SZJJZ v Minister for Immigration

[2007] FMCA 133

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 133

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.424A

Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
Applicant S395vMinister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration & Multicultural Affairs v Savvin (2000) 98 FCR 168
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
MZWBW vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
NAAP vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZEOH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1178

Applicants: SZJJZ, SZKBT, SZKBU & SZKBV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2675 of 2006

Judgment of: Barnes FM

Hearing date: 6 February 2007

Delivered at: Sydney

Delivered on: 6 February 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms S. Sirtes

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The first applicant pay the costs of first respondent fixed in the sum of $5,000.

THE COURT NOTES

The first applicant consents to be the litigation guardian for the second, third and fourth respondents.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2675 of 2006

SZJJZ, SZKBT, SZKBU & SZKBV

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 25 August 2006 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.  The applicants are a father and three minor children.  For convenience I refer generally to the first applicant as the applicant and will clarify when I intend to refer to the children. 

2. The first applicant is a Fijian citizen who arrived in Australia in 1997.  In May 2006 he lodged an application for a protection visa.  That application included his three children, all of whom had been born in Australia. 

3. The applicant claimed to fear persecution on the basis that he is an Indo-Fijian and on the basis of his support for the Fiji Labor Party (the FLP).  In connection with his protection visa application he also claimed that he could be stripped of his Fijian citizenship by virtue of the length of his absence from Fiji.  He claimed in relation to the children that they were stateless.  The application was refused and the applicants sought review by the Tribunal.

4. In connection with the application to the Tribunal the applicants’ migration agent provided written submissions and extracts from country information.  It was claimed that the applicant feared that as an Indo-Fijian ethnic he may be at risk of persecution, intimidation and harassment and that as the children were born in Australia and had not been registered as Fijian citizens they were stateless and may be stripped of their Fijian citizenship.

5. The applicant father attended a Tribunal hearing.  After the hearing further written submissions were provided to the Tribunal, including a claim that on two occasions the applicant had been brutally attacked by indigenous Fijians (once after the 1989 coup and once in 1992 when he had also been robbed).  The submission referred to the situation of Indians in Fiji and also addressed the issue of the children and their claimed statelessness.

6. The Tribunal subsequently responded to these submissions, addressing the issue of statelessness of the children and giving an opportunity for further submissions to be provided to the Tribunal in response to a request by the adviser to delay finalisation of the review.  However no further written submissions were received by the Tribunal. 

7. In its reasons for decision the Tribunal addressed first the claims of the applicant father.  It accepted that he was a citizen of Fiji of Indian ethnicity.  It also accepted as plausible that he and his family were supporters of the Fiji Labor Party, although not members, that he attended meetings and distributed pamphlets and that it was plausible that these were the party-related activities in which he may have been involved.

8. It also accepted as plausible that, one day after the 1987 coup had occurred, the applicant had been asked by a named party member to distribute pamphlets relating to problems faced at the time by Indo‑Fijians, that he did so and that it was plausible that subsequently he and two others were detained without charge for about two days and were beaten once they admitted support of the party.  On this basis the Tribunal was satisfied that the applicant had suffered serious harm as a result of being arrested and beaten in 1987.  However, it found that the incident was an isolated incident that occurred about 19 years earlier and that the applicant had not been arrested subsequently. 

9. The Tribunal had regard to the applicant’s claim that thereafter he did not attend meetings out of fear.  It accepted this as plausible and addressed the issue of whether the applicant had had to modify his behaviour in order to avoid harm in such a way that that could constitute serious harm under the Migration Act 1958.  However it had regard to the fact that he was not arrested because he attended meetings but because he was distributing pamphlets one day after a coup that had caused a major civil unrest, that on his own evidence he was not a member of the party and did not have any significant role in it, that he had remained in Fiji for about 10 years thereafter, that there were no other incidents of harm as a result of any imputed political opinions and that having been in Australia since 1997 there was no suggestion that the applicant had had any involvement in the FLP in Australia.

