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[2004] FCA 84
Federal Court of Australia
2004-02-13
Hely J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant is a citizen of Fiji who arrived in Australia on 7 April 2001 with his wife and two daughters. On 7 May 2001 they lodged an application for a Protection (Class XA) visa. The father submitted his own claims to be a refugee. The other members of the family were included in the application as members of the family unit: Migration Regulations 1994 (Cth) ('the Regulations') Schedule 2 cl 866.211. 2 The applicant and his family are of Indo-Fijian ethnicity and Hindu religion. The applicant claimed to fear persecution by reason of his political opinion, as a supporter of the Fijian Labour Party, and because of his race, as Indo-Fijian. In particular, the applicant claimed that his residential lease was not renewed because of his ethnicity and his political opinion, and that the Fijian authorities were unwilling to assist him when the family were forcibly evicted from their home by indigenous Fijians on about 18 April 2000. 3 The following is a brief chronology of events which occurred in Fiji at about the relevant times: May 1999 - Fijian Labour Party elected to government. - Violence against Indo-Fijians perpetrated by ethnic Fijians. - Applicant claims that indigenous Fijian youths stoned his house, stole cattle and ruined vegetable gardens. 18 April 2000 - Forcible eviction of the applicant and his family from their home. 19 May 2000 - Speight coup - Chaudhry ousted as Prime Minister. July 2000 - Military backed civil interim administration established. - Speight arrested and charged with treason. 7 April 2001 - Applicant and his family arrive in Australia. August 2001 - General elections. 4 On 29 May 2001 the Minister's delegate refused to grant the applicants a protection visa. The delegate's decision record included the following: 'In considering the applicant's general claims of racial discrimination, questions arise as to the adequacy and effectiveness of State protection and how that is to be measured. Military commanders have made it clear in statements that one of their primary motivating factors in establishing martial law was to secure the safety of all Fiji citizens, and to protect life and property from criminal acts and rioting, which had become rampant immediately following the coup. This protection extended to all segments of the population. The police were also permitted to continue their activities and duties, according to the rule of law, under the interim military government. In my view the independent evidence indicates that the Fijian authorities have acted to restore order in situations of civil disturbance and have taken action against those who have committed criminal offences. I find that protection is available from the Fijian authorities to people of Indian ethnicity in response to the conduct of mobs in such incidents of civil disturbance.' 5 The delegate also referred in his decision record to a Department of Foreign Affairs & Trade ('DFAT') cable CX45150 of 20 September 2000 which included the following: 'A1. The interim civilian government has fully committed itself - most recently in the Prime Minister's September address to the UN General Assembly - to "maintain and protect the equal rights, fundamental rights and freedoms of all citizens and groups without distinction based on ethnicity, religion, culture, gender or economical status and social justice". From a government perspective there should be no risk of institutionalised mistreatment by authorities of returning Fijians, whether ethnic-Fijian or Indo-Fijian. From a community perspective, we judge that while there would be no risk of mistreatment to indigenous Fijians, some Indo-Fijians remain at risk of intimidation and harassment. Isolated Indo-Fijian communities in the central division were subject to some violent criminal acts at the height of the political crisis. Although such crime has now been brought under control by the Military and the Police, we continue to hear of isolated cases of minor harassment - mainly in the form of threats and low level theft. Increased Police and Military presence in potential trouble spots - plus heightened media and NGO attention to this issue - leads us to assess that the risk of significant communal mistreatment of Indo-Fijians is currently low.' 6 On 20 June 2001 the applicant applied to the RRT for a review of that decision. The reasons given for making the application included the following: '4. The Decision Maker has relied on outdated reports on human rights in Fiji in justifying its decision. The Applicant claims that the current position in Fiji is volatile with an impending general election in August 2001. 5. The Applicant has been reliably informed that occurrences of violence and persecution against ethnic Indians have been kept up by militant Fijians who are seeking to gaining advantage. 6. The Applicant claims that reports from Fiji indicate that the Law Society of Fiji does not have confidence in its judiciary who are involved in supporting an illegal interim government. 7. The Decision Maker is wrong in its conclusion that the current government, army and police force in Fiji have a commitment to and have acted to protect all Fijian citizens. 