NATU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1238

FEDERAL COURT OF AUSTRALIA

NATU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1238 NATU & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N867 OF 2003 EMMETT J 2 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N867 OF 2003

BETWEEN: NATU, NATV, NATW

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 2 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion filed on 24 November 2003 be dismissed. 2. The adult applicants pay the respondent's costs of the motion. 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 N867 OF 2003

BETWEEN: NATU, NATV, NATW

APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT JUDGE: EMMETT J

DATE: 2 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicants are husband and wife and their child, who was born in Australia. The husband claims to be a citizen of Pakistan while the wife claims to be a citizen of Fiji. They arrived in Australia on 24 June 2002. On 25 June 2002 they lodged an application for a Protection (Class XA) Visa for each of them under the Migration Act 1958 (Cth) ('the Act'). On 26 November 2002 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister') refused to grant protection visas. 2 On 2 December 2002 the applicants applied for review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 6 June 2003 the Tribunal affirmed the decision not to grant protection visas. The reasons for that decision were published on 2 July 2003. On 22 July 2003 an application was made to this Court for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal's decision. The matter came before me on 15 August 2003 when I gave directions for the preparation of the matter. I directed that the matter be listed for further directions on 10 October 2003. 3 One of the directions that I made on 15 August was that the applicants file and serve any amended application and any additional evidence upon which they intended to rely on or before 3 October 2003. Nothing was filed on behalf of the applicants, although the Minister filed a bundle of relevant documents on 12 September 2003. 4 On 17 October 2003, I directed the applicants to file and serve an amended application by 7 November 2003, and ordered that in the event of non-compliance with that direction, the application stand dismissed. The proceeding was listed for directions on 14 November 2003. On that day I ordered that the application be dismissed. However, I stayed that order up to and including 28 November 2003 and granted the applicants leave to file a motion returnable before me on that day seeking orders setting aside the judgment. 5 On 28 November I directed the applicants to file and serve no later than 8 December 2003 any proposed amended application and any affidavits in support. The notice of motion that had been filed on 24 November 2003 by the applicants was stood over for further hearing on 12 December 2003. An amended application was filed on 8 December 2003 together with an affidavit purporting to support that application. 6 On 12 December I directed the applicants to file and serve no later than 16 January 2004 any further affidavits on which they intended to rely in support of the application for the order for dismissal to be set aside. I listed the motion of 24 November 2003 for hearing before me today. I also directed that if the dismissal is set aside the matter is to proceed to hearing today. I stayed Orders 1 and 2 made on 14 November up to and including today. The wife was present in Court when I listed the matter for hearing today and when I directed that any further affidavits be filed by 16 January 2004. No further affidavits have been filed on behalf of the applicants, and when the matter was called on for hearing today the applicants sought a further adjournment. The only explanation offered for not being ready is that the applicants were waiting for a letter. It is not entirely clear what letter they were referring to. 7 The amended application on its face seeks merits review of the decision of the Tribunal, although it purports to assert grounds as follows: 'The rules of the natural justice occurred in connection with the making of decision.

The decision involved an error of law being an incorrect application of the law to the facts as found by the person who made the decision.

That procedures that were required by law to be observed in connection with he [sic] making of decision were not observed

The applicant NATV was denied procedural fairness when the applicant's oral and written submission was completely omitted and not considered. She was denied procedural fairness when she was not heard fairly. Migration agent informed the RRT that the applicant NATV is unable to cope with the hearing because of the small baby and sickness.

The Tribunal told in the hearing that the hearing will be informal, but the RRT member interrogated the applicant NATV just like Police.

The RRT did not consider the applicant NATV (Spouse) case in the context of UN Convention under which a woman comes from a country of ethnic violence should be considered and treated in more compassionate grounds.

The Tribunal did not believe that the applicant NATV was assaulted on two occasions. The Tribunal Member did not account attempt to a women's prestige is a serious harm. The Member was not familiar with the Women's Rights under UN Convention. He was himself confused.

Once he accepted that the situation in Fiji was especially volatile around the time of the Coup and the Country was gripped by violence and lawlessness. The situation of Indo-Fijians deteriorated and ethnic Fijians subjected them to mistreatment …

But at the same time the Tribunal member claims that the situation in Fiji is improved and now there is no clash between Fijians and Indians.

The applicant NATV claims that for a woman who suffered by loosing [sic] face cannot go back to same place. This is a serious harm. This is beyond expression. The applicant NATV did no [sic] express every thing what had happen to her. She was not given chance to express her total oral evidence when she already informed the RRT that she is not feeling well to attend the hearing. She claims that the RRT member formed his opinion before making any decision.'

