SZMPF v Minister for Immigration
[2009] FMCA 273
•14 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMPF v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 273 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal – citizen of Fiji claiming fear of persecution from the Fijian Army because of his family’s landholdings – whether the Tribunal failed to consider an integer of the applicant’s claim or an issue critical to the applicant’s case. |
| Migration Act 1958 (Cth) ss.91X, 424A, 474 |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1; [2004] FCAFC 263 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Dranichnikov v Minister for immigration and Multicultural Affairs (2003) 197 ALR 389; 77 ALJR 1088 |
| Applicant: | SZMPF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2005 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 November 2008 |
| Date of Last Submission: | 18 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Ms Nolan |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2005 of 2008
| SZMPF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of the Republic of Fiji, asks the Court to set aside a decision of the Refugee Review Tribunal made on 2nd October 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks writs of certiorari, prohibition and mandamus.
He claims that the Tribunal fell into jurisdictional error because it failed to consider an integer of the applicant’s claim or an issue critical to the applicant’s case.
Background
The applicant arrived in Australia on 7th July 2006. On 2nd May 2007 he applied for a Protection (Class XA) visa, in which he claimed that he would probably be killed or maimed by the Fijian Army because of his political views. A delegate of the Minister refused the application for a protection visa on 29th May 2007. The delegate accepted that the applicant had a genuine subjective fear but was not satisfied that the applicant would be unable, or unwilling because of a fear of persecution, to avail himself of the protection of the State.[1]
[1] Court Book 52
Application for Review by the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal for a review of that decision on 19th June 2007. He attended a hearing of the Tribunal on 28th August and gave oral evidence. The Tribunal also took evidence by telephone from the applicant’s grandfather, who expressed the view that the applicant may be of interest to the army on return to Fiji because he was an accountant. He also gave evidence about a block of land over which the applicant held a lease may also be a source of trouble to the applicant if he returned to Fiji.[2]
[2] Court Book 110
The day after the hearing, 29th August 2007, the Tribunal wrote to the applicant’s migration agent. The letter was headed “Invitation to Comment on Information in Writing” and was clearly intended to comply with the requirements of s. 424A of the Migration Act.
The letter put to the applicant for his comments information taken from his evidence at the hearing and that of his witness under the following headings:
1. The death of Nimilote Verebasaga
2. Your involvement with the land which has been leased and Fijian Army interest in the land
3. Behaviour of the Fijian Military
4. Relocation to live with your mother and brother[3]
[3] Court Book 90-93
The Tribunal’s letter invited the applicant to give comments in writing on that information by 12th September 2007. The applicant’s migration agent replied on his behalf by means of a letter dated 10th September 2007, in which he set out the applicant’s responses and concerns in some detail.[4] The applicant’s migration agent also provided a further submission to the Tribunal on 11th September 2007.
[4] Court Book 94-99
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 19th September 2007 and handed down its decision affirming the delegate’s decision on 2nd October.
In the decision, the Tribunal summarised the applicant’s evidence and referred to documents on the Tribunal case file and the Departmental file.
The Tribunal noted the applicant’s claim to have left Fiji originally for business and self-betterment and eventually because of politics. He feared harm from the Army and could not obtain protection from the authorities because they were the ones causing his fear of return. There was a family history and one of his cousins had already been killed.
The Tribunal referred in its decision to its s. 424A letter to the applicant and the applicant’s comments in reply. The Tribunal also referred to, and quoted, the applicant’s further submission.