8. The Applicant intends to provide further documentary evidence and Statutory Declarations to provide that she has well founded fear of persecution if she were to return to Fiji.' 7 On 21 June 2001 the Refugee Review Tribunal ('the RRT') wrote to the applicant. The letter included the following: 'We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department's documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour. If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments. Some hearings are conducted by video or telephone conference. If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process.' 8 On 19 July 2001 and on 31 October 2001 the RRT received letters from the applicant enclosing 'evidence which will back up my application'. The 'evidence' included: - a statement by a Hindu Priest as to the circumstances of the forcible eviction from their home; - a letter from a clinical psychologist to the effect that one of the applicant's daughters suffers from post traumatic stress disorder in consequence of the family's forcible eviction from their home, the symptoms of which increase when she sights Fijian men; - a number of press clippings. The press clippings cover a diverse range of matters, but those upon which the applicant's solicitor relied in the course of argument referred to: · an Indian farmer committing suicide following eviction from his home; · the erection of road blocks leading to an Indian settlement, and that police could not force the landowners to remove the road blocks because it was a civil matter; · views expressed by a High Court judge that advice that had been given by some of her colleagues to the President was political in character and compromised the integrity of the judiciary; and · the killing of a Red Cross director who, according to a friend, was terrified of the police. 9 On 14 May 2002 the RRT wrote to the applicant. The letter included the following: 'The tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. … If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send are to be in English, or translated into English by an accredited translator.' 10 A hearing was conducted by the RRT on 20 June 2002. The transcript of that hearing is in evidence. The transcript includes the following: 'T: When I am making my decision I will be taking into account information from a number of different sources. I've read everything you have provided to the department which is on the department file. I've also read everything that you have provided to the tribunal. I will be taking into account obviously the information and evidence you give to me and I will also be taking into account the information I have from other sources about the situation in Fiji. Those sources would include Australian Government Reports, other government reports, and reports by non government organisations and press reports. If I have information which I think does not support your claims, I will tell you about it and I'll give you an opportunity to comment on them. … T: The information that I have from press reports suggest that the situation in Fiji is very much more calm now than around the time before and after George Speight's coup and also in November. The information suggests it is quite safe for Indo-Fijians to return to Fiji. Any comment you like to make about that. A(W): My child is already feeling better and if she goes back to Fiji she might have a problem. If she has reaction when seeing one Fijian people here but what will happen if she goes there. She is already better. T: That is all the question that I had to ask you, tell me if there are any questions that you would like to discuss.' 11 In a decision made on 26 June 2002 the RRT affirmed the decision not to grant protection visas. The RRT made the following findings, and gave the following reasons for its decision: '32. I accept that Fiji has in the recent past experienced civil unrest in which ethnicity, and political opinion imputed on the basis of ethnicity, was a significant element. I accept that there were inter-ethnic tensions which may have lead to the incidents of threats, harm and intimidation between and within different ethnic groups as a result of the failed Speight coup. 33. However, I accept the independent information that Fiji is now stable in terms of law and order, that the new government, which international observers are satisfied reflects the will of the electors, is committed to equality and to the safety of all its citizens, that the normal forms of protection against harm are available to the applicant and that there is nothing to suggest that such protection would be ineffective or that it would be withheld by the Fijian authorities. 34. I accept, in particular, DFAT's consistent advice in three reports since the failed coup that there is no risk, or reports, of institutionalised mistreatment of Indo-Fijians or of political figures (and, therefore, of mere FLP supporters such as the applicant) during or since the recent elections, and that from a community perspective there is no risk of mistreatment to Indo-Fijians other than isolated cases of harassment, mainly in the form of low level theft. 35. There is nothing in the independent information available to me to suggest that the Fijian authorities would withhold effective protection for the applicant from harm inflicted by members of the indigenous Fijian community because of his ethnicity, religion or support for the FLP. The evidence available to me indicates that law and order has been re-established in Fiji, the police and army have succeeded in restoring confidence in public safety after the chaos of the May 2000 coup, and that the democratically elected government, which has civilian control of the police and security forces, is committed to stability, peace and tolerance regardless of ethnic or other background. 