SZGIO v Minister for Immigration - [2006] FMCA 1663

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1663

MIGRATION – RRT decision – Fijian Indian claimed eviction by native landlords – feared discrimination – Tribunal found no Convention reason – satisfied by country information – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(a), 474(1), 483A

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572

Applicant:

SZGIO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1293 of 2005

Judgment of:

Smith FM

Hearing date:

30 October 2006

Delivered at:

Sydney

Delivered on:

30 October 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1293 of 2005

SZGIO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 19 May 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 March 2005 and handed down on 13 April 2005. The Tribunal affirmed a decision of the delegate made on 14 December 2004, which refused to grant a protection visa to the applicant.
The decisions of the delegate and the Tribunal also addressed the claims of the applicant’s sister, who joined the applicant in his protection visa application. As with the applicant, her applications were unsuccessful, and she was named as second applicant in the application filed in this Court. However, after the first court date, and after receiving free legal advice, she filed a notice of withdrawal of her application, which I ordered to be treated as a notice of discontinuance. Her brother, the present applicant, has continued his own application, and appeared today.
The Court’s powers under s.483A are subject to limitations under s.474(1) of the Migration Act, so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claim should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia on a visitor’s visa in November 2004. On 10 December 2004, he applied for a protection visa without any apparent involvement of a migration agent. He explained his reasons for seeking protection in Australia so that he did not have to return to his country of nationality, Fiji, as follows:
40Why did you leave that country?
I left Fiji because I have been a victim of racial abuse. I have been living on the fringe of a native Fijian village. Last year the Landlord (Fijian Mataqali) decided not to renew the lease on the residential property I and my family occupied. They served us a number of notices but because we had no where to go we made representations to the elders in the Mataqali (the landlords). They have been demanding money from time to time and we obliged with their demands till my mother was also working. However, last year my mother had to give up her job and attend to my sister who prior to giving birth to her second child had a nervous breakdown. My mum had to support her as well as her other young son. While my mum was here the landlords evicted us from our house. I was at work and when I came back home I saw the door and a wall broken with most of the belongings left outside. I gathered whatever I could and moved to live with my uncle temporarily.
41What do you fear may happen to you if you go back to that country?
When I confronted the Mataqali to clarify with them why they had done this they bashed me and said they would kill me if I tried to re‑occupy the premises. I feared for my own safety and that of my sister and reported the matter to police. The response from police was that this was a civil matter and they couldn’t act upon it. I found myself in a helpless situation as are many other Indians in Fiji who have been dispossessed. If I have to go back to Fiji I have no permanent home to return to and I have fears for my personal safety If I return to my home village. Any confrontation could result in more physical abuse. My sister who tried to save the belongings from our house was kicked and dragged out of the house. The lack of law enforcement from the police and their inability to act quickly is a major security risk.
42Who do you think may harm/mistreat you if you go back?
The youths who have been incited by their leaders to make our livelihood impossible. Since the past coups racial tension has been on the increase and has shattered the village harmony and goodwill that existed for decades.
43Why do you think this will happen to you if you go back?
I have already been a victim of abuse and an easy target because they know my position – how vulnerable I am having evicted us from our home. I have no place to go to. It is even worse for my sister because she is defenceless.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
Fiji does not provide refuge to people who have been dispossessed or displaced with the expiry of lease. People have to fend for themselves. I and my sister will find it extremely difficult to make a fresh start, specially with my mum here to care for my sickly sister and her two children.
The applicant provided no further support for his claims, before attending a hearing conducted by the Tribunal on 4 March 2005.
At the commencement of the hearing, the applicant tendered a short statutory declaration repeating his concerns:
That I have no place to go to if I had to return. My house had been confiscated by the native Fijians.
That I went through terrible ordeal before I left Fiji to come to Australia and any suggestion to return to Fiji gives me nightmares and brings back those horrible memories of the past. I have absolutely no confidence or self esteem to return to Fiji and rebuild my life. I live by the day and just hope for the better. I have no moral or physical support in Fiji nor have financial means to start a new life. I would rather rest in peace than to face the people who have destroyed my livelihood. If I am asked to return to Fiji, it will put me into extremely devastating situation. I have already experienced enough physical and mental abuse and would not like to be its victim again.
The applicant explained his circumstances to the Tribunal. He said that the family home was a short distance from Nadi, where he had worked as a security guard at the airport from May 2000 until he came to Australia. After the family were evicted, he had lived with an uncle who lived in another village about 30 minutes drive away. He and his sister and mother, who also attended the Tribunal’s hearing, gave further information about the nature of their tenure. The mother told the Tribunal that their occupation had commenced in 1989 under an oral lease, which had no expiry date and was subject to payment of such amounts as the land owners demanded.
