SZHQY v Minister for Immigration
[2006] FMCA 542
•26 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHQY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 542 |
| 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 applicants protection visas – applicants are citizens of Fiji of Indian ethnicity – merits review impermissible – challenge to factual findings made by Tribunal – particular social group – whether Indian women in Fiji who cannot have children constitute a particular social group – whether fear of harm from family constitutes persecution for a Convention reason – availability of state protection. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958, ss.414,415 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 Applicant M164/2002 v Minister for immigration & Multicultural & Indigenous Affairs [2006] FCAF 16 Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 SGBB v Minister for immigration & Multicultural & Indigenous Affairs (20030 199 ALR 364 Minister for Immigration & Multicultural & Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | SZHQY |
| Second Applicant: | SZHQZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3441 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 March 2006 |
| Date of Last Submission: | 31 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Mr McInerney |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed.
That the Applicants are to pay the First Respondent’s costs fixed in the sum of $4,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3441 of 2005
| SZHQY |
First Applicant
| SZHQZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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 29th September and handed down on 25th October 2005. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made not to grant protection visas to the applicants.
Background
The applicants are citizens of Fiji. They are husband and wife.
The husband arrived in Australia on 13th March and the wife arrived on 13th September 1991. They applied for protection (class AZ) visas on 2nd February 1996, but these were refused.
The applicants sought a review of that decision by the Refugee Review Tribunal. The Tribunal’s original decision to affirm the delegate’s decision was quashed by a consent order of this Court and the matter was remitted to the Tribunal.
The applicants gave oral evidence to a hearing of the Tribunal on
23rd September 2005. The applicant husband gave evidence that he was a branch secretary of the Fijian Labour Party until 1991. He claimed a fear of persecution because of his membership of the Fijian labour Party and because of his religion. He explained the lengthy delay in applying for a protection visa as being due to their belief that the situation in Fiji might improve.
The husband also told the Tribunal that his wife was unable to have children, and members of his family would harm her, in accordance with Indian cultural norms. He said that members of his family had slapped his wife when they were in Fiji.
The wife also told the Tribunal that they had delayed in applying for a protection visa because they thought the situation in Fiji might improve. She also said that they thought her medical condition might improve. She had had several miscarriages and she had been told by her doctor that nothing could be done.
The Tribunal put to the applicants at the end of the hearing that their claims appeared to be based on:
a)fear of harm in case of a further coup in Fiji; and
b)fear of harm by the husband’s family.
The Tribunal noted at page 130 of the Court Book that the applicants agreed with this description.
Findings and reasons
The Tribunal accepted that the applicants were Fijians of Indian ethnicity. The Tribunal also accepted that there was evidence that the wife was unable to have children and had had miscarriages.
The Tribunal was not satisfied that any of the miscarriages had been caused by any assault by native Fijians.
The Tribunal accepted that the husband had been assaulted by native Fijians and that the police in Fiji investigated the matter. The Tribunal was not satisfied that the lack of outcome meant that the police acted either inadequately of inappropriately. The Tribunal accepted it as “plausible” that the husband had been involved in organising meetings and recruiting membership for the Fijian Labour party.
The Tribunal was not satisfied that the applicants’ fear that a further coup may occur and that they might suffer harm as a result was a
well-founded fear, because their fear was based on an assumption that a coup would occur.
The Tribunal accepted that it was plausible that the husband’s family members might have threatened the wife because of her inability to have children and that they might want the husband to divorce her.
The Tribunal also accepted it as plausible that if the applicants were to return to Fiji, family members would cause harm to the wife or the husband.
However, the Tribunal found that, looking at the evidence as a whole, whilst the applicants’ fear of harm at the hands of the family might be “convention-related”, it was nevertheless private in nature.
The Tribunal was satisfied that the harm feared was “not official, or officially tolerated or uncontrollable by the Fijian authorities”
(see Court Book at page 133). The Tribunal was also satisfied that the applicants would be able to obtain state protection.
The Tribunal affirmed the delegate’s decision not to grant protection visas.
Application for judicial review
In a Further Amended Application, the applicants seek orders for writs of:
a)certiorari;
b)prohibition; and
c)mandamus.
