SZNVE & Ors v Minister for Immigration & Anor (No.2)
[2009] FMCA 1157
•23 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNVE & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 1157 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to consider all claims made by the applicants – whether the Refugee Review Tribunal misconstrued evidence of the first applicant – whether the Refugee Review Tribunal erred in its consideration of effective state protection – whether the Refugee Review Tribunal’s findings were illogical. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 |
| First Applicant: | SZNVE |
| Second Applicant: | SZNVF |
| Third Applicant: | SZNVG |
| Fourth Applicant: | SZNVH |
| Fifth Applicant: | SZNVI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1913 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 November 2009 |
| Date of Last Submission: | 23 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Applicant: | Mr S. Singh, Sarom Solicitors |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Ms F. Edwards, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1913 of 2009
| SZNVE |
First Applicant
| SZNVF |
Second Applicant
| SZNVG |
Third Applicant
| SZNVH |
Fourth Applicant
| SZNVI |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 16 July 2008 and handed down on 29 July 2008.
The first named applicant (“the Applicant”) is a native Fijian and claims to be a citizen of the Fiji and previously an employee of the public works service division of the Department of Water and Sewerage in Fiji and to fear persecution from the military government in Fiji as a result of his participation in a five day strike in August 2007.
The claims of the other applicants are all dependent on the claims of the Applicant. The second named applicant is the spouse of the Applicant (“the Applicant Wife”) and the third, fourth and fifth named applicants are the daughters of the Applicant.
The applicants arrived in Australia on 21 December 2007 having departed legally from Nadi on passports issued in their own names. The Applicant entered Australia on a tourist visa issued on 19 November 2007.
On 22 January 2008, the applicants lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 16 April 2008, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas.
On 5 May 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 16 July 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 11 August 2009, 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 (“the Convention”).
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, 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 Applicant’s application for a protection visa
On 17 January 2008, the applicants’ migration agent wrote to the “Protection Visa Section” of the Department explaining the “foundation of the application”. The Applicant is an indigenous Fijian. The letter stated that the Applicant is a member of a particular social group and has been a long-term employee of the Department of Water and Sewerage in Fiji where he was employed as a water fitter in Lautoka. The letter stated that the Applicant was active in his union which placed him in increasing opposition to the military government. The letter stated that the Applicant was more likely to be subject to “arbitrary mistreatment than the Indian minority” because he is an indigenous Fijian. The letter stated that the Applicant played a prominent role in a five day strike in August 2007. The strike was precipitated by the decrease of wages for public servants. The letter stated that protests and the strike took place in Lautoka in groups of up to 300. The letter stated that army personnel attended and the strikers were threatened with “action” if they did not desist.
The migration agent’s letter stated that, following the strike, the Applicant received threatening telephone calls because he had been recognised as a “troublemaker”. The letter stated that army personnel also attended the Applicant’s place of work and issued threats. The Applicant stated that, if he were to return to Fiji, he or members of his family would be subject to “arbitrary arrest and intimidation”, even if his political activity was seen as “low-level”.
On 26 March 2008, the Tribunal received a letter from the Applicant confirming the threats he claimed to have received from members of the army because he was a leading hand at his place of work. The letter stated that the Applicant tried not to go home early for almost four months because army personnel may come looking for him.
On 26 March 2008, the Department also received a letter from the Applicant Wife confirming the fear the family held from military personnel. The Applicant Wife’s letter also stated that the family could not depend on police for security because they listened to “military officials and they couldn’t do anything”.
On 26 March 2008, the Department received a letter from the fifth applicant, being the eldest daughter of the Applicant and the Applicant Wife. The fifth applicant’s letter confirmed that she and her sister were frightened and fearful that they “might lose our dad one day”.
The Delegate’s decision
On 25 March 2008, the Applicant and the second applicant attended an interview with the Delegate.