The applicant’s sister gave further details to the Tribunal about her own experiences, and it is unnecessary for me to examine her evidence or how the Tribunal dealt with it insofar as it concerned her own claim.
Following the hearing, the applicant forwarded to the Tribunal a letter from his Australian sister, and a number of press cuttings which the Tribunal referred to as “dealing with issues such as poverty, racial slurs, crime, employment prospects, criminal proceedings in court, and eviction and the ending of leases” in Fiji. The date of most of the press cuttings was unclear, but some were quite recent.
Under the heading “Findings and Reasons”, the Tribunal said that it accepted most of the claims made by the applicant concerning the family’s eviction. It said:
The Tribunal accepts that the Applicants grew up in a house built by their father in or around 1989 in a squatter settlement for which they paid the local native Fijians a monthly fee of initially $F20, although over time this rose to $F30. It also accepts that this was a very loose and open ended arrangements (which is direct conflict with the second named Applicant’s statement in her statutory declaration that she was “evicted from my house by the native Fijian landlord after the expiry of the lease”, bringing her credibility into serious doubt) and, as was stated by their mother under oath, it was not a formal or written lease. The Tribunal also accepts that after their mother came to Australia for the fourth time (on 19 January 2004 when, on this occasion she stayed for some 6 months), members of the Mataqali tribe put pressure on the Applicants for more money (specifically $F7,000) and when the Applicant asked for more time to arrange this, they hit him and demanded that the Applicants take their possessions and leave. The Tribunal also accepts that the Applicants then went and lived with their uncle in [village], which is about 20 minutes from Nadi, until they departed for Australia on 12 November 2004, just a week after their mother had returned to Australia again for the fifth time on 5 November 2004. As there are differing claims about who actually demolished the house, the Tribunal has not been able to make a finding on this matter but accepts that it has been demolished.
As to whether the eviction constituted a past incident of persecution for a Convention reason, the Tribunal made the following findings:
At the hearing, the Tribunal put to the Applicants that independent country information stated that “THE URBAN REAL ESTATE MARKET IN FIJI, CONTINUES TO BE RELATIVELY GOOD FOR THOSE WHO ARE WANTING TO BUY OR RENT. WE DO NOT JUDGE THAT THERE WOULD BE MUCH PROBLEM FOR EITHER ETHNIC GROUP IN FINDING ACCOMMODATION”, and invited them to comment. In response, the Applicants did not disagree with this information but rather the second named Applicant raised a new claim: that she did not feel safe in Fiji as she was physically and sexually abused. In short, while accepting that the Applicants were told to leave their house in a squatter settlement for which they had no formal or written lease or entitlement to remain, the Tribunal is satisfied that the reason for this was not because of their race or for another Convention related reason but rather because they did not pay the Mataqali who owned the land the money they had requested and, during the exchange, accepts that the Applicant was hit. The Applicants do not claim that in the many months they remained in Fiji they were again threatened or assaulted or that members of the Mataqali tribe followed them to their uncle’s house or attacked them there. Nor does the Applicant claim that he was harassed at work or on the way to work, even though he claims they knew he was “an easy target because they know my position – how vulnerable I am having evicted us from our home I have no place to go to”. Nor does he claim that he went into hiding or moved a long way away from his village in Nadi in order to secure his or his sister’s protection, or even that they immediately left Fiji in order to get international protection, even though both Applicants were in possession of valid Fijian passport. It follows that given all the above, and based on the claims made by the Applicants, the Tribunal has not been able to satisfy itself that because they were forced by the legal owners of the land to leave the property where they were squatters, and for which they did not have a written lease or any other legal entitlement to be able to reside there, they have a well‑founded fear of serious harm amounting to persecution for a Convention related reason. Further, in all the circumstances described by the Applicants, the Tribunal also accepts that without a written lease or other legal entitlement to be able to remain, the police or courts were unable to prevent their removal or provide them with other relevant assistance or redress, or that in these circumstances their failure to do so was a breakdown in effective state protection.
Some elements of the Tribunal’s reasons have some obscurity but, in my opinion, a clear finding is made in the above paragraph. It was that the Tribunal was satisfied that there was a non‑Convention reason for the applicant and his family losing their home. This was that they could not pay the rent demanded by the land owners. The Tribunal has also found that apart from that incident, the applicant did not encounter further difficulties in his own life for a Convention reason.
The last sentence in the Tribunal’s reasons clearly intends to make an alternative finding: that the applicant was not denied effective State protection in the incident where he lost his home. I consider that, to properly understand its reasoning in accordance with the direction in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277, the second part of that sentence should be understood to be intended to say: “and finds that in these circumstances their failure to do so was not a breakdown in effective State protection” (emphasis added).
In any event, even if that sentence is intractably obscure, in my opinion the Tribunal’s earlier finding excluding Convention‑related reasons for the applicant’s misfortune in losing his home, sufficiently supports its conclusion that the applicant had not suffered a past act of persecution.
