SZRDJ v Minister for Immigration
[2012] FMCA 636
•10 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRDJ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 636 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming persecution in Fiji as Indo-Fijians – first applicant’s claims of past harm not believed – Tribunal not satisfied that the applicant faced a real risk of future Convention related harm – whether the Tribunal breached s.425 of the Migration Act and whether the Tribunal overlooked an element or integer of the applicants’ claims considered. |
| Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425 |
| ABT v Bond (1990) 170 CLR 321 SZOYH v Minister for Immigration [2012] FCA 713 |
| First Applicant: | SZRDJ |
| Second Applicant: | SZRDK |
| Third Applicant: | SZRDL |
| Fourth Applicant: | SZRDM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 306 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 23 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Applicant: | Sarom Solicitors |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application filed on 17 April 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 306 of 2012
| SZRDJ |
First Applicant
SZRDK
Second Applicant
SZRDL
Third Applicant
SZRKM
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 9 January 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are four applicants, a husband and wife and their two children. The first applicant was appointed the litigation guardian for the minor applicants. The relevant protection claims were made by the first applicant and references in this judgment to “the applicant” are references to him.
The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of Fiji who arrived in Australia in November 2009. The first applicant claimed in his visa application that he left Fiji as he feared for the safety of himself and his family[1]. In his visa application, the first applicant identified himself as an Indian-Fijian and a Hindu[2]. He set out a detailed account of harassment by indigenous Fijians, which he claimed he and his family had experienced throughout 2009[3]. That account referred to various assaults and thefts, demands that he and his family leave Fijian land, the desecration of their prayer site, the burning down of their house and the refusal of the Fijian police to provide assistance. The first applicant expanded on these claims at an interview with a delegate of the Minister on 17 March 2010[4].
[1] Court Book (CB) 19 ff
[2] CB 14
[3] CB 19 ff
[4] see CB 107
On 9 April 2010, the delegate refused the visa application[5]. The delegate accepted as plausible the first applicant's claims of threats, encounters and altercations between the applicants and indigenous Fijians. However, the delegate found on the basis of independent country information that effective state protection against that sort of harm was available. Additionally, the delegate noted that the first applicant continued to work and own property without any discrimination from his employer and that he and his family had made several trips to and from Fiji in recent years, including returning to Fiji after several of the claimed instances of serious harm. The delegate concluded that the first applicant did not have a genuine fear of harm for a Convention reason in Fiji and that there was no real chance of any persecution occurring in the future[6].
[5] CB 113-129
[6] CB 129
On 10 May 2010, the applicants applied to the Tribunal for review of the delegate's decision[7]. They were represented in relation to the review by a registered migration agent. On 24 May 2010, the Tribunal invited them to appear before the Tribunal and on 30 June 2010, the first applicant attended a hearing before the Tribunal and gave evidence. The Tribunal also took evidence from the second applicant and her sister.