36. I accept that the applicant's eviction from his house, which was on land subject to an expired lease, was unnecessarily violent and attended by damage to his personal property and trauma to himself and his family. I accept that the motivation for this unnecessarily violent eviction, as opposed to the fact of eviction which was a consequence of the expiry of the lease, may have been motivated by considerations of ethnicity and political opinion. However, I do not accept that the eviction itself a consequence of Convention reasons, given that the landowners were entitled to re-possess their land at the expiry of the lease. 37. The applicant failed at any time to seek redress for the damage to his personal property and the harm to his family which occurred at the time of the eviction. I rely on the information set out above that there are legal avenues which the applicant could have pursued to seek redress, including new means by which to access government assistance in relation to having been displaced from the land, and I am satisfied that the Fijian government does not condone, nor is it powerless to prevent, harm motivated by ethnicity or political opinion or any other Convention reason. 38. In accordance with the reasoning of the Full Federal Court in Kandasamy, there cannot be said to be a failure of State protection where the relevant authorities have not been given the opportunity to respond to the harassment suffered by the applicant in circumstances where, as I have found, effective protection is available and that protection might reasonably have been forthcoming. 39. Accordingly, I do not accept that the applicant is in need of Australia's protection from Convention-related persecution because he is able to access effective protection from harm in Fiji. 40. I am sympathetic to the plight presented by the applicants' daughter, whose post traumatic stress disorder is very likely to be exacerbated by returning to Fiji. However, there is no suggestion in the evidence before me that the Fijian government declines, for a Convention reason, to provide adequate medical treatment for those of its citizens who require it.' 12 On 6 August 2002 the applicant made an application to the Minister for the exercise of the Minister's powers pursuant to s 417 of the Migration Act 1958 (Cth) ('the Act'). By letter dated 14 February 2003, which came to the applicant's attention on 22 February 2003, the Minister notified the applicant that he had decided not to intervene. 13 On 28 February 2003 the applicant instituted proceedings in the High Court of Australia against the Minister, the Member who gave the decision and the Principal Member of the RRT. A draft order nisi was lodged with the High Court which called on the respondents to show cause why a writ of mandamus, a writ of prohibition and a writ of certiorari should not issue as follows: · a writ of prohibition directed to the Minister prohibiting him or his agents or delegates from acting upon, giving effect to, proceeding further upon, or enforcing, the RRT's decision; · a writ of certiorari directed to the RRT Member removing the RRT Member's decision to the Court to be quashed; · a writ of mandamus directed to the Principal Member of the RRT requiring him to appoint a member of the RRT other than the second respondent to re-hear and determine the application for a protection visa according to law. 14 On 6 June 2003 Justice Heydon made consent orders remitting the further proceedings in the application to the Federal Court of Australia and ordering that the application proceed in the Federal Court as if the steps already taken in the application in the High Court had been taken in the Federal Court. 15 Order 55 r 17 and Order 55 r 30 of the High Court Rules ('the High Court Rules') impose time limits within which an application for a writ of certiorari, or an application for a writ of mandamus must be made. No time limitation is imposed by the Rules in relation to a writ of prohibition. In the present case, the application insofar as it sought a writ of certiorari and a writ of mandamus was lodged outside the times specified in the High Court Rules, although Order 60 r 6 enables the times appointed by the Rules to be enlarged. The proposition that the application is out of time may require qualification in relation to the application for a writ of mandamus as the time limitation imposed by Order 55 r 30 only applies if the writ relates to a 'judicial tribunal'. In the applicant's submission, the RRT is not a judicial tribunal. In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at 452, 461 and 474 it was assumed by the High Court that the RRT is such a body. 16 The orders made by the High Court do not obviate the need for an extension of time within which to seek a writ of certiorari, nor do they obviate the need to seek an extension of time within which to seek a writ of mandamus if the view be taken that Order 55 r 30 applies in relation to the RRT: Applicants A64 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1142. 17 Counsel for the Minister submitted that an extension of time should be refused because the proposed grounds of the application could not succeed, with the consequence that the application should be dismissed. It was not contended that an extension of time should be refused for any other reason.
