SBNC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 200

FEDERAL COURT OF AUSTRALIA

SBNC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 200 SBNC, SBPC, SBQC & SBRC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No SAD236 of 2005 FINN J ADELAIDE 10 MARCH 2006

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 236 OF 2005

BETWEEN: SBNC

FIRST APPLICANT

SBPC

SECOND APPLICANT

SBQC

THIRD APPLICANT

SBRC

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 10 MARCH 2006

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 236 OF 2005

BETWEEN: SBNC

FIRST APPLICANT

SBPC

SECOND APPLICANT

SBQC

THIRD APPLICANT

SBRC

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE: 10 MARCH 2006

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This application for judicial review of a decision of a delegate of the respondent Minister made under the Migration Act 1958 (Cth) falls within a narrow compass. The applicants are a family of indigenous Fijians who came to this country on 27 November 2004. The first applicant, who is wife of another of the applicants and mother of the two child applicants is the only one who has made a claim to be a refugee. 2 The claims she made in her application were cast in very general terms and were characterised by the delegate in the following terms: "The applicant claims that her family have been abused and harassed as a result of her political involvement around issues of social and economic justice for Fijians of Indian origin. She claims that she fears for the future of her children who have been abused and threatened at school and that her family have been tormented and harassed generally by indigenous Fijians because of her political activities. She claims to fear violence and torture if she returned to Fiji. I find that the harm feared involves serious harm and systematic and discriminatory conduct as outlined in section 91R of the Migration Act; AND I also find that the Convention ground of political belief is the essential and significant reason/s for the harm feared as outlined in section 91R of the Migration Act; AND I therefore find that the applicant fears persecution for a Convention reason." 3 No complaint has been made either by the applicant or by the respondent concerning the above characterisation of the applicant's claim or of the fear she claims to have if she were to return to Fiji. I would simply add that the fear ascribed to the applicant if she returned to Fiji involved a generous construction of her application. 4 The delegate went on to consider the question of whether her fear was well founded. His reasons and conclusion are contained in the following short paragraphs: "The applicant claims to fear violence from indigenous Fijians if returned to Fiji and claims that repeated complaints to the Fijian police have been ignored. She makes no claims in regard to violence having actually been perpetrated upon either her or any member of her family. While county [sic] information available to me documents a litany of economic and social discrimination against Indo-Fijians and in favour of indigenous Fijians since the 2000 coup overthrew the Labour Party Government of Prime Minister Mahendra Chaudhry and the election of a new Fijian Government, there is no evidence that systemic and discriminatory acts of violence are been [sic] perpetrated against the Indo-Fijians or their supporters. I find it credible that complaints to the Fijian police in regard to threats of violence and abuse allegedly suffered by the applicant and her family have not resulted in an effective response from the police but I have no evidence before me that if such threats were considered likely to be carried out there would be no appropriate response from the Fijian authorities. Because of the absence of evidence available to me supporting claims of violence and persecution of Indo-Fijians and the supporters, I find that the applicant does not have a well-founded fear of persecution." 5 The principal ground of the present application to this court is that the delegate committed jurisdictional error because he constructively erred in implicitly narrowing the scope of what constituted serious harm by suggesting that there must be actual violence before accepted discriminatory conduct will constitute serious harm. The short answer to this challenge is that it attributes a process of reasoning to the delegate that is not betrayed in the reasons themselves. The delegate simply responded to the claim made by the applicant. 6 As I have already noted no issue has been raised in relation to the delegate's characterisation of the applicant's claims. The claim, as it related to the future was that she claims "to fear violence and torture if she returned to Fiji". The delegate equally noted that she made no claims "in regard to violence having actually been perpetrated upon her or any member of her family". Given that violence and the fear thereof was the fulcrum upon which her fear of persecution rested, it was entirely open and appropriate for the delegate to have regard to country information for the purposes of determining the incidence (if any) of violence or persecution of Indo-Fijians and their supporters. In the absence of such evidence, it was open to the delegate to conclude that whatever the applicant's fear it was not well-founded. What needs to be emphasised in this is what the claim was that was being made. The claim was made in a setting where discriminatory conduct was said to have occurred in relation to the applicant and her family and in relation to the education of her children. That discriminatory conduct, however, was not claimed to be persecutory per se and it was not the fear of persecution relied upon, though it may have manifested why the apprehended persecution was feared. Accordingly this ground of the application must be dismissed. 7 The applicant's case, as presented at the hearing, focussed simply upon the treatment experienced by the applicant and her family in Fiji – the abuse of, and threats to, her children, general harassment and non-responsive police. It was said, variously, that this was either excluded from the delegate's conception of what constituted "serious harm" for s 91R purposes, or that it was simply not dealt with by the delegate when determining whether the applicant had a well-founded fear of persecution because of that conduct. 8 I have dealt above with the s 91R contention. The alternative claim in effect recasts the claim made by the applicant as to the persecution she fears were she to return to Fiji. It must fail for the same reasons I have already given. 9 The application also alleges jurisdictional error in the failure of the delegate to make findings in relation to the claim by the two juvenile applicants that they would specifically suffer from persecution in their education. No claim had been made by those applicants that they had their own reasons for claiming to be refugees. No separate Part C statement was submitted on their behalf. The delegate, as is obvious from what has been quoted above, did advert to the circumstances of the applicant's children and their treatment at school and otherwise, but because of the nature of the application itself and its concern with persecution of the applicant mother, it was unnecessary for the delegate to express any view on the matter in relation to her children although it seems to be implicit in what I have quoted above that the delegate accepted that the children had experienced discrimination. 10 I order that the application be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.