Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

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.' (b) The appellant argued before the primary judge that the Tribunal had fallen into jurisdictional error in not applying the correct test of whether the appellant had a well founded fear of 'persecution'. In its reasons the Tribunal said that the appellant had not afforded 'relevant State authorities… an opportunity to respond to harassment suffered by the applicant.' The appellant argued before the primary judge that the Tribunal was in error in reaching that conclusion because he had sought police assistance when he was evicted in 2000 and the police had not responded to his requests. In relation to this ground of review the primary judge pointed to the relationship between an allegation of a failure of State protection and the issue of whether there was 'persecution': '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.

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 [relating to civil claims arising from eviction], and not to the applicant´s complaint that the police did nothing.

This ground fails.' (c) The appellant argued before the primary judge that the Tribunal had fallen into jurisdictional error in denying the appellant a fair hearing, particularly in relation to whether it was now safe for Indo-Fijians to return to Fiji. One difficulty with this argument was that, in the course of the hearing before the Tribunal, the Tribunal put to the appellant that it was now safe for Indo-Fijians to return to Fiji and invited the appellant to comment. The primary judge's reasons deal with the submission made in respect of that difficulty: '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.

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. This ground fails.' (d) The appellant argued that the Tribunal fell into jurisdictional error in not separately considering whether the appellant's daughter was a refugee. As to that ground of alleged error the primary judge said: '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.

