SZHKU v Minister for Immigration
[2006] FMCA 842
•13 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 842 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizens of Fiji – mother and three children – where a child suffers from chronic post-traumatic stress disorder as a result of an incident that occurred in Fiji – where Tribunal expressed a belief that there may be a basis for further consideration to be given on humanitarian or compassionate grounds – claim of denial of procedural unfairness not made out – no reviewable error – observations on contradictory statements in applicant’s documentation. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 474 |
| Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 applied Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied Craig v South Australia (1995) 184 CLR 163 referred to Minister for Immigration and Multicultural and Indigenous Affairs v Applicant S152 of 2003 (2004) 205 ALR 487; 78 ALJR 678 referred to |
| Applicant: | SZHKU |
| Applicant: | SZHKV |
| Applicant: | SZHKW |
| Applicant: | SZHKX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3086 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 May 2006 |
| Date of Last Submission: | 15 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2006 |
REPRESENTATION
| The Applicants: | Appeared in person |
| Counsel for the Respondents: | Ms Mason |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The Second Applicant is to pay the First Respondent’s costs fixed in the sum of $5,420.00 and I allow eight (8) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3086 of 2005
| SZHKU |
First Applicant
| SZHKV |
Second Applicant
| SZHKW |
Third Applicant
| SZHKX |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 15th September 2005.
The Tribunal handed down its decision on 4th October 2005, affirming the decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the applicants.
Background
The applicants are citizens of Fiji. The second applicant is the mother of the first, third and fourth applicants. The fourth applicant was born in Australia. The first three applicants arrived in Australia on
7th April 2003, along with the first applicant’s father. He applied unsuccessfully for a protection visa.
The first applicant applied for a protection visa, including the second and third applicants, on 12th May 2005. The fourth applicant was born on 15th June, so he was added to the application. A delegate of the Minister refused the application on 5th July 2005, so the applicants sought a review from the Refugee Review Tribunal.
Application to the Refugee Review Tribunal
The Refugee Review Tribunal received the application for review on 26th July 2005. The applicants forwarded a number of documents to the Tribunal, including reports from psychologists certifying that the first applicant suffered from Post-Traumatic Stress Disorder that was related to an incident when the family members were evicted from their home in Fiji. The applicants later forwarded other documents to the Tribunal, including a copy of a medical certificate from a doctor in Fiji, a letter to the Department from the first applicant asking that her father be permitted to remain in Australia, further medical certificates and a copy of a letter from Julia Irwin MP.
The Tribunal wrote to the applicants offering the opportunity to attend a hearing. The applicants accepted that offer and asked if the first applicant’s father could attend as well. They also provided copies of press reports from the “Fiji Times” and a further report from Mirjana Askovic, a psychologist who is a counselor at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARRTTS).
The first applicant attended the hearing, accompanied by her mother, who is the second applicant, and her father. Both the first and second applicants gave evidence and the applicant’s father also made submissions.
The applicants gave evidence about their forcible eviction from their home after the termination of their lease and the first applicant’s fears of native Fijians. The first applicant fears harm from native Fijians; she does not believe that the police will offer any protection to her and her family. She told the Tribunal that the police were “the worst racists”.
The tribunal’s findings and reasons
The Tribunal accepted that the applicants were nationals of Fiji, having sighted their Fijian passports.[1] However, from the independent country information available, including that contained in the delegate’s decision and the cuttings provided by the applicants themselves, the Tribunal was satisfied that the situation in Fiji had returned to “a safe and peaceful society”.[2]
[1] See at page 150 of the Court book.
[2] See at page 151 of the Court Book.
The Tribunal was also satisfied that the first applicant and her parents “would have recourse to other legal and readily available mechanisms if for any reason the police failed to take appropriate action to any complaint they may make”.[3]
[3] Ibid.
