SZGIV v Minister for Immigration & Anor
[2007] FMCA 16
•24 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 16 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 477 |
| Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225 WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 190 |
| Applicant: | SZGIV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1304 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 November 2006 |
| Date of Last Submission: | 3 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1304 of 2005
| SZGIV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 20 May 2005 the applicant seeks judicial review of the decision of the Refugee Review Tribunal (“Tribunal”) dated
26 June 2003 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“the Minister”) dated 18 June 2002 refusing the applicant’s application for a protection visa.
Section 91X of the Migration Act 1958 (Cth) provides that the Court must not publish the applicant’s name.
Background facts
The applicant arrived in Australia on 12 April 2002.
The Tribunal described the applicant as follows:
The applicant claims to be a single Hindu Indo-Fijian. He was
a member of the Fiji Labour Party. He stated that he fears persecution from the military and police if he returns to Fiji as the socio/political situation since the coup is still unstable and there is violence around Fiji. He claimed that there is no solidarity within the security forces, that the Fijian government has failed the test of democracy and that his land lease has expired and he must re-apply. If unsuccessful, he will have to vacate. He stated in his visa application that he has not been convicted of any crime or offence in Fiji (Relevant Documents (“RD”) bundle page 72).
The applicant’s claims are set out on page 5 of the Tribunal’s decision (RD 72):
The applicant has made the following claims:
· He fears persecution from the police and military because he is a Fijian Indian and a member of the Fijian Labour Party;
· Fiji remains unstable, there is communal violence and the Government is undemocratic because the FLP is not in the cabinet;
· He must re-apply for his land lease because it has expired. He will have to re-apply and if unsuccessful will have to vacate.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)The Tribunal was not satisfied that the applicant had established grounds for serious harm amounting to persecution under the Convention. After considering the country information before it the Tribunal concluded that constitutional and administrative arrangements were in place in Fiji to provide redress for Fijian citizens who claim to have had difficulties with the security forces. The Tribunal said it could not be satisfied that the applicant faced a real chance of harm amounting to persecution from the police or military, by reason of his ethnicity or political beliefs, and did not accept that the applicant had a well-founded fear of persecution on that basis.
b)The Tribunal did not accept the applicant’s claim that the Fijian government was undemocratic and did not accept that there was continuing serious violence against ethnic Indians on an organised scale. While acknowledging that there were continuing inter-communal difficulties in Fiji and sporadic incidents of violence against individuals the Tribunal noted that the outcome of the previous general election was accepted by international monitors as being substantially free and fair:
The Tribunal, is satisfied that although serious issues remain to be addressed such as the land question, Fiji does have a democratic government and Indo-Fijians are well represented in the Parliament principally by parliamentarians from the Fijian Labour Party. There is no country information available to the Tribunal which would suggest that members of the Fijian Labour Party, whether they are Members of Parliament or ordinary rank and file supporters, are being discriminated against or their political freedoms curtailed. (RD 75)
c)The Tribunal expressed itself to be aware that Indo-Fijians have claimed discrimination in relation to access to land and quoted country information dealing with expiry of leases held by Indo-Fijians from indigenous land owners and discussed issues facing displaced farmers in Fiji. The Tribunal said:
In view of the initiatives of the Fijian Government to address the land issue, the Tribunal has considered whether the applicant’s failure to have his land lease renewed by ethnic Fijian land owners constitutes ‘prime facie’ discrimination. Although it has determined that it does, nevertheless, the Tribunal does not believe that this discrimination constitutes persecution in the context of the Convention. The Tribunal does not have sufficient information regarding the applicant’s family circumstances, employment history etc to make a contrary finding. In view of the assistance given by the Government to Indo-Fijians evicted from land, the Tribunal is not satisfied that the applicant will face treatment serious enough to amount to persecution if his lease is not renewed. (RD 77)
Proceedings in this Court
The applicant’s claims set out in his application in these proceedings can be summarised as follows:
a)The Tribunal contradicted itself by saying in one part of its reasons that state protection is available to Indo-Fijians whereas in another part it stated that some police participated in violence.
b)
The Tribunal misrepresented an Amnesty International 2002 report as presenting Fiji as stable whereas the report presented
“a negative picture of the situation in Fiji”.
The first respondent has also filed a notice of objection to competency on the basis that the Tribunal’s decision is a privative clause decision and the application to this Court was not lodged within 28 days of the applicant being notified of the decision of the Tribunal, contrary to s.477(1A) of the Migration Act 1958 (Cth) as it stood at the relevant time.
Dealing with these issues in turn:
The Tribunal made contradictory findings
The applicant says that the Tribunal found:
a)that state protection is available to Indo-Fijians; but
b)some police participated in violence against Indo-Fijians
and that these two findings were contradictory.
However, these claims do not accurately represent the Tribunal’s findings. Quoting country information, the Tribunal recorded continuing instances of minor harassment, mainly in the form of low-level theft.
However, there was no finding that the Fijian police participated in violence against Indo-Fijians. Rather, the Tribunal noted steps to secure law and order.
The relevant finding of the Tribunal and the facts on which it is based are found at page 8 of its decision (RD 75) where it is stated:
The Tribunal cannot be satisfied that the applicant faces a real chance of harm amounting to persecution from the police or military, for reasons of his ethnicity or political beliefs, and does not accept that the applicant has a “well founded” fear of persecution on that basis. While the Tribunal acknowledges that there are continuing inter-communal difficulties in Fiji and sporadic incidents of violence against individuals do occur, it does not accept, on the basis of the above country information, that there is continuing serious violence against ethnic Indians on an organised scale in Fiji, or that the Fijian Government is undemocratic.
