SZFKC v Minister for Immigration
[2006] FMCA 1227
•23 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFKC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1227 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming racial and other persecution in Fiji – sexual assault by ethnic Fijians found by the RRT to not be “serious harm” – RRT failed to take into account that the applicant was a child when assaulted and claimed to have been traumatised – RRT also failed to have regard to a student visa application made by the applicant – jurisdictional error established. |
| Federal Court Rules Migration Act 1958(Cth), s.424A |
| Das v Minister for Immigration (2004) 208 ALR 229 Minister for Immigration v Kord (2002) 125 FCR 68 Minister for Immigration v SZANS [2005] FCAFC 41 NAHI v Minister for Immigration [2004] FCAFC 10 Prashastono v Minister for Immigration (1997) 77 FCR 260 QAAT v Minister for Immigration [2005] FCA 968 VWFW v Minister for Immigration [2006] FCAFC 29 |
| Applicant: | SZFKC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG27 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 23 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms T Quinn Phillips Fox |
ORDERS
The Court directs that the title of the first respondent be amended to The Minister for Immigration and Multicultural Affairs.
The Refugee Review Tribunal be joined as the second respondent to the application.
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal handed down on 10 December 2004.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to re-determine the review application before it according to law.
The first respondent is to pay the applicant the sum of $345, being the setting down fee paid for the hearing of today’s application.
The date for the commencement of time for the filing of an appeal against these orders is fixed as 6 September 2006, pursuant to Order 52, rule 15(1)(a)(iii) of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG27 of 2005
| SZFKC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 10 December 2004. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The relevant background facts are set out in written submissions prepared on behalf of the Minister. I adopt as background for the purposes of this judgment paragraphs 2 to 9 of those written submissions:
The applicant is a female citizen of Fiji born on 26 July 1985.[1] She arrived in Australia on 22 November 2001[2] and applied for a protection (class XA) visa on 6 August 2004.[3] The application was refused on 13 August 2004.[4]
[1] court book, page 26
[2] court book, pages 14,29
[3] court book, pages 1-35
[4] court book, pages 36-45
The applicant applied to the RRT for review of the original decision on 6 September 2004[5] and provided an additional statement.[6] The applicant gave oral evidence before the RRT on 3 November 2004 and the RRT handed down its decision on 11 November 2004.[7]
[5] court book, pages 46-49
[6] court book, page 50
[7] court book, pages 63-77
The applicant's claims
The applicant claimed that she was subject to persecution as a result of her race, social group and political opinion. Relevantly she claimed that she was verbally abused and told to return to India by indigenous Fijians including school friends and was scared to attend her school.
a)In September 2000, she was assaulted by Fijian boys who attempted to rape her. She claimed the attack was racially motivated and she escaped by dropping her school bag and running away.
b)The applicant also claimed that her mother had her handbag snatched by two Fijian boys.
The decision of the RRT
The RRT found that the assault in September 2000 did not involve serious harm to the applicant. The RRT found that this incident was not the motivating factor for the applicant's travel to Australia. The RRT:
a)Reasoned that the incident was 'short-lived', and there was no significant physical harassment or ill-treatment to the applicant.
b)Did not accept the applicant's reasons for not reporting the incident to police.
c)Found that the applicant's real motivation for coming to Australia was to visit her relatives, after which she returned to Fiji and was not to 'refresh her mind'.
The RRT rejected the applicant's claims regarding discrimination in Fiji against the training and employment of women. The RRT based its finding on independent country information which did not support the applicant's claims.[8]
[8] court book, page 75
Similarly, the RRT rejected the applicants claims concerning her fears that her human rights will not be protected and she will be subjected to discrimination as a result of her race, gender or imputed political opinion. The RRT discussed many elements of country information with the applicant at the hearing.[9] The RRT accepted the country information which indicated:
a)Women were prepared to report gender and racial violence.[10]
b)The government was proactive in it's approach to women's rights.[11]
c)The government had sought to reform criminal procedure[12] and the Penal Code penalties for sexual violence.[13]
d)Socially the relationship between Indo-Fijians and indigenous Fijians had improved since 2001[14] and persecution did not continue after the coups.[15]
e)Indo-Fijians are active in politics and there are no formal barriers restricting their access to employment education and other services.[16]
In respect of the incident involving the applicant's mother having her handbag snatched by two Fijian boys, the RRT found that on the material before it this incident was a random criminal act and not motivated by a Convention based reason.[17]
The RRT concluded that state protection was available and adequate and further, in respect of all of the claims raised by the applicant, there was no material before it which would enable a finding that the applicant faced a real chance of persecution for a Convention reason.
[9] court book, pages 69-71
[10] court book, page 69
[11] court book, pages 69-70
[12] court book, pages 69-70
[13] court book, page 70
[14] court book, page 70
[15] court book, page 71
[16] court book, page 71
[17] court book, page 75
The applicant relies upon an amended application filed on 14 June 2005. The Minister is no longer correctly named in that application. I direct that the Minister’s title be amended to the Minister for Immigration and Multicultural Affairs. In addition, the Refugee Review Tribunal should be joined as the second respondent to the application. I will so order.