Again, the Tribunal noted that, in regard to the applicants’ other claims about racism and political developments in Fiji, the Tribunal accepted independent country information, including information from the Australian High Commission which assessed the risk of significant communal mistreatment of Indo-Fijians as low. The Tribunal went on to find:
The Tribunal has not been able to find any information to indicate that either the current state of ethnic relations has deteriorated since the date of these reports; that there is severe racism in Fiji as claimed by the Applicant[4]; or to support the contention that there is a real chance of the Applicants experiencing serious harm or mistreatment amounting persecution from either state agents or non-state agents if they were to return to Fiji, now or in the foreseeable future. Nor has the Tribunal been able to ascertain from country information that the police and judicial system is anything other than impartial.[5]
[4] Meaning the first applicant in these proceedings
[5] See Court Book at page 152.
The Tribunal accepted that the first applicant suffers from a subjective fear, having been formally assessed as meeting the criteria for
post-traumatic stress disorder (chronic type). Whilst sympathetic to the first applicant’s subjective concerns and her possibly heightened anxiety at not being allowed to remain in Australia, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. Accordingly, the Tribunal affirmed the decision not to grant a protection visa.
I note that the Tribunal did go so far as to express a belief that:
There may be a basis for further consideration to be given to her (and therefore her family) remaining in Australia on humanitarian or compassionate grounds because of this.[6]
[6] See at page 157 of the Court Book.
I take this to be a reference to the possibility of an application to the Minister under s.417 of the Migration Act.
The application for judicial review
The applicants filed an application under s.39B of the Judiciary Act on 24th October 2005 seeking, presumably, orders in the nature of certiorari and mandamus. They set out 6 grounds (which I will summarize):
i)The Tribunal’s decision is totally contradictory of Professor Hathaway’s quote that the criterion to establish persecution is harassment, harassment that is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from government by oppression.
ii)The applicants refer to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 559 citing the majority decision at 570:
Discrimination which involves interrogation, detention or exile to place remote from one’s place of residence under penalty of imprisonment for escape or for return to one’s place residence amounts to prima facie persecution unless the actions are so explained that they bear another character.
iii)The Tribunal disregarded the circumstances under which the applicants returned and departed their country for fear of the consequences of disorder.
iv)The Tribunal should have regard to:
b)unjustifiable and discriminatory conduct directed to the applicants;
c)an interference with the basic human rights;
d)dignity of the applicants in the community or group; and
e)it is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return, to that country of origin.[7]
i)The applicants are aggrieved by the decision of the Tribunal because they honestly believe and are disappointed with the decision as the psychological factor and fear has affected them and returning to Fiji may have an adverse effect or psychological nervous breakdown damaging the health and shock and[8] heart.
ii)The applicants are at risk of harm and therefore the Federal Magistrates Court having the power to quash the order from the Tribunal should justify the applicants’ persecution measures by examining each and every detail in the conduct of this file.
[7] Sic.
[8] Sic
The grounds also contain another paragraph, also numbered 5, which appears to relate to another applicant’s case. It refers to matters relating to the Ukrainian government, which has no relevance to this matter.
Counsel for the Respondent Minister, in her written submission, submits that the matters set out in paragraphs 1 to 9 of the application, which begin on page 1 with the words “The applicant claims:” are in fact the grounds relied on, rather than the 6 paragraphs under the heading “THE GROUNDS OF THE APPLICATION ARE:”. Counsel for the Respondent submits, correctly in my view, that the 6 purported grounds there are either entirely merits based or are not able to be comprehended as grounds.
The applicants filed an affidavit on 1st May 2006, consisting of some 58 pages, in which some further grounds are set out, on pages
10 through to 13. These grounds are not numbered. Pages 14 through to 58 consist of annexures to the affidavit, including some press cuttings, some country information downloaded from the Internet, and the entire text of Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
The grounds in the affidavit are these:
a)A breach of the rules of natural justice occurred in connection with the making of the decision.
b)The decision on the application of wrong principles of law to the facts (including a wrongful admission of rejection of[9] evidence which amounts to an error of law.
c)The Tribunal has failed to take material considerations into account and has not given enough weight to the medical report about the first applicant.
d)The Tribunal denied the applicants procedural fairness by:
i)making an adverse finding in relation to the applicants’ demeanour at a Tribunal “conducted around where opportunity was given to her by making the hearing short”; and
ii)cutting short the hearing and giving no opportunity for the child to express her concerns.
