FEDERAL COURT OF AUSTRALIA

SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478

Migration Act 1958 (Cth) ss 46, 48A, 417, 424, 424A

Federal Court Rules O 52 r 15

Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 considered

M211 v Refugee Review Tribunal & Anor (2004) 212 ALR 520 considered

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 cited

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 cited

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 cited

SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816 considered

SZHRZ v Minister for Immigration and Citizenship [2008] FCA 1440 distinguished

SZFGO, SZFGP, SZFGQ and SZFGR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 594 of 2008

EDMONDS J

3 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicants pay the first respondent’s costs.

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

            The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file and serve a notice of appeal from the orders of the Federal Magistrates Court (Scarlett FM) given on 17 November 2005, dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) that affirmed a decision of the delegate of the first respondent (‘the Minister’) to refuse the applicants’ application for a protection visa.

Background

2                     The applicants are citizens of Fiji and most recently arrived in Australia on 26 June 2002.  The first and second applicants (‘the applicants’) are husband and wife. The third and fourth applicants are their daughters. The third applicant, the elder daughter, had previously applied for a protection visa on 9 April 2001. That application was refused by a delegate of the Minister on 20 April 2001 and the Tribunal, differently constituted, affirmed the decision on 13 June 2002. The fourth applicant, the younger daughter, was born in Australia in 2001 and her application arises out of being a member of her parent’s family unit.

3                     On 4 August 2004, the applicants applied for protection (Class XA) visas. The applicants claim to fear persecution in Fiji from native Fijians arising out of their Indian ethnicity and the first applicant’s political opinions. The first applicant had been a supporter of the Fijian Labour Party and claimed to have suffered serious violence as a result.

4                     On 10 August 2004, a delegate of the Minister refused the application for protection visas. On 3 September 2004, the applicants applied to the Tribunal for a review of that decision.

The Refugee Review Tribunal

5                     First, the Tribunal found that the third applicant was prohibited under s 48A of the Migration Act 1958 (Cth) (‘the Act’) from applying for a further protection visa after her earlier application dated 9 April 2001 was refused by a delegate of the Minister on 20 April 2001. Section 48A of the Act relevantly provides that a non-citizen who, while in the migration zone, has made an application for a protection visa that has been refused, may not make a further application for a protection visa while in the migration zone. The Tribunal found that s 48A of the Act applied to the third applicant and therefore it is not a valid application for a protection visa pursuant to s 46(1)(d) of the Act.

6                     Second, in relation to the other substantive claims, the Tribunal found that the applicants had been truthful about their past experiences and accepted their account of their past problems in Fiji in full. It accepted that the applicants each had a strong subjective fear that they might be harmed by their previous assailants if they were to return to Fiji. The Tribunal then considered whether that fear was well-founded. After considering a number of matters and independent evidence, it found that the chance of the applicants being subjected to further persecution in Fiji on the same grounds was remote and that they did not have a well-founded fear of persecution.

7                     On 26 October 2004, the Tribunal affirmed the decision of the Minister’s delegate to refuse to grant the applications for protection visas and handed down its decision on 18 November 2004.

The Federal Magistrates Court

8                     On 15 April 2005, the applicants filed an amended application that set out some 52 grounds for the application. The Federal Magistrate summarised these grounds at [15] of his reasons as including:

‘ … errors of law and jurisdictional error, a misunderstanding of the definition of a well-founded fear of persecution, a failure to consider the political and race aspect of the Applicant's claim, bias, failure to consider critical items of evidence, breach of procedural fairness through the conduct of the oral hearing, failure to provide information to the applicants, error of fact, incorrect application of the internal flight principle, breach of s.424B and s.425 of the Migration Act, being the final ground.’

9                     His Honour accepted the Tribunal’s assessment in respect of the third applicant, the elder daughter, that she is prohibited from applying for a further protection visa pursuant to s 48A of the Act and that the section applied to her. The Tribunal was correct to find that it had no power to consider her application as it was not a valid application under s 46(1)(d) of the Act. His Honour concluded that no jurisdictional error had been demonstrated.

