SZFOU v Minister for Immigration

Case •

[2006] FMCA 953

•

23 June 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFOU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 953

MIGRATION - Visa – protection visa – application for review of decision of the Refugee Review Tribunal refusing a protection visa – applicant a citizen of Fiji of Indian ethnicity – no reviewable error.

PRACTICE & PROCEDURE – Individual Tribunal member constituting Refugee Review Tribunal should not be joined as a respondent in an application for prerogative relief.
Migration Act 1958 (Cth), s.474
Re Ruddock; Ex parte Reyes (2000) 75 ALJR 465
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Applicant: SZFOU
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 210 of 2005
Judgment of: Scarlett FM
Hearing date: 23 June 2006
Date of last submission: 23 June 200
Delivered at: Sydney
Delivered on: 23 June 2006

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Smith
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. Ms Phillipa McIntosh is removed as a Respondent to the application.

  2. The Principal Member of the Refugee Review Tribunal is removed as Respondent to the application.

  3. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

  4. The title of the Second Respondent is Refugee Review Tribunal.

  5. The Application is dismissed.

  6. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,700.00.

  7. I allow eighteen (18) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 210 of 2005

SZFOU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of Refugee Review Tribunal made on 10th February 2003 and handed down on 4th March 2003. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa.  I note that the application was not filed at this Court until 24th January 2005, a delay of one year and nine months.

Background

  1. The Applicant is a citizen of Fiji who was born on 30th December 1987.  He arrived in Australia on 3rd January 2002 when he was just 14 years of age. He applied for a Protection (Class XA) visa on 18th January 2002 but it was refused on 11th February 2002. On 1st March 2002 the Applicant applied for a review of that decision by the Refugee Review Tribunal. 

  2. The Tribunal invited the Applicant to attend a hearing and the Applicant attended that hearing accompanied by his guardian, Ms Karen Singh, who gave oral evidence. She told the Tribunal that the Applicant was her brother's child, her nephew and that her parents had adopted him many years ago but were now very ill. This was as a result of his own parents having passed away.

  3. The Tribunal considered the Applicant's case that he needed to stay in Australia because he was harassed at school by indigenous Fijian students who had told him,

    Go back to India.

    This of course would have been a very unfair comment to him as he had provided a birth certificate showing that he was in fact born in Fiji.  Sometimes he did not go to school because of these problems. His adoptive parents were unwell and unable assist. The Applicant said that he had no other problems at school apart from the racial bullying and when he left Fiji and came to Australia he felt happier living in Australia. His adoptive parents were seriously unwell and he was to remain in Australia. 

The tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out on pp.57 and 58 of the Court Book. The Tribunal was satisfied on the evidence which included the birth certificates that the Applicant was a national of Fiji and was satisfied that he was of Indian background. The Tribunal considered the Applicant's evidence and Ms Singh's evidence to be reliable and credible and the Tribunal accepted that the Applicant's parents were deceased and that he was adopted by his grandparents in Fiji. 

  2. The Tribunal had considered independent country information which is set out in some detail on pp.55 through to 57 in the Court Book and included material provided from the Australian Department of Foreign Affairs and Trade. The Tribunal set out at p.58 of the Court Book that it was not satisfied that the mere fact of being a Fiji national of Indian background is sufficient to give rise to a well-founded fear of persecution based on the Convention ground of race in Fiji. The Tribunal accepted that the Applicant was bullied at primary school by some indigenous Fijian students and the Tribunal accepted that the ill health and lack of mobility of his adoptive parents made it well nigh impossible for them to provide him with assistance in taking advantage of what the Tribunal described as the protective measures offered by the school authorities.

  3. The Tribunal sympathised with the racial taunts directed at the Applicant and said,

    Distressing as the taunts undoubtedly were for the Applicant, I am not satisfied that they amounted to persecution.

    The Tribunal was satisfied that the arrangements that were made to bring the Applicant to Australia were not because he had a well-founded fear of Convention-related persecution, but because his aging, adoptive parents, their health failing, wished to ensure that the Applicant was in a secure family environment. 

