SZHLX v Minister for Immigration - [2006] FMCA 1390

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLX v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1390

MIGRATION – RRT decision – Fijian woman fearing domestic violence – Tribunal not satisfied as to inadequate state protection nor membership of particular social group – no arguable error – application to set aside default order refused.

Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387

Applicant:

SZHLX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3129 of 2005

Judgment of:

Smith FM

Hearing date:

5 September 2006

Delivered at:

Sydney

Delivered on:

5 September 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Palmer

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applicant’s application under r.16.05(2)(a) to set aside orders made on 26 April 2006 is refused.
In addition to the costs ordered on 26 April 2006, the applicant must pay the first respondent’s costs in the sum of $1,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3129 of 2005

SZHLX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interlocutory application filed on 9 August 2006 seeking, in effect, orders setting aside an order I made on 26 April 2006 when I dismissed the substantive application in this proceeding due to the absence of the applicant at a directions hearing. She had been clearly informed of that date when she attended a first court date on 30 November 2005.
Her original application was filed in this Court on 27 October 2005, and sought orders by way of judicial review of a decision of the Refugee Review Tribunal dated 13 September 2005 and handed down on 6 October 2005. The Tribunal affirmed a decision of a delegate made on 26 April 2005 refusing to grant a protection visa to the applicant.
At the first court date which the applicant attended, I made orders giving the applicant an opportunity to file an amended application and any supporting affidavits by 31 March 2006, after receiving a bundle of relevant documents and a referral for free legal advice. She in fact received both of those things, but has never filed an amended application. She was today unable to present the Court with an amended application or any indication of any arguments which she wishes to present to the Court if her application were reinstated.
Her present interlocutory application was supported by a very brief affidavit which said:
I was unable to attend the court hearing on 26 April 2006 because of car accident. On 26 April 2006 I was involved in a car accident with my friend. I therefore delayed to attend the court hearing on time. …
The applicant was cross‑examined on this affidavit. She claimed to have come to the Court later in the morning on 26 April 2006, and to have been referred on that date to the counter of the Court’s registry at level 16 in the Court’s building at Queen’s Square, where she was given the form of an application to set aside the default judgment.

The applicant’s evidence as to why it took until 9 August 2006 to file such an application was obscure and unpersuasive. I do not think that she satisfactorily explained that delay to me, even assuming that her explanation for her delay in coming to Court on 26 April 2006 should be accepted.
However, in the circumstances, I would be reluctant to refuse her interlocutory application, unless I was satisfied that she had no arguable claim to final relief on her judicial review application. I have therefore considered the Tribunal’s decision, and the grounds raised by the applicant in her original application.
The applicant arrived in Australia in March 2005 and on 26 April 2005 presented her protection visa application without the assistance of a migration agent. A typed document headed “Statutory Declaration” explained why the applicant sought protection in Australia against return to her country of nationality, Fiji.
The applicant claimed to have been seriously abused by her husband in Fiji on several occasions, and to have been refused action against her husband on the part of the police. Indeed, she claimed that the police supported her husband: “They didn’t file my case. I was locked up in police station and my husband took me out from jail”. The applicant claimed that her father’s death was caused by violence on the part of her husband, that her husband “created a lot of trouble to my families”, that the husband “filed false cases against me. So the police arrested me and send me to jail”, and that even after her divorce “my husband gave me a hard time for me”. She also claimed that her husband had “connection with a Muslim extremist party”, and had forced her to change religion from Hindu. She claimed to have been raped and hit with an iron bar by her husband, and to have been admitted unconscious to hospital before coming to Australia. None of these events were corroborated by any documents or significant details.
At a hearing held by the Tribunal which the applicant attended on 12 September 2005, she significantly retreated from many of the claims made in her visa application. The Tribunal identified her evidence in its decision, and made what appears to be a balanced assessment of her evidence.
Under the heading “Findings and Reasons”, the Tribunal said that it had concerns about the truth of some of her claims and explained rational reasons for this. It said:
whilst the Tribunal accepts as being plausible that the applicant was married to a man who was violent towards her, the Tribunal is not satisfied that the police failed to take action if indeed she had reported those incidents to the police. For the same reasons and looking at the evidence as a whole, the Tribunal does not accept that the applicant was ever detained by the police or falsely accused of any offences. The applicant did confirm that she has never been charged with any offences.
The Tribunal did not accept that the applicant’s husband had connections with any Muslim extremist party, due to the inability of the applicant to provide clear details of this claim.
Due to its finding that it was “plausible that the applicant’s husband was violent towards her”, the Tribunal addressed whether by reason of that circumstance and her gender and position in Fiji she could establish a Convention ground for fearing persecution if she returned to Fiji “for reasons of … membership of a particular social group”. The Tribunal referred to relevant authorities including the well‑known passage in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at [36].
The Tribunal then concluded:
Independent country information put to the applicant, namely the US Department of State Report (ibid), whilst it indicates that domestic abuse is a problem in Fiji and that “cases of domestic abuse and incest often were dismissed by courts or received minimal sentence”, it notes that police have a “no drop rule, under which they prosecute cases of domestic violence even when the victim does not wish to press charges…” and that there is an “active women’s rights movement addressed the problem of domestic violence”. Looking at the evidence as whole, the Tribunal is not satisfied that the state fails to protect women in domestic violence situations, or that the attitude of the police condones violence against women. The Tribunal is not satisfied that there is a particular social group of women in Fiji who have characteristics which are not dependent upon a shared fear of persecution but rather on cultural, social, religious and legal factors which distinguish them from society at large in Fiji. In essence and looking at the evidence as a whole, the Tribunal is not satisfied that in Fiji, there is a particular social group to which the applicant belongs, which is identifiable by characteristics or attributes common to all members of the group and distinguishing the group from the Fijian society at large. It follows then that the Tribunal is not satisfied that any of the harm claimed by the applicant is attributable to any of the Convention grounds. The Tribunal is satisfied that the harm is private.
In essence, looking at the evidence as a whole, the Tribunal does not accept that the applicant has suffered any Convention‑related harm, nor does the Tribunal accept that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
Therefore, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution as contemplated by the Convention.
I have carefully considered the procedures followed by the Tribunal and its reasoning, including its consideration of whether there was inadequate State protection and a Convention reason for the feared harm by the applicant’s husband, and am unable to see any arguable error made by the Tribunal which could provide jurisdictional error.
The applicant’s application filed in this Court gave as its grounds:
…
The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
I was denied procedural fairness when the Tribunal member did not believe in my submissions and oral evidence.
The RRT member used old and outdated materials to justify his decision. The member based his whole decision on one‑sided information prepared for denying the application for the people coming from Fiji.
As I have indicated above, the applicant has never given particulars of any of these contentions through an amended application, written submissions or oral submissions to me today. I am unable to give them meaningful content.
For myself, I can detect no arguable error of law made by the Tribunal or denial of procedural fairness. Such a denial cannot occur just because the Tribunal did not believe all the applicant’s evidence. As I have indicated, in my opinion it was open to the Tribunal to reject much of the complaints and history presented by the applicant, particularly in her original visa application which the applicant appears to have retreated from.
I can see no reason why it was not open as a matter of law to the Tribunal to rely upon the US State Department report about responses to domestic abuse by agents of the government in Fiji. I am unable to identify any arguable error in that respect by the Tribunal.
On my assessment of the material, I am unable to identify any prospect of the applicant succeeding on the merits of the matter if I were to reinstate it. In those circumstances I do not think it appropriate to set aside my previous default judgment, and I will refuse the present application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 20 September 2006