10                  The Federal Magistrate then considered the numerous grounds set out in the application and found that ‘a number of grounds just do not apply, and others have just been shown to be ill-founded’ (at [35]). His Honour held that there had been no evidence of bias or breach of procedural fairness during the Tribunal hearing and stressed that the Tribunal’s decision indicated quite the reverse.

11                  His Honour noted at [42] and [43] that:

‘In my view it is unfortunate that allegations of bias and breach of procedural fairness through the conduct of the oral hearing have been made, because this particular Tribunal member seems to have gone to a great deal of trouble not to allow any suggestion of bias or procedural fairness to taint the Tribunal proceedings.

Bias, of course, involves an imputation of personal fault on the part of a decision maker, and it is quite clear that there was none.’

12                  The Federal Magistrate also found that the Tribunal did assess the objective basis of the applicants’ fear of the specific assailants in a location other than the land at Nadi. The applicants had indicated that they could not return to their farm at Nadi since the lease had expired. His Honour held that the Tribunal did not make a relocation finding under the principle in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 but an assessment of fear based on a changed fact situation (at [54]).

13                  On 17 November 2005, Scarlett FM dismissed the application in respect of the first, second and fourth applicants and dismissed the application in respect of the third applicant pursuant to s 48A of the Act.

Application to this Court

14                  On 29 April 2008, the applicants filed an application for an extension of time to file and serve a notice of appeal from the orders of Scarlett FM. In an affidavit filed and sworn 29 April 2008, the first applicant explained that the reason for the delay was that the applicants had sought Ministerial intervention on humanitarian grounds under s 417 of the Act in the intervening period. The applicants received notification of the final outcome of their s 417 application from the Minister by letter dated 2 April 2008. A draft notice of appeal was annexed to the affidavit and contains four grounds of appeal. These grounds of appeal assert that the learned Federal Magistrate had erred in failing to find jurisdictional errors in the Tribunal’s decision.

15                  The first applicant filed a written outline of submissions on 6 August 2008. At the hearing of the appeal, I asked the first applicant if he received legal assistance in the preparation of the submissions. He said that his brother had paid a third party to assist in preparing the application and outline of submissions. These submissions refer to the four grounds of appeal contained in the draft notice of appeal annexed to the earlier affidavit and raise two additional grounds.

16                  The present application is over two years outside the time provided for under O 52 r 15(1) of the Federal Court Rules. The Minister submitted that in light of the lateness of the application, an extension of time should be refused as the applicants elected to pursue Ministerial intervention under s 417 and chose to abandon their rights of appeal. The Minister relied on an observation of Goldberg J in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at [14]:

‘Over nine months elapsed between the order dismissing the application for review in the Federal Court and the filing of the application in the High Court.  The High Court application was made prior to the handing down of the decision in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.  During that intervening period, on 14 July 2000 the letter had been written to the Minister requesting him to exercise his power under s 417 of the Act.  The taking of that course of action by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. …

This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the Tribunal’s decision was correct and that he did not intend to challenge that decision further in the Court.  A similar approach has been taken in a number of cases in this Court:  Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576; Re Batuwantudawa [2003] FCA 684; Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 823; Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266; Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [16]-[20].’

17                  I very much doubt that what his Honour said in this extract from his reasons was being put as a general statement of principle; more likely, a conclusion drawn from the facts of the case before his Honour.  But if I am wrong, then, with respect, I cannot agree with it.  The Minister submitted that a Full Federal Court approved Goldberg J’s approach in M211 of 2003 v Refugee Review Tribunal & Anor (2004) 212 ALR 520 at [16] – [24] and cited other cases where this Court has held that a request under s 417 of the Act indicates acceptance of the Tribunal’s decision and does not provide an adequate explanation for delay (at [11] of his submissions). Although the Full Court did not expressly endorse the observation cited above in Daniel, it concluded at [36]:

‘Although the primary judge did not dismiss the application for prohibition on the ground of the appellant’s lengthy delay in seeking constitutional writs, that, and the making of a s 417 application, reinforce the propriety of the proceeding having been brought to an end.’

