SZHLD v Minister for Immigration
[2006] FMCA 1253
•21 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1253 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – citizens of Fiji of Indian ethnicity claiming fear of persecution – humanitarian considerations referred to by Tribunal – where three applicants are minors – no reviewable error. PRACTICE & PROCEDURE – PARTIES – Individual Member constituting Refugee Review Tribunal should not be joined as a respondent in an application for prerogative relief. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.417, 474 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Re Ruddock: Ex parte Reyes (2000) 75 ALJR 465 followed Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Applicant A & Anor v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Randhawa v Minister for Immigration (1994) 52 FCR 437 SZDAD v Minister for Immigration and Another [2006] FMCA 1091 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 |
| First Applicant: | SZHLD |
| Second Applicant: | SZHLE |
| Third Applicant: | SZHLF |
| Fourth Applicant: | SZHLG |
| Fifth Applicant: | SZHLH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3094 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 August 2006 |
| Date of last submission: | 18 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Counsel for the Respondent: | Mrs Sirtes |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
Ms Louise Nicholls is removed as Respondent to the application.
The title of the Second Respondent is changed to Refugee Review Tribunal.
That the requirement for a litigation guardian for the Third, Fourth and Fifth Applicants is dispensed with.
The Application is dismissed.
The First and Second Applicants only are to pay the First Respondent’s costs fixed in the sum of $5,000.00.
I allow nine (9) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3094 of 2005
| SZHLD |
First Applicant
| SZHLE |
Second Applicant
| SZHLF |
Third Applicant
| SZHLG |
Fourth Applicant
| SZHLH |
Fifth 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 decision was made on 1st September 2005 after a hearing that took place on 4th March and 6th April 2005. The Refugee Review Tribunal handed down its decision on 27th September 2005.
The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant protection visas to the Applicants.
Background
The Applicants are a husband and wife and their three children. All the children are under the age of 18 years. They are citizens of Fiji of Indican ethnicity. The First Applicant arrived in Australia on 21st March 1998 and the other four Applicants all arrived on 12th April 1998. They did not apply for protection visas until 13th June 2002. Their applications were refused on 24th June of that year.
The Applicants sought a review of that decision and the Refugee Review Tribunal differently constituted affirmed the delegate’s decision on 4th June 2003. The Applicants sought judicial review of that decision. On 16th August 2004 orders were made by consent in the Federal Magistrates Court for writs of certiorari and mandamus to issue and the applications for visas were remitted to the Tribunal for redetermination. (see SZDMQ & Ors v Minister for Immigration & Multicultural & Indigenous Affairs, SZ 1330 of 2004)
The Tribunal invited the Applicants to attend a hearing scheduled for 6th December 2004. That hearing was postponed because the First Applicant, the husband, had suffered injuries in a motor vehicle accident. A new hearing was listed for 4th March 2005. The Applicant’s advisor forwarded medical certificates and a written submission to the Tribunal. The First and Second Applicants attended the hearing on 4th March 2005 where the First Applicant gave evidence about his fear that he would be harmed by indigenous Fijians as he had been in the past.
He claimed that circumstances were still difficult for Fijians of Indian ethnicity and that they were treated very badly. They were abused and told to return to India. They were told that Fiji was for indigenous Fijians and not for them. He feared that the people who had previously abused him would know that he had come back.
The Tribunal adjourned the proceedings until 6th April 2005 so that the Applicants could give further evidence. Both the First and Second Applicants gave evidence on that occasion. The First Applicant described how he had been beaten and robbed by indigenous Fijians whilst he had been working as a taxi driver. The assailants took his clothes and his taxi.
The Second Applicant gave evidence of her experiences in Fiji which the Tribunal described as generally consistent with the evidence of her husband. She described other incidents including one that would be described in Australia as a home invasion where the Applicants were threatened with a knife, robbed and the Second Applicant was threatened with rape. The Second Applicant also gave evidence that she feared that her daughter, now an adolescent girl, might be mistreated and even sexually assaulted.