The Tribunal’s Findings and Reasons
The Tribunal’s Findings and Reasons are set out on pages 118 to 120 of the Court Book. The Tribunal accepted that the applicant is a national of Fiji and stated:
The applicant claims to fear returning to Fiji because of the military coup which occurred in that country in December 2006 and the implication this has for him. He particularly claims that the Fijian Army have an interest in harming him as they have done his cousin, because of their clan association with land which can be subject to development in the future.[5]
[5] Court Book 118
However, the Tribunal found that there was not a real chance of the applicant coming to harm on that, or any other basis, if he should return to Fiji. The Tribunal gave these reasons for that finding:
· The applicant’s fear of harm relates strongly to the death of his cousin, Nimilote Verebasaga, in February 2007 while in the custody of the Fijian Army. The Tribunal accepts that this death tragically occurred in Fiji, but does not believe that it can reasonably give rise to any fear that the applicant himself could come to similar harm on return to Fiji.[6]
· The applicant has not offered any real explanation for the claimed agenda in the army assisting the Prasads[7] as claimed. He has submitted that perhaps there was a hidden agenda or that the Army did not wish the land to be developed, however, has offered no plausible basis for why the Army would behave in this way…In the Tribunal’s view, having come to the attention of authorities shortly after the coup, his cousin was the subject of a tragic assault resulting in his death. The Tribunal does not believe, however, that this arose from any interest in the family or the land owners, other than in them responding to complaints of a fight.[8]
· Furthermore, the Tribunal has the claimed association with the land, either in the minds of the military or otherwise…The Tribunal does not accept that the reason for the applicant’s extended study in Australia was connected with this land, such that on return his activities would bring him to the adverse attention of military authorities, even if they did have an interest in the development of the land.[9]
· It is, however, notable in the Tribunal’s view that the continuing reporting of this situation[10] do not suggest that there is any ongoing actions (sic) against any particular group within Fijian society. In particular, there is nothing which indicates that there is any ongoing interest in those who would seek to end leases to Indian Fijian (sic) in the foreseeable future by the authorities.[11]
· As has been submitted, the coup leaders have in the recent past reinstated martial law, having earlier withdrawn the army to barracks. As noted in the submission, however, this was clearly related to the return to Fiji of the former Prime Minister and in the Tribunal’s view does not support any conclusion that a person in the position of the applicant would be at any risk of harm as a result of this change.[12]
· There is nothing which indicates to the Tribunal that there is currently a real chance of a person in the applicant’s position coming to the negative attention of military authorities should he return to Fiji, either now or in the foreseeable future.[13]
· There is nothing which suggests that those who have reported the death[14] or followed any investigation into it have in anyway[15] been adversely of interest to military authorities.[16]
· The applicant’s extended family have been able to live without further hindrance since March 2007 and the Tribunal does not believe that the applicant would be in a different position on return. While he has acquired a level of education in Australia and has strong work history, there is nothing in the available evidence which indicates that these characteristics would give rise to a real chance of any harm on return.[17]
[6] Court Book 118
[7] an Indian family who had leased the land owned by the applicant’s family and had been there for 40 years (Transcript 4-5)
[8] Ibid
[9] Court Book 118-119
[10] the curtailing of political rights and abuses of human rights abuses
[11] Court Book 119
[12] Court Book 119
[13] Ibid
[14] of the applicant’s cousin
[15] sic
[16] Ibid
[17] Ibid
The Tribunal found that the applicant did not hold a well-founded fear of being persecuted by reason of any characteristic contemplated by the Refugees Convention and was not therefore a person to whom Australia has protection obligations.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 4th August 2008. He filed an amended application on 5th September 2008 and an affidavit annexing a transcript of the Tribunal proceedings on 11th September.
The Minister, the first respondent, has filed a response consenting to the application to show cause but contesting the substantive application.
In his amended application, the applicant relies on one ground of review, that the Tribunal made jurisdictional error since it failed to consider an integer of the applicant’s claim or an issue critical to the applicant’s case.
The particulars of that ground are that in making this statement:
There is nothing which suggests that those who have reported the death or followed any investigation into it have in anyway been adversely of interest to military authorities. While there may be legitimate questions about how that investigation will proceed in the current environment, the Tribunal does not believe that any interest the applicant may have in this matter would put him at risk of harm on return. Notably, members of the applicant’s family have remained in Fiji without further difficulties[18]
the Tribunal only considered whether three categories of people have been persecuted, namely:
(i)those who reported the death;
(ii)those who followed any investigation into it; and
(iii)members of the applicant’s family in Fiji.
[18] Court Book 119
The claim is that the Tribunal failed to deal with the claim that on the applicant’s return his extended family could have a case against the Army for the death of his cousin. The implication is that the applicant intends to initiate such a case and the Tribunal failed to consider whether he would be persecuted if such a case were to be initiated and whether any action would be based either on actual or imputed political opinion or membership of a particular social group. Further, the applicant claims that the Tribunal did not consider what would happen to the applicant if he were to push for progress in the investigation of that death.
Applicant’s Submissions
Mr Silva, who appeared for the applicant, submitted that the Tribunal did not consider someone in the position of the applicant expressing both an intention to take legal action against the army on his return and interest in the progress in the investigation of the death of the applicant’s cousin, which were against the interests of the Fijian Army. He submitted that the question is whether the Tribunal fully covered the applicant’s claims.
Mr Silva referred to the Tribunal’s statement:
the Tribunal does not believe that any interest the applicant may have in this matter would put him at risk of harm on return.[19]
[19] Court Book 119
He queried whether the phrase “any interest” included the applicant’s interest to initiate a case against the army for the death of his cousin. The applicant intended to initiate such a case:
The applicant explained that when he returned to Fiji they could have a case against the army because of the death of his cousin. He explained that there were files which were currently under police control and he did not know what happened with that. He had not been involved in his cousin’s case while in Australia because he did not want to say anything because of the army.[20]
[20] Court Book 111
Mr Silva submitted that the Tribunal’s use of the words “any interest” could not be understood to include the applicant’s interest in taking legal action against the army because the Tribunal’s reference to his family being safe in Fiji is the highest that the Tribunal thought of when explaining such interest and it must necessarily exclude its possible consideration of any possibility of legal application by the applicant. The Tribunal did not make an explicit finding one way or the other about whether the applicant would engage in such legal action. Thus, the Tribunal did not consider whether the applicant would be harmed if on his return he initiated a case against the army or pushed for speedy investigation of the matter of his cousin’s death in opposition to the interest of the Fijian Army.