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.' 13 Two other matters should be noted about the primary judge's reasons: (a) The primary judge discussed the question of whether an extension of time was necessary, given the failure of the appellant to comply with the requirements of the High Court Rulesin relation to certiorari and mandamus. The primary judge noted that the issue in relation to prohibition and injunctions might be different from that in relation to certiorari and mandamus, but did not need to reach any final resolution of that question. He ordered that insofar as an application was made for an extension of time he declined to grant it as an extension would be futile 'because the application fails in any event'. (b) There is no discussion in the primary judge's reasons which would suggest that his Honour was dealing with an order nisi rather than a final order. 14 His Honour ordered that the application be dismissed. 15 The application that is formally before us is an application for leave to appeal. Leave to appeal is presumably sought because it is thought that the order made by the primary judge was not a final order. There are two bases upon which that might be so. The first is that his Honour's order was an order refusing to extend time. As to that, there is a real question not yet answered as to whether the time limits under the High Court Rulesare applicable to proceedings remitted to this Court: see Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89, at least where those proceedings do not themselves include an application to extend time or where the High Court has not directed that those limits remain applicable. Even if that were not the case, there is still the question of whether it is appropriate or necessary to obtain an extension of time in relation to certiorari or mandamus in circumstances where prohibition against the Minister may be a sufficient remedy: see Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 contrast Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at 488-489. 16 The other basis upon which it might be argued that leave to appeal is required is that the order made by the primary judge was an order dismissing an application for an order nisi. The application made to the High Court was for an order nisi. The test for whether an order nisi should be granted or refused is whether the party seeking it has an arguable case that would justify relief by way of an order absolute: see Public Service Association of SA v Federated Clerks' Union (1991) 173 CLR 132 at 140; Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 at 183. Plainly enough it is a different test from the one applied to determine if a final order should be made. Notwithstanding the differences between an order nisi and an order absolute O 51A r 5 of the Federal Court Rules enables this court to proceed directly to determine whether a final order should be made. It might be thought to be implicit in that order that the court can also determine as a final order to dismiss the application. If that jurisdiction and power exists, it is clear that that is what the primary judge was purporting to do in this case. There is nothing in his Honour's reasons which suggested that his Honour was considering whether an order nisi should be granted. 17 However, a Full Court of this Court held in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 by majority that in circumstances that seem similar to those before us an order in similar terms to the order made by the primary judge in this case should be treated as an order refusing an order nisi from which leave is required. On the face of it then it would seem that leave is required in this case. This is to be contrasted with the approach taken by another Full Court in Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150 ('S61') where a differently constituted Full Court reached a different conclusion. 18 If it were necessary to deal with these questions we would be disposed to follow S61. However, it is unnecessary to do so. The appellant has applied for leave to appeal. The respondent argues that leave should be refused, but only on the basis that the appeal would fail on the merits if leave were granted. In these circumstances the parties are agreed that the appropriate course is for this Court to proceed directly to the question of the merits of the appeal. 19 There are four grounds of appeal as to the merits, corresponding in general terms to the grounds of alleged jurisdictional error discussed above. The first ground was that the primary judge was in error in holding that the Tribunal was not required to deal expressly with every piece of evidence that was put forward by the appellant. There are three steps in the appellant's argument: (a) The appellant put before the Tribunal material which was relevant to his case; (b) Whilst the Tribunal said (both in its correspondence with the appellant and during its interview with him) that it had considered that material, it is plain from its reasons that it did not do so. In particular, the Tribunal's finding that 'There is nothing in the independent information available to me to suggest that the Fijian authorities would withhold effective protection from the applicant..' is evidence that the Tribunal had no regard to the relevant information submitted by the appellant. (c) The primary judge was in error in concluding otherwise. 20 In order to consider this ground it is necessary to consider the material the appellant says was not considered by the Tribunal. It consists of newspaper reports which were provided by the appellant to the Tribunal. It is unnecessary to set those reports out in any detail. They deal broadly with three matters: (a) One group deals with the eviction of Indian Fijians from land owned by native Fijians. Some of these are undated. However, there is nothing in that material to suggest that the police or the authorities have not been taking steps to enforce the rule of law in relation to those evictions, at least since the events around the coup in 2000. (b) Another group deal with the brutal death of the head of the Red Cross in Fiji in July, 2001. The newspaper reports suggest that that person had played some humanitarian role during the coup and that he may have been murdered by reason of that role or by reason of the possibility that he may have been called as a witness in relation to the prosecutions arising out of the coup. (c) A third group deal with various submissions made to and by members of the Fijian judiciary as to whether one or other of them should recuse themselves in relation to some of the cases arising out of the coup, by reason of the role they may have had at the relevant time. 21 The appellant's claim for refugee status was on the basis that he had a well founded fear that if he and his family returned to Fiji he and they would be subjected to personal violence by indigenous Fijians and that the Fijian government would be unable to protect him or them. It is clear that none of this material is directly relevant to that claim. More to the point, none of it 'suggests that the Fijian authorities would withhold effective protection from the applicant'. That being the case there is no reason to assume that the Tribunal was incorrect when it wrote to the appellant informing him that it had looked at 'all the material'. Nor is there any reason to doubt that the Tribunal was truthful in informing the appellant during his interview that 'I've also read everything that you have provided to the Tribunal.' There was no reason why that material should be specifically referred to in the Tribunal's reasons. It was not relevant to its critical findings. 