On 16 April 2008, the Delegate refused the applicants’ application for protection visas on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate summarised the Applicant’s claims that he would face intimidation, arbitrary arrest and physical violence by Fijian authorities if he was to return to Fiji because of his involvement in the August 2007 strike by public servants.
The Delegate noted that the Applicant’s responses at interview were “coherent, consistent with his written statement and offered in a frank manner”. The Delegate was satisfied that the Applicant was the subject of threats by members of the military after the August 2007 strike and genuinely feared persecution in Fiji because of his imputed anti-government political opinion.
However, the Delegate found that country information did not indicate that the Applicant’s fears were well-founded. The Delegate accepted that involvement in the 2007 strike may have been an expression of the Applicant’s anti-government opinion. However, the Delegate found that there was no information that involvement in the strike raised the profile of any of the strikers, such that they have now become targets of continuing harassment or intimidation by Fijian authorities. The Delegate noted that the Applicant did not claim that such harassment continued beyond two visits at the Applicant’s place of work soon after the strike, where members of the military threatened the Applicant. The Delegate also accepted that the Applicant received threatening phone calls.
The Delegate had regard to the fact that the Applicant was able to continue to work at the same job, live at the same address and departed Fiji without difficulty.
The Delegate concluded that the Applicant was no longer of any interest to Fijian authorities because of his actual or imputed anti-government political opinion.
The Tribunal’s review and decision
On 5 May 2009, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
The applicants provided further documents in support of their application.
On 15 May 2008, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 9 July 2008 to give oral evidence and present arguments.
On 9 July 2009, all the applicants attended the Tribunal hearing and the Applicant and the Applicant Wife gave evidence.
The Tribunal noted that it had before it the Department’s file, material referred to in the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“The Tribunal’s findings and reasons reveal that it broadly accepted the applicant’s factual claims: at [46]. The Tribunal accepted that the applicant had taken part in the strike and that after the strike he had been subjected to a number of threats from the military. The Tribunal also accepted that during the aftermath of the strikes the applicant held a subjective fear of at least some harm, noting that this was confirmed by his wife (who also gave oral evidence at the hearing): at [46].
The Tribunal also accepted on the basis of press clippings provided by the applicant to the Department that there had been many strikes in Fiji, but that the current wave of strikes did not compare to the level of violence or danger in previous periods.
A fair reading of the Tribunal’s observations at [49] reveal that, although it accepted that the military made some attempts to harass the applicant after his involvement in the strike, the Tribunal considered that these attempts were limited and the military did not “seriously intend” to do him harm.
The broad thrust of the Tribunal’s reasoning can be obtained from [56] and [57] of the Tribunal’s decision. The Tribunal thought that the threats had been made in the immediate context of the strike itself. After the strike and its aftermath had settled down the applicant’s fear was not well founded. The Tribunal noted that if the applicant really had been scared he could have gone into hiding or relocated in Fiji or moved overseas rather than continuing to work at his job and remain in his home using his existing office mobile phone.
The Tribunal also made a finding that on the applicant’s own evidence a number of military personnel and police officers involved in the manslaughter or death of people in Fiji had been prosecuted, resulting in convictions. The Tribunal noted that where the proponents of the crime were serving police officers or military personnel this went to the issue of the independence of the police and judiciary in Fiji and was therefore satisfied that the applicant would be able to seek and receive effective state protection: at [55].”
The proceeding before this Court
The applicants were represented before this Court by Mr Kumar, of counsel.
On 7 September 2009, Mr Kumar attended a directions hearing before me on behalf of the applicants and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time, the Court directed the applicants to ensure that any transcript of the Tribunal hearing upon which they may wish to rely was verified by affidavit.
On that occasion, I also gave separate reasons extending time to the applicants to rely on their initiating application filed out of time on 11 August 2009.
At the commencement of the hearing, Mr Kumar confirmed that the applicants relied on grounds contained in an amended application, filed on 19 October 2009, as follows:
“1. The Tribunal committed jurisdictional error by failing to considering the first applicant’s proper social group / the particular social group of which has (sic) was a member.