[7] CB 132-135
The Tribunal decision
On 9 January 2012, the Tribunal affirmed the delegate’s decision[8]. The Tribunal rejected the first applicant's claims (and the corroborating evidence given by the second applicant and her sister in support of those claims) to have experienced any harm from indigenous Fijians in the past or to have a well-founded fear of suffering any such harm in the future. In its reasons for decision, the Tribunal:
a)had difficulty in accepting that indigenous Fijians would suddenly start harassing the applicant and his family in 2009 in circumstances where they had lived in the same house without any serious incident for at least 10 years previously[9];
b)found it difficult to accept that the applicant and his family were singled out in the way that they had claimed to be and told to leave Fiji because they are Indo-Fijian[10];
c)indicated that it did not accept that the applicant and his wife were telling the truth about the problems they claimed to have had in Fiji in 2009. Specifically, the Tribunal did not accept that they were repeatedly attacked inside and outside their home by indigenous Fijians who robbed them and threatened to kill them if they did not leave Fiji, nor that their home or their prayer place was destroyed, nor that the indigenous Fijians told them that Fiji was a Christian country and they could not follow Hinduism there[11];
d)did not find credible the fact that when the applicant went to New Zealand in March 2009 he left behind his wife and children, even though he claimed to fear for their safety, and similarly the Tribunal considered that the fact that the applicant’s wife came to Australia some two weeks before the first applicant and their children also cast doubts on her claims that she believed that the children were in danger in Fiji[12];
e)did not accept that the police would not take their complaints specifically because they were Indo-Fijian[13];
f)did not consider the claims made by the applicants to accord with the independent country information regarding race relations in Fiji since the military coup in 2006, which indicated that the Fijian government provided internationally acceptable standards of protection to members of the Indian-Fijian and Hindu communities in Fiji[14];
g)did not accept that there was a real chance that the applicant would be attacked at work or discriminated against in relation to employment in such a way or to such an extent as to amount to persecution for reasons of his race or religion if he were to return to Fiji now or in the foreseeable future. Nor did it accept, on the basis of country information, that the fact that the applicant had supported the Labour party in a previous election would cause him to experience persecution were he to return to Fiji[15].
[8] CB 238-260
[9] CB 257; [83]
[10] CB 258; [87]
[11] CB 259; [90]
[12] at CB 257-258, [84]-[85]
[13] CB 258; [87]
[14] CB 258-259; [86]; [88]-[89], [91]
[15] CB259; [91]
For these reasons, the Tribunal did not accept that there was a real chance of persecution for reason of race or religion or real or imputed political opinion if the applicants were to return to Fiji[16]. On this basis, the Tribunal affirmed the decision of the delegate.
[16] CB 259, [92]
The judicial review application
These proceedings began with an application filed on 13 February 2012. The applicants now rely upon an amended application filed on 17 April 2012. There are three grounds in that application:
Ground One
The applicant raised an alternative basis of claim that he feared harm owing to his support of Labour Party (trp.9). The Tribunal committed jurisdictional error when it made a finding and / or stating “… on basis of evidence before me that there is a real chance that the applicant would be persecuted for reasons of his support for the Fiji Labour Party … .” (CB259; at [91]) as the evidence relied upon does not support the finding or alternatively there is no evidence to support the finding; and / or further committed jurisdictional error by not allowing the Applicant to be properly heard on this issue.
Particulars
The Tribunal relied on material at CB 229 (and ff) which only refers to the historical evidence that the Fiji Labour Party was associated with the regime but had withdrawn and does not address the issue of persecution of the applicant(s). Any country information or any other evidence that the Tribunal relied upon was not put to the applicant at the hearing (or in written form) in breach of s.425 (nor was any written invitation sent pursuant to s.424A).
Ground Two
The Applicants had claimed, as per written claim, inter alia: “…The Fijians wanted to chase the Indian people from their homes so that they could take over their houses and land. I continued to be a victim of the Fijian hatred….. . The Fijians told me that they would take whatever they wanted to and that there was nothing we could do. …”
The Applicants were advancing claims as members of the social group who feared for their safety being Indo-Fijians and who were Lessees on the land belonging to indigenous Fijians. The Tribunal committed jurisdictional error when it failed to deal with this or any social group.
Particulars
The Tribunal simply dealt the matter on basis of ethnicity.
Ground Three
Alternatively, the Tribunal misconceived the basis of the Applicants’ claim and failed to deal with an integer of claim, namely Applicants’ claim that they were residing on native land. The Member misconceived and misconstructed the “housing estate on the edge of Lautoka” (RRT decision at [63]; p 14) as some other type of land when in fact the housing estate could be (and was) on the native (Fijian) land. The Tribunal thereby committed jurisdictional error when it did not deal with the issue at all.
Particulars
The Tribunal dealt with the Convention basis of ethnicity and potential risk of harm from the military but it failed to deal with the issue of the Applicants as residents of the housing estate on the edge of Lautoka with the majority indigenous Fijian population on the Fijian (native) land.
