SZLEK v Minister for Immigration - [2008] FMCA 221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLEK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 221

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was obliged to consider if the infant applicant was a member of a particular social group – whether it was open to the Refugee Review Tribunal to consider the position of an interim military government only in assessing whether the infant applicant faced a real chance of persecution in the foreseeable future.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 424A; 474; pt.8 div.2

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1at

First Applicant:

SZLEK

Second Applicant:

SZLEL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2486 of 2007

Judgment of:

Emmett FM

Hearing date:

13 February 2008

Date of last submission:

13 February 2008

Delivered at:

Sydney

Delivered on:

29 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr A. Kumar

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

Ms A. Nanson, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2486 of 2007

SZLEK

First Applicant

SZLEL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 May 2007 and handed down on 3 July 2007.
The first applicant claims to be stateless and of Fijian Indian ethnicity and Hindu faith (“the Applicant”). The second applicant is the mother of the Applicant and is also of Fijian Indian ethnicity and is of Fijian citizenship. The claims of the second Applicant are dependent on those of the Applicant.
The Applicant was born in Australia on 21 October 2001. The second applicant arrived in Australia on 20 August 2000.
On 16 October 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by “native Fijians” who do not like Indian-Fijians and who had confiscated the land of her parents in Fiji. The Applicant also claimed that the Fijian government had denied her citizenship, rendering her stateless.
On 4 November 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate cited inconsistencies between the Applicant’s claims and independent country information as the main reason for finding the Applicant did not have a genuine fear of harm if she were to return to Fiji.