The applicants relied on three grounds of review in the Further Amended Application;
a)failure to carry out the review process in relation to the applicants’ fears of the occurrence of a future coup in Fiji by:
i)failing to address the issue of a well-founded fear for a convention reason;
ii)failing to consider the evidence of the possibility of a future coup;
iii)failing to update its knowledge of the country situation in Fiji as close as possible to the hearing date or the date of decision;
iv)unreasonably, contrary to evidence, holding that the applicants were merely assuming that a coup would occur;
v)failing to deal with the issue of whether the applicants would be persecuted if coup took place after they returned to Fiji; and
vi)failing to consider that there would be a greater risk of persecution if the husband returned to Fiji and again became active in the Fiji Labour Party if a new coup took place.
b)failure to carry out the review process in relation to the applicants’ fears of harm from the husband’s relatives by failing to consider whether mental harm feared by the wife could be controlled by state authorities as it may not be covered by the criminal law but could still constitute persecution; and
c)failure to carry out the review process by failing to consider and make a finding as to whether the wife would fall into a particular constituted by barren Indian women in Fiji.
The applicants then added two more grounds of review:
a)failure to deal with an integer of the applicants’ claim; and
b)unreasonableness.
The unreasonableness ground was based on the proposition that if the decision-maker misconstrues the evidence and then finds against the applicants then the finding is unreasonable.
The applicants’ submissions
The applicants’ solicitor, Mr Silva, submitted that the threat of a coup was the single most important issue at the time of the hearing. The role of the Tribunal in conducting a review under ss.414 and 415 of the Migration Act 1958 (Cth) was to assess whether, if they returned to Fiji, the applicants would have a well-founded fear of persecution by reason of race and political opinion. The risk of persecution must be real, but it is not a requirement that the risk be measurable in a particular degree of likelihood or probability before it may be characterised as real (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 417). In this case, it is submitted that the risk was not fanciful based on the history of three previous coups.
The applicants submitted that it was reasonable for the Tribunal to either arrange for an inquiry to be made about the country information referred to by the applicants or to conduct that inquiry itself.
The applicants referred to the decisions in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [23]-[24] and [26], and also Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 at [68] and [69].
The applicants submitted that the Tribunal did not, in assessing claims and evidence before it, did not undertake the process of looking into the future, relying on Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. The submission was that the Tribunal did not take relevant considerations into account (see minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
In relation to the second ground, that the Tribunal failed to consider whether serious harm feared by the wife could be controllable by state authorities, because mental harm may not be covered by the criminal law but could still constitute persecution, the applicants submit that the failure on the part of the Tribunal was constituted by:
a)a failure to recognise that while the wife acknowledged that the police might be able to protect her from some of the harm she feared, they had described other aspects of harm as “a private matter”; and
b)a failure to make a specific finding that it was unreasonable in all the circumstances for the applicants not to avail themselves of that protection.
The applicants submitted whether the harm feared is controllable or not is the important question, and the harm feared is not controllable then there is no state protection for that aspect of the harm.
In respect of the third ground, whether barren Indian women in Fiji constitute a particular social group, the applicants submitted that the Tribunal had been made aware and was conscious of all aspects of the claim that barren Indian women in Fiji constituted a social group but “failed to consider it on that basis”. Mr Silva for the applicants submitted that the Tribunal would make a jurisdictional error if it were to fail to understand and address the claim that the applicant had put to it (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 AT 394 [24]; SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364 at 368).
In argument, Mr Silva submitted that the claim that the wife belonged to a particular social group need not be articulated (see Dranichnikov (supra)).
The first respondent’s submissions
For the first respondent, the Minister, Mr McInerney of counsel submitted that the applicants’ first ground of review is essentially a complaint about the Tribunal’s fact finding, and that the matters complained of had in fact been discussed by the Tribunal and had been the subject of findings of fact made by the Tribunal.
In respect of the applicants’ second ground, the first respondent submitted that the Tribunal had found that the harm from the husband’s family that the wife feared was “not official, or officially tolerated or uncontrollable by the Fijian authorities”. The tribunal was satisfied that the applicants would have access to effective state protection and, as such, the harm feared by the wife was not persecution (see Minister for Immigration & Multicultural & Indigenous Affairs v Respondent S152/2003 (2004) 205 ALR 487).
