SZHQY v Minister for Immigration and Multicultural Affairs
[2006] FCA 1287
•3 OCTOBER 2006
FEDERAL COURT OF AUSTRALIA
SZHQY v Minister for Immigration and Multicultural Affairs [2006] FCA 1287
CORRIGENDUM
SZHQY AND SZHQZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 925 OF 2006LANDER J
3 OCTOBER 2006 (CORRIGENDUM 6 OCTOBER 2006)
ADELAIDE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 925 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHQY
First AppellantSZHQZ
Second AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
3 OCTOBER 2006
PLACE:
ADELAIDE (HEARD IN SYDNEY)
CORRIGENDUM
On page 7 of the reasons for judgment, the appearances should read as follows:
Counsel for the Appellants: Mr Silva Solicitor for the Appellants: Silva Solicitors Counsel for the Respondents: Mr Chami Solicitor for the Respondents: Clayton Utz Lawyers
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Lander. Associate:
Dated: 6 October 2006
FEDERAL COURT OF AUSTRALIA
SZHQY v Minister for Immigration and Multicultural Affairs [2006] FCA 1287
MIGRATION – no point of principle
SZHQY AND SZHQZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 925 OF 2006LANDER J
3 OCTOBER 2006
ADELAIDE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 925 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHQY
First AppellantSZHQZ
Second AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
3 OCTOBER 2006
WHERE MADE:
ADELAIDE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 925 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHQY
First AppellantSZHQZ
Second AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
3 OCTOBER 2006
PLACE:
ADELAIDE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an appeal against an order of a Federal Magistrate made on 26 April 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 29 September 2005 and handed down on 25 October 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse grant of protection visas to the appellants.
The appellants are husband and wife, citizens of Fiji, of Indian ethnicity and of the Hindu faith. The appellant husband entered Australia on 13 March 1991 and the appellant wife entered Australia six months later on 13 September 1991.
On 2 February 1996 the appellants lodged applications for protection visas. Their applications were refused by a delegate of the first respondent on 28 January 1997.
On 8 February 1997 the appellants applied to the Tribunal for a review of that decision and on 27 June 1997 the Tribunal affirmed the Minister’s delegate’s decision not to grant protections visas to the appellants.
The appellants applied to the Federal Magistrates Court for a review of that decision and on 14 June 2005 that Court made orders by consent setting aside the Tribunal’s decision of 27 June 1997 and remitting the matter to the Tribunal for further consideration.
On that further consideration, after hearing the appellants’ evidence on 29 September 2005, the Tribunal again affirmed the decision of the delegate of the first respondent not to grant protection visas to the appellants.
Although the appeal is from the order made by the Federal Magistrate dismissing the application for judicial review, it is necessary to have regard to the proceedings before the Tribunal because it is those proceedings which the appellants seek to impugn.
Before the Tribunal both appellants claimed well-founded fear of persecution. The appellant husband claimed a well-founded fear of persecution on political and religious grounds. His claim was premised on his being branch secretary of the Fijian Labour Party from 1985 until 1991, when he left Fiji. During that time his house was broken into several times and he was attacked by native Fijians, more particularly after the 1987 coup. The appellant husband also claimed that if he and his wife were to return to Fiji he would be subject to harm by his own family, as would his wife, because of her inability to bear children. His case was that, in accordance with Indian cultural norms, his family would harm his wife for that reason.
The appellant wife claimed harassment and humiliation by native Fijians because of her husband’s political affiliations. Additionally, she claimed persecution for membership of a particular social group; that she was persecuted by the appellant husband’s family for her inability to have children.
When the matter was returned to the Tribunal the appellants made further claims in addition to those claims in their applications for a protection visa. The Tribunal summarised those further claims in the Tribunal’s reasons.
The Tribunal accepted that the appellants suffered harassment, intimidation, humiliation, assaults and that their dog was killed. It also accepted that the appellants’ house was invaded; that they were robbed; that stones were thrown at the house; and the house was set on fire.