The Tribunal decision

On 8 December 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application save a copy of the Delegate’s decision.
On 18 December 2006, the Tribunal wrote to the Applicant giving her information that it thought that it considered may be part of the reason for the decision under review. The letter informed the Applicant that she was entitled to be a citizen of Fiji and that country information indicated that she could live safely in Fiji. The Applicant was invited to comment on the information. The Tribunal sent a further letter dated 18 December 2006 to the Applicant inviting her to provide additional information, including details of any denial of Fijian citizenship.
On 31 January 2007, the Applicant’s father and the second named applicant attended a hearing before the Tribunal, together with the father’s brother and their adviser.
On 5 February 2007, the Tribunal wrote again to the Applicant giving her information that may be part of the reason for affirming the decision under review. The Tribunal informed the Applicant that the information it had indicated that the Applicant had close family living in Fiji, including children with whom she could live, if she was to live in Fiji without her parents.
On 5 February 2007, the Tribunal sent the Applicant another invitation to provide additional information.
Both letters required any additional information and comments to be provided to the Tribunal by 28 February 2007. Nothing further was received by the Tribunal from the Applicant or her adviser in response to those letters.
The applicants attended a hearing with witnesses and their adviser on 10 April 2007. Pundit Parasram Marharaj, a senior Hindu priest and chairman of the Hindu Council of Australia, gave evidence in support of the applicants’ applications.
On 20 April 2007, the applicants’ adviser emailed written submissions in support of the Applicant’s application to the Tribunal. The written submissions sought to identify errors in the Delegate’s decision. The submissions referred to the “undue and selective reliance on out of date reports”; a failure to take into account the current military coup of 5 December 2006; the failure of the Delegate to rely exclusively on the United Nations declaration of rights of the child proclaimed as such by the General Assembly Resolution 1386 (XIV) of 20 November 1959; the fact that the Applicant does not have the capacity to make her own decision on matters of citizenship; the failure of the Delegate to have regard to the evidence of the Applicant’s brother and mother that family members in Fiji were in the process of migrating to the United States and New Zealand and that, consequently, there would be no relatives left in Fiji; and Mr Pundit Parasram Marharaj’s evidence of depleted medical services in Fiji.
On 16 May 2007, the Tribunal wrote again to the applicants’ adviser inviting comment on the following information: the refusal of a differently constituted Refugee Review Tribunal to grant the Applicant’s mother or father a protection visa on the basis that it was not satisfied that they were persons to whom Australia had protection obligations under the Refugee’s Convention as amended by the Refugee’s Protocol; that since December 2006 country information suggested that anti-Fiji Indian policies are at an end; that temple attacks and break-ins have declined; that there has been no anti-Indian looting of shops; that the military regime will not tolerate criminal activities; that Mr M. Chaudhry, an ethnic Indian, had been appointed the new interim finance officer on 9 January 2007; that there has been a fall in criminality and any direct racial component in criminal activity; and, that many people have welcomed the military crack down on prior criminal and persecutory behaviour.
The letter informed the Applicant that such information was relevant because if the Tribunal found that her parents did not have a well-founded fear of persecution it would be unlikely that the Tribunal would find that the Applicant had a valid claim based on her membership of the particular social group being her family; that independent information suggested that since 5 December 2006 the situation in Fiji is better for Indian Fijians; and, that there has been a dramatic fall in crime which would include child prostitution. The letter stated that this information suggested that the claims made by the Applicant’s parents in their protection visa application may have “less credence or support now than when the decision was made.” The letter invited comment by 30 May 2007.
On 30 May 2007, the applicants’ adviser responded to the Tribunal’s letter disagreeing with the information referred to in the Tribunal’s letter. The response stated that the “applicant is a SIX year old Australian born child who does not fit the definition of a refugee.” The adviser’s letter states that the Applicant was born in Australia, and has never travelled outside Australia. The adviser’s letter stated that the Applicant did not know Fiji and therefore could not satisfy the definition of a refugee. The adviser’s letter stated “Under the circumstances, we have also submitted that the Tribunal might want to rely on the United Nations Charter for Protection of Children to which Australia is a signatory.” The adviser’s letter also attached an untranslated copy of an editorial.
In its decision the Tribunal noted the claims made by the Applicant in her protection visa lodged on 16 October 2006; the detail of the hearing before the Tribunal on 31 January 2007; and, the Tribunal’s requests pursuant to ss.424 and 424A of the Act dated 18 December 2006, 5 February 2007 and 16 May 2007. The Tribunal noted in detail the submissions received from the applicants’ adviser and the response to the s.424A letters. The Tribunal also identified with particularity independent country information to which it had regard.
