Now, whilst it may be said that the lapse of time, which would have affected the assailants from 1997 and through to 2000, would have had some effect on them, was a speculative finding, the assessment by the Tribunal that on the Applicant's evidence they could not return to the Nadi farm, and had to go somewhere else, was used to assess the objective basis of their fear of the 1997 to 2000 assailant in a location other than the land at Nadi.
Thus the Tribunal did assess the past behaviour, as set out in Guo, made a finding as to the fear of the applicants based on general particulars, but also made an effort to assess the Applicant's fear based on the particular fear of the specific assailants.
The fact that the Tribunal did assess the Applicants’ fear of the behaviour of specific assailants in the future, being people who had previously assaulted them, to my mind establishes that the Tribunal did not commit a jurisdictional error.
I must find, therefore, that the application is dismissed in respect of the Third Applicant, and I find separately the application is dismissed in respect of the First, Second and Fourth applicants, for the reasons which I have mentioned.
I have indicated that the Tribunal had taken a sympathetic attitude to the Applicant's plight. It may well have been that an application for a protection visa on behalf of the entire family may have been more likely to have succeeded had it been made in 1999 or 2000, but that is using the benefit of hindsight.
It still remains, however, that the Tribunal's sympathetic consideration of the Applicants option of making an application to the Minister for consideration under s.417 of the Migration Act still remains an option to them, on the basis of the First and Second Applicant's subjective fear and the findings by the Tribunal of the past incidents.
It is not up to me to provide legal advice, however, to the Applicants. It is my view that the Applicants should obtain legal advice from a qualified migration lawyer. They should make inquiries from the Law Society of New South Wales as to whether the Law Society could provide them with the names of practitioners who practice in the area.
In my view there is no substitute for good legal advice.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 28 November 2005
0
4
0