8 That statement of grounds is capable of giving rise to a conclusion that the Tribunal did not afford procedural fairness to the applicants if the facts were established. The only affidavit lodged in support of the amended application, however, does not contain any evidence of a denial of procedural fairness other than mere assertions. 9 The affidavit filed on 8 December asserts that the applicants believe that they were denied procedural fairness when their oral evidence was discarded and ignored. I have read the reasons of the Tribunal. The Tribunal recorded that the husband applicant is a 27 year old national of Pakistan who is a Shia Muslim. He speaks, reads and writes English and Urdu, he has completed 16 years of education and holds a Bachelor of Arts degree in Urdu from Punjab University. He describes his profession as 'teacher', and worked as a teacher in Pakistan from 1998 to 2000. The applicant husband departed Pakistan on 24 April 2001 for Fiji using his own passport which was issued on 16 September 2000. On 9 October 2001 he married the wife applicant in Lautoka, Fiji. The applicant wife is a 20 year old national of Fiji. She is a Sunni Muslim. She speaks, reads and writes English and Hindi and has completed 12 years of education. 10 The Tribunal accepted that the applicant husband is a national of Pakistan and that the applicant wife is a national of Fiji. The Tribunal also accepted that the applicant husband is a Shia Muslim and that the applicant wife is a Sunni Muslim. 11 In its reasons, the Tribunal recorded that the husband's claims in relation to Pakistan were based on grounds of religion and political opinion. He claimed that he was a member of the Nawaz faction of the Pakistan Muslim League ('the PML(N)'), and that, as such, he was arrested, detained, and mistreated. He also claimed that he feared the Sipah-e-Sahaba Pakistan, ('the SSP'), for reason of his adherence to Shi'ism, and membership of the Imamia Student Organisation, ('the ISO'). He further claimed that he will be cast out by his family for marrying a Sunni. In relation to his claims against Fiji, the applicant husband claims that he will be harmed by his Sunni in-laws who disapprove of him by reason of his Shia faith. 12 The Tribunal recorded that the applicant wife's case is essentially that if she returned to Fiji with her husband, he would be harmed by members of her Sunni family, and she would be forced to divorce him. In her application for review, the wife further claimed that she feared persecution as an Indian and a woman by indigenous Fijians in Fiji. 13 The Tribunal had significant concerns regarding the claims by the applicant husband of membership of the PML(N). For the three reasons that were set out in some detail, the Tribunal did not find the applicant husband a credible witness. It did not accept that the applicant husband was a member of the PML(N) or the Muslim League Youth Forum as he claimed. 14 The Tribunal did not accept that the applicant husband was ever arrested or mistreated by the Pakistani authorities for reason of his political opinion. In rejecting the applicant husband's claims of detention and mistreatment, the Tribunal had regard to four extra matters set out in detail in its reasons. Having regard to the inconsistencies in the husband's evidence, the independent evidence cited by the Tribunal, and the impression the Tribunal formed of the applicant husband at the hearing, the Tribunal simply did not accept that the applicant husband was arrested, detained, and mistreated by the authorities for reason of his political opinion. 15 The reasons of the Tribunal recorded that the applicant husband belatedly revealed at the hearing that he was a founder and member of the ISO. At no stage prior to the hearing had the applicant husband raised that claim or indicated that he had any association with the ISO. The Tribunal did not accept the applicant's explanation that his previous adviser provided erroneous information in that regard. The Tribunal considered that if the applicant was in fact a founding member of the ISO and had suffered harm as a result, he would not have neglected to bring that to the attention of his adviser or rectify any error or omission with regard to that claim prior to the hearing. For those reasons, the Tribunal did not accept that the applicant husband was a founder or member of the ISO. The Tribunal therefore did not accept that the applicant husband suffered any harm as a result of membership of the ISO. 16 The Tribunal then dealt with the claims in relation to Fiji. It recorded the claims by the applicant husband that he would be socially boycotted and disinherited. He made no other claim that he would suffer any other harm. The Tribunal did not accept that the degree of familial or social hostility that the applicant husband may face upon his return to Pakistan reaches the standard of persecution which is required under the Convention. 17 The applicant husband also stated at the hearing that his wife suffers from leukoderma, and that Pakistan as a holy Muslim society would not accept a person suffering from that condition. The Tribunal was of the view that that claim, raised belatedly, was a last ditch attempt to boost his chances of securing a protection visa. In any event, the Tribunal considered that there was no evidence before it to show that the applicant wife is at risk of persecution as a result of such a condition. The Tribunal did not consider that there was any evidence before it to suggest that people suffering from that condition face harm, let alone serious harm in the Pakistani society by other Muslims. The Tribunal therefore did not accept that the applicant wife would face a real chance of persecution by reason of that condition if she went to Pakistan. The Tribunal concluded that neither the applicant husband nor the applicant wife had a well-founded fear of persecution in Pakistan. 