SZEMS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 359

FEDERAL COURT OF AUSTRALIA

SZEMS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 359 SZEMS, SZEMT, SZEMU and SZEMV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL NSD 1508 OF 2005 EDMONDS J 7 APRIL 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1508 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEMS, SZEMT, SZEMU AND SZEMV

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EDMONDS J

DATE OF ORDER: 7 APRIL 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs.

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 NSD 1508 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZEMS, SZEMT, SZEMU AND SZEMV

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EDMONDS J

DATE: 7 APRIL 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

Edmonds J:

Introduction 1 This is an appeal from the Federal Magistrates Court (Nicholls FM) dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of a delegate of the first respondent ('the Minister') to refuse to grant the first three appellants protection visas.

Background 2 The appellants are husband, wife and two sons. The husband and wife and the elder son are citizens of Fiji and arrived in Australia on 28 May 1999. They applied for protection visas on 22 May 2000. Their application was refused by a delegate of the Minister on 28 June 2000 and they applied for review of that decision by the Tribunal on 13 July 2000. 3 On 12 April 2001 the Tribunal handed down its decision, affirming the decision of the delegate. The second son, according to the husband, was born after the Tribunal decision was handed down but before the commencement of proceedings in the Federal Magistrates Court. 4 Only the husband (SZEMS) made specific claims to be a refugee in his own right before the Tribunal and he will be referred to as the appellant. 5 The appellant and his family are Fijian Indians. Before the Tribunal the appellant claimed that since 1987 the area where he lived was heavily populated by ethnic Fijians and the family had been the target of harassment, including stones being thrown at their house. He had complained to the police but no action was taken. He said that his wife and son were afraid to leave the house. 6 Relying on country information, the Tribunal concluded that the situation in Fiji had 'settled down' to the point that the Tribunal did not accept that if the appellant returned, there would be any real chance stones would be thrown at his house. The Tribunal did not accept that the appellant did not have the protection of the police force, which had brought the situation under control. The Tribunal observed that the Fijian Indian population is around 45 per cent of the total population of Fiji and, in coming to the conclusion it did, it was undoubtedly influenced by the appellant's own statement that 'his brothers who still live there have returned to their normal lives'. The Tribunal concluded that the appellant would be in the same position as his brothers if he returned now and that while it is impossible to predict the future, the Tribunal's assessment was that 'in the reasonably foreseeable future there is no real chance that [the appellant] will face persecution because of his ethnicity'.