SZGFQ & Ors v Minister for Immigration
[2007] FMCA 172
•23 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGFQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 172 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 417, 424A, 483A |
| Minister for Immigration; Ex parte Miah [2001] HCA 22 SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicants: | SZGFQ, SZGHH, SZGHI, SZGHK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1159 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 18 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2007 |
REPRESENTATION
| Advocate for the Applicants: | The applicant appeared in person with the assistance of a Hindi interpreter |
| Counsel for the Respondent: | Ms K Morgan |
| Solicitors for the Respondent: | Ms G Broderick of Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 5 May 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1159 of 2005
| SZGFQ & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 May 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 1 May 2000, affirming a decision of the delegate of the first respondent made on 28 February 2000, refusing to grant the applicants a protection (class XA) visa. The applicants seek unstated relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been granted the pseudonyms “SZGFQ” (first applicant - husband), “SZGHH” (second applicant - wife), “SZGHI” (third applicant - son) and “SZGHK” (fourth applicant - daughter).
The applicants have not sought to join the Tribunal has a party, however given that it is an exercise of the Tribunal's jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP vMinister for Immigration [2005] HCA24 at [43], [91], [153] and [180].
A Court book ("CB") prepared by the respondent's solicitors marked “Exhibit A” was filed and served on 17 June 2005, and was read into evidence.
The applicants tendered and applied for an affidavit of the first applicant sworn on 10 October 2006 ("affidavit of first applicant") to be admitted into evidence. Attached to this affidavit is a transcript of proceedings of a Refugee Review Tribunal presided over by R A Fordham, reference N00/32390, recorded at Sydney on 1 May 2000.
The respondent solicitor tendered and applied for an affidavit of Ziad (Zac) Chami, Solicitor, sworn on 17 October 2006 ("the affidavit of Mr Chami") to be admitted into evidence.
Background
The Tribunal decision of R A Fordham, reference number NOO/32390, provides the following background information. The applicants are husband/father, wife and children, and are citizens of Fiji. They arrived in Australia on 23 December 1999. On 3 February 2000 they lodged an application for a protection (class XA) visa with the Department of Immigration under the Act. On 28 February 2000, a delegate of the Minister refused to grant a protection (class XA) visa and on 13 March 2000, the applicants applied to the Tribunal for a review of the delegate's decision.(CB 91)
The relevant claims of the applicants are set out in the written submissions prepared on behalf of the respondent by Ms Morgan. I adopt paragraphs 4 to 7 of those submissions for the purposes of this judgment:
4.The applicant's claims are based upon the claims of the applicant husband.
5.The applicant husband claimed to have a well founded fear of persecution by reason of his political beliefs because he supported the SVT political party in Fiji, which is an ethnic Fijian dominated group. As the applicant husband was of Indian ethnicity, by supporting this group he claimed his life had been placed in grave danger by the Indian community in Fijian CB 17.7.
6. Specifically:
(a)the family had been warned that they "would be sorry" for their actions and support they were giving to the SVT Party CB 55.3;
(b)that prior to the general election campaign the applicant husband was severely attacked several times;
(c)the applicant husband was warned by other political supporters that his life was now in grave danger because of his support of the SVT Party;
(d)the applicant husband had reported the complaints and threats to the police but no action was taken; and
(e) because the applicant husband is well identified and a marked person, he has grave concerns for his safety, even though the SVT Party did not win the general election CB 55.
7.The applicant husband does not seem to have provided any further claims to the Tribunal despite the notion in the application "see separate attachment" CB 74.
Tribunal’s Findings and Reasons
A summary of the Tribunal's reasons was contained in the respondent's written submissions prepared by Ms Morgan and I adopt paragraphs 8 to 11 of those submissions.