18 The applicant wife claimed that she feared persecution in Fiji by indigenous Fijians for reason of her Indian ethnicity and being a woman. The Tribunal recorded in its reasons that that claim was not pursued at the hearing, and that there was no evidence before the Tribunal to suggest that the applicant wife had suffered any harm in Fiji at the hands of indigenous Fijians for reason of her Indian ethnicity. 19 The Tribunal accepted that the political situation in Fiji was especially volatile around the time of the coup, and that the country was gripped by violence and lawlessness. It accepted that the situation of Indo-Fijians deteriorated and that they were subjected to mistreatment by ethnic Fijians. However, the Tribunal found that by late July 2000, the political situation had begun to stabilise, and the country had since steadily moved toward restoring order and democracy. The Tribunal observed that although there continued to be reports of isolated cases of mild harassment mainly in the form of low-level theft, the assessment of the Australian Department of Foreign Affairs and Trade was that there would be no risk of institutionalised mistreatment by authorities of returning Fijians, whether ethnic Fijian or Indo-Fijian. The Tribunal found that the present law and order situation in Fiji is stable. 20 Further, the Tribunal was satisfied that if the applicant wife were to face harm from private individuals for a Convention reason, adequate state protection is available to her in Fiji. The Tribunal also considered that the risk of harm that the applicant wife may face in Fiji by members of her family or other private individuals for a Convention reason is rendered remote by the availability of effective state protection for her. The Tribunal concluded that the applicant wife's fear of persecution in relation to Fiji was not well-founded. 21 The Tribunal was of the view that the applicant husband could accompany his wife back to Fiji without experiencing any difficulties. He had travelled to Fiji on 24 April 2001, and married the applicant wife in Fiji. The applicant husband resided in Fiji for a period of 14 months, and there was no evidence before the Tribunal to suggest that he encountered any difficulties associated with his right to reside in Fiji. The Tribunal concluded, therefore, that the applicant husband would be able to re-enter and reside in Fiji. 22 The Tribunal referred to the husband's claims that he was unable to return to Fiji because of fear of his in-laws. He claimed that as a Shia he would be threatened and made to leave his wife and would be assaulted by his in-laws and their associates. The Tribunal, however, was not satisfied that any fear harboured by the husband applicant was for reason of his religion and considered that it was equally plausible to assume that the applicant wife's parents were unhappy about the clandestine circumstances of the marriage. The Tribunal accepted that the husband's Shi'ism exacerbated tensions and contributed to his in-laws' sense of disapproval and anger. However, the Tribunal considered that if there were any harm likely from that source, it was not motivated by religious hatred. 23 The Tribunal considered that if members of the applicant wife's family had genuinely intended to harm the applicant husband they had ample opportunity to do so in the period between November 2001 and June 2002. In fact, he suffered no harm during that time, notwithstanding that they did not live in hiding and had continued to reside at the same address in Suva from October 2001 until June 2002. The Tribunal therefore considered that the applicant husband's chance of facing harm at the hands of the applicant wife's family was remote if he and his wife continued to live in Suva on their return. In any event, the Tribunal was satisfied that if there were a threat of harm from private individuals, Fijian authorities would provide the applicant husband with a level of protection that removed real risk of harm by members of the wife's family or other persons. 24 The Tribunal's reasons extend to some fifty pages and recalled detailed questioning of both the husband applicant and the wife applicant by the Tribunal. There is nothing before me to suggest that there was any procedural unfairness in the way in which the Tribunal considered the application. On the face of it there does not appear to me to be any basis for the claims made in the application. Having regard to the failure of the applicants to comply with directions on a number of occasions, there appears to me to be no purpose served by adjourning the matter further. The most likely consequence would simply be the incurring of further costs. In the circumstances, I propose to dismiss the motion seeking an order setting aside the dismissal of 14 November 2003. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 20 September 2004

The applicant wife appeared in person.

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 2 February 2004

Date of Judgment: 2 February 2004