SZEFP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 849

FEDERAL COURT OF AUSTRALIA

SZEFP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 849

SZEFP AND SZEFQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD1743 OF 2004 BENNETT J 31 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1743 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEFP, SZEFQ

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 31 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1743 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEFP, SZEFQ

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 31 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a Fijian woman of Indian ethnicity and of the Islamic religion. The second named appellant is her daughter. They arrived in Australia on 13 November 2003. On 9 December 2003 the first named appellant lodged an application for a protection visa. On 24 December 2003 a delegate of the respondent advised her that the application had been refused. The letter advising of the rejection informed her of the availability of review by the Refugee Review Tribunal ('Tribunal'). 2 Unfortunately, the first named appellant did not apply to the Tribunal but instead applied to the Migration Review Tribunal ('MRT'). On or around 3 March 2004 she was advised that her application for review had found to be ineligible on the basis that it was not an MRT reviewable decision within the meaning of s338 Migration Act 1958 (Cth) ('the Act'). The appellant thereby lost her avenue of appeal to the Tribunal as any application to that Tribunal would have been outside the time limit. 3 The appellants have previously commenced proceedings in the High Court but they were discontinued. On 7 May 2004 they commenced proceedings in the Federal Magistrate's Court. The facts relied upon by the first named appellant to support her claim were set out in the protection visa application and the letter that accompanied it. They are also set out in the Delegate's decision. 4 In summary, the first appellant claims to have been seriously abused in the course of a marriage to which she was committed at the age of 16. She divorced her husband in September 2003 after forming a new relationship. She claimed that on a previous trip to Australia in August 2002 she commenced a relationship with her current de facto spouse. 5 When her husband became aware of her extra marital relationship, according to the first named appellant, he abused and threatened her. The first named appellant claims that she suffered from verbal threats and insults, not only from her husband but also from her extended family and in-laws. She stated that she fears that if she returns to Fiji she will continue to face insults and threats from her family members and her ex-husband. 6 In her application for a protection visa, the first named appellant was asked the following: 'Do you think the authorities of that country [Fiji] can and will protect you if you go back? If not, why not?' She responded: 'No, because I have a large extended family who are all against me. The authorities can't keep an eye on everyone. Some of the family members will harm me and my kids... see letter attached.' 7 The attached letter did not elaborate on the attitude of the state of the harm she feared. 8 The Delegate did not accept that the harm the first named appellant feared from her ex-husband and her family was referrable to any Convention reason. The Delegate said that there was no evidence to indicate that the persecution feared by the first named appellant is official, or officially tolerated or uncontrollable by the authorities. The Delegate was not satisfied that the first named appellant had been singled out and persecuted by or with the tacit acceptance of the authorities, or that the state was powerless to prevent the private persecution of the first named appellant. 9 The Delegate also referred to country information, which indicated that the Government in Fiji provides a reasonable level of protection to its citizens through police, judicial and para-military services within the resources available to do it. The Delegate also referred to information indicating that there are avenues available to all citizens through the Fiji Human Rights Commission. The Delegate noted that the first named appellant had not claimed that she contacted the authorities or complained to the Human Rights Commission. 10 While the Delegate conceded that the authorities may not be able to guarantee the first named appellant's absolute safety from all harm, he or she took the view that: '[I]t can be argued that the Convention was never intended to provide a governmental guarantee that its nationals will suffer no harm.' 11 The Delegate was not satisfied that the harm that the first named appellant claims to fear would be inflicted on her for a Convention reason, or that the authorities would be unable or unwilling to provide protection to her from this private harm. 12 When the matter came before Federal Magistrate Smith, his Honour considered whether the first named appellant might be able to be characterised as having fears referrable to membership of a particular social group. However, his Honour considered that the Delegate correctly identified that where her fears were based on harm that would be inflicted by non-state agencies she must also satisfy the requirement that she show that there was a failure of state protection. 13 In effect, his Honour considered Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, Minister for Immigration and Multicultural Affairs v Applicant A (1997) 190 CLR 225 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487, and concluded that the reasoning of the Delegate showed no material error of law in his or her appreciation of the requirements of the Convention definition in relation to the issue of state protection. His Honour was also unable to find any procedural error leading to the making of the decision. 14 The appellants' claim before the Federal Magistrate claimed a breach of procedural fairness in that they were not given the opportunity to respond to certain adverse country information. His Honour concluded that the Delegate was under no statutory obligation to give the appellants the opportunity to comment on that material by reason of section 57(1) of the Act. In that regard, his Honour followed the decision of the Full Court of this Court inMinister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ['NAMW'] 15 The notice of appeal to this Court sets out the grounds of appeal and essentially claims that the Delegate denied the applicants procedural fairness or natural justice. . This general allegation is, as a general proposition, not particularised. The particulars that have been provided can be dealt with shortly. The first ground was that the Delegate found the documents provided by the applicants to be unconvincing without first submitting those concerns to the applicants The second ground was that the Delegate relied on 'country information' in reaching his decision without providing the applicants with a real opportunity to comment on that information. 16 As to the first ground, it is claimed that the Delegate dealt with documents provided by the appellants. In fact, there is no reference in the Delegate's decision to any such documents. In the hearing before me the first named appellant appeared in person, assisted by an interpreter. When I asked her if any documents were, in fact, given to the Delegate, she said that there were none. 17 With respect to the second ground, that is the reliance on country information, I can see no error in the conclusion of the Federal Magistrate whose finding is in accordance with NAMW. In the words of Lander J, with whom Dowsett and Hely JJ agreed, in QAAC of 2004 v Refugee Review Tribunal [2005] FCLSC 92 at [26]: '[T]his Court has authoritatively and finally determined the true construction of section 424A(3)(a).' 18 And that construction is as set out in NAMW. A fortiori that reasoning applies to section 57 of the Act. 19 I can find no error in the reasoning of the Federal Magistrate, nor is any jurisdictional error apparent in the findings and reasons of the Delegate. It is most unfortunate that the appellants filed an application for review with the wrong Tribunal and that they have, therefore, not been able to avail themselves of the procedure for review as provided by the Migration Act. However, that is not a matter for this Court to remedy. Accordingly, the appeal should be dismissed. 20 The order of the Court is that the appeal is dismissed and the appellants are to pay the respondent's costs. 21 I direct the respondent to file and serve any affidavit in support of its application for a fixed amount of costs by 4 pm on 2 June. I direct the appellants to forward any written submissions in respect of that quantum of costs by 4 pm on Monday, 6 June. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.