However, the Tribunal found that the harassment and the invasion, and consequent fire, were as a result of the events relating to the 1987 coup in Fiji. It found that those circumstances no longer existed in Fiji and, as a result, there was no real chance of the appellants suffering any harm in the reasonably foreseeable future.
The Tribunal accepted the appellant husband was assaulted by native Fijians and had the police investigate the matter but found that the fact the police did not take any action did not mean the police acted inadequately or inappropriately. Although the Tribunal had doubts, it accepted the appellant husband was branch secretary of the Fijian Labour Party. In the result, however, the Tribunal was not satisfied that the appellant husband had a well-founded fear and that there was no real chance of harm occurring in the reasonably foreseeable future as his fear was based on the mere assumption that a further coup would occur.
The Tribunal accepted the appellant wife was unable to have children and that she had miscarriages in the past but did not accept the miscarriages were caused by any physical assault on the part of any native Fijians. The Tribunal accepted the appellants’ evidence that the appellant wife feared harm by the appellant husband’s family and that she had been subject to a number of threats. It found that the appellant husband’s family wanted the appellant husband to divorce his wife and found that, if they were to return to Fiji, the appellant husband’s family would cause the appellants harm.
The Tribunal found, however:
‘Looking at the evidence as whole (sic), the Tribunal is satisfied that whilst the applicants’ fear of harm at the hands of the family might be Convention-related, it is nevertheless private in nature. It is not official, or officially tolerated or uncontrollable by the Fijian authorities. Further, given independent country information, the Tribunal is satisfied that the applicants would be able to obtain state protection that would accord with international standards.’
The Tribunal considered whether ‘returnees to Fiji’ was a particular social group but concluded that it was not. On the basis of independent country evidence and the evidence as a whole, the Tribunal was not satisfied the appellants faced a real chance of persecution based on a Convention ground. The Tribunal was not satisfied the appellants had a well-founded fear of persecution and affirmed the decision not to grant protection visas.
The appellants applied to the Federal Magistrates Court for a review of the Tribunal’s decision The appellants claimed that the Tribunal made a jurisdictional error by failing to correctly address the issue of well-founded fear of persecution; to consider the issue of a possible coup in its totality; to update its knowledge of the situation in Fiji; to consider whether the appellants would be persecuted if they returned to Fiji if a coup occurred; and to consider the risk of persecution if the appellant husband became active in the Fiji Labour Party again. The appellants also claimed that the Tribunal made a jurisdictional error by failing to consider whether the serious mental harm to the appellant wife was controllable by the state authorities as it was not covered by criminal law; by failing to consider whether the appellant wife would fall under the particular social group of ‘barren Indian women in Fiji’; by failing to deal with important integers of the appellants’ claims; and by misconstruing evidence and finding against the appellants.
The Federal Magistrate rejected the appellants’ claims of jurisdictional error on the Tribunal’s part. His Honour found the Tribunal’s factual findings were open to the Tribunal on the evidence before it and any challenge to these factual findings amounted to a claim for merit review. The Federal Magistrate concluded that it was not put to the Tribunal that barren Indian women in Fiji constituted a particular social group. In any event, his Honour considered the test of ‘particular social group’ and found such group of women did not meet the definition of a particular social group. In relation to the third ground, he concluded there was evidence available to the Tribunal to make the factual findings that the appellant wife would be able to access state protection. In relation to the fourth and fifth grounds, the Federal Magistrate found the Tribunal did consider the integers of the appellants’ claims and did not misconstrue the evidence. The Federal Magistrate consequently dismissed the application.
On the hearing of the appeal, the appellants sought leave to amend their notice of appeal which was granted. In that amended notice of appeal they relied on four grounds to make out their claim that the Federal Magistrate had erred in failing to find that the Tribunal had committed jurisdictional error. First, the Tribunal failed to consider the issue of a possible coup in its totality by inquiring into the relevant country information and improperly dealing with the evidence it did have. Secondly, the Tribunal failed to ask itself a critical question: ‘Are the state authorities able to control serious mental harm as different from physical harm feared by the wife applicant from the husband’s close relatives?’ Thirdly, the Tribunal failed to find that the appellant wife was a member of a particular social group consisting of barren Indian women in Fiji. Fourthly, the Tribunal failed to deal with two important integers of the appellants’ claims. Those integers were the failure by the police to protect the appellant wife in circumstances where the police claimed protection was being sought in relation to a ‘private matter’. Secondly, news reports indicated that two months before the hearing there was a possibility of a coup in response to the government’s announcement that it would pardon coup leaders in the 2000 coup.