The third ground was not “separately pressed” by counsel for the applicants at the trial of this matter on 23 July 2012. That means that the outcome on the third ground depends entirely on the outcome of the second ground.
The evidence and submissions
I have before me as evidence the court book filed on 12 March 2012.
Both parties made written and oral submissions. The applicants contend that the Tribunal fell into error by relying upon country information concerning relations between the Fiji Labour Party and the Fijian government which, in their submission, did not have any direct bearing upon the claims advanced by the applicant. They contend that there was no evidence to support the rejection of the applicant’s political claim and the Tribunal breached ss.424A and 425 of the Migration Act 1958 (Cth) (“the Migration Act”) by not raising the information it relied upon with the applicant and obtaining his comments upon it.
Secondly, the applicants contend that the Tribunal fell into error by failing to consider a claim based upon membership of the applicant in a particular social group of Indo Fijians who were lessees on land belonging to indigenous Fijians. This is said to constitute a failure by the Tribunal to address an element or integer of the applicants’ claims.
The Minister denies that the Tribunal fell into error in either of these respects.
Consideration
Ground One
The applicant claimed that he feared harm at the hands of indigenous Fijians who were pressuring him to give up land on which the applicants lived on the outskirts of Lautoka.
The applicant claims that he raised an alternative basis of claim that he feared harm owing to his support of the Fijian Labour Party. The applicant claims that the evidence relied on by the Tribunal in making its finding at [91][17] does not support the finding or that there was no evidence for it, or that the applicant was not properly heard on this issue.
[17] CB 259
This ground is particularized by reference to material referred to at CB 229 ff, and it is also claimed that the country information was not put to the applicant at hearing in breach of s.425, “nor was any written invitation sent pursuant to s.424A”.
I accept the Minister’s submission that this ground of review cannot succeed. As the applicant concedes at [9] of his submissions, the Tribunal raised this matter with the applicant at the hearing[18].
[18] see CB 248; Tribunal’s reasons for decision at [37] and see also CB 259 [91]
Section 425(1) requires the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
As the High Court put it in SZBEL v Minister for Immigration[19], there would be a breach of s.425 if, perhaps, the applicant had attended a hearing at which no mention had been made of the issue of the applicant’s membership of the Labour Party, but the Tribunal had then decided the case on that basis:
If the Tribunal invited the Applicant to appear, said nothing about any possible doubt about the Applicant's nationality, and then decided the review on the basis that the Applicant was not a national of the country claimed, there would not have been compliance with s.425(1); the Applicant would not have been accorded procedural fairness.
[19] (2006) 228 CLR 152 at [37]
But in circumstances where the matter of his involvement with the Labour Party was raised with the applicant and the applicant’s responses to that issue were recorded by the Tribunal in its reasons for decision, there has been no breach of s.425 of the Migration Act.
Nor does s.424A assist the applicant in this case. That provision requires that an applicant be given clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review (and the particulars of any such information may be provided to the applicant orally during the hearing: see s.424AA).
In summary, this aspect of Ground One cannot succeed for two reasons: first, the country information was in fact put to the applicant for his response. Secondly, s.424A(3)(a) excludes general country information from the requirements of s.424A.
The applicant appears also to concede in his submissions at [9] that the weight to be placed on country information is entirely a matter within the jurisdiction of the Tribunal. This concession was properly made since it is clearly established that the weight to be accorded to country information is a matter entirely within the jurisdiction of the tribunal of fact to determine[20]. However the applicant claims that there was no evidence for the Tribunal’s finding.
[20] see NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[14] per Gray, Tamberlin and Lander JJ
In fact, the Tribunal referred expressly to the evidence it relied on: specifically, the applicant’s own evidence[21] and the country information that is referred to at [37] and at [91][22].
[21] at CB 248 [37]
[22] at CB 259
For a claim based on the “no evidence” ground of judicial review to succeed, there must be no evidence at all, rather than, for example, insufficient evidence[23]. The “ground will not be made out if there is some basis in the evidence for the challenged factual finding. This is so even if the evidence is slight”[24].