[9] sic.
On page 13 of the affidavit the applicants set out various orders sought, including orders in the nature of certiorari, prohibition and mandamus. The applicants set out four other matters, with which I shall deal immediately.
First, the applicants state:
The Tribunal exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal’s reasons to displace that likelihood, then a case of procedural unfairness arises.
The applicants did not explain what this means. If it is an allegation that the Tribunal unduly prolonged the hearing or delayed unnecessarily in delivering a decision, then there is no substance to that complaint at all. The Tribunal received the application for review on 26th July 2005. It held a hearing on 7th September 2005. The RRT Hearing Record (a copy of which appears at page 137 of the Court Book) shows that the hearing commenced at 12.15 p.m. and concluded at 12.34 p.m. The hearing was conducted without an interpreter because the applicants had indicated in the Response to Hearing Invitation that they did not need one.[10]
[10] A copy of this document appears at page 125 of the Court Book.
The Tribunal made its decision on 15th September and handed the decision down on 4th October 2005. There is no evidence that the Tribunal delayed or unduly prolonged the decision-making process. The reverse is true, if anything, as the entire process took less than three months.
The applicants then asked the court:
To waive all costs in relation to this application irrespective of whether the decision is in favour or not. Would the Tribunal expect the Child to bear the cost by law?
Counsel for the Respondent Minister pointed out that the second applicant, the first applicant’s mother, is an adult, and the Minister would only be seeking costs against the second applicant.
The applicants also stated that:
There is substantial evidence and Tribunal has forgotten much of the evidence, particularly the procedural fairness and has not fairly assessed the case.
The applicants have not shown that the Tribunal has forgotten any evidence, which would seem to be unlikely in any event, as the decision was made only 8 days after the hearing.
Finally, the applicants ask:
Work right to the family members for meeting the basic necessities as per Constitutional law and to meet (the first applicant’s)[11] medical treatment.
[11] The name of the first applicant will not be published in compliance with s. 91X of the Migration Act.
The applicants did not explain the meaning of the first part of this ground, if it is a ground, and the Court has no power to make any order that the Minister should meet the first applicant’s medical expenses in these circumstances.
Conclusions
I will deal first of all with the grounds set out in the application filed 24th October 2005 under the heading “THE GROUNDS OF THE APPLICATION ARE:”.
Ground 1, alleging that the Tribunal’s decision was totally contradictory to Hathaway’s definition, is no more than a claim for merits review, which is impermissible in judicial review.
Ground 2 merely quotes from the High Court’s decision in Guo (supra) and is not a ground of review.
Ground 3, claiming that the Tribunal disregarded the circumstances under which the applicants left Fiji is no more than a claim for merits review.
Similarly, Ground 4, setting out the matters to which the Tribunal should have had regard, is no more than a claim for merits review.
Ground 5, claiming that the applicants were disappointed by the decision of the Tribunal, is a challenge to the Tribunal’s factual findings and constitutes a claim for impermissible merits review.
The second “Ground 5” appears to belong to another document, as the applicants have not claimed that they fear persecution in the Ukraine.
If the balance of the purported ground is to be relied upon, it seems to be no more than philosophical musings upon the meaning of harm.
Ground 6, asking the court to examine each and every detail of the applicants’ file, misconceives the nature of judicial review.
Turning to the 9 paragraphs under the heading “The applicant claims”, which counsel for the Respondent submits are the real grounds, Ground 1 is no more than a statement about the date that the applicants were notified of the Tribunal decision.
