FEDERAL COURT OF AUSTRALIA SZRDJ v Minister for Immigration and Citizenship [2012] FCA 1379 Citation: SZRDJ v Minister for Immigration and Citizenship [2012] FCA 1379 Appeal from: SZRDJ & Ors v Minister for Immigration & Anor [2012] FMCA 636 Parties: SZRDJ, SZRDK, SZRDL and SZRDM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1288 of 2012 Judge: EMMETT J Date of judgment: 12 November 2012 Legislation: Migration Act 1958 (Cth) s 36 Cases cited: Dranichnikov v Minister for Immigration (2003) 107 ALR 389 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 Date of hearing: 12 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 17 Counsel for the appellants: A Kumar Solicitor for the appellants: Sarom Solicitors Counsel for the respondents: R Baird (solicitor) Solicitor for the respondents: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1288 of 2012 BETWEEN: SZRDJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: EMMETT J DATE OF ORDER: 12 NOVEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first and second appellants pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1288 of 2012 BETWEEN: SZRDJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: EMMETT J DATE: 12 NOVEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This proceeding is an appeal from orders of the Federal Magistrates Court made on 10 August 2012. By those orders, the Federal Magistrates Court ordered that an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal), made on 9 January 2012, be dismissed. The Federal Magistrates Court also ordered that the first two applicants before it pay the costs and disbursements of and incidental to the application of the Minister for Immigration and Citizenship (the Minister). By notice of appeal filed on 31 August 2012, the appellants appeal from those orders. The notice of appeal specifies one ground, to which I shall refer shortly. 2 The appellants are all citizens of Fiji. They are a husband and wife and their two children. I shall refer to the first appellant as the Husband. The wife arrived in Australia on 15 November 2009 and the Husband and the two children arrived in Australia on 28 November 2009. They applied for Protection (Class XA) visas on 11 January 2010. On 9 April 2010, a delegate of the Minister refused to grant the protection visas. On 10 May 2010, the appellants lodged an application for review with the Tribunal. The Tribunal's decision of 9 January 2012 was to affirm the delegate's decision not to grant protection visas. On 13 February 2012, the appellants commenced a proceeding in the Federal Magistrates Court seeking judicial review of the decision of the Tribunal. 3 An amended application was lodged on 17 April 2012. Three grounds were advanced in the amended application. One of those coincides with the ground of appeal to this Court from the orders of the Federal Magistrates Court. The ground that is still pressed is that the Tribunal committed jurisdictional error in that it failed to deal with the appellants' claims that they feared for their safety as members of a social group, being Indo-Fijians who were lessees of land belonging to indigenous Fijians. They say that the primary judge erred in failing to uphold that ground. In order to explain the ground, it is necessary to say something about the original application made by the appellants. 4 The appellants' claims were articulated in a handwritten document of nearly 20 pages. Specifically, attention has been drawn to several passages in that handwritten document. The first is as follows: We used to live on native land which was leased by my mother-in-law in Waiyavi. The house we lived in had Fijian people living close to us. Overall, there were a lot of Fijians who lived close to our home. We also had at least three Fijians who were in the Fijian army, who also lived very near at our home. Then another passage says: I want to state what has happened to us in recent times has been the main reason for us to run away from Fiji. After suffering at the hands of the native Fijians that attacked us all the time, we were forced to leave all our stuff and get out of Fiji as soon as possible. A further passage says: Waiyavi is an area where the majority of people are native Fijians. Me and my wife and my children were all living on native lease land and this became huge problem [sic] for us because the Fijian people in Waiyavi warn us that they want the Fijian land back. The native Fijian [sic] make trouble for us and assault us because they want us to move out of the native land where we have our house. The native Fijian attack us to make sure that Indian people like me were kicked out of our land even though the land we have our home on is legal. Yet another passage is as follows: In October 2009 two more problems happened to me. The first was that in our area of Waiyavi a lot more Indian families were being attacked by the native Fijians. 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. In this [sic] second week of October a group of Fijians entered my compound and knocked on our front door … When I opened the front door these Fijian men walked straight into our home. They demanded to know whether we had decided to leave their land. Before I could say anything about us having a legal lease to the land, the four [sic] of the men started to look around the house. The Fijians told me that they would take whatever they wanted to and that there was nothing we could do. I told them to take what they wanted but to please leave us alone. 5 In the reasons for the delegate's decision, the delegate stated that the Husband claimed that he would be harmed by native Fijians because he is perceived as a wealthy Indian by the local indigenous Fijians. There was no mention in the reasons of the delegate of a claim that the appellants feared persecution as members of a social group consisting of lessees of land belonging to indigenous Fijians. Before the Tribunal, the appellants were represented by a legal advisor. There is nothing to suggest that any complaint was made to the Tribunal about the characterisation by the delegate of the claims made by the appellants. There is nothing to suggest that the appellants made any claims beyond those set out in the handwritten document to which I have referred. 6 In the course of a detailed decision, the Tribunal accepted that the Husband is someone of limited education and that he was clearly not confident or articulate in the context of the hearing before the Tribunal. The Tribunal did not regard that as unusual. The Tribunal recorded that it put to the Husband that it had difficulty in accepting that he and his family had the problems that he claimed they had in Fiji. For example, the Tribunal said that there were problems with the timing of events in the account given by the Husband and by his wife, though both confirmed at the hearing that the serious problems that they claim they experienced only began in 2009. 