[23] see ABT v Bond (1990) 170 CLR 321 at 356 per Mason CJ – a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth)
[24] see SZFWB v Minister for Immigration [2007] FCA 167 at [31] per Kenny J, referring to VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ and WAJS v Minister for Immigration [2004] FCAFC 139 at [11]-[12] per Wilcox, Marshall and Jacobson JJ
I reject Ground One.
Ground Two
Consideration of this ground requires consideration of the distinction between an element or integer of a claim and an item of evidence. The issue was recently addressed by Reeves J in SZOYH v Minister for Immigration[25] at [34]-[38] where his Honour said:
[25] [2012] FCA 713
The expression “component integers” appears to have been first used in connection with an appeal under the Migration Act 1958 (Cth) in Htun. The critical part of the reasons of Allsop J in Htun (see [25] above) was: “To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend.” (emphasis added)
In Htun, the Tribunal rejected the applicant’s claim he would face a real chance of persecution if he were to return to Burma because of his welfare, social and political activities in Australia “with the TRW [Tribal Refugee Welfare] in particular”. In doing so, the Tribunal relied upon information it obtained from the Department of Foreign Affairs and Trade that such activities “were sufficiently innocent not to be of a level as to make him of any concern to the Burmese authorities”: see Htun at [40]. However, the Tribunal failed to consider the applicant’s claims that he had a number of friends in Australia, some of whom were members of the Karen National Liberation Army. The Full Court held that the Tribunal made a jurisdictional error in not considering this component of the applicant’s claim because it involved “political activity and also ... friendships made with other Karen people of arguably seriously subversive background”. The Full Court obviously regarded this component of the applicant’s claim as an essential component of his claims for a protection visa such that it required consideration by the Tribunal: see Htun at [42] (at [25] above).
Aside from such an essential component or integer of an applicant’s claim, the Tribunal has no obligation “to refer to, or adequately to consider, evidence, whether or not it might be thought probative”: see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24] per Kenny J and the cases referred to there. Accordingly, its failure to do so does not give rise to jurisdictional error.
In SXRB, Lander J described the difference between an integer and evidence in these terms (at [32]–[33]) as follows:
The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa. Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.
Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial. The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself. It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived...
(Emphasis added)
It follows that whether a piece of evidence is of the kind that has to be considered by the Tribunal, depends on the nature of the evidence concerned, either considered alone, or in combination with other evidence, and its significance in terms of the possible effect it may have on the result of the Tribunal’s deliberations.
The applicant claims that the Tribunal failed to deal with the applicant’s claim based on his being a member of the Indo-Fijian social group who feared for their safety and who were lessees on land belonging to indigenous Fijians. The applicant claims that the Tribunal “committed jurisdictional error when it failed to deal with this or any social group”. This ground is particularized by the claim that the “Tribunal simply dealt the matter on basis of ethnicity”.
In the applicant’s submissions, it is claimed that this aspect of the applicant’s claim was a distinct claim that he (and his family) feared persecution “as members of the social group who feared for their safety being Indo-Fijians and who were Lessee’s (sic) on the land belonging to indigenous Fijians”.
While it appears to be acknowledged by the applicant that the claim was not expressly articulated as a claim of membership of a particular social group, the applicant submits that the claim is “clearly evident on the facts” and thus the Tribunal was required to consider it[26]. The applicant relies here on the Full Federal Court’s decision in NABE v Minister for Immigration[27], referring to [55] of that decision.