(a) Denial of natural justice 18 The RRT relied upon 'independent information' in the form of DFAT reports and a report released by the US State Department's Bureau of Democracy, Human Rights & Labour for the findings which it made in pars 32-35 of its reasons for decision. The substance of the first of the DFAT reports referred to by the RRT was disclosed in the delegate's decision. The second and third of the DFAT reports updated and confirmed that information. The applicant was not supplied with copies of any of the reports upon which the RRT relied in its reasons for decision. 19 The applicant filed an affidavit to the effect that had copies of those reports been given to him, he would have provided further information by way of response. That information consists of publications issued by Amnesty International and media reports on the human rights situation in Fiji. 20 The applicant does not contend that the RRT was bound by a statutory obligation to provide this information to him. That concession was correctly made having regard to the provisions of s 424A(3) of the Act. The applicant did submit that the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 was determinative of the present application. This submission must fail as the applicant has not proved facts analogous to those agreed in Muin: see NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465 (Full Court). 21 However, it was common ground that the RRT was obliged to observe the rules of natural justice. The Minister did not contend that s 422B of the Act applied to the present case. Natural justice dictates that the applicant should not be left in the dark as to the risk of the RRT making the findings to which I have referred, and thus denied the opportunity of placing other material before the RRT which might have deterred it from making those findings. If the risk necessarily inheres in the issues to be decided, a specific warning of the risk is not required: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 121. 22 Whether Fijian Indians continued to be exposed to the risk of persecution once a civilian government was installed after the unsuccessful Speight coup, and the adequacy of State protection, were obviously issues which the RRT had to address. They were 'obvious' issues because the Minister's delegate based his refusal of a protection visa upon his assessment of the adequacy and effectiveness of State protection in Fiji, and in the reasons given by the applicant to the RRT for seeking a review of that decision (see par 6 above) the applicant challenged that conclusion. 23 The applicant submitted documentary evidence to the RRT in support of the contention that the delegate was wrong in concluding that the government, army and police force in Fiji have a commitment to and have acted to protect all Fijian citizens. The RRT twice wrote to the applicant inviting him to submit any new documents which he would like the RRT to consider. At the hearing, the RRT Member specifically alerted the applicant to the fact that she had information which suggested that it is quite safe for Indo-Fijians to return to Fiji (see par 10 above). The applicant was invited to comment on that matter, but did not do so. 24 The applicant's lawyer submits that I should infer that the RRT Member's failure further to pursue this issue with the applicant indicates that the Member's request for comment on the country information was merely a piece of window dressing designed to give the appearance of proper enquiry, but I do not think that I should draw an inference to that effect. 25 There was no want of fairness in the way in which the RRT approached its task. The applicant knew what the issue was, he was told that the RRT had information on that issue contrary to the applicant's position, and he had the opportunity, of which he took advantage, of submitting documentary material to the RRT which he thought germane to the issue. 26 This ground fails.
(b) There is no evidence that the Fiji Government is 'committed to equality … of all its citizens' as stated in par 33 of its reasons. 27 By s 420(2)(a) of the Act the RRT is not bound by the rules of evidence. By s 424(1), in conducting a review, the RRT may get any information it considers relevant. There can be no objection in principle to the RRT relying on 'country information'. The weight that it gives to such information is a matter for the RRT, as part of its fact-finding function. The question of the accuracy of the 'country information' is one for the RRT, not the Court: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. The RRT was entitled to draw the conclusion which it did from the country information which was available to it. 28 In the applicant's submission, the applicant is an adversary of the government, hence any country information given by DFAT is necessarily biased. As I have said, the weight to be given to 'country information' whether emanating from DFAT or elsewhere was a matter for the RRT to assess. It is not a matter on which a judge of this Court is authorised to give a decision in an application under s 39B of the Judiciary Act 1903 (Cth). 29 This ground fails.
(c) There is no evidence that the 'relevant State authorities have not been given the opportunity to respond to harassment suffered by the applicant …" (see reasons par 38) 30 The applicant submits that par 38 of the RRT's reasons is 'in sharp contrast to the applicant's evidence that they reported their evidence to the police authorities and nothing was done'. 31 Paragraphs 17, 19, 20 and 21 of the RRT's reasons states as follows: '17. I asked the applicant to describe what happened when he reported the episode to the police and he stated that the police told him they would go to the house and have a look but that they never did so and that they did not record a complaint. I asked the applicant whether he had attempted to seek redress for the damage and theft of his household property and he stated that he had not. I asked the applicant whether his grandmother, as the lessor, had taken any legal action to try to have the lease renewed and the applicant stated that he did not think so. The applicant confirmed that a community advisory council had engaged in negotiations with the traditional landowners on the applicant's behalf to attempt to have the lease renewed but that these negotiations had not been successful. … 19. I put to the applicant the independent information available to me (set out below) that the current government is taking steps to provide financial assistance to people whose leases of traditional land have expired and asked the applicant whether his grandmother had ever attempted to access such assistance or to take any legal means to have the lease renewed. The applicant stated that his grandmother had not done so to his knowledge and that she is presently living with one of her sons. 20. I asked the applicant whether he had sought any legal remedy for the damage caused to his property by the traditional owners when he was evicted from his land and he said that he had not. 21. I put to the applicant for comment the independent information available to me (set out below) which indicates that the Fijian government does not condone, and is not powerless to prevent, communal violence between indigenous Fijians and Indo-Fijians and that the security situation in Fiji is now calm and under control. The applicant stated that his and his wife's concern is for their daughter and for the reaction she will have when confronted on a daily basis by indigenous Fijians, including while at school, while she is still suffering from post traumatic stress disorders.' 32 Protection in the relevant sense does not mean prevention of harm. Where the alleged persecutor is not the State, the question is whether the State either encourages persecution, or appears to be powerless to prevent it: Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, 258. Whether a State is able to protect its nationals is a factual question for the RRT to determine. The RRT acted upon country information which indicated that there was no reason to believe that, at the present time or in the future, Indian Fijians would not be afforded the general protection of the law. 33 The fact that on one occasion the police did not respond to a complaint is insufficient to require a conclusion that there is an absence of effective State protection. It is clear from the RRT's reasons, when considered as a whole, that the reference in par 38 of the reasons to the authorities not being given the opportunity to respond is to the applicant's own evidence at pars 19-20, and not to the applicant's complaint that the police did nothing. 34 This ground fails.
