SBNC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 137 (21 August 2006)

Last Updated: 2 April 2007

FEDERAL COURT OF AUSTRALIA

SBNC v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCAFC 137

MIGRATION – judicial review – protection visa – judicial review of delegate’s decision – ethnic Fijian – supportive of Indo-Fijian interests – claimed fear of abuse and torture of appellant and family by ethnic Fijians – absence of evidence to support claims – application for protection visa refused – judicial review application dismissed – appeal against judicial review decision dismissed





Migration Act 1958 (Cth)









SBNC AND OTHERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SAD 64 OF 2006

FRENCH, LANDER AND BESANKO JJ
21 AUGUST 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 64 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBNC, SBPC, SBQC and SBRC Appellants
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	FRENCH, LANDER AND BESANKO JJ
DATE OF ORDER:	21 AUGUST 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.

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 64 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBNC, SBPC, SBQC and SBRC Appellants
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	FRENCH, LANDER AND BESANKO JJ
DATE:	21 AUGUST 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 The appellant is a married woman who is a national of Fiji. She was born in 1967. She and her husband have two children. They came to Australia on 27 November 2004 on short stay visitors visas. Shortly after they arrived in Australia SBNC lodged an application for a protection visa. Her reasons for making the application were set out in handwriting in the application form.

2 SBNC said that she and her family had left Fiji because they had been abused and harassed by Fijian rebels associated with George Speight. This was even though they were native Fijians. She said she felt threatened and did not know what the future of their family would be in Fiji. According to the appellant there was no secure life in that country and they came to Australia to protect their lives. The appellant explained this at greater length in answer to another question in the application form. She described herself as a member of a ‘Marxist programme’ in Fiji. She was engaged in trying to unite oppressed and exploited masses by eliminating discrimination against Indo-Fijians. She referred to harassment of Indo-Fijians as part of Speight’s program and that of the former Rabuka military dictatorship. She said that during those times she and her husband had supported many Indians who were close friends.

3 SBNC said that since the 2000 coup in Fiji she and her family had been targeted and harassed by their own people. She complained of discrimination in their treatment by the Police Department. This was all because of their support for the Indian community. Explaining what she feared if she went back, she repeated that she and her family had suffered threats and discrimination from their own people. She spoke of abuse and torture of her and her family. Even her children were abused at school and were hesitant to go to school because of the threats there.

4 SBNC said there were many occasions for complaints but no action had been taken (this may be read as a statement that she had made complaints but that no action had been taken). Their children’s future would be ruined if they stayed in Fiji. She said that the family had decided to leave the country at least for the sake of their children and so that they could get a good education because they were abused at school. She wrote:

‘So I believe there is no human rights in that country and it is going to be our life threat for all my family members if we continue to stay in Fiji. So we have decided to leave that country and I believe Australia is the only country to support the people who live in their own country like Fiji where there is no human rights and human values.’ (sic)

5 The applications for protection visas were made not only by the appellant but also by her husband and their two children. Her husband and children each completed a Part D application. That is an application in which they say they do not have their own claims to be a refugee, so that their claims depended upon the success of SBNC’s claim.

6 A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided to refuse the grant of a protection visa. In summarising the claims he said:

‘The applicant claims that she and her family have been threatened, harassed and abused by indigenous Fijians because of the support she has provided to the Indian-Fijian community during and after the most recent coup.’

Further into his reasons, at [7.2.1.5], the delegate considered the nature of the persecution which was claimed. He set out in summary the claims which were made in writing in the application. He said:

‘She claims to fear violence and torture if she returned to Fiji.’

He then considered whether the claimed fear was well-founded. He said:

‘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.’

7 He acknowledged that there was a record of economic and social discrimination against Indo-Fijians in Fiji and that this had occurred since the 2000 coup which overthrew the Government of Prime Minister Chaudhry. However, there was no evidence of systematic and discriminatory acts of violence against Indo-Fijians or their supporters. He said that while complaints to the Fijian Police might not have resulted in an effective response, he had no evidence that if the threats were considered likely there would be no appropriate response from the Fijian authorities.

8 Because there was no evidence supporting claims of violence and persecution of Indo-Fijians, the delegate found that the appellant did not have a well-founded fear of persecution. On that basis he refused the grant of protection visas.

9 The appellant sought review of the delegate’s decision in the Refugee Review Tribunal (the Tribunal). That application was refused because it was lodged too late. The appellant then challenged the decision of the delegate in an application to the Federal Court. There were two grounds in that application. The first was that the delegate committed a serious error because of a misunderstanding of the provisions of the Migration Act 1958 (Cth) (the Act) and, in particular, that the nature of persecution required to be shown was limited to actual violence. The second ground was that the delegate committed an error by failing to make findings about claims made by the children that they would suffer from persecution in their education.

10 The judicial review application was heard by Finn J on 10 March 2006. He noted that there was no challenge to the way in which the delegate characterised the appellant’s claims. His Honour said that the claim, as it related to the future, was that the appellant feared violence and torture if returned to Fiji. There were no claims of violence actually perpetrated on her or any member of her family.

11 Finn J said that because violence and the fear of violence was the whole basis upon which the appellant’s case rested it was open to the delegate to look at country information to see whether there was any violence or persecution of Indo-Fijians and their supporters. In the absence of any such evidence, it was open for the delegate to find that the appellant’s fear was not well-founded. His Honour said that the appellant’s claim was made in a setting where discriminatory conduct was said to have occurred in relation to her and her family in connection with the education of her children. That conduct was not said to be, of itself, persecution, so that ground of the application had to be dismissed. As to the children, he said no claim had been made by them that they had their own reasons for claiming to be refugees. The delegate did refer to their circumstances and their treatment at school and otherwise, but it was unnecessary for him to form any view about the position of the children, although it seems to be implicit that they had experienced discrimination.

12 The appeal against the decision of Finn J really seeks to re-argue before us the questions argued before his Honour. In the written submissions, the appellant argued that the delegate had taken too narrow a view of the kind of harm that was necessary to amount to persecution. The delegate, it was said, had to make a finding about whether there was discrimination against the appellant. He did not consider the facts properly and the appellant was therefore prejudiced. It was argued that the delegate wrongly imposed a requirement for actual violence to constitute persecution when there was no such requirement. The delegate had made no specific findings about the claims of discrimination against the family and it could be assumed therefore, that he accepted the appellant’s claims about discrimination against her and her family.

13 The appellant complained that the delegate failed to make findings about the claim by the children that they would suffer from persecution in their education. We note that the way in which the delegate characterised the claim made by the appellant was not challenged before Finn J. That was a claim of violence and abuse against the appellant if she were returned to Fiji. It may be, of course, in some cases where there is another basis for persecution apparent on the evidence before a delegate, then the delegate has an obligation to deal with that as a distinct claim, even though it has not been formulated as one.

14 In this case the appellant’s claim was focussed upon fear of harm to herself. This was against a background of concern for her children and the fear of discrimination against them, but they had made no separate claims as persons entitled to protection under the Convention. And the claims of discrimination which were made, apart from the claims of violence on the appellant, were of a general and unparticularised nature.

15 On the material before him, the delegate was entitled to treat the real claim as that relating to apprehension of violence. He was not obliged to construct out of the very generalised concerns expressed on the papers some other specific claims. In our opinion the delegate did not err in law and Finn J was correct to dismiss the application. The appeal against the decision of Finn J should therefore be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:
Dated: 5 September 2006

	The appellant appeared in person
Counsel for the Respondent:	Dr C Bleby
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 August 2006
Date of Judgment:	21 August 2006