In the Findings and Reasons section of its decision the Tribunal dealt first with the issue of the Applicant’s citizenship. The Tribunal found that the Applicant had an inherent right to citizenship and that the Applicant may enter and reside in Fiji on the basis that she is the child of a Fijian citizen and has a right to be a citizen of Fiji exercisable at any time by going to live in Fiji. The Tribunal noted that it asked the Applicant for independent evidence to support the adviser’s claims that Fijian citizenship was not available to the Applicant and that no information had been received in response. Ultimately, the Tribunal found that Fijian citizenship is available to the Applicant.
The Tribunal then summarised the Applicant’s claims as follows:
“The applicant would have nowhere to live if she were to return to Fiji. Whenever there are problems in Fiji, the native Fijians attack Indians and destroy there property. She fears being attacked and having a deprived life in Fiji. This happened to her parents, particularly in 1987 and 2000. There is no future for Indian-Fijians in Fiji. She does not know anything about Fiji. She has never seen more than five Fijian Indians or native Fijians together. 90% of the land in Fiji is now owned by indigenous Fijians. There is an Australian advisory from the Department of Foreign Affairs that there is destabilisation in Fiji and Australia had imposed embargoes and trade sanctions. The applicant does not have a family or extended family in Fiji. The applicant’s father is possibly at risk. There was a reference to ethnic cleansing such that the applicant does not stand a chance. Indigenous Fijians demand money and beat people up if they are not paid. Employment is difficult to find in Fiji and prostitution, including child prostitution, has increased in Fiji. This is particularly among the ethnic Indian children. Three girls had recently been abducted and murdered. There is poverty in Fiji. There is a question whether the applicant will be able to cope with the Fiji environment which is totally alien to her. There would also be linguistic problems, and the native children would label her as a culturally bastardized child. It was further claimed that the Armed forces have waged a campaign of ‘cleanup’ and imposed a State of Emergency Decree under which life generally has become quite restricted. Further, civilians on a daily basis are interrogated and brutalised by the armed forces, particularly those who are raising their voice for pro democracy movement. It was also argued that Australia had responsibilities to the applicant under the Declaration of the Rights of the Child.”
The Tribunal found that the Applicant had not faced persecution in Fiji, never having been to Fiji.
The Tribunal referred to the copy of the Declaration of the Rights of the Child. However, the Tribunal found that, because it found that the Applicant is not at risk for a Convention reason, it was not appropriate to consider the Declaration of the Rights of the Child document any further.
The Tribunal also referred to the editorial written in Hindi provided to the Tribunal without English translation. The Tribunal had the editorial translated and accepted that it contained details referring to discrimination against Indo-Fijians in Fiji in employment and the legal system and that they are subject to theft by indigenous Fijians and that the police are becoming ineffectual. However, the Tribunal preferred the country information referred to by it in the Claims and Evidence section of its decision because the Tribunal found that it was independent information from a number of recognised sources.
In relation to the Applicant’s claim of a well-founded fear of persecution by reason of being a member of a particular social group consisting of her family, the Tribunal noted that the Applicant’s parents had been refused a protection visa on the basis that they are not persons to whom Australia has protection obligations under the Refugee’s Convention as amended by the Refugee’s Protocol, and that the Tribunal had read and considered the evidence of that decision and agreed with it. As a consequence the Tribunal did not accept that the Applicant had a valid claim based on her membership of a particular social group consisting of her family.
The Tribunal found that independent country information indicated that the situation in Fiji had improved for Indo-Fijians since the Applicant’s parent’s protection visa application decision was made. The Tribunal found that independent information indicated that, post 5 December 2006 the situation in Fiji was better for ethnic Fijians, and that there had been a dramatic fall in crime.
Accordingly, the Tribunal found that the Applicant’s parent’s claims for their protection visa application had less credence today or support than when the decision was made.
The Tribunal considered the Applicant’s claim of a fear of persecution because of her ethnicity and also considered her risk of persecution by reason of membership of a particular social group being “children of Indo-Fijian descent born overseas.” The Tribunal had regard to independent country information that since the armed take over, the military “was doing a fine job maintaining security.” The Tribunal concluded that there is not a real chance that the Applicant will face serious harm amounting to persecution if she were to return to Fiji “because of her race, or her membership of a particular social group of children of Indo-Fijian descent born overseas.”
The Tribunal also noted that the Applicant would be able to be accompanied by her parents in Fiji and found that any difficulties that the Applicant may face in relation to settling in Fiji from a cultural, ethnic, linguistic and societal point of view did not amount to serious harm for the purposes of the Refugee’s Convention as amended by the Refugee’s Protocol.
Accordingly, the Tribunal was not satisfied that the Applicant faced a real chance of persecution should she travel to Fiji now or in the foreseeable future.
On 31 May 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 14 August 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The proceeding before this Court

