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MIGRATION - Application for review of RRT decision - where applicant claimed to have a well-founded fear of persecution on grounds of race and religion - where applicant provided the Tribunal with written submissions in support of his claims - where said submissions were identical to his sister's submissions - where Tribunal found that these had been prepared by someone else - where Tribunal did not inform applicant of this conclusion - whether Tribunal failed to consider the claims contained in the written submissions and thus fell into jurisdictional error.

SZAYN v Minister for Immigration [2004] FMCA 807 (17 November 2004)

SZAYN v Minister for Immigration [2004] FMCA 807 (17 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYN v MINISTER FOR IMMIGRATION
[2004] FMCA 807




MIGRATION - Application for review of RRT decision - where applicant claimed to have a well-founded fear of persecution on grounds of race and religion - where applicant provided the Tribunal with written submissions in support of his claims - where said submissions were identical to his sister's submissions - where Tribunal found that these had been prepared by someone else - where Tribunal did not inform applicant of this conclusion - whether Tribunal failed to consider the claims contained in the written submissions and thus fell into jurisdictional error.




VAF v MIMIA [2004] FCAFC 123

Applicant:
SZAYN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ 1360 of 2003




Delivered on:


17 November 2004




Delivered at:


Sydney




Hearing date:


4 November 2004




Judgment of:


Raphael FM




REPRESENTATION

Solicitors for the Applicant:


Mr M Jones




Counsel for the Respondent:


Mr M Wigney




Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ 1360 of 2004

SZAYN



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Fiji of Indian ethnicity. He arrived in Australia on 17 December 2001. On 7 January 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 29 May 2002 a delegate of the Minister refused to grant a protection visa and on 3 July 2002 the applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal held a hearing into the applicant's claims on 13 May 2003 and took into account additional material provided by the applicant and found at [CB 75] et seq. On 16 May 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 11 June 2003. On 16 July 2003 the applicant sought judicial review of that decision and filed an application drafted by his legal adviser who appeared on his behalf at the hearing. The ground of the application was that:

"The second respondent (the tribunal) committed jurisdictional error of law by not informing the applicant about concerns it had as to the authorship of his claims, and as a result denied the applicant natural justice."

2. The factual matrix from which the applicant claimed to hold a well-founded fear of persecution for the Convention reasons of race and religion can be found by perusal of his original application [CB 2] - [CB 14], his response to the letter requesting particulars of his claims from the department [CB 37] - [CB 47], and the application for review document [CB 75] previously referred to. The Tribunal found that the applicant was a young Fijian of Indian ethnicity who had been working in the finance and accounting sector in Fiji before coming to Australia. The applicant had listed a number of occurrences commencing at around the time of the Fijian coup in May 2000. The Tribunal accepted that the applicant had had his bags snatched by thugs, that he had had an examination delayed for a short while, that his hair had been shaved by thugs and a demand made that he convert from Hinduism to Christianity. The Tribunal noted claims made by the applicant about the difficulties faced by some ethnic Indian farmers over their lease holdings. It also noted that the applicant was out of work for a few months following the coup. The applicant had complained of the violence of ethnic Fijians towards Hindu temples and that Indo-Fijians generally felt unsecure. In regard to this matter the Tribunal said at [CB 116]:

"I accept that Indo-Fijians such as the applicant had genuine fears about their security when the Fijian supremacists mounted the May 2000 coup. However I find that the security situation has normalised since then and that the Fiji authorities are able and willing to offer protection to those fearing harm."

3. The Tribunal considered the situation as it was at the time it assessed the applicant's claims and came to the conclusion that none of the applicant's previous experiences constituted serious harm within s.91R Migration Act. The Tribunal found at[CB 119]:

I accept that there is a level of harassment and antagonism between supporters or perceived supporters of rival political parties, but the country information before me does not indicate that such harassment rises to the level of persecution. Neither the 1999 election nor subsequent elections have been marked by significant, if any, violence.

...

DFAT stated that during the period of the 2001 elections and in the post election environment it did not receive any reports of physical violence against any Fijian political figures, either indigenous Fijians or Indo-Fijian.

In the above circumstances I am not satisfied that the applicant faces persecution in the future for political reasons.

If he were to be threatened with such harm, I find on the basis of the independent evidence before me that he could avail herself (sic) of the protection of the authorities.

On the basis of the independent evidence above and my conclusions regarding the applicants individual history, I am not satisfied that the applicant has a well-founded fear of persecution in Fiji in terms of his race, political opinion, religion or any other Convention ground."

4. In the hearing before me it was accepted by both the applicant and the Minister that the relevant part of the Tribunal's decision to be construed for the possibility of jurisdictional error was the first paragraph of the Tribunal's findings and reasons found at [CB 115]. That paragraph is in the following form:

"Although there is no adviser listed for the applicant I am of the opinion that someone has prepared his protection visa application for him, writing submissions in his name, presenting press clippings etc. The material submitted in his name is almost identical to material submitted on behalf of another applicant before this Tribunal who happened to be his sister. The claims made by this applicant at her (sic) hearing, like the claims made by his sister at her hearing, are subdued and minor compared with the vehemence of the written submissions. Neither applicant appeared to be unable to give a comprehensive account of claims at the hearings, despite some shyness they bore themselves confidently. I am of the view that the applicant gave a true and full account of claims at the hearing and that the written claims have been prepared by someone else who has dramatised the applicant's circumstances."