[26] see applicant’s submissions at [19]
[27] (2004) 144 FCR 1 (NABE)
In its decision in NABE, the Full Federal Court at [55] was referring to the decision of the High Court in Dranichnikov v Minister for Immigration[28] at [24] where the High Court had held that a failure to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction[29]. But in Dranichnikov, as the Full Federal Court goes on to point out (also in [55]), the claim to which the Tribunal failed to respond was clearly articulated:
In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the Applicant’s submissions —namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the Applicant’s membership of the group of “businessmen in Russia” was a reason for his persecution. (emphasis added)
[28] (2003) 77 ALJR 1088
[29] and see also Htunv Minister for Immigration (2001) 194 ALR 244, also referred to by the applicant in its submissions at [27]
By contrast, in this case, the applicant made a number of factual claims, all of which involved his alleged treatment as a person of Indo-Fijian ethnicity or race, of which his claims about the attempts to remove him from his land were evidence.
In my view, this ground must fail because the Tribunal plainly dealt with the applicant’s factual claim of fearing harm from indigenous Fijians who wanted to take back land which he leased from them. The Tribunal did not accept the asserted incidents of past harm and found that the applicant did not have a well-founded fear of future harm for that reason. In my view, in rejecting the factual basis for the claim, it was immaterial whether the Tribunal attributed a Convention nexus of ethnicity or membership of a particular social group to the claim.
The Tribunal set out in some detail the various factual claims made by the applicant, in his original application, in his interview with the delegate and before the Tribunal. The applicants had put forward several reasons why they said they had been harassed by indigenous Fijians, including that they were better off financially than the indigenous Fijians, that indigenous Fijians had said Fiji was a Christian state and they could not follow Hinduism there, that indigenous Fijians had told them Fiji was for Fijians only and that many other Indian-Fijians had experienced the same problems as them.
The applicants’ evidence regarding their having leased a house on native land was, in the Minister’s submission, which I accept, correctly understood by the Tribunal as a piece of evidence provided in support of the first applicant's broader claims to fear persecution on the basis of his race and religion.
That particular evidentiary matter did not give rise to a separate and distinct claim that the first applicant feared persecution as a member of a particular social group comprising Indian-Fijians leasing native Fijian land[30]. Moreover, in NABE at [62]-[63] the Full Federal Court said “Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made”.
[30] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46] (Applicant WAEE); Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 at [1]
As the Full Federal Court in NABE went on to note:[31]
Error of fact, although amounting to misconstruction of an Applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]).
[31] at [63]
Ultimately, the Tribunal rejected the claims of the applicants to have experienced any harm from indigenous Fijians in the past or to have a well-founded fear of experiencing such harm in the future for any reason. In this context, in accordance with Applicant WAEE at [47], the rejection of the evidence in relation to the land is subsumed within the finding of greater generality.
In any event, to the extent that the Tribunal was required to consider and address the applicants' evidence regarding their having leased a house situated on native Fijian land, the Tribunal did address that evidence. That evidence is referred to in a number of places in the reasons for decision[32]. Moreover, there appeared to be considerable uncertainty about the status of the land on which the applicants were living: this was put to the applicant’s wife at [56] and [63][33]. While the second applicant is recorded as having rejected the proposition put to her at [63] that they were not living on leased Fijian land, the Tribunal made a number of adverse findings about the credibility of the claims[34].
[32] see CB 244 [16]-[17]; CB 245 [33]; CB 246 [28]; CB 250 [50]; CB 253 [63]; CB 257 [82]
[33] CB 252-253;
[34] see eg CB 259 [90]
On this basis, given either that the claim made now was not expressly articulated by the applicant, or, that even if it were, there was no failure to address that claim, there is no need to consider the arguments raised in the applicant’s submissions at [28]-[32] concerning whether the group identified by the applicant is capable of constituting a “particular social group” for the purposes of the Refugee Convention and s.36 of the Migration Act. The applicant’s factual claims were addressed by the Tribunal and rejected. The consideration of the same claims by reference to an alternative Convention nexus would have added nothing to the review in the circumstances of their case.
Ground Three
As the third ground was not “separately pressed”, it must fail upon the rejection of Ground Two.
Conclusion
The applicants have failed to demonstrate any jurisdictional error in the decision of the Tribunal. In consequence, I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 10 August 2012
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