10. The Tribunal found on all the evidence that it was implausible that Fijian authorities would have any interest in the applicant as a result of any actual or imputed association with the FLP, having regard to his profile and activities in support for the party and also the situation of the Fiji Labor Party and its then current support in Fiji.  On that basis the Tribunal was not satisfied that if the applicant were to continue to attend FLP meetings there was a real chance of being harmed on that basis.  Further, even if the applicant were to distribute pamphlets the Tribunal was not satisfied that he would be arrested or ill-treated by the Fijian authorities for the distribution of pamphlets.  It was satisfied that there was not a real chance of serious harm occurring to the applicant in the reasonably foreseeable future on the basis of his actual or imputed support and/or activities for the Fiji Labor Party.

11. The Tribunal next addressed the applicant’s claims to fear persecution on the basis of his Indian ethnicity as well as being an Indo-Fijian returnee.  The Tribunal was not satisfied on the basis of independent country information to which it referred that there was a real chance that the applicant would suffer serious harm for that reason.  It also concluded that even if there were a real chance any such ill-treatment would be at the hands of non-State agents and, based on independent country information, the Tribunal was satisfied that the applicant would be able to avail himself of effective State protection.  It was not satisfied that being an Indo-Fijian and a returnee meant that there was a real chance of serious harm occurring to the applicant.  The Tribunal had regard to the Fijian Constitution which it said protected the applicant’s interests.  It found that he would not be denied basic services and did not accept his claim that there was no police protection for Indo-Fijians.

12. The Tribunal also considered the claims made after the hearing that the applicant had been brutally attacked by indigenous Fijians in 1989 and 1992.  It accepted that it was plausible that the applicant was attacked on two occasions, being satisfied that after the 1987 coup violence was an issue in Fiji.  However it found on the basis of all the evidence that the 1989 incident was an isolated incidence of violence relating to the “prevailing insecurity conditions”.  In relation to the 1992 incident (which the applicant claimed was an assault by three indigenous men who appeared to be intoxicated and demanded money) the Tribunal was satisfied that this was an isolated act of violence.  It was not satisfied that the applicant had a well-founded fear on the basis of these incidents or that the incidents were for any Convention reason.

13. The Tribunal addressed the applicant’s claim that under Fijian law he may lose his Fijian citizenship due to his extended absence.  However the Tribunal was not satisfied on the basis of the information before it (including the Fijian legislation) that there was a real chance of the applicant suffering any harm in relation to his nationality on the basis of his extended absence from Fiji.  The Tribunal noted that the legislation in question applied only to naturalised citizens as opposed to citizens from birth.

14. The Tribunal considered the applicant’s claim to fear harm on the basis of his marriage to an indigenous Fijian and his current marital problems.  The Tribunal accepted that there was a mixed marriage, that the applicant and his wife currently had marital problems which had led to intervention by the Department of Community Services in relation to the children and that the applicant had been convicted of assaulting his wife.  The Tribunal noted that there was information in relation to an apprehended violence order which the applicant denied.  However it stated that it would have not in any way have used that information adversely to the applicant, finding that what was important was that on the applicant’s own evidence he and his wife had marital problems but were not separated and, indeed, he was expecting her to attend the Tribunal hearing.  The Tribunal accepted that it was plausible that the couple’s marital circumstances had changed and was satisfied that there was not a real chance that the wife would turn members of her family and/or members of the community against the applicant. 

15. The Tribunal also rejected the applicant’s claim to fear harm on the basis of being an asylum seeker referring to the fact that such an application was confidential.  On the basis of the available information the Tribunal was not satisfied that the applicant had a well-founded fear of persecution.

16. The Tribunal then addressed the claims in relation to the three children.  It had regard to the relevant Fijian legislation, which it found enabled the children to be registered as Fijian nationals, but also to the evidence from the applicant’s adviser that the children’s parents had not lodged or given any indication of taking steps to cause the registration of the children as Fijian citizens or of the relevant Fijian Minister causing the registration of the children.  As these events had not occurred the Tribunal found that the children were stateless. 