The Applicants’ agent sought further time to make submissions after the hearing and these submissions were received by the Tribunal on 9th May 2005. The Tribunal considered that material and also considered country information provided by the Department of Foreign Affairs, amongst others, and covered a variety of issues including the widespread problem of violence and sexual assault against women.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons, which are relatively lengthy, are set out on pp.313 to 323 of the Court Book. The Tribunal accepted that the First Applicant is of Indo-Fijian ethnicity, is a Hindu and was a member of the Fiji Labor Party. The Tribunal accepted that the Second Applicant was also of Indo-Fijian ethnicity. The Tribunal found that all the Applicants are citizens of Fiji.
It is clear that the Tribunal accepted that the Applicant husband and wife hold strong and understandable subjective fears of persecution by members of the indigenous Fijian community should they return to Fiji. References to these fears appear at pp.315, 317 and 323 of the Court Book. The Tribunal went so far as to set out in some detail the humanitarian grounds for the grant of a visa. Those grounds appear on pp.322 and 323 of the Court Book.
The Tribunal took into account that the Applicants appeared not to have been well served by their original adviser and noted that their subsequent adviser who attended the hearing prepared the Applicants’ case in what the Tribunal described as “an enthusiastic and competent manner”. The Tribunal also spoke highly of the honest and straightforward way in which the Applicants gave evidence and presented their case generally. The Tribunal accepted the Applicants’ evidence about a variety of assaults and attacks that they had suffered at the hands of indigenous Fijians. Those instances are set out on pp.315 to 318 of the Court Book.
Factual matters that the Tribunal accepted include:
i)that the Applicant husband suffered harm at the hands of Fijian Army personnel and police during the 1987 coup. In 1988 the Applicant husband suffered harm at the hands of police in the period of instability following the coup;
ii)that following the 1987 coup there was an increased atmosphere of racial tension which resulted in some animosity between some members of the indigenous population of Fiji and members of the Indo-Fijian population;
iii)that the Applicant husband and wife were attacked and threatened in 1989 by a group of indigenous Fijians;
iv)that from time to time the Applicants’ home was stoned and that members of the local indigenous community asked for money and food;
v)that the Applicant husband was assaulted in 1992 by some indigenous Fijians because he was known to be involved in the Fijian Labor Party movement;
vi)that in 1997 a group of indigenous Fijians came to the home of the Applicants and threatened the Applicant wife and stole household items and food;
vii)that the local Fijian land owning unit increased the Applicants’ rental payments by 100 per cent in May 1997 and that one of the village elders assaulted the Applicant husband when he complained about the increase;
viii)that on Christmas Eve 1997, the Applicant husband and wife were attacked and threatened by four indigenous Fijians and that the attackers stole money and alcohol before they left the home when they heard the arrival of family, friends and relatives.
ix)The Tribunal also accepted that threats of sexual violence were made against the wife during this attack. The Tribunal further accepted that the applicant husband complained to the local police and that the local police did not take any serious notice of the complaint.
x)that another attack took place before New Year’s Eve 1997 and that eight indigenous Fijians attacked and killed livestock owned by the Applicant husband and wife and that when the Applicant husband and wife told the attackers to leave the property they were threatened with violence;
xi)that the Applicant husband was attacked by four indigenous Fijians whilst he was driving his taxi in early 1998 and that he was robbed of his taxi, clothes, watch and wallet;
xii)that following the attack in 1998 the Applicant husband and wife decided to leave Fiji;
xiii)that both the Applicant husband and wife have a genuine subjective fear of further harm from members of the indigenous community if they return to Fiji and that they have a strong and particular fear that the Applicant wife and daughter will be the victims of sexual violence if they return;
xiv)that the mistreatment suffered by the Applicant husband and wife involved serious harm. The Tribunal went on to say, however, that the Tribunal had some doubts as to whether the harm suffered was as a result of systematic and discriminatory conduct.
The Tribunal considered the country information to which I have previously referred and found that the police had taken a strong stand on police corruption and the government of Fiji has taken significant steps to improve the capacity of the Fijian police force to respond to all forms of criminal activity. The Tribunal found that the judicial system in Fiji was fair and independent.
The Tribunal considered the Applicants’ fear of sexual violence towards the Applicant wife and their daughter. The Tribunal said at pp.321 of the Court Book:
The Applicants have made claims with respect to the fear of sexual violence which may be suffered by the Applicant wife or her daughters. I have considered this claim in relation to both their ethnicity and their membership of a particular social group, that is, Indo-Fijian women or women generally.
