SZGFQ v Minister for Immigration and Citizenship

[2007] FCA 757

FEDERAL COURT OF AUSTRALIA

SZGFQ v Minister for Immigration and Citizenship [2007] FCA 757

SZGFQ, SZGHH, SZGHI AND SZGHK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 405 OF 2007

SPENDER ACJ
15 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 405 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGFQ
First Appellant

SZGHH
Second Appellant

SZGHI
Third Appellant

SZGHK
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER ACJ
DATE OF ORDER:	15 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeals be dismissed.

2.The appellants pay the costs of the first respondent, fixed in the sum of $2,500.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 405 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGFQ
First Appellant

SZGHH
Second Appellant

SZGHI
Third Appellant

SZGHK
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER ACJ
DATE:	15 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Lloyd-Jones FM on 23 February 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 1 May 2000, seven years earlier, which affirmed a decision of the delegate of the first respondent made on 28 February 2000 refusing to grant to the appellants a Protection Visa. 

2. The appellants are husband and father, wife and children, and are citizens of Fiji.  They lodged an application for protection visas on 3 February 2000. 

3. The Tribunal, under the heading Findings and Reasons, indicated that the claim for a Protection Visa by the husband and father, which was the primary claim, was based on an allegation that the husband feared persecution as a consequence of his political opinion. 

4. No specific Convention claims were made by or on behalf of the wife or children and their application depends on the outcome of the husband and father’s application, whom I will call the appellant. 

5. The Tribunal set out what the claims of the appellant were:

   He claimed he began to support the SVT, [a political party headed by the former Prime Minister Rabuka] around 1997 and that he experienced problems in 1999 when he took an active role in canvassing for candidates of that party just prior to the May 1999 elections.

   I accept that he undertook some minor activities such as canvassing door to door for a month and also talking to passengers in his taxi.

   He claims that as a consequence he was threatened if his party won.  The party didn’t win and, in fact lost quite significantly.  This being the case, I consider it only a remote possibility that any opposition supporter would harbour such political feelings as to undertake any action against the Applicant.  Even if I accept that the phone calls were based on political animosity I find no serious action occurred and the intimidation through the calls was short-lived and came to an end.

   He claimed that he received about eight phone calls between the elections in May and August 1999.  He made no claim that anything had resulted as a consequence of those threatening calls.
   …

   The fact that no action followed these threats throughout the three or four months they were made, May to August, leads me to conclude that the caller or callers had no intention of taking any further action.

   I also find that, if the caller had been identified the authorities were prepared to act to protect.  I do not accept the Applicant’s written claims that the refusal to take action was because they were supporters of the Labour Party.

   I find that these phone calls, as disturbing as they were did not amount to persecution and, since they stopped in August, four months prior to the Applicant’s departure the caller or callers not only had no intention of taking any action but also lost interest in making the calls.  This leads me to find that the Applicant does not face any risk of prospective harm as a consequence of the anonymous phone calls.

   In regard to the robberies.  The Applicant provided details of one situation and when I asked him and his wife for the motivation they both stated that the motivation was one of theft.

6. The Tribunal then said:

   I accept that that is the case and, accordingly find that the robbery is motivated by reasons outside the Convention.  I also find that the authorities are prepared to provide protection but, under the circumstances that the Applicant has given me, no authorities, including those in this country, could reasonably be expected to locate and charge those responsible.

   However, I am satisfied that 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.

7. The appellant sought to have the Tribunal’s decision reviewed and in an amended application filed on 27 July 2005 he claimed:  

   1.The RRT failed to exercise its jurisdiction by not addressing the applicant’s 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.

8. I take that sentence to mean that the RRT asked itself the wrong question.  The second ground was:

   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 that the RRT erred in law by not considering the full extent of what the applicant was saying about his fears.

9. Concerning these grounds, the Federal Magistrate found:

   The Tribunal specifically asked itself about the various matters claimed by the first applicant and how the claimed telephone calls and robberies affected him. 

10. His Honour said:

    It then evaluated those claims and also considered the independent country information.

11. His Honour found that the Tribunal did not ask itself the wrong question or fail to turn its mind to the matters put by the first applicant.  The learned Federal Magistrate found that the second ground of review to the Federal Magistrates Court sought impermissible merits review of the Tribunal’s findings.

