SZFSA v Minister for Immigration - [2005] FMCA 1301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFSA v MINISTER FOR IMMIGRATION

[2005] FMCA 1301

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, s.474

Muinv Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601

Applicant:

SZFSA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG351 of 2005

Judgment of:

Barnes FM

Hearing date:

2 September 2005

Delivered at:

Sydney

Delivered on:

2 September 2005

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Refugee Review Tribunal be joined as a respondent to the proceedings.
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG351 of 2005

SZFSA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 24 August 1995 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The first applicant is a national of Fiji. Her daughter the second applicant, was not the subject of the Tribunal decision. It is not clear why she is a party to the proceedings but in light of Rule 11.01(4) nothing turns on this. For convenience I refer to the first applicant as the applicant. The applicant’s husband came to Australia in January 1992. He is not the subject of these proceedings. The applicant arrived in Australia in 1994 and filed an application for a protection visa in August 1994. She claimed to fear persecution for reason of her political opinion of support for the Fijian Labour Party (FLP) and because she supported her husband in his support for the FLP. The application was refused and she sought review by the Tribunal. She attended a Tribunal hearing.
The Tribunal observed that the applicant's husband had lodged a separate application for refugee status which had been refused. That decision was affirmed in a separate Tribunal decision. The applicant claimed that her husband had been arrested and beaten by the army in 1987 due to his association with the FLP. She claimed that she supported the FLP by handing out leaflets, rallying with supporters and providing hospitality. She claimed that she had been interrogated in 1997 but not assaulted.
In a letter of 26 May 1995 her then migration agent wrote to the Refugee Review Tribunal in connection with the Tribunal review stating that the applicant maintained and stood by the materials and arguments submitted with her primary application. However the Tribunal recorded that in the Tribunal hearing the applicant essentially abandoned many of the claims previously made. She told the Tribunal that the main reason she feared returning to Fiji was a fear of unemployment (which she had experienced in the past).
She is recorded by the Tribunal as having told it that she had no fears about returning to Fiji due to her support of the FLP but rather that her fear was not having a job on her return. The Tribunal recorded that it put country information to the applicant to the effect that supporters of the FLP were no longer being harassed and that she agreed with this. The Tribunal also put to the applicant its concerns about the extent to which economic harm constituted persecution for the purposes of the Refugee Convention. The Tribunal recorded that the applicant had told it that she did not want to return to Fiji because she feared unemployment for herself, her husband and for her child to be brought up in a situation of unemployment.
The Tribunal found that the applicant had given no evidence which indicated she would be denied a job or be a victim of any form of economic persecution for a Convention reason and that there was no evidence before it to indicate that she would be denied a job for a Convention reason or, indeed, that she would suffer persecution in an economic form in Fiji. The Tribunal found that there was no real chance that the applicant would be persecuted in Fiji through denial of employment for a Convention reason.
The Tribunal noted that the applicant’s previous claims based on political opinion and former membership of the FLP had been abandoned. It found that nothing put forward by her at the hearing suggested that she had suffered serious harm amounting to persecution or, indeed, that her husband had so suffered. It noted in particular that the applicant's husband had stated in separate proceedings that he was not interfered with by the authorities after his return to his village in 1988/89. The Tribunal found that the applicant would not suffer persecution if returned to Fiji on account of her husband's political opinion or a political opinion imputed to her because of his political involvement.
The Tribunal found that the applicant did not face a real chance of persecution for reason of the political opinion she expressed in 1987 in Fiji in supporting the FLP. It noted that she had told it that she did not fear persecution for reason of her former membership of the FLP and that she had not suffered any difficulties on this basis from 1987 on. It found that the chance that she would suffer such persecution in Fiji was remote.
On the basis of the applicant's evidence and information about the situation in Fiji the Tribunal found there was no real chance she would be persecuted on return to Fiji for reason of her political opinion. The Tribunal affirmed the decision under review.
The applicant sought review of the Tribunal decision by application filed on 9 February 2005, nearly 10 years after the Tribunal decision. I note, however, that while a notice of objection to competency was filed for the respondent that is not being pressed and that the respondent's records indicate that the applicant was a member of the Muinv Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601 class action.
The first ground raised in the application is that the decision was unfair, unjust and inhumane. There are no particulars in relation to this claim. There is nothing in the material before the Court as to the Tribunal procedures or decision to support any claim of a lack of procedural fairness. Similarly, insofar as it is intended to claim either actual or apprehended bias, the material before the Court does not establish such a claim.
The applicant next claimed that the Tribunal placed too much emphasis on discrepancies in dates and times provided in evidence. However, while the Tribunal did note some discrepancies in dates given by the applicant, the Tribunal decision was not based on such discrepancies but rather on the fact that the applicant accepted that persons who had supported the FLP did not fear persecution and that this was consistent with what she had experienced and the country information (as well as because on the evidence before it there was no real chance that she would be persecuted in Fiji through denial of employment for a Convention reason).