The finding was based on country information set out in the Tribunal’s decision which indicates that the military and police in Fiji worked together to safeguard public security and had worked well at restoring confidence in public safety. Moreover, the country information cited by the Tribunal records that if an Indo-Fijian citizen had a complaint against a police officer the citizen could take up the matter with the Department of Internal Affairs in the Fiji police force which would investigate the complaint. That report also noted that alternative avenues of complaint existed with the Fiji Human Rights Commission or the Ombudsman’s office. The Tribunal’s finding that:
Constitutional arrangements and administrative processes are in place to provide redress for Fijian citizens who claim to have had difficulties with the security forces… (RD 74)
was open to it on the evidence contained in the country information quoted at RD 74.
It is possible that the applicant seeks to ventilate issues of land tenure which were raised before the Tribunal. However, the Tribunal noted country information which discussed this issue, including the Fiji Government’s actions to assist displaced tenants. The Tribunal concluded that although the failure of the applicant to have his lease renewed by ethnic Fijian landowners constituted “prima facie” discrimination, it did not amount to Convention-based persecution. (RD 75.1)
The applicant must show that he has a “well-founded fear of being persecuted” which must be persecution by the country of his nationality or persecution which that country is unable or unwilling to prevent (Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225 per Brennan CJ at 233). As the Chief Justice said in Applicant A’s case:
Thus the definition of “refugee” must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality. (at 233)
Or as McHugh J said at 257-258:
The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge to those groups who, having lost the de jure or de facto protection of the government, are unwilling to return to the countries of their nationality.
This ground of review seeks to challenge the Tribunal’s conclusions that it was not satisfied that there was a real chance that the applicant would face persecution upon his return to Fiji and that it was not satisfied that his fear of persecution was well-founded. However, even if the Tribunal had made a finding of police participation in violence, which it did not, unless this amounted to a failure by the state, or an unwillingness of the state, to protect its citizens then the conduct in question would not amount to persecution in the Convention sense. Therefore, not only do the terms of the Tribunal’s decision not disclose or contain the findings particularised in respect of this claimed ground of review, even if they did, the fact of police participation in violence would not, without more, support a conclusion that the Tribunal’s findings were self-contradictory on the question of whether the applicant’s fear of persecution was well-founded.
I am of the view that no self-contradictory findings were made by the Tribunal and that the conclusions which it reached, quoted above, were open to it on the evidence.
Misrepresentation of Amnesty International report as presenting Fiji as stable
This ground is misconceived because no Amnesty International report was relied on by the Tribunal. As to this ground asserting the misrepresentation of information regarding the situation in Fiji I adopt the following passage from the Minister’s submissions:
The applicant asserts in this ground that the Tribunal misrepresented the effect of the Amnesty International 2002 report to present a picture of stability in Fiji. However, the Tribunal did not refer to, or otherwise rely upon, any report from Amnesty International in respect of the situation in Fiji pertaining in 2002. No such report is before the Court. Further, the Tribunal did not make any specific finding about stability. It acknowledged that there continued to be inter-communal difficulties in Fiji and sporadic incidents of violence against individuals: CB75.2. However, in contrast, it noted that the evidence suggested that there was no continuing serious violence against ethnic Indians on an organised scale in Fiji: CB75.3. This finding had support in the country information cited by the Tribunal at CB74.5.
Proceedings commenced late
The Tribunal’s decision is dated 26 June 2003 and according to RD 65, the Tribunal sent the decision to the applicant by registered post under cover of a letter dated 29 July 2003. In his affidavit sworn 2 August 2005, the applicant deposes to having received the Tribunal’s decision “around 29th June 2004”.
At the time these proceedings were commenced on 20 May 2005, s.477 of the Act provided:
(1A)An application to the Federal Magistrates Court under section 483A for:
(a) a writ of mandamus, prohibition or certiorari; or
(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.
(2)The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the time specified in the subsection.
In the circumstances, the proceedings were commenced out of time because they were commenced more than 28 days after the applicant was notified of the Tribunal’s decision: WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 210 ALR 190.
In his affidavit sworn 2 August 2005 the applicant says that he was afraid of going through the court process and reluctant to burden his relatives with the costs of court proceedings so he wrote to the Minister requesting her to exercise her power to substitute a more favourable decision for the Tribunal one. The applicant says that he wrote to the Minister in August 2004 and in September 2004 he received a letter from the Minister’s office refusing the request.
Section 477(1A), as it stood at the time these proceedings were commenced, does not give this Court any power to extend the time for filing the application – see s.477(2) and the discussion of an earlier version of a similar provision in WACB.
But in any event, even were the Court to have power to extend the time for filing, the applicant has to demonstrate a case for extending a time limit. In this case the applicant has explained that he applied to the Minister and did not receive her reply until September 2004, although a copy of the correspondence between him and the Minister is not annexed to his affidavit to verify these dates. Nevertheless, the delay between September 2004 and the filing of the application in these proceedings on 20 May 2005 is not explained.
Consequently, even if the Court had power to extend the time for the filing of the application, the applicant has not advanced an adequate explanation, or really any explanation at all, for the delay until May 2005 in the filing of the application or made out a case why the time for filing ought to be extended.
Conclusion
For the above reasons, the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
Further, the application was brought out of time.
For these reasons, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 24 January 2007
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