The Tribunal went on to say at p.321:
Taking into account the country information I accept that the government authorities are committed to protecting all Fijian women from crimes of sexual violence and I accept that reasonable state protection will be available to the Applicant wife and her daughters on a non discriminatory basis if they return to Fiji.
The Tribunal considered the Applicants’ claim that the discrimination against Indo-Fijians in Fiji amounted to persecution at p.321 of the Court Book. The Tribunal also considered the Applicants’ claims about the First Applicant husband’s involvement in the Fiji Labor Party and about their fear of persecution on the basis of their religion but was not satisfied that the claims amounted to persecution for any Convention reason.
The final decision was that the Tribunal was not satisfied that the Applicant husband and wife were persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal affirmed the delegate’s decision not to grant protection visas.
The Tribunal did, as I indicated earlier, set out in some detail the humanitarian claims relating to the applicants and pointed out at p.322 of the Court Book that the Tribunal’s role is limited to determining whether the Applicant satisfies the criteria for the grant of a protection visa. The Tribunal went on to say that a consideration of the family circumstances and other grounds is a matter solely within the Minister’s discretion. But bearing this in mind, the Tribunal noted that there were several matters which could raise humanitarian concerns. The Tribunal set those matters out on p.323 and went on to say:
I consider that the husband and wife gave truthful and straightforward evidence in the hearings before me. They conveyed their anxieties and fears about return to Fiji, particularly their concerns for their children and whilst I consider that some of their fears are based on speculation they have lived through many stressful and traumatic experiences and such speculation can be expected on the basis of past experience. I do not accept that the government of Fiji will fail to protect them to a level expected by international standards. However, I consider that the applicants perceive that they will not be protected and will suffer extremely anxiety as a result of that perception. I consider that the family circumstances should be given serious consideration on a humanitarian basis.
Thus it was that the Tribunal whilst not being satisfied that the Applicants came within the category of persons to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion in sub-section 36(2)(a) of the Migration Act for a protection visa, the Tribunal did accept that the Applicants were truthful people with strong humanitarian claims which at the conclusion of any Court proceedings could well be considered on a discretionary basis by the Minister exercising her power under s.417 of the Migration Act. The Tribunal made it clear that was a matter for the Minister and not for the Tribunal, just as it is a matter for the Minister and not a matter for this Court.
Application for Judicial Review
The Applicants filed an amended application and an affidavit on 3rd March 2006. They later briefed counsel to appear for them and Mr Kumar of counsel took the brief at relatively short notice, which is of course very much to his credit. Counsel for the Applicants considered the Applicants’ claims and prepared an outline of submissions which to some extent departed from the material prepared by the First Applicant in the amended application filed on 3rd March. Counsel for the First Respondent, Mrs Sirtes, drafted an outline of submissions in response to the Applicants’ outline of submissions and it was noted at the commencement of the hearing that what was contained in the outline of submissions represented the Applicants’ case. In my view, that was an appropriate matter to put before the Court and I have approached the matter on that basis.
I have previously told the parties that I would be making some administrative orders to change the title of the First Respondent to the Minister for Immigration & Multicultural Affairs. I also indicated that following the decision in Re Ruddock; Ex parte Reyes (2000) 75 ALJR 464 that it was inappropriate for the name of a Tribunal Member to be included as a Respondent and that I would make orders removing the name of the Tribunal Member as a Respondent and directing that the title of the Second Respondent was changed to Refugee Review Tribunal.
I noted also that the First and Second Applicants’ three children were still minors, and this was confirmed for me by counsel. Noting that the children had no separate claims and had neither taken any separate part in the proceedings before the Tribunal or were intending to take a separate part in the proceedings before me, I took the decision to dispense with the requirement for a litigation guardian in respect of the Third, Fourth and Fifth Applicants.
Turning now to the Applicants’ submissions, which have been prepared in some quite helpful detail, I note that the issues that are raised in the submissions can be described under four headings: (1) Effective State Protection, (2) Social Class and Failure to Take into Account Relevant Considerations, (3) Relocation, and (4) Unreasonableness.