18                  In the present case, the learned Federal Magistrate noted at [38] and [39] of his reasons that:

‘At page 113 of the Court Book the Tribunal member says:

“A number of matters of a humanitarian nature have been raised in relation to this family. However, as I advised the adult Applicants, the Tribunal does not have jurisdiction to consider those matters.”

This was a way for the Tribunal member to indicate to the adult Applicants that should other grounds within the judicial system fail, they may be able to make an application to the Minister for substitution of a favourable decision under s 417 of the Migration Act.’

19                  After dismissing the applicants’ application, His Honour then indicated at [60]:

‘It still remains however, that the Tribunal’s sympathetic consideration of the Applicants’ option of making an application to the Minister for consideration under s 417 of the Migration Act still remains an option to them, on the basis that the First and Second Applicant’s subjective fear and the findings by the Tribunal of the past incidents.’

20                  At the hearing before this Court, the Minister conceded that the applicants had been pointed in the direction of pursuing the s 417 application by the Tribunal implicitly and by the Federal Magistrate explicitly. I am mindful of the fact that the applicants are self-represented and may not have obtained legal advice in pursuing one course over another, instead of pursuing both courses simultaneously. I am also mindful of the conclusion of Graham J in SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816, where His Honour said at [11]:

‘In my opinion the learned Federal Magistrate has fallen into error in concluding that by making an application to the Minister under s 417 of the Act and the subsequent delay the Applicant thereby elected to accept the correctness of the Tribunal’s decision.’

21                  In the present case, there is no evidence before the Court that in electing to pursue Ministerial intervention under s 417, the applicants chose to abandon their rights of appeal, such as by the filing of a notice of discontinuance: cf., SZHRZ v Minister for Immigration & Citizenship [2008] FCA 1440. The applicants received notification of the final outcome of their s 417 application from the Minister by letter dated 2 April 2008 and filed the application for an extension of time on 29 April 2008.  In my considered view, the applicants, by pursuing the s 417 application, should not be considered as abandoning their rights of appeal in respect of the Tribunal’s decision.

22                  On the hearing of the application, I indicated to the parties that if I was minded to grant an extension of time to file and serve a notice of appeal, I would proceed to determine the applicants’ appeal on the basis of the grounds in the draft notice of appeal and the two further grounds in the first applicant’s outline of submissions.

23                  The first ground of appeal asserts that the Tribunal erred in failing to consider whether the second, third and fourth applicants, had a well-founded fear of persecution by reason of their membership of a particular social group comprising ‘Indo-Fijian (young) females’. The Minister submitted that the sole basis on which the applicants say the Tribunal was required to consider this possibility was that the first applicant had told the Tribunal he did not want to return to Fiji because his ‘wife and daughters might be the victims of violence’ (at 5 of the Tribunal’s reasons). The Minister contended that the context in which this statement appears does not support the applicant’s claims that they advanced the argument to the Tribunal that ‘Indo-Fijian (young) females’ comprised a particular social group in Fiji. In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, Gleeson CJ stated at [1]:

‘ … this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.’

24                  In these circumstances, this ground cannot be sustained.

25                  The second ground of appeal asserts that the Tribunal erred in failing to consider an integer of the claims, namely, whether the applicants had a well-founded fear of persecution by reason of the first applicant’s support for the Fiji Labour Party at the time of the general election. The first applicant argued in his submissions that the Tribunal addressed the wrong issue in stating that ‘I am satisfied from the independent evidence that the party is unlikely to achieve power again in the reasonably foreseeable future’ at 17. However, the Tribunal went on to find in the same paragraph that:

‘ … there is also no evidence in the U.S. State Department report for 2003 (2004) or any of the other sources cited above that people supported it in the past, or who support it now, are being subjected to any serious discrimination or harm, either at a societal level or by agents of the state.’