8.The Tribunal reproduced the applicant husband's claims made to the Department. CB93.9 - 95.8
9.The Tribunal accepted that the applicant husband undertook some minor activities in relation to the SVT Party prior to the May 1999 election, such as canvassing door to door for a month and talking to passengers in his taxi. CB 100.8
10.However, the Tribunal concluded that:
(a) it was only a remote possibility that any political opposition supporter would harbour such political feelings as to undertake any action against the applicant husband because the party he supported did not win and, in fact, lost quite significantly; CB 100.9
(b) in relation to the threatening phone calls, the Tribunal concluded that the caller or callers had no intention of taking any further action as the applicant husband had not claimed that anything had actually resulted as a consequence of the threatening calls; CB 101
(c) the authorities were prepared to act to protect the applicant husband if the callers had been identified (rejecting the applicants’ written claims that the refusal by the police to take action was because the callers were supporters of the opposing party); CB 101.4
(d) based on the oral evidence given by the applicant husband and wife, the motivation for both robberies was one of theft CB 101.6 and the Tribunal referred to:
(i) the independent information before it, which the Tribunal accepted, which stated that there had been an increase in robbery and crime; CB 101.6
(ii) the acceptance in oral evidence by the applicant husband and wife with that proposition in the independent country information; CB101.6 and CB 98/7 and
(iii) the applicant's statement to the Department which said that the "economy had stalled, unemployment is high, with rising crime rates and layoffs in all sectors", CB101.9
(e) the authorities were prepared to provide protection, but that no authorities, including those in Fiji, could reasonably be expected to locate and charge those responsible given the circumstances as described by the applicant husband to the Tribunal; and
(f) the authorities would be prepared to act and the legal system in Fiji would provide effective protection from such harm should it be reasonable for them to do so.
11. The Tribunal found:
(a)the phone calls did not amount to persecution. The callers had no intention of taking any action and also lost interest in making the calls (given they stopped four months prior to the applicant husband's departure). In addition the Tribunal concluded that the applicant husband did not face any risk of prospective harm as a consequence of the anonymous phone calls; CB101.5
(b)the robberies were motivated by reasons outside the Convention; and
(c)the State could and would provide protection. CB102.4
Application for Review of the Tribunal’s Decision
On 5 May 2005, the applicants filed an application for review under s.39B of the Judiciary Act1903. On 27 July 2005, the applicants filed an amended application which contained the following grounds:
1.The RRT failed to exercise its jurisdiction by not addressing the applicants’ case in so far as an individual. The country information reported by the Embassy is surely not applicable to the life and circumstances of a particular person such as myself and acting on it can result in injustice and lack of fairness. In doing so the RRT failed to ask itself a wrong question and to turn its mind to the matter put to it by the applicant.
2.The applicant claims the RRT drew the conclusion that there was no evidence that the applicant’s claim would amount to persecution. In fact, the applicant's claims are substantial and the fear of harassment and denial of the ability to lead a normal life are real. That means the RRT erred in law by not considering the full extent of what the applicant was saying about his fears.
Submissions and Reasons
The first applicant appeared self-represented with the assistance of a Hindi interpreter. The first applicant attended a first Court date directions hearing on 24 May 2005 and indicated to the Registrar that he wished to participate in the Court sponsored legal advice scheme. The Court file indicated that he was allocated a panel lawyer, that he attended a conference and was provided with advice. The applicants had also filed an amended application, but had not prepared and filed any written submissions prior to the hearing. When the first applicant was invited to make any oral submissions, he referred to the Tribunal decision under the heading "Claims and Evidence" and in particular, the independent country information that was available to the Tribunal member. This appears in the decision at CB 95, 96 and 97. The first applicant stated that the reference and reliance by the Tribunal member on this material indicated that the member did not understand the nature of the applicants’ claim.