The submissions in respect of the Tribunal’s determination that there is effective state protection for the Applicants if they were to be returned to Fiji make it clear that the basis upon which the Tribunal made that finding is erroneous as the Applicants’ particular social class had not been considered. The Tribunal, it is submitted, simply considered the Applicants as Indo-Fijians returning to Fiji. The submission goes that where a particular group is identified the risk of persecution ought to be assessed as against that group, and it is submitted that the Tribunal has not done so. The Applicants submit that the Tribunal considered their claims as members of the Indo-Fijian community in Fiji at large and not the Applicants’ particular social group within the context of the Applicants’ submissions. The submission is that the finding of state protection may be illusory if the Tribunal has not properly considered the Applicants’ particular position.
The Applicants submit that they constitute a particular social group against which the finding of protection ought to have been found. I am referred to the decision of Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and Applicant A & Anor v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225. The submission is that there must be a cognisable particular social group which has a common unifying element and that element should bind the members of the group because of shared common social characteristics and/or shared interest or experience in common. The group must not be defined solely by the persecution it is feared.
It is not sufficient that a person be a member of the particular social group and also have a well-founded fear of persecution. Persecution must be feared because of the person’s membership or perceived membership of a particular social group.
The Applicants submit that although Indo-Fijian, that they belong to a particular group of Indo-Fijians who are families with young girls and thus in a position of special vulnerability. They submit that this constitutes a particular group and characteristics of the Applicants’ social class is put to me as:
a)nuclear family with young girls;
b)lack of extended family support;
c)high vulnerability to sexual attacks on women;
d)high vulnerability to sexual attacks on children.
That group it is submitted was specifically part of the Applicants’ claim and that that claim was highlighted certainly to the Tribunal.
The claim has been squarely made and the Tribunal was required to make a finding in respect of this group and I am referred to the decision of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [55]. It is the submission of the Applicants that the Tribunal has failed to apprehend the risk fully and assess effective state protection against that risk. The Tribunal, it is submitted, did not address the issue of security for females, and in particular children, instead relying on country information applying to the general population. Thus, it is submitted, that the Tribunal has not addressed this particular social group.
Turning now to the question of relocation, the Applicants submit that no finding on the question of relocation appears to have been made and that it was within the mandatory scope of the Tribunal to consider the practicality and the reasonableness of relocation. I am referred to NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37. The principle is, it is submitted, that in deciding whether or an applicant is a refugee an assessment must also be made as to whether or not the applicant can effectively relocate to another part of his or her country and receive protection there. I am referred to the decision in Randhawa v Minister for Immigration (1994) 52 FCR 437. The Applicants submit that having regard to Randhawa it is not reasonable for them to relocate. They set out reasons why.
I am also required to consider a submission of unreasonableness including Wednesbury unreasonableness. The submission is that illogicality flows from the Tribunal’s findings that the Applicants would have effective state protection upon return to Fiji. The Applicants submit that the Tribunal’s decision is illogical or manifestly unreasonable and affected by Wednesbury unreasonableness.
The Applicants set out matters that the Tribunal has accepted, but it is submitted that the Tribunal seems to have come to the process of reasoning that because of the perceived effective state protection that the Applicants could relocate within Fiji. The submission goes, however, that the Tribunal did not seek to ascertain as to whether there would be future harm having regard to the previous pattern in its application to Fiji. It failed, therefore, to ask any question in relation to the Applicants’ class. It failed to address and ask questions as to future harm. In doing so it is submitted that the Tribunal addressed wrong questions, erred in making findings in the test of well-founded fear as required by law.
The Applicants submit that the Tribunal has been illogical in its application of the finding of facts. Despite there being evidence to support findings of harm, the Tribunal reached the opposite conclusion. It was irrational or unreasonable the applicants submit for the decision-maker to come to the conclusion in the fashion adopted by the Tribunal. The Applicants also submit that the decision is infected with Wednesbury unreasonableness. The decision, it is submitted, is unreasonable in the Wednesbury sense. It is submitted that it is also manifestly unreasonable because the Tribunal did not address the Applicants’ main basis of the application.