Mr Silva referred to the decision of the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[21]at [63]:
It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
[21] (2005) 144 FCR 1; [2004] FCAFC 263
Mr Silva also referred to the decision of the Full Court of the Federal Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[22] at [46]-[49], where their Honours said:
Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97] and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason…
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[22] (2003) 75 ALD 630; [2003] FCAFC 184
The applicant submits that the failure by the Tribunal to consider that matter is not a failure to deal with some aspect of the evidence but a failure to deal with an integer of the claim and therefore a jurisdictional error.
The Minister’s Submissions
Ms Nolan, who appeared for the first respondent, the Minister for Immigration and Citizenship, referred to the transcript of the Tribunal hearing annexed to the applicant’s affidavit filed on 11th September 2008 and to these exchanges between the applicant and the Tribunal in particular:
A:[23] Yeah, I think that from there then they start to worry that all the family male will cause troubles to the Indian families. That’s where the army started to think of that. It’s going to be continuing to.
Q:[24] So, what has happened since the death of your cousin to make you think that the army has any further interest?
A: Yeah, just because people are afraid of raised voice against army because it’s happened to everybody. Whoever tell anything about army.
Q: But have they done anything to your family since the death of your cousin?
A: No, just because they are quiet about it, they never tell any – because they might taken to the army camp and got tortured.
[23] The name of the applicant has been deleted to comply with the requirements of s 91X of the Migration Act
[24] The name of the Tribunal Member has been deleted
Q: Did they do anything to your grandfather when he was back?
A: No, because he is quiet about saying anything against army.[25]
[25] Transcript page 15
And also this exchange:
Q: What do you think you would do if you went back that would attract the interest of the army? What do you think you would be involved in if you went back?
A: Yeah, that’s what I am saying. If you going to develop that land they’re going after arresting you.[26]
[26] Transcript page 16
Again, Ms Nolan referred to this exchange between the Tribunal and the applicant:
Q: Again, it seems to me that the issue with your cousin may well have been a tragic, awful mistake by the military, and he may have been mistreated. It just sounds like he may have been mistreated while in detention and that resulted in his death. But apart from that incident there appears to be very little interest in the family. Your – or (the applicant’s grandfather) says, ‘Nothing has happened since then with other families’, the six or seven houses who control the land. I’m still unclear why you think there is a chance they would harm you in some way.
A: Yes, because, first, everybody is quietly – they don’t want to say anything against army. They were just quiet.
Q: What is there to say against the army?
A: Whoever says against the army, is going to take up to the camp.
Q: What case is that?
A: Like, the incident happened to my cousins and all the files were under police. And because of the police and of the – I don’t know what’s happened to the filing of his – for my cousin’s file.
Q: Have you been involved in anything to do with your cousin’s case since January?
A: Not at the moment.
Q: Why not?
A: I don’t want to say anything at the moment (indistinct)
Q: I’m sorry?
A: I don’t want to tell you anything at the moment because of the army.
Q; Is there anything else you would like to tell me that you think is important?
A: No Mr Member.[27]
[27] Transcript 33-34
In reply to the applicant’s contention that the Tribunal did not consider whether the applicant would be harmed on his return if he initiated a case against the army and pushed for a speedy investigation of his cousin’s death, Ms Nolan submitted that the Tribunal was alive to the question of the applicant continuing the investigation of his cousin’s death on his return to Fiji, as evidenced by this passage:
It was claimed that there was a family history and one cousin had been killed already and an investigation was ongoing in Fiji. It was claimed that the Fijian police were refusing to release information which would be subsequently supplied.[28]
[28] Court Book 109
Also, this passage refers to the matter:
The applicant explained that when he returned to Fiji they could have a case against the army because of the death of his cousin. He explained that there were files which were currently under police control, and he did not know what had happened with that. He had not been involved in his cousin’s case while in Australia because he did not want to say anything because of the army.[29]
[29] Court Book 111
Counsel for the Minister goes on to submit that it was not raised at any stage in the evidence or the material before the Tribunal that the applicant would be elevated into a separate category of persons within his family who would attract adverse interest by the members of the military if he were to pursue the investigation into the death of his cousin.
A mere hypothesis not asserted at any stage in the evidence does not constitute an “imponderable” as referred to by Allsop J in Htun v Minister for Immigration and Multicultural Affairs[30] at [43], where he said:
…I think that there was a serious absence of assessment of the imponderables about the future as a required component of the assessment as to whether there was a real, as opposed to a remote, chance of persecution.