(d) The Tribunal applied the wrong test of a well-founded fear of persecution 35 Under this heading the applicant complains that the RRT failed to give separate consideration to the position of the daughter who suffered from post traumatic stress disorder. 36 This complaint fails for two reasons. First, the applicant's daughter is to be assessed as a member of the applicant's family unit, and the RRT was under no obligation to deal with any specific claims made by her: Sunarso v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 125. Second, the RRT did consider the position of the daughter, as appears from par 40 of its reasons quoted above.
(e) The Tribunal failed to exercise its jurisdiction when it failed to consider why violent eviction of the applicant's family and subsequently when he reported the matter to police, their not attending to the matter would not constitute persecution based on race 37 The applicant submits under this heading, correctly, that in order to decide whether the applicants would face persecution in the future it may be important to consider instances of mistreatment in the past, as this may significantly bolster the chances of the applicant's family being accepted as refugees. 38 However, the violent eviction referred to in par 36 of the RRT's reasons occurred shortly prior to the Speight coup, at a time when the RRT accepted that Fiji was experiencing a period of civil unrest in which ethnicity, and political opinion imputed on the basis of ethnicity, were significant elements. 39 The RRT considered that circumstances in Fiji had changed as at the date of its decision. The RRT correctly focused upon the circumstances in Fiji at the time of its decision, rather than at some earlier point in time. Whether a material change in circumstances had occurred was a factual matter for the RRT to determine. The RRT's conclusion was open on the basis of the country information to which it referred. Even if the RRT's assessment of the position were wrong, that would not of itself demonstrate an error of law, let alone jurisdictional error.
(f) The Tribunal committed a jurisdictional error as a consequence of an erroneous legal distinction it made between motivation for eviction and the fact of eviction as if they were two separate issues (page 9 (CB 71) of the decision) rather than considering the issue of eviction as a whole 40 This ground fails for the same reasons as the previous ground. The applicant's submission that the RRT failed to appreciate that the applicants were complaining about the illegal use of violence to force the applicants out of the property is not made out. The point which the RRT was seeking to make is that whilst eviction per se may not have been unlawful due to the expiry of the lease, the violent nature of the eviction could not be justified.
(g) The Tribunal made a jurisdictional error in holding that eviction itself is not a consequence of a Convention reason 41 This ground fails for the same reasons as grounds (e) and (f).
(h) The Tribunal made jurisdictional error in saying that law would provide protection when there was evidence that the police would not enforce the law in order to provide protection 42 This ground fails for the same reasons as grounds (e) and (f).
(i) The Tribunal made jurisdictional error in not considering whether the daughter would qualify for refugee status on her own 43 This ground fails for the same reason as ground (d). (j) The Tribunal made jurisdictional error in not taking relevant and critical information into account 44 The applicant's complaint is that the RRT did not refer in its reasons for decision to the press clippings submitted by the applicant. In the RRT's letter of 14 May 2002 the RRT stated that it had looked at all the material relating to the application, and at the hearing on 20 June 2002 the RRT Member said that she had read all of the material which the applicant had provided to the Department and to the RRT. The applicant submits that I should find, contrary to these statements, that the RRT had not read this material, but there is no reason why I should draw that conclusion. 45 The RRT was not obliged to deal with every piece of 'evidence' which was before it: Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402, 414. It does not follow that because the RRT has not mentioned particular pieces of evidence in its reasons it has failed to consider that evidence. Conclusion 46 In the Minister's submission, the application should be dismissed with costs. I propose to accede to that submission for the reasons which I have given. Insofar as application is made for an extension of time within which to institute the proceedings I decline to extend time, as an extension of time would be futile because the application fails in any event. 47 The application is dismissed with costs including reserved costs. The Notice of Motion filed on 24 October 2003 is dismissed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
Applicant S70 of 2003
Minister for Immigration & Multicultural & Indigenous Affairs
(1997) 190 CLR 225
(2002) 190 ALR 601
(2002) 124 FCR 465
(1996) 62 FCR 402
(2003) 211 CLR 441
(2000) 204 CLR 82
(2000) 99 FCR 125