Ground 2, which claims that the Tribunal did not take into account three psychologists’ reports about the first applicant, is clearly not made out. The Tribunal explicitly referred to having received those reports at page 146 of the Court Book and stated at page 155 of the Court Book that the psychological assessments were accepted by the Tribunal. I note, too, that on page 13 of the Court Book, the applicants state that the Tribunal did (my emphasis) accept those assessments:
These assessments on page 155 of the Green Book, Tribunal have accepted the assessments, even now some 5 years after the forced eviction from their home and threats to her father, the applicant still suffers nightmares, bed wetting, and sleepwalking, and receives ongoing counselling once a month as she claimed at the hearing. The reports are readily available.
The Tribunal on (Page 156 Court Book) accepts that the Applicant had a very bad reaction in July 2001 when she sighted some people she took to be native Fijians and this “triggered intense fear reactions”. (Mirjana Askovic report from STARRTTS dated 10 March 2002.
On page 157 of the Green Book, the Tribunal accepts that as a result of what she witnessed in April 2000 when her family were forcibly evicted from their home that the Applicant was traumatised and as a result in July 2001 she was formally assessed as meeting the criteria of post-trauma stress disorder (chronic type) and further accepts that, on this basis, the applicant has a subjective fear.
The statements from the submission quoted above completely contradict the ground in the applicants’ original application.
Ground 3, claiming that the Tribunal failed to take into account a copy of a medical report from the Fiji Ministry of Health, is not made out, either. It is clear from reading page 157 of the Court Book that the Tribunal not only took the report into account, but accepted it, which “was put to them at the hearing” (my emphasis). I note, too, that on page 13 of the submission filed on 1st May 2006 the applicants claim that the Tribunal did (my emphasis) take the report into account:
The Tribunal accepts from the copy of the letter from
Dr S Korovou dated 23 April 2001 that the Applicants did in fact go to Sigatoka Hospital ‘after experiencing the ORDEAL of eviction on 18th April 2001 and were treated for depression and given counseling and advice there.
Similarly, the statement quoted above totally contradicts the claim in Ground 3 of the original application.
Ground 4 alleges that the Tribunal failed to take relevant information into account, which is not particularized, and quotes from a decision of Gummow and McHugh JJ, to no apparent purpose. Whatever the ground is intended to be, it is not made out.
Ground 5 claims that the Tribunal did not take into account “the psychological factor that affected the child” and claims that the applicants should have been medically examined. The Tribunal accepted the psychological reports about the first applicant.
This ground must fail. The Tribunal, on the Applicants’ own submissions, did take the child’s psychological situation into account.
Ground 6 takes issue with the fact that the Tribunal asked the first applicant about whether she could live in another part of Fiji if she did not want to return to Sigatoka. The Respondent submits, correctly in my view, that this is an attempt to challenge the merits of the Tribunal decision. It is no part of the function of the court to undertake a merits review when dealing with an application for relief under s.39B of the Judiciary Act (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10], Chan (supra) at 420 per Mason CJ; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-420.
Ground 7 refers to the “stress and pressure and the regular treatment from doctors and counselling” and is clearly a claim for merits review. No jurisdictional error is established.
Ground 8 of these grounds claims an error by the Tribunal in giving credence to the public commitment of the Qarase caretaker government to maintaining and protecting human rights for all citizens of Fiji.
The applicant seeks to cavil with that factual finding, but this amounts to no more than impermissible merits review.
Ground 9 claims that the applicants were financially sound and there was no reason to leave the country but for the fear of persecution. Again, this is a matter of fact, and amounts to a request for merits review.
The applicants’ affidavit, which is in reality a written submission with yet another set of grounds for relief included, annexes a copy of Chan and some country information. The court cannot consider fresh country information, as this not a hearing de novo.
Counsel for the Respondent addressed the grounds in this document in her oral submission. The first applicant’s father, her litigation guardian, was not able to give any clarification of the grounds in this document.