For those reasons it is submitted that there is jurisdictional error made out.
Counsel for the Applicants also referred me to a recent decision of my Brother Nicholls, which was delivered on 9th August 2006 of SZDAD v Minister for Immigration and Another [2006] FMCA 1091. That too was a case where the facts had some similarity towards the case under review in that the applicant in SZDAD was a national of Fiji of Indian ethnicity. She too claimed that she would be tortured, raped or even killed by the Fijians, meaning indigenous Fijians, as had happened with other Indian women.
In that case the Court noted at [20] the applicant’s fear of what would happen to her if she were to return to Fiji as an Indian woman with a fear that she would be subjected to harassment and rape in a context of crime perpetrated by indigenous Fijians and the lack of security for Indo-Fijian women. The Tribunal noted a claim that Indian women were subjected to being raped by indigenous Fijians and that they ended up committing suicide. His Honour found that that certainly entitled the Tribunal to see one aspect of that claim as being that the threat of rapes led to the suicides. His Honour went on to say at [20]:
This is what the Tribunal clearly dealt with and rejected on the basis that information before it indicated that such suicides were the result of bride burning by the individuals’ own families. The Tribunal’s finding, therefore, that there was nothing in the material before it to support a suggestion that Indo-Fijian women were committing suicide because of the fear of rape or crime or persecution was open to it on the material that had been put before it.
However, what the Court then did is look at the fact that the Tribunal did not deal with the other aspect of the applicant’s claim, which was that the applicant would be harassed and raped by indigenous Fijians merely for being an Indo-Fijian woman. His Honour found that irrespective of whether Indo-Fijian women had been led to suicide, the claim still remained that they were being harassed and raped by indigenous Fijians. The Court noted at [21]:
The applicant never resiled from her claim that as an Indo-Fijian woman she feared harassment and rape on return. In all the circumstances it was, in my view, not open to the Tribunal to seek to characterise the fear of harassment and rape as only being seen in the context of leading to suicide.
His Honour went on to consider that while the Tribunal clearly went on to deal with the issue of crime and lack of security in the context of the applicant being an Indo-Fijian, it did not adequately deal with that aspect of crime and security as it impacted on that separate group of Indo-Fijian women, and that is, rape and harassment by indigenous Fijians. The Tribunal understood the applicant’s claim but dealt with only one aspect of it. I refer to SZDAD at [23].
It is submitted that the decision in SZDAD is on all fours with the claim under review before me. As the Court found jurisdictional error in SZDAD, so too should the Court find jurisdictional error in this case.
In my view, however, the Tribunal in this case did consider not just the generalised claim of being a member of a social group, but of being a membership of a particular social group. At p.320 the Tribunal said:
The applicants have made claims with respect to the fear of sexual violence which may be suffered by the applicant wife or her daughters. I have considered this claim in relation to both their ethnicity and their membership of a particular social group, that is, Indo-Fijian women and women generally.
The Tribunal having considered that claim being a member of a particular social group, namely Indo-Fijian women, that there was effective state protection and that the government authorities were committed to protecting all Fijian women from crimes of sexual violence.
In my view, the Tribunal did not fall into error when it found that there was effective state protection that the Tribunal did not fail to address the particular social group which was explicitly named by the Applicants, and did not fail to consider the question of effective state protection as against that group.
As to the question of relocation, the Respondents submit, and in my view correctly, that there is no principle that a relocation finding is mandatory. Whilst the decision of NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 is put to me in support of that principle, I agree with the Respondent submission that NAIZ does not provide authority for the proposition that it is a mandatory consideration for the Tribunal to consider relocation. The principles of course were initially enunciated by Black CJ in Randhawa, to which I have previously referred.
In my view, the Tribunal must consider relocation upon its finding of a well-founded fear of persecution for a Convention reason, but unless the Tribunal is satisfied that there is a well-founded fear of persecution for a Convention reason, then the need to consider the question of the reasonableness of relocation does not arise. Submissions too in respect of the reasonableness of relocation are more in the nature of merits review and, in my view, do not establish jurisdictional error.