It is difficult to understand how the first ground is any more than a disguised application for merits review. The question that the Tribunal had to determine in respect to this aspect of the appellants’ claims was whether there was a possibility of a coup which would mean that the appellants, or either of them, would be subject to persecution if they were to return to Fiji. The Tribunal was entitled to find, as it did, that the circumstances which existed in 1987 and which led to the harassment of the appellants and the damage to the appellants’ house no longer prevailed. There was evidence to support such a finding. The Tribunal specifically addressed the appellants’ fear that a coup might occur in Fiji which would leave them open to persecution if they were to return to Fiji. The Tribunal found that the only evidence before it was the stated fear which was based upon a mere assumption that a coup would occur. That finding was also open on the evidence. In those circumstances, the Federal Magistrate was right to conclude that this ground of appeal, which was a ground for review before the Federal Magistrate, was no more than a disguised attempt to seek merits review.
The second ground of appeal claims that the Tribunal committed jurisdictional error by failing to take into account first, the possibility that the appellant wife would suffer serious mental harm and, secondly, whether the state authorities could ‘control serious mental harm’. It was submitted that the appellant husband was subjected to considerable pressure to divorce the appellant wife. That would ‘bring enormous mental pressure on (the appellant wife) and yet would not be a criminal act and the police cannot do anything about it’. It was submitted that it would be a form of mental torture perpetrated by the appellant husband’s siblings on the appellant wife.
The difficulty with the submission on this appeal is that there was no evidence before the Tribunal that the appellant wife would suffer mental harm of the kind now suggested. The case which was put by the appellants before the Tribunal was that she would suffer serious physical harm and that the authorities would not protect her. That aspect of the case was rejected because the Tribunal found that the authorities would take steps to protect her if she were subject to physical harm. In my opinion, there was simply not the factual substratum to support this ground.
The third ground of appeal relates to the failure by the Tribunal to find that the appellant wife was a member of a particular social group consisting of barren women in Fiji and that, as a result, she would be liable to persecution.
It is true that the Tribunal did not make any finding as to whether the appellant wife was a member of such a particular social group. Even if it were assumed that is a matter which should have been addressed, the failure to make that finding does not make out the ground of appeal. That is because, on the appellant wife’s own evidence, she would not be likely to be persecuted because she was a member of such a particular social group but because she was considered to be a bad omen.
The Tribunal, in my opinion, was entitled to find that any harassment or persecution that the appellant wife was likely to suffer was as a result of the appellant husband’s family’s views of her.
In those circumstances, the Tribunal was entitled to find that the appellant wife would not be subject to persecution because she was a member of the particular social group of which she now claims membership.
In any event, if the Tribunal ought to have concluded that she was a member of a particular social group and that she would be liable to persecution for that reason, the Tribunal found that there was adequate and effective state protection available to her. Ground 3 is not made out.
In support of ground 4, the appellants argued that the police failed to protect her because they said that the matter about which she complained was a private matter. It was also submitted that the Tribunal erred in failing to have regard to two news reports in relation to the possibility of a coup arising out of the Fijian government’s suggestion that it would pardon the previous coup leaders.
In my opinion, the complaints made are not indicative of a failure by the Tribunal to address the integers of the appellants’ claim. The complaints made, in my opinion, amount to no more than an application for merits review. Ground 4 fails.
The appeal should be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 3 October 2006
Counsel for the Appellants: Mr Silva Solicitor for the Appellants: Silva Solicitors Counsel for the Respondents: Mr McInerney Solicitor for the Respondents: Clayton Utz Lawyers Date of Hearing: 7 August 2006 Date of Judgment: 3 October 2006
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