17. However, relying on the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Savvin (2000) 98 FCR 168, while acknowledging that statelessness can bring about difficulties the Tribunal was satisfied that the reason for their statelessness was because the responsible parent or guardian had not or would not take the necessary steps to register the children, that refugee status would not be accorded to persons merely because they were stateless and unable to return to their country of former habitual residence and, as held in Savvin, that the Refugees Convention was to be construed as including the requirement that a stateless person have a well-founded fear of persecution for a Convention reason. 

18. The Tribunal also considered the claims of the children as against their parents’ country of origin citing SZEOH v MIMIA [2005] FMCA 1178. On that basis it dismissed the claims made on behalf of the children that they would be at risk of persecution, that they could be subjected to commercial sexual exploitation, labour exploitation, would be denied basic services and could face difficulties in accessing education and owning property. It found such claims to be speculative and on the evidence on the whole did not accept there was a real chance of the children suffering any Convention-related harm (including as members of a particular social group) in the reasonably foreseeable future if they returned to Fiji.

19. In reaching this conclusion the Tribunal had regard to the other circumstances relating to the children, such as their parents intermarriage, their half Indian ethnicity, their father’s support for the FLP and other evidence.  It acknowledged that Indo-Fijians could be ill-treated in Fiji but was not satisfied there was a real chance that the applicants would be persecuted in the reasonably foreseeable future if they were to return to Fiji.  The Tribunal was not satisfied that the applicants had a well-founded fear of persecution for a Convention reason.

20. The applicant sought review by application filed in this Court on 21 September 2006. He subsequently filed an amended application joining the children as applicants in these proceedings. The first ground relied on in the application is that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth). This claim is not particularised and was not addressed in oral submissions. No written submissions were filed for the applicant. Nonetheless, I have considered the material before the Court. The written submissions for the respondent addressed this issue.

21. One issue that potentially arises is in relation to information in the Departmental file relating to an apprehended violence order.  However, the Tribunal explicitly stated and I accept that it did not use such information as part of the reason for its decision.  Indeed it went on to indicate what was relevant, based on the applicant’s own evidence to the Tribunal.  In those circumstances it is not established that the information in relation to an apprehended violence order, while referred to in the Tribunal reasons for decision, is information that forms the reason or a part of the reason for affirming the decision under review in a sense considered in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.

22. Insofar as it may be intended to claim that the Tribunal was under an obligation to put independent country information or Fijian legislation to the applicant, such material is excluded from the obligation in s.424A(1) by subsection (3). I note that it appears that such matters were in fact discussed in the course of the Tribunal hearing and, indeed, the particular issue of the legislation in relation to statelessness of the children and the operation of that legislation was raised with the applicant’s adviser. However no failure to comply with s.424A of the Migration Act has been established.

23. The second ground is that the Tribunal accepted as being plausible that, after the 1987 military coup violence was an issue in Fiji and “on two separate occasions after the coup in 1989 and 1992 [the applicant] was brutally attacked by indigenous Fijians”.  However, as this ground states, the Tribunal did accept such claims as plausible and addressed the issue of whether such past actions established that the applicant had a well-founded fear of persecution for a Convention reason.  Insofar as the applicant takes issue with the Tribunal’s finding that the reason for such attacks was not Convention based and did not establish that the applicant had a well-founded fear of persecution for a Convention reason, such findings were open to the Tribunal on the material before it for the reasons that the Tribunal gave.  I note that an incorrect finding would not be sufficient in and of itself to constitute jurisdictional error (see MZWBW vMIMIA [2005] FCAFC 94, Applicant A169 of 2003 v MIMIA [2005] FCAFC 8 and NAAP vMIMIA [2003] FCAFC 76).

24. Moreover, insofar as the applicant seeks merits review, in that he disagrees with the Tribunal’s conclusions, merits review is not available in this Court.  Indeed, that disposes of ground 3 in which the applicant seeks, in response to the Tribunal decision, to bring to the attention of the Court his travel and certain other events that occurred after the 1987 military coup and reiterated his claim to have a well-founded fear of persecution.  However, as I indicated to the applicant, merits review is not available in this Court and this ground does not establish jurisdictional error on the part of the Tribunal on the information before it at the time of its decision.