The grounds in the application are expressed in a narrative form but are adequately summarised in the Minister’s written submissions. I adopt paragraphs 13 and 14 of those submissions as summarising the grounds appearing on the face of the application:
The amended application filed on 14 June 2005 alleges that the RRT failed to consider the applicant's claim that she was a student whose education had been interrupted and her human rights will not be protected. She further alleged that the RRT failed to consider whether she is likely to be exposed to sexual harassment for being a person belonging to a social group and whether she will be harassed again.
The second ground of the amended application claims that the RRT failed in its assessment as to whether the applicant will be targeted again and attacks the RRT's finding on serious harm. She further claims that the RRT failed to make a proper assessment and its conclusion was unfounded.
The application is supported by an affidavit by the applicant filed on 18 August 2006. That annexes a handwritten transcript of the hearing before the RRT apparently prepared by the applicant as well as some other documents. I received it as evidence. Although the transcript is not verified in any way and the Minister’s legal advisers have not had the opportunity to check its accuracy, it appears generally consistent with the summary of the hearing before the RRT appearing in the RRT decision record. I proceed on the basis that the transcript is accurate.
I also received as evidence the court book filed on 20 May 2005. In addition, I have before me as a matter of public record a decision of the Migration Review Tribunal made in relation to this applicant on 20 February 2004. That decision concerned a student visa application made by the applicant.
In the course of oral submissions it transpired that there are three issues of substance to resolve in this matter. The first and probably the simplest of those is whether the RRT breached an obligation of disclosure in s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). That is not referred to in the amended application but does emerge from the discussion that occurred during argument. The issue arises in relation to the finding by the presiding member[18] that the applicant’s motivation for travelling to Australia in 2000 was to visit relatives rather than to escape persecution in Fiji. The presiding member states that the applicant was questioned as to why she had not referred to a particular incident and it was “at that stage” that she stated that the incident was the reason she left Fiji. The question is whether the presiding member’s finding as to the motivation for the applicant arriving in Australia was based upon information given by the applicant to the RRT for the purposes of her review application or something else. If the finding was based upon the applicant’s protection visa application or her tourist visa application or her student visa application then an obligation of disclosure would have arisen in relation to the information in those documents.
[18] court book, page 74
There is nothing on the face of the RRT decision to indicate that the presiding member’s finding was based upon such documentary evidence. Rather, the implication is, on the face of the decision, that the presiding member’s finding came from questions asked and answers given at the RRT hearing. This is verified by the applicant’s transcript at the bottom of page 2 where the transcript records the applicant being asked about her reason for coming to Australia in 2000. She responded that she came to spend time with her grandfather, her aunties and uncle and also referred to the fact that her grandfather had suffered a major heart attack. She also referred to a wish to spend school holidays in a new environment and to refresh her mind.
I find on the balance of probabilities that it was that information which led to the presiding member’s finding. That information was provided by the applicant to the RRT at the hearing for the purposes of her review application and did not require disclosure under s.424A.
The other two issues of substance are related to and derive from grounds 1 and 2 in the amended application. The Minister’s submissions deal with those grounds in paragraphs 16 to 19:
The respondent submits that the RRT correctly considered the applicant's claims regarding her past experiences, race, gender, social group and imputed political opinion.
a)The RRT considered the applicant's claim of sexual harassment on the basis of being a member of a particular social ground, as well as race and political opinion.
b)Similarly, the RRT considered the applicant's claims regarding education and employment and her human rights but found that the country information did not support these claims.
Further, the RRT considered whether the applicant would face a real chance in the future of being persecuted. The RRT makes clear in its reasons that it was not satisfied, on the evidence before it, that the applicant faced a real chance in the future of being persecuted for any Convention reason.
Ground 2 - Failure to make proper assessment
The respondent submits that this is a matter where the RRT found that the applicant's main claim of past harm did not amount to serious harm.
a)Whether conduct is sufficiently serious to amount to persecution is a matter of fact and degree for the RRT alone, see Prahastono v Minister for Immigration (1997) 77 FCR 260 (Hill J) at 268, 271; Minister for Immigration v Kord (2002) 125 FCR 68 (FC) at [3], [53-56]; Das v Minister for Immigration (2004) 208 ALR 229 (FCA/Sundberg J) at [23-24]; Minister for Immigration v SZANS [2005] FCAFC 41 at [50-53].
b)In the respondent's submission, the RRT carefully considered the applicant's claims and came to the conclusion that the applicant did not suffer serious harm as a result of the incidents she claimed to have suffered.
i)The RRT found that there was no threat to the applicant's life or liberty, or any significant harassment or physical ill treatment to her.
ii)The RRT found that the applicant did not suffer serious harm as she came to Australia to visit her relatives and later returned to Fiji.
