SZDXZ v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 19 June 2008
• Neutral Citation: [2008] FCAFC 109

FEDERAL COURT OF AUSTRALIA

SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109

Migration Act 1958 (Cth) ss 424A, 430(1)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 cited

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 cited

Quick v Stoland Pty Ltd (1998) 87 FCR 371 cited

Minister for Immigration v Respondents S 152/2003 (2004) 222 CLR 1cited

Horvath v Secretary of State for the Home Department [2001] 1 AC 489 cited

SZDXZ, SZDYA and SZDXT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2144 of 2007

HEEREY, BRANSON AND EMMETT JJ

19 JUNE 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2144 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDXZ First Appellant SZDYA Second Appellant SZDXT Third Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	HEEREY, BRANSON AND EMMETT JJ
DATE OF ORDER:	19 JUNE 2008
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: 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 2144 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDXZ First Appellant SZDYA Second Appellant SZDXT Third Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGES:	HEEREY, BRANSON AND EMMETT JJ
DATE:	19 JUNE 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT BACKGROUND Application for Protection Visa

1 By an application dated 9 July 1999 the first appellant applied for a protection visa. His wife and two sons were included in his application as members of the family unit but they did not advance independent claims of their own. All members of the family are citizens of Fiji of Indian ethnicity.

2 The reason given by the first appellant on his application form for leaving Fiji was:

I have been receiving threats from native Fijians to leave our property on which my family and I have been living for many years.

3 He stated on the form that he believed that “these native Fijians will break into our home and assault our family” and that “[t]he native Fijians … are trying to drive us out of our property”. He additionally made reference to his brother’s home, which was on the family land, being broken into, his brother assaulted and valuable property being stolen.

4 A delegate of the Minister found that the first appellant did not have a real chance of Convention based persecution (ie persecution on a ground identified in clause 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”)) if he returned to Fiji because the Fijian authorities were willing to provide him with protection and that the protection would be effective.

First Review by Refugee Review Tribunal

5 The first appellant sought review by the Refugee Review Tribunal of the delegate’s decision.

6 The Tribunal’s reasons for decision record that the Tribunal member explored with the first appellant the nature of his interest in the land referred to in his visa application. The following is an extract from those reasons for decision:

At first the applicant husband said that his father has owned the land, and had the right to pass it on to his children as part of his estate, however he did not know what arrangements had been made under his father’s will. He said that he had been living separately from his father and brother for about thirteen years, in a separate house on the property. He did not farm the land but earned a living working for a courier company. He said that he and his brother had a falling out after his father’s death, and that his brother wanted him off the land so that the brother could renegotiate a leased [sic] with the indigenous owners. He then agreed that the land was, in fact, leased by his father, not owned. He said that he should get a “share” of his father’s estate but could not explain to the Tribunal what it was he wanted a share of, given that the land was leased. He said that his brother had hired lawyers. When asked whether he had thought to get a lawyer to protect his own interests, he said that he had no rights in relation to the land. He said that six months after they had come to Australia they had been told that his brother had taken all their property from their house and sold it.

7 By a decision made on 14 March 2000 and handed down on 30 March 2000, the Tribunal affirmed the decision not to grant the first appellant and his family members protection visas. The Tribunal was not satisfied that the difficulties experienced by the appellants in Fiji constituted persecution within the meaning of the Convention. In any event, the Tribunal was satisfied that state protection would be available to the applicants in Fiji.

8 We note incidentally that the Tribunal’s reasons for decision state that the first appellant and the second appellant, his wife, had made “common claims” to refugee status. It is not apparent from the materials before this Court that the second appellant has formally made an independent claim to be entitled to a protection visa.

9 By an order dated 7 July 2006, the Federal Magistrates Court set aside the decision of the Refugee Review Tribunal handed down on 30 March 2000. The learned Federal Magistrate concluded that the Tribunal had failed to comply with the obligations imposed on it by s 424A of the Migration Act 1958 (Cth) (“the Act”). The order of the Federal Magistrates Court remitted the appellants’ “applications for protection visas” to the Tribunal for determination according to law.

Second Review by the Refugee Review Tribunal

10 The Tribunal, constituted by a different Tribunal member, thereafter again reviewed the decision of the delegate of the Minister to refuse to grant protection visas to the appellants. The Tribunal member conducted a hearing at which the appellants were represented by a lawyer who is apparently a registered migration agent. At the hearing both the first and the second appellants gave evidence. By the time of this hearing one of the sons of the family had been granted an Australian visa with the result that he no longer sought a protection visa as a family member of the first appellant.

11 The transcript of the Tribunal hearing records that, when asked by the Tribunal member what he feared if he returned to Fiji, the first appellant replied:

I fear because of our religion, race and the instability back in our country.

He identified his religion as Hindu. When asked what might happen to him as an Indo‑Fijian he replied that “[t]hey might persecute me … because of there’s still hatred”. When subsequently asked whether the hatred was of all Indo-Fijians or him in particular he replied:

Me in particular because of the land issues….

12 The first appellant also told the Tribunal member that there was “not much dispute” between him and his brother and that he did not have any contact with his brother and did not know if his brother was living on the family land in Fiji.

13 The second appellant told the Tribunal member that she had no personal experience of sexual assault in Fiji but feared it because those who had previously threatened to assault her might track her down.

14 Near the end of the hearing the Tribunal member indicated that he accepted that the appellants would probably need to relocate should they return to Fiji. He agreed to give the appellants’ lawyer time to obtain instructions on whether relocation was a feasible option for them and to receive written submissions on that issue.

15 Under cover of a letter dated 30 October 2006 addressed to “The Presiding Member” of the Tribunal, the appellants’ lawyer provided three letters (or copy letters) for the Tribunal member’s attention. Only the third of the letters is of immediate relevance. It is dated 23 October 2006, addressed to the Deputy Registrar of the Tribunal and apparently signed by M J Khan, Senior Superintendent of Police, Divisional Police Commander – Southern. The body of the letter (“the Police letter”) is in the following terms:

We have received inquiries regarding [the first appellant] of Nadi and the following investigations were made regarding the subject.

From the information we have received, we believe, [the first appellant’s] problem comes from the fact that his family is Indian. His family’s problem with the indigenous Fijian is unlikely to stop in Nadi.

We believe [the first appellant’s] problem with the indigenous Fijians could follow him wherever he resides in Fiji, be it Suva or any other district in Fiji.

We cannot assure [the first appellant] will receive sufficient protection for his or her family’s lives upon returning to Fiji.

Thanking you in anticipation.

REASONS FOR DECISION OF THE TRIBUNAL

16 By a decision signed on 2 November 2006 the Tribunal again affirmed the delegate’s decision not to grant the appellants’ protection visas.

17 The reasons for decision of the Tribunal record that the Tribunal member accepted that the appellants may have to relocate to Suva to distance themselves...