25. The next ground raises the question of and attempts to explain the delay in lodging the application for protection visa.  According to the Tribunal reasons for decision in the hearing it did raise the issue of delay and the fact that it could be taken into account in relation to assessing the genuineness of a fear of persecution and the applicant did not respond to that comment.  However in the findings and reasons part of its decision the Tribunal made no findings in relation to the delay by the applicant in lodging an application for protection visa.  No jurisdictional error is established on this basis.

26. In paragraph 5 the applicant claims that the Tribunal did not carry out any investigation regarding his claims and that the decision was made based on overseas media reports and speculation.  However this is not a case in which the Tribunal was under a positive obligation to investigate claims: see MIMIA v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ. As their Honours made clear, while the Tribunal has the power to obtain further information it does not have a duty to investigate an applicant’s claims or to consider utilising the permissive statutory powers which might enable it to do so. There is nothing in the material before the Court to suggest that the Tribunal undertook in any way to make further inquiries. Insofar as the applicant takes issues with the Tribunal’s reliance on country information, the weight to be given to particular items of country information is a matter for the Tribunal. I note that the Tribunal referred to the submissions of the applicant’s adviser and to independent country information submitted, but also addressed more recent country information in making its findings. No error is established on the basis contended for by the applicant.

27. The final ground is an allegation that the Tribunal failed to consider that the applicant satisfied the four key elements of the Convention definition and made a significant error in its decision.  However, there is nothing in the material before the Court to indicate that the Tribunal failed to understand or apply the elements of the Convention definition.  No jurisdictional error is established on that basis.  In particular I note that in considering the issue of the applicant modifying his behaviour the Tribunal proceeded in a manner consistent with the principles outlined in Applicant S395vMIMA (2003) 216 CLR 473.

28. In the hearing today the applicant again took issue with the fact that the Tribunal had accepted his claims about what occurred to him in 1987 and on two occasions thereafter, but concluded that he was not a refugee.  He took issue with the merits of the Tribunal decision.  However, as indicated above, merits review is not available in this Court.  The Tribunal did not simply accept the applicant’s claims but, rather, while finding them plausible went on to give reasons as outlined above for its conclusions, having regard to matters such as the reason for the arrest, the passage of time thereafter and subsequent conduct of the applicant.  No error is established by the applicant’s disagreement with the conclusions of the Tribunal.

1. The applicant also raised the issue of delay which I have addressed above.  He suggested that it would be sufficient if there was a possibility of persecution of less than 50 per cent and in fact his fear was 100 per cent.  It appears that this claim takes issue with the Tribunal’s understanding of the test to be applied in relation to well-founded fear of persecution in the Convention definition.  At the start of the Tribunal decision the Tribunal outlined the elements of the Convention definition, including (in addressing well-founded fear) the issue of whether an applicant has a genuine fear grounded upon a real chance of persecution for a Convention based reason.  It acknowledged that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.  It has not been established that the Tribunal either misunderstood or misapplied the law.  Insofar as the applicant takes issue with the factual findings by the Tribunal and the merits of the Tribunal decision, merits review is not available in this Court.

2. The applicant also suggested that circumstances had deteriorated in Fiji.  Reliance on such change of circumstance after the Tribunal decision does not establish jurisdictional error on the part of the Tribunal on the basis of the information before it at the time of its decision.  Nor does it provide a basis for judicial review of the Tribunal decision, although it may be a matter that the applicant seeks to raise with the Minister if he wishes to make a further application for a protection visa on the basis of changed circumstances.

3. Finally, while the issue was not raised specifically in the applicant’s claims, I have considered the Tribunal treatment of the children’s claims.  There is nothing in the material before me to suggest that there is any jurisdictional error in that approach.  The Tribunal followed the approach of the Full Federal Court in Savvin having regard to the need for the children to have a well-founded fear of persecution for a Convention reason.  It assessed their claims in relation to Fiji, that being the parents country of nationality and the country against which their claims to fear persecution had been made. 

4. As no jurisdictional error has been established the applicant must be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  20 February 2007