26                  The Minister submitted that in making this finding, the Tribunal expressly rejected the integer of the applicants’ claims that the applicants allege it failed to address. I agree with the Minister’s submission and this ground must fail.

27                  The third ground of appeal asserts that the Tribunal breached the requirements of s 424A of the Act. The section requires that, subject to certain exceptions, the Tribunal must give an applicant in writing, clear particulars of information which it considers would be the reason, or a part of the reason, for affirming a decision that is under review, and invite the applicant to comment on that information. The information that the applicants claim the Tribunal was required to give them under s 424A is particularised in the draft notice of appeal ‘as discrimination against Indo-Fijians’ through affirmative action programs for other ethnic groups. The Minister submitted that this is not ‘information’ that attracts an obligation under s 424A of the Act: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. The Tribunal based its findings in relation to affirmative action on the U.S. State Department report for 2004 (within the exception of s 424(3)(a)); the evidence given by the applicants to the Tribunal (within the exception of s 424(3)(b)); and the insufficient evidence that the applicants might be targeted for serious harm by reason of their race in the reasonably foreseeable future (not ‘information’ within the meaning of s 424A). In these circumstances, this ground cannot be sustained.

28                  The fourth ground of appeal asserts that the Tribunal failed to consider whether they had a well-founded fear of persecution by reason of the first applicant’s provision of his truck to the Fiji Labour Party, as opposed to his party membership. The Minister submitted that the applicants did not articulate any claim that the first applicant’s provision of his truck to the Fiji Labour Party gave rise to any fear of harm as distinct from the harm they claimed to fear by reason of his party membership, nor did any such argument clearly arise from their evidence. The Tribunal referred to the first applicant’s provision of his truck to the Fiji Labour Party in its reasons (at 5) and concluded that there is no evidence that people who supported the party in the past or present are being subjected to any serious discrimination or harm, either at a societal level or by agents of the state (at 17). In these circumstances, I agree with the Minister’s submission and this ground must fail.

29                  In the first applicant’s outline of submissions dated 6 August 2008, two additional grounds of appeal are raised in addition to the four grounds in the draft notice appeal.

30                  The first additional ground of appeal asserts that the Tribunal failed to consider whether the applicants had a well-founded fear of persecution by reason of the absence of effective state protection from harm perpetrated by non-state actors. The Minister submitted that the Tribunal did not need to address the issue of effective state protection because it found that the applicants did not have a well-founded fear of harm perpetrated by any non-state actors. In the absence of such harm, no occasion arose for the Tribunal to consider the level of protection afforded by the state. In these circumstances, I agree with the Minister’s submission and this ground must fail.

31                  The second additional ground of appeal asserts that the Tribunal failed to apply the correct test in determining whether the applicants had a well-founded fear of persecution. The applicants submitted that the Tribunal assessed their evidence on the basis of a ‘balance of probabilities’ test and failed to ask itself ‘what if I am wrong?’ as per Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. The Minister contended that nothing in the Tribunal’s decision suggests that it misunderstood its task of determining whether the applicants had a well-founded fear of persecution for a Convention reason. The applicants did not identify any aspect of the Tribunal’s decision that supports this claim in their outline of submissions. In these circumstances, I agree with the Minister’s submission and this ground must also fail.

32                  In considering whether to exercise my discretion to grant the extension of time that is being sought, in addition to my earlier consideration of the s 417 application at [21], I find it impossible to find any error, let alone jurisdictional error, in the learned Federal Magistrate’s decision or that the applicants have any prospects of success on appeal.

33                  It is for these reasons that I have come to the conclusion that I should not exercise my discretion to grant an extension of time to file and serve a notice of appeal; even if such an extension were granted, the applicants would have no reasonable prospects of success on appeal.

34                  The application is dismissed with costs.

Associate:

Dated:              3 October 2008.