The respondent submits that the RRT is entitled to refer to country information in order to assess an applicant's claims and it is a matter for the RRT to decide what weight should be given to country information as part of its fact finding function.
a)The question of the accuracy of country information is not for the Court to assess as it would be engaging in merits review, see NAHI v Minister for Immigration [2004] FCAFC 10 and QAAT v Minister for Immigration [2005] FCA 968.
b)In a recent decision of the Full Court in VWFW v Minister for Immigration [2006] FCAFC 29, Lander J upheld NAHI and QAAT.
Relevantly, the presiding member said on page 74 of the court book:
The applicant claimed that after the coup, around September 2000, she was cornered by two indigenous Fijian boys on her way home after school who pushed her, touched her sexually and wanted to rape her (the incident). The applicant escaped by running away. The applicant stated that this was a racially induced incident as she was not the only girl involved in these attacks, and there was a lot of racial tension at the time. During the hearing the applicant also referred in passing to her claims being based on a particular social group, as well as race and political opinion. However, I find that the incident did not involve serious harm to the applicant. In making this finding, I have had regard to the following. I find that the incident was short-lived with her dropping her schoolbag and running home. Further, neither the applicant nor her family reported the incident. In this regard, I do not accept that the applicant did not report the incident because she did not know the boys involved, she had no faith in the Police, and she was not comfortable in doing so. Further, I find the incident did not involve serious harm as the applicant stated at the hearing that she came to Australia some three months after the incident in order to spend time with her grandfather, her aunts and uncle and to “refresh her mind”. The applicant was questioned as to why she did not refer to the incident and it was at that stage that she stated that the incident was the reason she left Fiji, and that this was included in refreshing her mind. I find in this regard that the incident was not the motivation for her travelling to Australia, but rather to visit her relatives. In finding that there was no serious harm to the applicant I have considered that there were two boys involved. However, I find that there was no threat to her life or liberty, or any significant physical harassment or significant physical ill‑treatment to her. Although the applicant claimed that she thereafter lived in fear in Fiji, on the basis of my finding that she came to Australia to visit her relatives, and that she later returned to Fiji, I find that she has not suffered any serious harm as a result of the incident.
The passage includes two related and fundamental findings. One is that the applicant had not suffered serious harm as a result of the incident; and secondly, that the incident was not the motivation for the applicant coming to Australia. There would be relatively few people in this country who would agree today that sexual assault does not constitute serious harm. Nevertheless, confronted with the authorities relied upon by the Minister and referred to above, I am bound to accept that the question of what conduct amounts to persecution is a matter of fact and degree for the RRT alone. That, however, is only part of the issue. In reaching its conclusion on that fundamental issue, the RRT must consider all elements or integers of the applicant’s claims and must give meaningful consideration to them.
The applicant’s claims are relevantly set out in writing on pages 18 and 19 of the court book. Among other things, the applicant asserted that she was traumatised by various events which in my view included the attempted rape identified as “the incident.” It was also manifest on the face of the protection visa application that the applicant was a child of 15 at the time of the incident. There was no consideration by the presiding member of the impact that such an incident would have on a child. That in my view is a serious omission.
Added to that is the presiding member’s conclusion that the incident was not the reason why the applicant came to Australia. That was based upon the questions asked and answers given at the oral hearing. However, the applicant’s transcript on page 3 includes a discussion about a student visa application made by the applicant. She tells me that she made that application in about December 2001 or possibly January 2002. The discussion concerning that student visa application should have alerted the presiding member to the possibility that there was another reason for the applicant coming to Australia in 2000, namely, to study. There was no discussion of that possibility. If that had been explored by the presiding member he would have noted that the delegate who dealt with that application found compelling reasons for the grant of the student visa. This is referred to in paragraph 10 of the MRT decision.
The applicant asserted in her oral submissions that the reasons she advanced as compelling reasons included the incident. It is not clear on the face of the MRT decision, but the decision does refer to the coup in Fiji as a reason advanced in support of the student visa application. The failure by the presiding member to pursue the issue of the student visa application renders unsafe his finding as to the reason why the applicant left Fiji and came to Australia. In my view the presiding member overlooked relevant material that was identified by the applicant at the hearing and which should have been referred to.
The failure to give meaningful consideration to the issue of serious harm to a child who was allegedly traumatised and the failure to deal with relevant material identified at the hearing before the RRT constitute jurisdictional errors. In the light of those errors, the applicant should receive relief in the form of the constitutional writs of certiorari and mandamus.
The applicant also referred in her oral submissions to the fact that she is now married to an Australian man and that she is unable to apply for a spouse visa onshore because of the rejection of her student visa application. That is a matter which may be capable of favourable consideration by the Minister. That is a matter for her and is beyond the scope of this proceeding but there may well be humanitarian considerations that would merit Ministerial intervention should the Minister be willing to consider them.
The applicant has not incurred any legal costs in this matter, apart from payment of the setting down fee to the Court ($345). The Minister should reimburse that amount to the applicant.
Addendum
The production of these written reasons has been delayed, due to receipt of an incomplete judgment transcript from Auscript. In view of the delay, I will order that time for the filing of an appeal be extended by 14 days, pursuant to Order 52, rule 15 of the Federal Court Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 September 2006