The Applicant was represented before this Court by Mr Kumar, of counsel.
Mr Kumar confirmed that the Applicant relied on grounds 1 and 3 of the amended application filed on 5 November 2007. Those grounds are expressed as follows:
“1.The second respondent Tribunal failed to address one of more social groups of which the first applicant and/or the second applicant are members. The applicants are also members of social group of young Indo-Fijian female/s; the latter group has not been considered by the Tribunal.
Particulars
The Tribunal has clearly stated that its has limited its consideration “children of Indo-Fijian descent born overseas” at page 30.3 (CB155.3) of the RRT decision. The social group of young Indo-Fijian female/s has not been considered by the Tribunal. This group as claim was advanced by the applicants (at page 28 (CB153) of the RRT decision).
…
3. The Tribunal misapprehended the test in relation to risk of persecution in the foreseeable future.
Particulars
The Tribunal identified that there was an interim military government in Fiji must misapprehended the information in that the military administration is in Fiji for a short period only. The Tribunal has failed to properly asses the harm of risk in the foreseeable future whether it is based on the country information or the information supplied by the applicants.”
Mr Kumar confirmed that the Applicant no longer relied on grounds 2 and 4.

Ground 1

Counsel for the Applicant submitted that the Tribunal had failed to consider whether the Applicant faced a well-founded fear of persecution by reason of being a member of a particular social group of young Indo-Fijians females. Counsel for the Applicant conceded that no such claim had been articulated by the Applicant in those terms, however, submitted that such a claim clearly arose on the evidence and material before the Tribunal such that the Tribunal was obliged to consider such a claim.
In support of his submission, Counsel for the Applicant, referred to the evidence of Mr Pundit Parasram Marharaj, the Applicant’s family priest, who gave evidence before the Tribunal on 10 April 2007. Mr Pundit Parasram Marharaj told the Tribunal that the Applicant had no future in Fiji; that there has been a large problem with unemployment and prostitution, in Fiji, including child prostitution which has increased; and referred to the “exploitation of ethnically Indian children.” The Tribunal noted that Mr Pundit Parasram Marharaj referred to a recent case of three girls being abducted from Fiji and murdered. The Tribunal noted this evidence in the Findings and Reasons section of its decision (see paragraph 20 above in these Reasons).
Counsel for the First Respondent, Mr Kennett, submitted that the evidence referred to above from Mr Pundit Parasram Marharaj was given to support the Applicant’s claim that she would be unsafe in Fiji. The Tribunal, in relying on country information, found that Indo-Fijians are now safe and secure in Fiji and the new regime has been “enthusiastically embraced by Indo-Fijians.” The Tribunal found that if the Applicant were to return to Fiji there was not a real chance she would face serious harm amounting to persecution because of her race or her membership of a particular social group of Indo-Fijian descent born overseas.

There was no evidence before the Tribunal to suggest that there was a particular social group comprising young Fijian women or girls who existed as a distinct group in Fijian society who suffered discrimination or persecution by reason of their membership of that group.
The Tribunal “is not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it” (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1at [60] – [61]).
In the circumstances, there cannot be an error on the part of the Tribunal to fail to consider a claim that the Applicant may have a fear of persecution by reason of membership of the particular social group of Indo-Fijian women where such a claim is not expressly made and does not arise on the materials before it.
The Tribunal considered and determined the claims before it of a well-founded fear of persecution in Fiji according to law.
Accordingly, ground 1 is not made out.

Ground 3

Counsel for the Applicant submitted that the Tribunal failed properly to assess the risk of harm to the Applicant in the foreseeable future by having regard only to the position in Fiji under the “interim military government”.
True it is that the Tribunal referred to country information in reaching its conclusions that described the military government as “interim”. However, there was no evidence before the Tribunal that the tenure of military government was likely to be short, nor that the changes it had brought about were in particular doubt. There was no evidence before the Tribunal to suggest that the present situation in Fiji, particularly with respect to the improvement in the situation for Indo-Fijians, was likely to change in the foreseeable future. Moreover, there was no articulated claim that there might be such a change.
In the circumstances, it was open to the Tribunal to conclude that the Applicant did not face a chance of persecution “should she travel to Fiji now or in the foreseeable future.”

Conclusion

A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant’s mother and adviser at a hearing; gave to the Applicant’s adviser in writing all concerns and information it had that may be part of the decision for affirming the decision under review; noted in detail the adviser’s responses; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to those findings and made conclusions based on the findings made by it on the evidence and material before it.
In the circumstances, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 29 February 2008