22 The first ground of appeal is not made out. 23 The second ground of appeal relates generally to the conclusion by the Tribunal that 'there is nothing to suggest that [state] protection would be ineffective or that it would be withheld by the Fijian authorities'. In relation to this ground of appeal the appellant repeated some of the arguments he put in relation to the first ground. That has already been dealt with. However, the appellant specifically complained about the primary judge's conclusion in par 12(b) above that the Tribunal's reference to the failure of the appellant to seek protection was a reference to his failure to make a claim for civil compensation. The appellant said that the primary judge should have found that the appellant had sought police protection at the time that he had been evicted from his tenancy and that that protection had not been forthcoming. 24 In our view the primary judge's analysis of the Tribunal's reasons is clearly correct. It is clear from the Tribunal's reasons that the Tribunal's comments that the appellant had failed to seek State protection was related directly to its finding that 'The applicant failed at any time to seek redress for the damage to his personal property.' 25 More fundamentally, however, the appellant's argument that he was not afforded State protection at the time he was evicted from tenancy in 2000 is simply not relevant to the finding actually made by the Tribunal that the situation had changed since that time. Having reached that conclusion the evidence of what had occurred prior to that change was of limited relevance to the question of whether the appellant would have a well founded fear of persecution if he returned to Fiji at the date of the Tribunal's decision. 26 Further, the primary judge was clearly correct in his conclusion that the failure of the police to respond on a particular occasion or occasions when a person's rights are breached by private individuals does not necessarily mean that that person has suffered 'persecution' for the purposes of the Convention. The treatment of Indian Fijians at the time of the 2000 coup may well have constituted 'persecution' (indeed, the decision of the Tribunal in this case assumes that Indian Fijians may have suffered persecution at that time), but that does not mean that the individual acts of which the appellant gave evidence were sufficient in themselves to establish 'persecution'. Individual acts by persons other than State agents are not usually sufficient for this purpose: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [25]-[29]. It was only when that evidence was considered in the context of the country information to which the Tribunal referred in its reasons that a conclusion could properly be reached that the appellant had suffered persecution in the past. 27 On the other hand, if the appellant had argued before the Tribunal that a failure of State authorities to provide compensation for past persecution could constitute current persecution then it would be an answer to that argument that the appellant had not sought such compensation. As mentioned above, that appears to be the context in which the Tribunal made the comment about which the appellant complained both to the primary judge and to us. However, the sufficiency of that answer does not mean, of course, that a failure to provide compensation for past persecution would necessarily form a basis for a well founded fear of 'persecution' if the appellant and his family returned to Fiji. 28 The second ground of appeal must also be dismissed. 29 The third ground of appeal is that the primary judge erred in not inferring that the Tribunal merely asked the appellant about the current situation in Fiji as a 'window dressing exercise'. Although Mr Silva, who appeared for the appellant, did not put this argument on the basis of bias or prejudgment or even lack of bona fides, presumably that would be the consequence of the argument if it were accepted and presumably that would be the appropriate description of the relevant jurisdictional error by the Tribunal. 30 In support of such a proposition it was put to us that the questioning did not alert the appellant to the importance of the issue. It is hard to see that there could be any such requirement, particularly in this case when the importance of this issue must have been obvious to the appellant. 31 It was also put to us in support of this proposition that some of the country information that was before the Tribunal showed that the Fijian government in 2002 had not addressed some of the issues that had arisen out of the coup in 2000. There is nothing in any of that material which throws any doubt either on the conclusions reached by the Tribunal or on the impartiality or bona fides of the Tribunal when seeking information from the appellant. 32 The primary judge said that he did not think that he should draw an inference that the questions asked by the Tribunal were mere window dressing. In our view no such inference could be drawn from the material before us. The third ground of appeal must be rejected. 33 The final ground of appeal relates to the appellant's daughter. Some of the material put to the Tribunal by the appellant showed that the appellant's daughter had suffered, and was continuing to suffer, post traumatic stress disorder as a result of the events surrounding the eviction from the tenancy in 2000. It also showed that the symptoms of that disorder were exacerbated when she sighted Indigenous Fijians, including in Australia. On this basis it might be expected that the symptoms of that disorder would be exacerbated if she returned to Fiji. The Tribunal concluded that there was no evidence that the Fijian government declined 'for a Convention reason' to provide adequate medical treatment for those citizens that require it. The primary judge dealt with this issue as set out in par 12(d) above. The appellant argued before us that the primary judge was in error. 34 The short answer is that the primary judge was clearly correct. There was no jurisdictional error by the Tribunal for the two reasons he gave. 35 The Tribunal's treatment of the claim (assuming that there had been one) was plainly correct. The disorder from which she was suffering was the result of past persecution. That persecution was finished and over. The possible exacerbation of that disorder if she returned to Fiji was not itself 'persecution'. If it were then she would suffer 'persecution' wherever and whenever she was at risk of seeing indigenous Fijians, including in Australia. 'Persecution' means more than the infliction or exacerbation of harm: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [18]. The relevant 'persecution' in this context is not the potential for exacerbation of harm, but the possibility of treating it. That possibility cannot sensibly include any obligation upon any government to ensure that the appellant's daughter does not come into contact with indigenous Fijians. Rather it involves an obligation not to deny the appellant's daughter proper treatment of her disorder for a Convention reason. That is the conclusion reached by the Tribunal: '…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.' In our view that approach to the issue was a correct approach, assuming that the Tribunal was required to consider it at all. 36 The fourth ground of appeal must also be rejected. 37 For these reasons the appeal must be dismissed. If leave to appeal is required it should also be dismissed as an appeal would be futile for the reasons given above. The appellant should pay the costs of the first respondent. There should be no order for costs in relation to the second and third respondents. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Conti & Selway.

Dated: 6 JULY 2004 Counsel for the Applicant: T Silva

Solicitor for the Applicant: Silva Solicitors

Counsel for the First Respondent: S Lloyd with K Morgan

Solicitor for the First Respondent: Sparke Helmore

Counsel for the Second and Third Respondents No appearance for the Second and Third Respondents

Date of Hearing: 21 MAY 2004

Date of Judgment: 9 JULY 2004