The grounds are set out under the heading “GROUNDS” on pages 10 to 13 of the affidavit. They are not numbered.
The first two paragraphs refer to the definition of jurisdictional error as it appears in Craig v South Australia (1995) 184 CLR 163.
The first ground alleged is a breach of the rules of natural justice.
There is no evidence of any such breach. The applicants attended a hearing and two of them gave evidence. The first applicant’s father was permitted to make submissions on her behalf.
The second ground alleges the application of wrong principles of law, including wrongful admission or rejection of evidence. There are no particulars given, nor is there any evidence of these things.
The third ground alleges a number of errors:
·Acting on incorrect facts;
·Allowing extraneous or irrelevant matters to guide or affect (presumably the decision);
·Failing to take a material consideration into account; and
·not giving enough weight to the medical reports about the first applicant.
There is no evidence of the first three alleged errors, and the fourth matter is purely a challenge to the Tribunal’s factual findings.
On page 11 the applicants complain that the Tribunal member told the first applicant he intended to keep the hearing short because he was aware of the child’s psychological difficulties. It appears to me that this step by the Tribunal member was one that gave appropriate consideration to the first applicant’s state and does not deserve criticism. A lengthy hearing could well have been oppressive for a child, especially a child who had been assessed as having
post-traumatic stress disorder.
As to the claims that the Tribunal in keeping the hearing short denied the applicants procedural fairness by:
a)making an adverse finding about the applicants’ demeanour; and
b)cutting short the hearing and giving no opportunity to the child to express her concerns,
I will address each of those matters in turn.
The Tribunal made no adverse finding about the demeanour of any of the applicants. There is nothing of that nature in the Tribunal’s findings and reasons. As far as the first applicant is concerned, the Tribunal had this to say;
The Applicant is clearly a bright young lady who was clearly anxious and uncomfortable at the hearing, and the Tribunal is most sensitive to her condition and condition and emotional state…[12]
[12] See at Court Book page 156. See also page 150 of the Court Book.
The Tribunal went to cover in some detail the medical and psychological evidence tendered on behalf of the first applicant.
The Tribunal made it clear that the Tribunal accepted all of this evidence. There is nothing critical about the demeanour of any of the applicants in the Tribunal decision.
As to the claim that the Tribunal did not give the first applicant the opportunity to express her concerns, any reading of page 156 of the Court Book would make it clear that the Tribunal did give the first applicant ample opportunity to express her concerns, because they are discussed in some detail. If the first applicant, or rather her father, wished to put a contrary view, he should have submitted a copy of the transcript of the hearing.
I reject the applicants’ claim that the Tribunal denied the applicants procedural fairness.
The applicants also claim on page 12 of the submission or affidavit filed on 1st May that “The Tribunal also had regard to what the High Court said in Minister for Immigration and Multicultural and Indigenous Affairs v Respondents (sic) S152/2003 (2004) 205 ALR 487 about the requisite level of state protection from private harm in the context of the Convention definition of ‘refugee’”. The Tribunal did so, but that is not a ground of review.
It is clear that there are no jurisdictional errors shown in the Tribunal decision, which is a privative clause decision as set out in s.474 of the Migration Act and is therefore not subject to prohibition, mandamus, injunction, declaration or certiorari in this court (s. 474(1)(c)).
It appears that someone has assisted the applicants in the preparation of the application and their submissions or affidavit. That person does not appear to be a lawyer. The documentation is prolix and riddled with irrelevancies and seems to have been prepared on the principle that if one throws enough law at the court, some of it will stick. This is an erroneous assumption.
What is more regrettable is that a number of the applicants’ grounds are contradictory to each other, and, as I have pointed out earlier, either attribute findings to the Tribunal which it did not make or claim that the Tribunal disregarded matters which it clearly considered in some detail, and which the applicants concede in other parts of their own documentation.
Applicants do not assist their cause when they rely on material which has been prepared with an obvious disregard for the truth.
The application will be dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 13 June 2006
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