The first applicant then drew the Court's attention to the contents of his written statement dated 22 February 2000, which had been considered during the Tribunal hearing. The first applicant pointed out the nature of his political belief together with his involvement with the Soqosoqo Vakavulewa Taukei (“SVT”) Party, which was led by the former Prime Minister of Fiji, Sitiveni Rabuka. He indicated that he believed Fiji belonged to the ethnic Fijians and that they should rule and politically control Fiji, rather than the Indians who had only arrived in Fiji during British Colonial days of the 1800s. The first applicant indicated that as a result of the SVT Party losing the general election, this resulted in a devastating affect on the applicants and subsequently, on their personal lifestyle as well. He indicated that SVT Party supporters, like himself of Indian origin, were placed in a very delicate and life threatening position. The Indian supporters of the Labour party had warned other Indians together with the first applicant, who had openly supported the SVT Party prior to the general election that they “would be fixed up once the election was over”. He claims they were warned they would be sorry for their actions and the support they had given to the SVT Party.(CB 94)
The first applicant also indicated that after the election, when he was forced to report harassment and assaults by the Indian supporters of the Labour party to the police, no action was ever taken.(CB 95) He then provided the Court with some background material in respect of his education and training, together with skills he had developed in the motor industry. He indicated that in latter times while living in Fiji he had been a taxi driver. This had provided him with the opportunity to encourage many of his passengers’ political issues and campaigning.
Ms Morgan, in her written submissions in respect to ground one, which relates to the Tribunal's reference to country information in relation to Fiji, submits that it is open for the Tribunal to refer to such information in reaching a view as to whether it is satisfied of the first applicant's claims. The Tribunal specifically asked itself about the various matters claimed by the first applicant and how the claimed telephone calls and robberies affected him. It then evaluated those claims and also considered the independent country information. It is submitted that the Tribunal did not ask itself the wrong question or fail to turn its mind to the matters put by the first applicant.
I agree with the submissions in respect of ground one made by Ms Morgan, as the Tribunal in the “Claims and Evidence” section of the Decision sets out each of these issues. Each issue is then addressed in the “Findings and Reasons”.
The second ground of review is that the claims of the applicants were sufficient to support a finding of persecution and the Tribunal had erred in not reaching this conclusion. It is submitted that the second ground of review seeks impermissible merits review of the Tribunal’s findings.
I accept Ms Morgan's submission that the second ground appears to be a request by the applicants for this Court to undertake a merit's review, which is not available in this Court. This has been explained on numerous occasions and in particular by His Honour Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 and NARE v Minister for Immigration [2003] FCA 554, also by the Full Federal Court in NAAH v Minister for Immigration [2002] FCAFC 354, and NADR v Minister for Immigration [2003] FCAFC 167 that the Court cannot engage in merits review and it is not part of its task to do so.
Ms Morgan brought to the Court's attention other matters which had not been raised by the applicants in their application or submissions. In particular, the Tribunal referred to information contained in the first applicant's statement to the Department, which stated that the economy of Fiji was stalling.(CB 101) Ms Morgan contends that the Tribunal had not relied on that information in the manner that s.424A of the Act, as interpreted by the Full Court in SZEEU v Minister for Immigration [2006] FCAFC 2, envisages. The information in relation to the stalling of the economy was referred to by the Tribunal as a possible reason for the motivation of the robberies, which the applicant husband and wife had already accepted was one of theft. Therefore, the Tribunal concluded the robberies were not motivated by a Convention reason and could not be the basis for a well-founded fear of persecution for a Convention reason.
In respect to a second issue, the Tribunal concluded that there would be effective State protection. Ms Morgan in her written submissions at paragraph 16 referred the Court to the following findings:
(a)referred to general country information, including the independence of the judiciary system; CB 97.5
(b)referred to the reporting of the phone calls to the police and the police not pursuing seeming reasonable, given the details provided by the applicant husband to the police; CB 98.4
(c)referred to the robberies being for money; CB 98.7
(d)found that on the information provided by the applicant (at the hearing), that no authorities could reasonably be expected to locate and charge those responsible for the robberies; CB 101.9 and
(e)concluded, in relation to the applicant husband personally, that the authorities would be prepared to act and the legal system would provide effective protection from such harm should it be reasonable for them to do so; CB 101.10 and
(f)concluded, in relation to Fiji more generally "the State could and would provide protection". CB 102.4
Ms Morgan submits that the Tribunal made a finding of fact that, based on the complaints made by the applicants to the police in Fiji, it was a reasonable response by the police not to investigate and that this was not evidence showing a failure by Fiji to provide a reasonably effective police and justice system. This is consistent with the Tribunal's obligation pursuant to Minister for Immigration v Respondents S152/2003 (2004) 222 CLR 1 at [26] to [27]. Ms Morgan argues that the Tribunal's reasons contain a separate and alternative basis for affirming the decision of the delegate: see VBAP of 2002 v Minister for Immigration [2005] FCA 965.