  4. The Tribunal went on to note in the second last paragraph of p.58 of the Court Book that there were strong humanitarian considerations which the Tribunal cannot put into effect any more regrettably than the Courts. The Tribunal's description of those humanitarian matters I will quote in full even though the Applicant is no longer a child. The Tribunal said:

    I have noted the evidence that the Applicant appears to have no real protection and support in Fiji, that he is still a child, that he has close relatives in Australia who have demonstrated their commitment to and concern for his safety and general wellbeing, that he has two brothers, his aunt and several other relatives here who are Australian citizens.

The application for judicial review

  1. The Applicant is no longer a child, having reached the age of 18, but the other considerations appear to me to apply too. The Applicant was legally represented and commenced proceedings in this Court and there is an Amended Application which was filed on 24th March 2005 seeking orders for writs of certiorari, prohibition and mandamus.  Grounds given are: First, the Tribunal Member gave insufficient information to the fact that there was selective harassment of Indian Fijians at the hands of ethnic Fijians when she said,

    I am not satisfied that the mere fact of being a Fijian national of Indian background is sufficient to give rise to a well-founded fear of persecution based on the Convention ground of race in Fiji.

    That is described in the Amended Application of the jurisdictional error. 

  2. The second ground was:

    At the hearing the Applicant was denied the opportunity to explain why it was that the Applicant believed that the harm arose as a result of his ethnicity. This denial of opportunity was a failure to provide procedural fairness.

  3. Third ground is that:

    The Tribunal also fails to take a relevant consideration that the state was unable to provide protection to underage children from the trauma of bullying and beating by ethnic Fijian children.  These are indicative of the fact that the applicant was a target because of his ethnicity.

    The Amended Application provides five particulars, which I do not intend to repeat at this stage. 

  4. Turning to the first ground, I am satisfied that the ground concerned especially as it uses the words, "insufficient consideration" is no more than an attack on the merits of the Tribunal's decision. The Tribunal did accept that the Applicant had suffered harassment and bullying from the indigenous Fijian children but did not consider that this amounted to persecution. The purpose - the role of a Court in conducting judicial review is not to conduct a merits review. In other words, it does not reassess the facts and substitute its own conclusions to those of the Tribunal. This ground must fail.

  5. Dealing with the second ground, that the Applicant was denied the opportunity to explain why he believed the harm arose as a result of his ethnicity, I am satisfied that there is just no evidence to support that claim. The Applicant's guardian attended the Tribunal. The guardian gave evidence and the Applicant gave some evidence, the Tribunal asking him questions. It is hard to see how he was denied the opportunity to support his case. In any event, as counsel for the Respondent points, out the Tribunal accepted that the treatment claimed to have been meted out to the Applicant by native Fijians appears to have been - have been based upon his race.  That ground must also fail.

  6. The third ground relates to the Tribunal's alleged failure to consider the state's inability to provide protection to underage children from the trauma of bullying and beating by ethnic Fijian children. It has - it does appear however that the Tribunal found that the school authorities were motivated to deal with those difficulties and it is the Tribunal's view that it was not possible in the Applicant's case for the school authorities to activate those matters because his adoptive parents' ill health and lack of mobility which prevented them from taking advantage of the protective measures offered by the school authorities. I think that ground must fail.

  7. Counsel for the Respondent in his outline of submissions treats the five particulars as grounds and I'll address them in this way. Particular number 4 claims that the Tribunal used critical adverse information obtained after the delegate's decision which was neither provided to the Applicant before the hearing nor put to the Applicant during the hearing. In my view there is a lack of evidence to support this ground.  The information that the Tribunal relied upon was independent country information which was the information referred to by the delegate.  That ground therefore cannot stand.