5. The applicant claims, and the Minister accepts, that the Tribunal erred in not putting to the applicant that the material submitted in his name was almost identical to material submitted on behalf of his sister. This being information known to the Tribunal which might have been the reason or part of the reason for the Tribunal reaching its decision in the application. At the hearing Mr Jones explained that the applicant was claiming that the Tribunal's view of the written grounds for seeking asylum were adversely affected by its knowledge that they were almost identical to the material submitted on behalf of the applicant's sister and its view that they had been prepared by a third party so that the written submissions had not been taken into consideration. Mr Wigney correctly conceded that if this had occurred then the Tribunal would have fallen into jurisdictional error by not providing the applicant with procedural fairness in not putting its information about the written submissions to him. But the Minister argues that this did not occur and that in any event the Tribunal came to the conclusion that the applicant would be able to access effective state protection which meant that the complaint even if established would have made no difference to the decision and thus the Court should not exercise its discretion to grant review. The Minister further says that the information contained in the written submissions was not integral, essential or even important information which formed the basis for the reasons for decision.

6. The appropriate course of action is to look carefully at the three grounds contained in the written submissions which Mr Jones argued were not considered by the Tribunal to see first whether that is a correct interpretation of the Tribunal's grounds and reasons for decision and then, if it is, whether the findings concerning available state protection are clearly relevant to them so that there would be no utility in granting the application for review. The first ground found at [CB 8] is:

"I lived with my parents in Fiji. I fear of losing the land once the native land lease expires. There is always the fear of unjust lease increases every year. There is a possibility of non-renewal of the current lease (lots of Indians are on native land lease and once expired are not renewed). This will mean losing the family home and unity."

It seems clear to me that the Tribunal did consider this complaint because at [CB 115] it says:

"I do not consider that the difficulties faced by some ethnic Indian farmers over their lease holdings lead to a conclusion that the applicant faces persecution over his livelihood. He has not worked as a farmer but as an accountant."

It seems that what the applicant feared was the loss of his patrimony, but it is difficulty to see how the possibility of such loss would fall within s.91R of the Migration Act. In any event the appropriate test is whether the matter was considered, and I believe it was.

7. The second complaint is in the following form also at [CB 8]:

"I have fear of being converted to Christianity and still fear about any peaceful coexistence with native Fijians. It cannot be meaningful either as I have been a devoted Hindu all my life."

Again at [CB 115] the Tribunal notes that native Fijians had demanded that he convert from Hinduism to Christianity and at [CB 116] states:

"I sympathise with the applicant over this incident [his head being shaved by louts] by I do [sic] not satisfied that it is of sufficient severity so as to amount to persecution. The incident appears to be singular in his life, according to his evidence, and I consider it to be due to the general breakdown in law and order that occurred in that time before order was restored. Thus I am not satisfied that it signifies a real chance of persecution in the future. Given that Hindus continue to practice their religion freely as a constitutional right and that the administration "protected the rights of all religious groups" I am not satisfied that the applicant has a well-founded fear of persecution in terms of his religion."

I am satisfied that the Tribunal did take into account this complaint.

8. The final matter put by the applicant in his written submissions and said not to have been considered was:

" I fear about my well-being in times of sickness/illness in a hospital due to the discrimination prevalent in hospitals against Indians. I fear about my health and definite possibility of mistreatments."

The complaint made here is the complaint of discrimination in health against ethnic Indians and their fear arising therefrom. At [CB 115] the Tribunal says:

"I accept that the applicant has concerns about discrimination against ethnic Indians, freedom of political activity and religion. I am not satisfied that he has a well-founded fear of persecution over these matters."

I take the comma after the words "ethnic Indians" to mean that this discrimination is a different head of alleged persecution to that of freedom of political activity and religion. It seems to me that it would encompass the claims made in relation to health contained in the written submissions.

9. I am of the view that the Tribunal did take into account the matters contained in the written submissions but I would go further. I read the first paragraph of the findings and reasons to indicate only that the Tribunal was preferring the manner in which the complaints were articulated at the hearing to the way in which they were articulated in the written submissions. As the Tribunal accepted that the applicant had the subjective fears he put forward the manner in which he put them forward becomes irrelevant. The Tribunal's task is then to consider the fears objectively. That is what it did. It came to the conclusion that such fears were not objectively based firstly because the persecution was not severe enough, secondly because the situation in Fiji had improved and thirdly because there was available state protection. Looked at this way there are no grounds for reviewing the Tribunal's decision notwithstanding the Minister's acceptance that the Tribunal should have indicated that it was aware that his sister had made identical written complaints.

10. Mr Jones in his helpful written submissions made much of the decision of the full bench in VAF v MIMIA [2004] FCAFC 123. There is nothing in that decision with which I would cavil. I have found that on a proper reading of the Tribunal's decision the matter complained of had no consequences. In those circumstances the case is not relevant. The application is dismissed. The application must pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 17 November 2004
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