Particulars
A. The Tribunal considered (CB 129 [at 49]) “indigenous Fijian strike breakers who oppose the military government in Fiji who had participated in strike action against the unelected military government of Fiji [and therefore his actual or imputed political opinion], or both”
B. The applicants’ proper social group that the Tribunal failed to consider and that has been before the Tribunal had the following attributes:
(i) indigenous Fijians;
(ii) members of the union;
(iii) long standing civil servants / government employees;
(iv) holding supervisory / senior roles;
(v) holding views opposed to the reform of the civil service by the unelected military government of Fiji including the reduction of the wages of the civil servants;
(vi) government employees with readiness to express opposition / opinions including imputed political opinion.
(vii) willingness to participate in union activities.
C. The Tribunal failed to address this social group and in particular attributes (iii), (iv) and (vii) of the attributes of the applicants’ social group.
2. The Tribunal committed jurisdictional error by breaching s 425 of the Migration Act and / or made finding without supporting evidence.
Particulars
The Tribunal committed jurisdictional error by failing to provide applicants opportunity to address the issue the issue that due to “independence of the police … and the judiciary in Fiji ,,, is accordingly satisfied that the applicant would be able to seek and would receive effective state protection in Fiji if for any reason he sought it.” (at CB 130.3 / [at para 55]).
The applicant was not provided opportunity to present arguments in relation to the issues pursuant to s 425. The evidence does not support such a finding.
3. The Tribunal committed jurisdictional error by misconstruing the evidence (and misconstruing the applicant’s participation as “ordinary strike participant” and / or erring on finding or imputed political opinion by construing the applicant’s involvement in the union and strike activities too narrowly.
Particulars
The Tribunal states at CB 126.5 (RRT decision [at 39]):
“Asked if he ever held the position in it [union], the applicant replied that he was a financial member and was a committee member as a leading hand and acted as a spokesperson in this capacity but was not on the union executive.”
The Tribunal further states at CB 128.1 (RRT decision [at 47]):
“However while accepting these claims, the Tribunal (sic) was only one of some 500 people to participate in a particular strike that lasted only five days in the second week of August 2007… the applicant does not claim he led any strikes, led any demonstrations, wrote the banners or protest slogans, made speeches…, or that he was anything other than ordinary strike participant.”
The Tribunal committed jurisdictional error by misconstruing the evidence (and misconstruing the applicant’s participation as “ordinary strike participant” and / or erring on finding or imputed political opinion.
The Tribunal committed jurisdictional error by misconstruing the evidence (and misconstruing the applicant’s participation as “ordinary strike participant” and /or erring on finding or imputed political opinion in the circumstances where the applicant was a leading hand supporting the activities and participating in the process.
4. The Tribunal committed jurisdictional error by speculating that the military would have found him in the short period prior to departure from Fiji when the first applicant was following a different pattern of arrival and departure from his home. The foundation for such a finding is:
(i) irrational or illogical
(ii) erroneously speculating / requiring the putative refugee to speculate the attack pattern of persecutors.
Particulars
At CB 128.8 (RRT decision [at 49]) the Tribunal states “… The Tribunal is satisfied that if in fact the military, with all the machinery of government at its disposal, wished to be able to find the applicant with the object of threatening him, let alone to be able to detain him, arrest, harm…”
Such a finding of satisfaction that the applicant would have been found in the light of the nature of the work that is carried by the applicant and the change to normal work pattern could not be proper (sic) found in the short period before the applicant’s departure; such finding is not properly based on evidence but on conjecture.”
Mr Kumar agreed that the summary of the grounds, as reflected in the written submissions of counsel for the First Respondent was both accurate and comprehensive.