12. The notice of appeal to this Court alleges two grounds:

    3.The Refugee Review Tribunal (the Tribunal) failed to look at the situation in the past and the Judgment of His Honour failed to relate what is currently happening would indicate that my fear of persecution is at least subjectively well founded.

    4.The Tribunal failed to consider each of the claims made and relied only on the general country information without considering my fear of persecution as a person belonging to a social group.

13. When the appeals were called on this morning, the appellant pointed out that the application to the Tribunal referred to “a separate attachment” yet no such attachment is to be found in the court book.  The appellant claims that he is a victim and his then migration agent misled him and did not include the correct documents. 

14. Looking at the material in its entirety it appears that the “attached statement” referred to in the application to the Tribunal in fact is the extensive document dated 22 February 2000 which sets out in great detail the claims of the appellant, the individual circumstances affecting him in Fiji, and the matters he wanted the Tribunal to consider.

15. The second basis referred to by the appellant in his submissions today refers to the conclusion by the Tribunal that the robberies were not motivated by a Convention reason and could not be the basis for a well founded fear of persecution. 

16. The written submissions by the appellant today say:

    Your Honour the Tribunal member does not understand the situation and the system in Fiji and the fact that no one in Fiji can protect people and the state could and would provide protection only according to information but not in reality.

17. On the second page of that submission the appellant says:

    The current situation in Fiji does not reflect any peace for people who were at risk in the past.  It is difficult for the Tribunal who has no experience of the conditions in which I have lived in Fiji and has no knowledge of the SVT (Soqosoqo Vakavulewa Taukei) led by the former Prime Minister of Fiji Rabuka and the amount of suffering involved in all aspects physically emotionally and psychologically.  The Tribunal, in the court book, had evidence such as country information and I wish to mention that on p. 103, last line, and I quote, “There continues to be credible reports of human rights abuses by individual Police Officers.”  In my case the Tribunal overlooked my subjective fear of persecution and the harassment I suffered and failed to accept that I meet the definition of refugee. 

18. His written submissions to the Court today continue:

    I ask the Honourable Court to check the decision of the Refugee Review Tribunal and accept that the Tribunal erred in law by not accepting me as a refugee and in the light of the current situation, now in Fiji, my life will be at risk again and such was not seen by the Tribunal.

19. I have set out the written submissions of the appellant today extensively in relation to the second ground of appeal in the Notice of Appeal. 

20. There is no substance in the suggestion that the Tribunal, or for that matter, the learned Federal Magistrate, did not deal with the appellant’s claims as put to the Tribunal.  I have set out in these reasons the passage in the judgment of the Tribunal in which the Tribunal specifically asked itself about the various matters claimed by the appellant and the Tribunal considered how the claimed telephone calls and robberies affected him.  It then evaluated those claims and also considered the independent country information.

21. Lloyd-Jones FM concluded that the Tribunal had set out each of the issues raised by the appellant and addressed each of those issues in its findings and reasons.  In that conclusion, in my judgment, the Federal Magistrate did not err. 

22. The first ground of appeal in the Notice of Appeal seems to me to take issue with the findings of the Tribunal that the appellant does not face a risk of persecution prospectively. 

23. So too the written submissions of the appellant ask this Court to conclude that the Tribunal erred by not accepting him as a refugee and in overlooking his subjective fear of persecution and the harassment that the appellant suffered.

24. Both the written submission by the appellant today, and what is sought to be raised by the first ground of appeal, invites both the Federal Magistrates Court and this Court to undertake merits review of the Tribunal’s decision. 

25. This Court has no jurisdiction to consider the merits of the decision made by the Tribunal.  Even if its conclusion factually was wrong, that does not constitute jurisdictional error by the Tribunal.  This Court has power to deal with the decision of the Tribunal and of the Federal Magistrates Court only if jurisdictional error has been established. 

26. For these reasons, the appeals should be dismissed with costs.

27. The orders of the Court are that the appeals be dismissed with costs, which I fix in the sum of $2,500.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender.

Associate:
Dated:       17 May 2007

The First Appellant appeared in person
Counsel for the Respondent:	Ms K.C. Morgan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 May 2007
Date of Judgment:	15 May 2007