Ms Morgan also addressed the Court on the question of delay, indicating that the Tribunal decision was handed down on 16 May 2000, but this application was not filed until 5 May 2005. The applicants were involved in the High Court class action in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 and the draft Order Nisi was refused by His Honour Emmett J on 20 February 2004. The affidavit of Mr Chami sets out in detail the procedural steps involved in the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal class action. From that affidavit I reproduce the relevant information to these proceedings:
8.Based on Annexure A I am able to depose the following:
(i) the Applicant's High Court proceedings number was S1453 of 2003;
(ii) the Applicant's Federal Court proceeding number (upon remittal to that Court by the High Court) was N1745 of 2003;
(iii) the relevant Tribunal decision was made on 1 May 2000 and the RRT’s file reference number was N00/32390; and
(iv) the Applicant joined the Muin/Lie class action on 30 June 2000.
9.On 20 February 2004 the Applicants’ Order Nisi application was refused by his Honour Justice Emmett in the Federal Court of Australia.
The delay between the completion of the class action proceedings and the current application is a delay of over 14 months. There is no evidence before the Court to explain this delay. Ms Morgan submits that discretionary relief, in the nature sought by the applicants may be refused if “the conduct of a party is inconsistent with the application”: see McHugh J in SAAP v Minister for Immigration at [80].
Ms Morgan submits that the applicants’ unexplained delay of 14 months is conduct inconsistent with an application for relief in this Court.
I note that during this hearing the first applicant made submissions from the bar table regarding a s.417 application to the Minister. There was no evidence provided by the first applicant in the form of affidavit material or any other documentation to support this claim. However, subsequent to the hearing, the respondent’s solicitors advised the Court that they have been informed by their client that on 17 March 2004 the applicants made application under s.417 of the Act, and on 21 April 2005 this application was refused by the Minister.
This then raises the issue as to the exercise of the Court's discretion as to whether this application should be dismissed on the discretionary ground of delay. The applicants’ conduct may be construed that the Tribunal's decision was not to be the subject of challenge, as the applicants appear to have availed themselves of another avenue of challenge to their migration status afforded by the class action in the High Court. When this was unsuccessful, they then turned seeking intervention by the Minister by proceeding with a s.417 application. This pattern of behaviour appears to have been adopted by many of the participants in the class action sponsored by a particular migration agent/solicitor coming before this Court in similar circumstances operating on the belief that their matter is being actively pursued at all times.
The period of delay between the refusal of the s.417 application and the filing of the proceedings in this Court is very brief. Consequently, I have decided not to exercise my discretion to dismiss the matter on the grounds of delay. I am guided in this approach by the decision of Minister for Immigration; Ex parte Miah [2001] HCA 22 per Gaudron J at [107] where Her Honour stated:
It was put that relief should not issue in this case because of the delay involved in bringing proceedings in this Court. The delay has been explained. In brief, the delay occurred only because Mr Miah sought to have his claims properly considered without the need to institute the present proceedings. The Minister declined to exercise powers which may have rendered the proceedings unnecessary. That being so, the argument that relief should be refused on discretionary grounds is wholly without merit.
Conclusion
The applicants in these proceedings are self-represented litigants appearing with the assistance of a Hindi interpreter. I acknowledge the applicants are faced with great difficulty as they do not understand the legal system in which they have brought these proceedings. However, I am satisfied that the applicants have been given opportunity to receive independent legal advice under the Court sponsored scheme and to amend their application. It was apparent that the applicants did not comprehend aspects of the proceedings or how they were to succeed in this case. I am satisfied that no grounds of judicial error have been identified in the applicants’ amended application. Ms Morgan, appearing for the respondents, assisted the Court with written submissions addressing the pleaded grounds and to other aspects of the decision, which needed to be considered, although not identified by the applicants. I am satisfied that it is not apparent that any other grounds of review exist which suggest that the Tribunal made a jurisdictional error in its decision making process. Consequently, the applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 February 2007
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