  8. Particular number 5 alleging the Tribunal misapplied a test is not particularised and it is difficult to ascertain what is meant. I accept the fact that the Applicant is no longer legally represented and he did not prepare an Amended Application. Counsel for Respondent suggests that that phrase may mean the test imposed by s.36 Migration Act where the applicant is a person to whom Australia had protection obligations. If that - if that is the test I am satisfied that the Tribunal did take notice of the test it was required to apply and did focus on the question of whether the Applicant was a refugee within the meaning of Art.102 of the Refugees Convention.

  9. Particular number 6 refers to the decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] HCA 30. It is a criticism of the reasoning of the Tribunal as irrational or so illogical as to indicate a failure to perform the review function at all. I am not satisfied that that ground has been made out. My reading of the text of the decision indicates no irrationality or illogicality and the conclusions or the findings made by the Tribunal were indeed based on the evidence. In fact it is clear the Tribunal accepted the credibility of the Applicant and his guardian but was not satisfied that their evidence indicated a well-founded fear of persecution.

  10. Particular 7, as counsel for the Respondent submits, asserts a breach of sub-s.430(1) Migration Act failing to give proper and adequate reasons. My reading of the text of the decision does not support that ground. I am satisfied that the reasons given by the Tribunal address the relevant issues and are in sufficient detail so it should be quite clear why the Tribunal made the findings as it did.

  11. Particular 8 claims that the RRT erred in failing to consider all claims and issues put forward by the Applicant. There is no particularisation as to what claims and issues were not considered by the Refugee Review Tribunal and on my reading of the decision I am satisfied that the Tribunal did consider the Applicant's case.

  12. It appears quite clear that there is no jurisdictional error. I am mindful of the fact that the Applicant was legally represented and is no longer legally represented. I am mindful that he is only a young man and he has no legal qualifications. 

  13. He says he wishes to remain in Australia because he has no family back in Fiji and he wishes a work permit. It is hard not to sympathise with those claims. Quite clearly his family in Australian have treated him with a great deal of kindness and it is hardly surprising and it is certainly no criticism of him that he wishes to remain here, in a country where he has lived for a number of years and where he has family who love and care for him. I am not able to discern any jurisdictional error and regrettably the application must be dismissed.

  14. I am of the view that the Tribunal's suggestion at p.58 of the Court Book that there are humanitarian considerations is a well-reasoned suggestion and it may well be that at the conclusion of the legal challenges to the Tribunal's decision if the applicant is not successful as he is not today, then he may well wish to consider the exercise of the Minister's discretion under s.417 Migration Act. That however is not a function of the Court. It is entirely a matter for the Minister and it is entirely a matter for the discretion of the Minister.

  15. There is a preliminary matter which I have dealt with by making orders but the original application named the Member constituting the Refugee Review Tribunal and the Principal Member of the Refugee Review Tribunal as Second and Third Respondent. I am satisfied on the authority of Re Ruddock; Ex parte Reyes (2000) 75 ALJR 457 at [25] and [26] that that is inappropriate. The parties to the proceedings should be the Minister and as a result of a decision of the High Court of Australia, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, the Second Respondent should be the Refugee Review Tribunal and no individual member of it.

  16. I have indicated that I would make procedural orders dealing with that issue, just as I will make an order that the title of the Respondent Minister is now Minister for Immigration & Multicultural Affairs.  Unfortunately the application will be dismissed. 

  17. There is an application for costs on behalf of the First Respondent Minister. The Applicant says that he does not have a work permit, he is not working and he does not have the funds to pay it.  I have no reason to doubt that. Unfortunately, in this jurisdiction not having any funds available is not of itself a reason not to make a costs order. It is however a matter which I should take into account in deciding whether or not there should be time to pay and I am satisfied that the Applicant is not in a position to meet the amount of costs now or even in a month's time.

  18. The amount of $5,700.00 which is sought is within the appropriate range and I propose to order that the Applicant is to pay the First Respondent's costs fixed in the sum of $5,700.00, but for the reasons that I have mentioned I will allow 18 months to pay.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  30 June 2006

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