Mr Kumar read an affidavit of the Applicant, sworn 10 August 2009, annexing, inter alia, a transcript of the Tribunal hearing. However, Mr Kumar stated that he did not rely on any part of the transcript and accepted that the Tribunal’s decision record accurately reflected the Applicant’s evidence. Mr Kumar confirmed that there was not any issue to which the transcript was relevant.
Ground 1
Ground 1 appears to assert that the Tribunal misdirected itself by not identifying the Applicant’s proper social group which had seven particularised attributes.
However, that the Tribunal referred to a series of attributes held by the Applicant. Those are that the Applicant was a native Fijian and therefore, because of his race and because of his particular social group (which the Tribunal identified as indigenous Fijian strike-breakers opposing the military government in Fiji and who had participated in strike action against the unelected military government of Fiji) was imputed with political opinion or had a political opinion, or both.
A fair reading of the Tribunal’s decision record makes clear that, similarly to the Delegate, the Tribunal accepted all the Applicant’s claims and gave the Applicant the benefit that his conduct may have been perceived as politically motivated for the reasons referred to above.
However, ultimately, the Tribunal was not satisfied that the Applicant’s fear remains well-founded. The Tribunal based that conclusion, in part, on the Applicant’s evidence that over the four months the Applicant remained in Fiji after the strike: neither the Applicant nor his family were harmed; the Applicant continued to live at the same address; the Applicant was able to remain in his job; and, the Applicant had no difficulty leaving Fiji legally using his own passport. The Tribunal found that the Applicant could have been found easily by the military if he had been of interest to them. Accordingly, the Tribunal found that the Applicant was of no official interest to the Fijian government or its instrumentalities, including the police and the army. The Tribunal stated that the Applicant made clear “several times at the hearing in his responses to the Tribunal’s questions that his concern was very much at the time of the strike and its immediate aftermath.”
The Tribunal went on to say that, having accepted that the Applicant received threats at the time of the strike and immediately thereafter, the Tribunal was not satisfied that there would be any purpose or value in threats continuing “very long after the strike ended, let alone now or in the reasonably foreseeable future, some 11 months later”. The Tribunal noted that the Applicant did not claim to have participated in another strike in Fiji or that he was “even contemplating” being involved in any further strike activity.
In the circumstances, I accept the submission of counsel for the First Respondent, that ground 1 appears to have misconceived the basis upon which the Tribunal made its decision. The identification of the Applicant’s social group played no part in the Tribunal’s ultimate conclusion that the Applicant’s fear was not well-founded. The Tribunal did not base its decision on a rejection that the Applicant belonged to a particular social group or had an actual or imputed political opinion. Rather, the Tribunal found, based on the Applicant’s own evidence, there was not a real chance that if the Applicant returned to Fiji he was at any real risk of experiencing harm at the hands of the military for any Convention related reason. The Tribunal’s findings and conclusions were open to it on the evidence and materials before it and for the reasons it gave.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 appears to assert that the Tribunal erred in its consideration of the issue of effective state protection.
Mr Kumar submitted that the Tribunal based its finding that the Applicant would be able to seek and receive effective state protection in Fiji on a newspaper report provided by the Applicant that the brother in law of the head of the military government in Fiji was charged, prosecuted and convicted of murder. Mr Kumar submitted that in considering the issue of state protection, the Tribunal was indicating that its findings that the Applicant’s fear was not well-founded were attenuated by some doubt. I reject that submission.
A fair reading of the Tribunal’s decision record makes clear that the Applicant accepted all the evidence and material provided by the applicants in support of their claims, except that the continuing fear was well-founded. As referred to above in these reasons, the Tribunal’s findings and conclusions were reasoned and open to it on the evidence and material before it. A fair reading of the Tribunal’s decision record does not support the applicants’ contention that the Tribunal’s findings and conclusions were attenuated by any doubt.