Turning to the applicants’ third ground, the first respondent submits that the argument that the wife was a member of a particular social group consisting of barren Indian women in Fiji does not appear to have ever been made to the Tribunal. In any event, it is submitted that there is no such social group, having regard to the test articulated by the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36].
Where the applicants were not claiming that they feared harm at the hands of the Fijian authorities on the basis of the wife’s inability to have children, and that the harm alleged was not officially tolerated or uncontrollable by the Fijian authorities, and where the applicants would be able to obtain state protection, the first respondent submitted that the claim based on membership of a social group could not have succeeded.
The first respondent submitted that the Tribunal made findings of fact that were open to it on the evidence before the Tribunal. The weighing of evidence is a matter for the Tribunal (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282, 291-292).
Mr McInerney submitted in relation to the fourth ground that the Tribunal did have regard to the integer of the applicants’ claim.
In relation to the fifth ground, Mr McInerney submitted that it is an error of fact to misconstrue a piece of the evidence, but that does not constitute jurisdictional error.
Conclusions
In my view, the applicants’ first ground does no more than challenge the factual findings made by the Tribunal. Merits review is not permissible on judicial review of a decision of an administrative decision-maker.
The Tribunal was satisfied that the applicants suffered harm in 1987 that was related to the coup that took place at that time. However, the Tribunal was satisfied on the evidence before it that those circumstances no longer existed in Fiji and there was not a real chance that such harm that they had experienced would occur to them in the reasonably foreseeable future (see Court Book page 131).
The Tribunal noted that the applicants feared another coup would occur and that they would suffer harm. The Tribunal was satisfied, on the evidence available to it, that the applicants’ fear was not well-founded because that fear was based on a mere assumption that a coup would occur. It appears to me that the Tribunal did consider the evidence before it and concluded that the applicants were, in fact, only assuming that another coup would take place. It may be that the Tribunal gave less weight to the evidence than the applicants consider reasonable, but it is well-established that it is for the Tribunal to weigh the evidence.
The findings were open to the Tribunal on the evidence, and I as satisfied that the first ground of review has not been made out.
Turning to the second ground, that of the fear of harm by the husband’s family because the wife was unable to have children, it appears to me that the applicants are assuming that barren Indian women in Fiji constitute a particular social group and that the Tribunal fell into error by not recognising that fact. The Tribunal set out the test of determining whether a group falls within the definition of “particular social group” (albeit in respect of another issue) at page 133 of the Court Book, in its reference to the decision in Applicant S (supra) at [36]. The principles are these:
i)The group must be identifiable by a characteristic or attribute common to all members of the group.
ii)The characteristic or attribute common to all members of the group cannot be the shared fear of persecution.
iii)The possession of that characteristic or attribute must distinguish the group from society at large.
I am satisfied that it was not put to the Tribunal that barren Indian women in Fiji constitute a particular social group and I am also satisfied that they do not meet the definition of a particular social group.
The Tribunal, relying on independent country information, was satisfied that harm from family members towards a woman unable to have children was not official, or officially tolerated, or uncontrollable by the Fijian authorities. The Tribunal made a factual finding that the applicants would be able too access state protection.
There was evidence available to the Tribunal to allow those findings of fact. The second and third grounds of review must fail.
As to the fourth and fifth grounds, I am satisfied that the Tribunal did consider the integer of the applicants’ claim. I am also of the view that misconstruction of the evidence may lead to an incorrect finding of fact, but it does not follow that an incorrect finding of fact constitutes a jurisdictional error. In any event, I am not of the view that the Tribunal did misconstrue any of the evidence. The applicants’ claims that the tribunal misconstrued the evidence are, to my mind, no more than a challenge to the factual findings made by the Tribunal.
There is no jurisdictional error. The decision is a privative clause decision as defined by s.474 of the Migration Act and is not subject to certiorari, prohibition or mandamus (s. 474(1)). The application will be dismissed.
Costs, although discretionary, usually follow the event in matters of this nature.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 18 April 2006
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