The next ground is that the applicant and her daughter fall under the UN charter for definition of refugee. In relation to the applicant mother this restates her claim to be a refugee and does not establish error on the part of the Tribunal. Although her daughter is included as an applicant in these proceedings she was not the subject of the Tribunal decision and technically should not be included as a party to these proceedings although nothing turns on this. The Tribunal did not consider any claims by the applicant’s daughter.
The applicant went on to claim that the Tribunal was not properly informed of the political situation in Fiji. Such a contention takes issue with the weight given by the Tribunal to country information on which it relied and takes issue with the merits of the Tribunal decision. The weight to be given to particular country information is a matter for the Tribunal and this contention does not establish jurisdictional error, particularly in light of the other bases for the Tribunal conclusions.
The applicant goes on to complain that instability continued after the May 2000 coup and that the Tribunal was not properly informed of this. Again, this contention does not establish jurisdictional error. The Tribunal considered and understood the applicant's claims including the material submitted on her behalf by her migration agent in relation to the situation in Fiji. The conclusions that it reached were open to it on the material before it. Insofar as this contention takes issue with the weight given to particular material, such matters are matters for the Tribunal.
The applicant also contended that the Tribunal failed to address and consider thoroughly the involvement of herself and her husband in the FLP. However the Tribunal considered not only the applicant's initial claims in relation to involvement in activities in the FLP by herself and her husband (which her migration agent reiterated to the Tribunal on her behalf) but also her subsequent and different claims as put in the Tribunal hearing. While it found that she did not persist with the claims she had presented to the Department it addressed the question of whether she had a well-founded fear of persecution based on her support for the FLP and on account of her husband’s political opinion or political opinion imputed to her because of his political involvement. No error is established by this ground.
Finally the applicant contends that the definition of refugee includes economic refugees. The Tribunal considered her claim based on unemployment in Fiji but found an absence of evidence to support any finding that she would be denied a job or be a victim of persecution in an economic form for a Convention reason. In so doing it recognised that some forms of economic persecution could be within the Refugees Convention. No error is established by this ground.
The applicant filed a written submission with attachments on 11 July 2005. In that submission she referred to the length of time she and her family had lived in Australia and supported themselves and families in Fiji. She claimed that she and her husband would not be able to find work in Fiji and submitted newspaper articles concerning Fiji, the economy and the crime rate. However, this is not a re-hearing. Nor can the Court take into account humanitarian or compassionate grounds such as are raised by the applicant in this submission. The written submission does not establish that the Tribunal made a jurisdictional error in the findings that it made on the material before it at the time of its decision.
The applicant also submitted that she had claimed before the Tribunal that because of her political association with the FLP she would have less opportunity to obtain employment. This is at odds with the Tribunal account of what occurred at the Tribunal hearing but in any event such an issue was addressed in the Tribunal findings. The Tribunal stated that the applicant gave no evidence which indicated she would be denied a job or be a victim of any form of economic persecution for a Convention reason. Further the Tribunal found that her evidence indicated that she had suffered no past persecution for political reasons and that there was no evidence before it to indicate that the applicant would be denied a job for a Convention reason and, indeed, that country information before it indicated that members of FLP were not currently experiencing persecution by reason of membership.
At the commencement of the hearing today the applicant filed a further written submission. This written submission addresses in the main the current political and judicial situation in Fiji against the background of previous coups. As I stated earlier, this is not a re-hearing and the information contained in this submission in relation to the present situation in Fiji and events that have occurred since the Tribunal decision in August 1995 is not material that establishes that the Tribunal fell into jurisdictional error in making the decision that it made on the information before it at the time of its decision.
The applicant repeats her claim to fear returning to Fiji and claims that she fears discrimination because she supported the Fiji Labor Party. No error is established in the manner in which the Tribunal dealt with these claims. The claims that she now makes and the information she puts to the Court in relation to current situation in Fiji does not establish that the Tribunal fell into error let alone jurisdictional error. As no jurisdictional error has been established, the decision of the Tribunal is a privative clause decision to which section 474 of the Migration Act 1958 applies and the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks costs in the sum of $4,000. The applicant told the Court that she is not in employment and has no funds. However this is not a reason for departing from the normal rule that the unsuccessful applicant should meet the costs of the respondent, although these may be matters taken into account by the respondent in determining when and how to seek to recover the costs.
There were prior proceedings in this matter. However the respondent unsuccessfully sought that the application be dismissed for failure to file an amended application. In light of the nature of this and other similar matters I consider that an appropriate amount of costs is the sum of $3,500. I note that it has not been considered necessary by the respondent to involve counsel in these proceedings. For the sake of completeness I also order that the Tribunal should be joined as a party.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 8 September 2005