7 The Tribunal did not accept that the Husband and his wife were telling the truth about the problems they claimed to have had in Fiji in 2009. The Tribunal did not accept that they were repeatedly attacked, both inside and outside their home, by indigenous Fijians who robbed them and threatened to kill them if they did not leave Fiji. Nor did the Tribunal accept that the appellants' home was destroyed or that their prayer place was destroyed as they claimed. The Tribunal did accept that the house where the Husband and his wife had been living in Lautoka caught fire in unexplained circumstances in March 2010. The Tribunal did not accept, on the evidence before it, that the house was burned down for reasons of race or religion. 8 In the amended application to the Federal Magistrates Court, the relevant ground recited the passage in the handwritten document that the Fijians wanted to chase Indian people from their homes so that they could take over their houses and land, and that the Husband continued to be a victim of Fijian hatred. The ground stated that the appellants were advancing claims as members of the social group who feared for their safety, being Indo-Fijians who were lessees of land belonging to indigenous Fijians, and that the Tribunal committed jurisdictional error when it failed to deal with that or any social group. 9 In dealing with that ground, the primary judge observed that it was necessary to consider the distinction between an element or integer of a claim and an item of evidence. His Honour referred to recent decisions of the Federal Court and then went on to say that the appellants claimed that the Tribunal failed to deal with their claim of being a member of the Indo-Fijian social group who feared for their safety and who were lessees of land belonging to indigenous Fijians. In the submissions on behalf of the appellants, it was claimed that that aspect was a distinct claim and that the Husband and his family feared persecution of that social group. His Honour recorded that, while it appeared to be acknowledged that the claim was not expressly articulated as a claim of membership of a particular social group, it was submitted that the claim was clearly evident on the facts and thus the Tribunal was required to consider it. 10 His Honour observed 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. His Honour contrasted the present case with the decision of the High Court in Dranichnikov v Minister for Immigration (2003) 107 ALR 389. In that case, the Tribunal should have decided the matter that was put to it by reference to the particular social group defined in the applicant's submissions, as opposed to by reference to a more general social group. 11 His Honour contrasted that situation with the present case, where the Husband made a number of factual claims, all of which involved his alleged treatment as a person of Indo-Fijian ethnicity or race. His claims about the attempts to remove him from his land were simply evidence of that persecution. His Honour found that the Tribunal plainly dealt with the Husband's factual claim of fearing harm from indigenous Fijians who wanted to take back land that was leased from them. His Honour observed that the Tribunal did not accept the asserted incidents of past harm and found that the Husband did not have a well-founded fear of future harm for that reason. His Honour concluded that, 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. 12 Thus, his Honour said that the appellants 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. His Honour considered that the appellants' evidence regarding their having leased a house on native land was correctly understood by the Tribunal as being a piece of evidence provided in support of the broader claims to fear persecution on the basis of race and religion. That particular evidentiary matter, his Honour held, did not give rise to a separate and distinct claim that the Husband feared persecution as a member of a particular social group comprising Indian Fijians leasing native Fijian land. Whatever the scope of the Tribunal's obligations, it is not required to consider criteria for an application that is never made. In making that observation his Honour cited the decision of this court in NABE v Minister for Immigration (No 2) (2004) 144 FCR 1. 13 The primary judge found ultimately that the Tribunal rejected the claims of the appellants 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. The rejection of the evidence in relation to the land was, his Honour held, subsumed within the finding of greater generality. 14 In any event, his Honour considered that, to the extent that the Tribunal was required to consider and address the appellants' evidence regarding their having leased a house situated on native Fijian land, the Tribunal did assess that evidence. As his Honour found, the evidence is referred to in a number of places in the Tribunal's reasons for its decision. Moreover, there appeared to be considerable uncertainty about the status of the land on which the appellants were living. The Tribunal put that to the wife in the course of the hearing. While the wife is recorded as having rejected the proposition put to her that they were not living on leased Fijian land, the Tribunal made a number of adverse findings about the credibility of the claims. 15 His Honour concluded that, given either that the claim now made was not expressly articulated, or that, even if it were, there was no failure to address that claim, there was no need to consider the arguments raised by the appellants as to whether the group identified was capable of constituting a particular social group for the purposes of the Refugees Convention and s 36 of the Migration Act 1958 (Cth). His Honour found that the appellants' factual claims were addressed by the Tribunal and rejected. The consideration of the same claims by reference to the alternative Convention nexus would have added nothing to the review in the circumstances of their case. 16 In written submissions to this Court on behalf of the appellants, it is stated that the Tribunal should have found that there was a social group and that the Tribunal erred when it simply looked at the claim based on ethnicity, rather than a claim based on a social group. The written submissions state that the latter claim, based on a social group, was clearly stated in the claim. Counsel for the appellants assured me that the only occasions where the claim was articulated or stated were the passages that I have already quoted. In other parts of the written submissions, it is suggested that there was a case to be implied of a claim based on membership of a particular social group. In the same place, it is said that a claim based on that particular social group was clearly articulated in the claim. As I have said, the only passage where it is said to be articulated are those that I have quoted. The written submissions also refer to the fact that there is implicit in the application that there was more than one Convention basis relied on and that there was a discrete basis for protection put forward by the appellants. 17 I do not consider that the passages to which I have referred involve any articulation of a claim based on the existence of a particular social group. It is certainly not clearly articulated on the facts. Nor, in my view, is it in the slightest way implicit in the document. I do not consider that there was any error on the part of the Federal Magistrates Court in the way in which it disposed of this ground. It follows that the appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 10 December 2012