In any event, I accept the submission by counsel for the First Respondent, that effective state protection was a finding independent of the Tribunal’s findings and conclusion that the applicants’ fear was not well-founded and that the Applicant did not face a real chance of persecution if he were to return to Fiji for any Convention related reason. Further, I accept the submission of counsel for the First Respondent that, even if the Tribunal had committed an error in relation to its consideration of effective state protection, it was immaterial to the Tribunal’s ultimate conclusion, as referred to above, and is therefore within jurisdiction (Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [10]-[14]).
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 appears to assert that the Tribunal “misconstrued” the Applicant’s evidence in finding that the Applicant was an ordinary strike participant.
However, as stated above in these reasons, a fair reading of the Tribunal’s decision record makes clear that the Tribunal accepted the Applicant’s claims, including his involvement in the strike and his evidence of the nature of his involvement. The Tribunal noted and accepted that the Applicant was a leading hand and a union member. The Tribunal noted that the Applicant did not claim to be a member of the union executive committee or an office holder. The Tribunal noted that the Applicant was not a spokesman, either for the union or the strikers, although he did speak to people in his work unit about the strike. The Tribunal noted that the Applicant did not claim to have “organised the strike, led any demonstrations, wrote the banners or protest slogans, made speeches or that for any other reason he had a high profile in the strike action”.
In the circumstances, the Tribunal’s finding that the Applicant was an ordinary strike participant, along with 500 others, and did not have a high profile of any sort was a finding that was open to the Tribunal on the evidence and material before it and for the reasons it gave.
In the circumstances, ground 2 is no more than a disagreement with the Tribunal’s conclusion that the Applicant’s fear was not well-founded. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).
Accordingly, ground 3 is not made out.
Ground 4
Ground 4 appears to assert that the Tribunal’s finding that the Applicant was not of interest to the military shortly following the end of the strike was “irrational or illogical” because the Tribunal appeared to base its conclusion on the facts that: the Fijian army has considerable resources at its disposal; if the threat was seriously intended the Fijian army would have found the Applicant; and, the Fijian army did not find the Applicant. Mr Kumar submitted that, based on those considerations, it was not logical for the Tribunal to conclude that the Fijian army did not wish to harm the Applicant for a Convention related reason.
Mr Kumar submitted that the Tribunal had misdirected its enquiry by asking incorrect questions. However, when I asked Mr Kumar what questions the Tribunal should have asked, Mr Kumar was not able to identify what those questions might be. Neither am I.
A fair reading of the Tribunal’s decision record makes clear that it was open to the Tribunal to conclude on the evidence and material before it that the Applicant was of no continuing interest to the authorities in Fiji by reason of his participation in the August 2007 strike. It was open to the Tribunal to base its conclusion on the fact that the Applicant continued at his place of work and to live at his home address following the strike before he left for Australia. In the light of those findings, it was open to the Tribunal to conclude that, having regard to the resources of the Fijian army, had they wished to find him they could readily have done so. In circumstances where there was no evidence that threats continued for a protracted period after the end of the strike, it was open to the Tribunal to find that the Applicant was not of any continuing interest to the authorities in Fiji for any Convention related reason.
In the circumstances, the Tribunal’s finding as particularised in support of ground 4, that “the Tribunal is satisfied that if the military, with all the machinery of government at its disposal, wished to be able to find the Applicant with the object of threatening him, let alone to be able to detain him, arrest, harm…” was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, ground 4 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant and the Applicant Wife at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted his responses. In particular, the Tribunal put to the Applicant that: he had never claimed people had gone to his house to threaten him; he did not go into hiding; he did not stop going to work; he did not seek to leave Fiji despite having a valid Fijian passport. The Tribunal also noted that it put to the Applicant that, from his claims, he was one of just 500 people who went on strike and that he participated in one strike only some four months before his departure from Fiji. The Tribunal put to the Applicant its concerns about whether his fear was well-founded in the circumstances and noted the Applicant’s response that he continued to be fearful of the military.
The Tribunal then 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 the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under 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 should be dismissed with costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 23 November 2009
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