[30] (2001) 194 ALR 244; [2001] FCA 1802
Ms Nolan submitted that it was not arguable that the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts which it had found and thereby did not amount to a constructive failure to exercise its jurisdiction (see Dranichnikov v Minister for Immigration and Multicultural Affairs[31] at [24]-[25]. [89] and [95]).
[31] (2003) 197 ALR 389; 77 ALJR 1088
The Tribunal is not required to consider the criteria for an application never made (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) at [62]).
It is the Minister’s submission that the integer of the claim that the applicant submits was not considered by the Tribunal was not one squarely raised on the material and was therefore not required to be considered by it.
In the alternative, it is submitted on behalf of the Minister that the Tribunal’s reasons are sufficient to dispose of the applicant’s contention when they say:
There is nothing which suggests that those who have reported the death or followed any investigation into it have in anyway been adversely of interest to military authorities. While there may be legitimate questions about how that investigation will proceed in the current environment, the Tribunal does not believe that any interest the applicant may have in this matter would put him at risk of harm on return.[32]
[32] Court Book 119
It is for that reason that the Minister submits that the ground fails and the Tribunal’s decision is not affected by jurisdictional error.
Conclusions
The issue in this case is whether the Refugee Review Tribunal failed to consider a claim that was critical to the applicant’s case. That claim concerns the death of the applicant’s cousin whilst in custody of the Fijian Army. The applicant claims that the Tribunal only considered people in three categories:
(a)those who reported the cousin’s death;
(b)those who followed up the investigation into it; and
(c)members of the applicant’s extended family in Fiji.
He claims that the Tribunal did not consider someone in his position who:
(a)expressed an intention to take legal action against the army when he returns to Fiji; and
(b)expressed interest in the progress of the investigation into his cousin’s death.
It is clear, however, that the applicant’s claim would need to be shown to have been squarely raised on the material before the Tribunal. The applicant expressed in his evidence to the Tribunal a fear of the army:
Yeah, just because people are afraid of raised voice against army because it’s happened to everybody. Whoever tell anything about army.
No, just because they are quiet about it, they never tell any – because they might taken to the army camp and got tortured.[33]
[33] Transcript 15
Again, later in the hearing, the applicant expressed fear of the army:
Because I still fear of going back. Of the police and of the army.[34]
[34] Transcript 34
The applicant had told the Tribunal that he and his family feared the army for this reason:
Like, the incident happened to my cousins and all the files were under police. And because of the police and of the – I don’t know what’s happened to the filing of his – for my cousin’s file.[35]
[35] Transcript 33
He was also most reluctant to say anything more because if his fear, saying:
I don’t want to tell you anything at the moment because of the army.[36]
[36] Ibid
The Tribunal recognised that the applicant’s fear of harm related strongly to the death of his cousin while in the custody of the Fijian Army[37] but expressed the view that this death could reasonably give rise to any fear that the applicant might have that he would be harmed on his return. However, the Tribunal considered that there was no evidence that the army retained any interest in the land that was the subject of the dispute with the Prasad family.
[37] Court Book 118
However, the applicant’s claim to hold a fear arises from his interest in his cousin’s death and the progress, if any, of the investigation into that death. I am satisfied that this claim was clearly before the Tribunal and needed to be considered. I am not satisfied that the applicant has articulated any intention to take legal action against the army.
However, in my view the Tribunal did indeed consider that fear and dealt with it when it found:
In respect of the applicant’s concerns regarding the death of his cousin, this matter has been the subject of extensive media reporting and there is evidence that the Fijian Human Rights Commission continues to operate. There is nothing to suggest that those who have reported the death or followed any investigation into it have in anyway been adversely of interest to military authorities. While there may be legitimate questions about how that investigation will proceed in the current environment, the Tribunal does not believe that any interest the applicant may have in this matter would put him at risk of harm on return. Notably, members of the applicant’s family have remained in Fiji without further difficulties.[38]
[38] Court Book 119
This appears to me to address the applicant’s claims that he would be in danger if he were to take action on his return in relation to the death of his cousin or were to pursue the investigation into his cousin’s death. Therefore, I am satisfied that:
(a)the applicant’s claims were put before the Tribunal; and
(b)those claims were considered by the Tribunal.
Consequently, the applicant’s claim that the Tribunal failed to consider an integer of his case or a claim or issue critical to his case has not been made out and the ground of review does not succeed. Thus, no jurisdictional error has been shown and the Tribunal decision is therefore a privative clause decision. As such, it is not open to relief in the nature of certiorari, prohibition or mandamus (Migration Act 1958, s. 474).
The application will be dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 1 April 2009