The Tribunal then addressed the situation which would face the applicant generally if he returned to Fiji. It considered his claim that racial tension “is everywhere in Fiji” and his general concern about ethnic discrimination. It referred to country information dating from 2001, after the last coup, which suggested that the Fijian Government was committed to maintaining and protecting the human and equal rights of all Fijian citizens. The Tribunal said:
While recognising that this information is now several years old, the Tribunal accepts that there have been no further coups since the George Speight coup and while there is still some racial tension and acrimony, given all the above the Tribunal does not accept the claims made by the Applicant that there has been or is likely to be a significant upsurge in ethnic conflict or racial tension in Fiji in the foreseeable future.
It made a finding that it was satisfied “that there is not a real chance that they [the applicants] would be subjected to serious harm amounting to persecution for a Convention reason on this basis”.
The Tribunal then considered the claims of the applicant sister in a manner which I need not address.
It then noted its earlier findings referring to the applicant’s position of employment before coming to Australia, and considered his further claim that finding accommodation was not easy. It referred to country information suggesting that employment and accommodation would be available, as would further education. It found:
In short, based on the claims made by the Applicant, its earlier findings, and this independent country information, the Tribunal has not been able to satisfy itself that the essential and significant reason for any difficulties (if any) they may have in finding employment, undertaking further education, or of finding accommodation if they returned to Fiji now or in the reasonable foreseeable future would be Convention related, and the Tribunal does not accept these claims.
Based on all its findings in relation to the applicant’s claim, the Tribunal did not accept that the applicant was a refugee because of his claims, and was not satisfied that there was a real chance that he “would be subjected to serious harm amounting to persecution for a Convention reason if [he] were to return to Fiji, either now or in the foreseeable future, and finds that [he] is not [a] refugee”.
I have considered the Tribunal’s reasoning and procedures, and have not been able to identify any jurisdictional error affecting its decision.
The applicant’s application contained five grounds. These are framed without any specificity or particulars, and allege that the Tribunal’s decision was not made “in good faith according to the rules of natural justice”; that it “used wrong tools of explanation for the definition of refugees”; that it “erred in law and interpreting the meaning of ‘well‑founded fear of persecution’ within the meaning of s91R”; that it “did not review the information the applicant provided in writing”; and that it “erred in law not comparing the evidence the applicant provided with the independent information it had regarding the treatment of Indo Fijians in Fiji”.
I am unable to identify any substance in the allegations of failure of natural justice or error of law, and the applicant has not provided any written or oral submissions to explain these grounds.
In relation to the contention that the Tribunal did not review the information provided by the applicant, and did not compare it with the independent information it referred to, I do not consider that the Tribunal’s reasons show that this happened. To the contrary, the Tribunal made clear references to having received and considered the material referred to by the applicant, both in relation to the applicant’s concerns about racial tension and in relation to problems of finding accommodation.
The applicant’s amended application has three grounds:
1.The Tribunal erred in law relying upon country information that was four years out of date. By relying on such material, the Tribunal failed to properly exercise its jurisdiction.
Particulars:
The country information relied upon by the Tribunal was so out of date that it was not possible for the Tribunal to assess claims against the latest information. It was also not known to the applicants that the Tribunal was using those out dated country information. Thus the applicants were misinformed about the approaches the Tribunal was making in taking an adverse decision.
2.The Tribunal breached s424A of the Migration Act 1958.
Particulars:
The Tribunal failed to invite the applicants to contest with the information that was a reason or a part of the reason to affirm the decision that was under review.
3.The Tribunal breached procedural fairness.
Particulars:
The decision‑making analogy was not according to the rules of procedural fairness. The Tribunal did not interpret the meaning of persecution within the meaning of the UN Refugee Convention, International Human Rights instruments and Australian domestic law.
I do not accept that the Tribunal made any error, whether of factual assessment or of law or of jurisdiction, in its consideration of general country information concerning the situation in Fiji. It expressly assessed the weight to be given to that information by reference to the date of its derivation. I consider it was open to the Tribunal to rely in part on information dating from 2001 concerning the situation after the appointment of the Qarase government.
The complaint that the applicant was not put on notice that the Tribunal would rely on that information does not seem to have support in the Tribunal’s account of the hearing since, indeed, the Tribunal said that it put the information to the applicant. The Tribunal was not obliged to make the information the subject of a s.424A(1) invitation (see s.424A(3)(a) and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572). I am not persuaded that the applicant was “misinformed” about “the approaches the Tribunal was making”.

The third ground in the amended application alleges breach of procedural fairness. I have difficulty understanding the particulars for the third ground, and am unable to identify any breach of procedural fairness affecting the Tribunal’s decision, even if that were a ground which could survive s.424A of the Migration Act.
For the above reasons I am not persuaded that the Tribunal’s decision was affected by jurisdictional error insofar as it addressed the claims of the present applicant to be a refugee. The Tribunal’s decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 November 2006