As to irrationality and illogicality and Wednesbury unreasonableness, I am not satisfied that such a finding can be made. True it is that the Tribunal accepted the Applicants as witnesses of truth and accepted that a number of acts of violence and intimidation had been carried out against them. The Tribunal did not, however, find itself satisfied that those acts of violence came within a Convention reason so that in the long run even though the Tribunal clearly had sympathy for the Applicants in this situation, it could not find that there was a fear of persecution for a Convention reason.
In my view, therefore, the Tribunal’s conclusion based on its factual findings cannot be said to be irrational or illogical. I am also referred to the decision of VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18] where the Full Court held that want of logic in the Tribunal’s reasons is not of itself a ground of review.
If the Tribunal’s conclusions are not irrational or illogical, it must follow, therefore, that they could not be said to be so unreasonable that no decision-maker could have made such a decision bringing the matter within the area of Wednesbury unreasonableness. In my view, the Applicants have not demonstrated any jurisdictional error and the application must be dismissed.
In doing so, however, I note the strong and well-argued discussion of the Applicants’ humanitarian claims set out by the Tribunal Member. The Tribunal points out that the Applicants suffered significant harm before they left Fiji and that they perceived the reason they have suffered that harm was due to their Indo-Fijian ethnicity. The Tribunal considered that they have a genuine and strong fear that if they return to Fiji they will suffer from criminal violence and they have a particular fear of sexual violence. The Tribunal noted that the country information indicates that there is continuing racial tension in Fiji and that many interracial matters are unresolved. The Tribunal felt that given the experience of these Applicants the basis of their fear was understandable.
The Tribunal noted also that the Applicant family has lived in Australia since 1998 and the Applicant husband, the First Applicant, has many members of his extended family residing in Australia including his mother, sister and brother. The children have spent the last seven years in the Australian education system and have made friends and contacts in Australia. The family do not have a home to return to in Fiji and will have to re-establish themselves without the assistance of family members as those family members all live outside Fiji.
It can be clearly seen that the Tribunal formed a very favourable impression of the truthfulness of the Applicants and the genuineness of their fears, at least at a subjective level. The Tribunal actually went on to say:
I consider that the family’s circumstances should be given serious consideration on a humanitarian basis.
In my view, having considered the material, I am strongly of the opinion that the Tribunal’s compassionate and detailed setting out of the humanitarian circumstances deserves the endorsement of the Court. Needless to say, it is inappropriate for an application to be made to the Minister for the exercise of her discretion under s.417 of the Migration Act prior to the conclusion of all litigation. If it turns out that the Applicants reach a stage where litigation has concluded, then they would be well advised to consider making an application to the Minister for the exercise of her discretion under s.417 of the Migration Act.
I would stress that it is entirely a matter for the Minister. The Court has no power to order that the Minister should do so. But on the facts as they appear to me it does believe that the Applicants’ case is one where there are strong subjective features that would require consideration on a humanitarian basis, even though I am not satisfied they have established jurisdictional error on the part of the Refugee Review Tribunal.
It follows, as I have said, that the application must be dismissed.
There is an application for costs on the part of the Respondent Minister. The First Respondent Minister has been successful in the claim and it is not unusual for costs to follow the event. The circumstances of this matter it is submitted are ones which take it somewhat outside the normal claim. Whilst I have some sympathy with the submission put by counsel for the Applicants, I am not of a view that it is of such a case that I should exercise discretion not to make an order for costs.
I note, however, that only two of the Applicants are adults. Three of the Applicants are children. I do not consider that it would be an appropriate exercise of my discretion to make an order for costs against the Third, Fourth and Fifth Applicants. They are children and their claim relies on that of their parents. They have played no separate part in either the Tribunal proceedings or in the proceedings before me.
I consider that it would be unduly oppressive for them to be the subject of a costs order. In my view, the costs order should only apply to the adult Applicants.
As to the sum of $5,000.00, the submission is that it is high. This is a matter that predates 1st December 2005 and in my view the figure that is quoted is not unreasonable in the circumstances. I am mindful of the fact, however, that the Applicants do have three children whom they have to support and they have incurred expenses in briefing counsel to appear and that the likelihood they would be able to make an immediate payment of $5,000.00 seems to me to be very remote.
I propose to give very favourable consideration to time to pay.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 31 August 2006
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