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

REASONS FOR JUDGMENT 1 The appellant is a citizen of Fiji who arrived in Australia on 7 April 2001 with his wife and 2 daughters. On 8 May 2001 they lodged an application for protection visas. 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 In order to obtain a protection visa the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') had to be satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Migration Act 1958 (Cth) ('the Act'). In general terms the Minister had to be satisfied that the appellant was a 'refugee' as defined in the Convention, being a person who: '… owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 3 The appellant is of Indo-Fijian ethnicity and Hindu religion. He claimed to fear persecution by reason of his political opinion, as a supporter of the Fijian Labour Party, and by reason of his race, as Indo-Fijian. In particular, the appellant 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 his family was forcibly evicted from their home by indigenous Fijians on about 18 April 2000. 4 The appellant's claim was rejected by a delegate of the Minister on 29 May 2001. On 20 June 2001 the appellant sought a review of that decision by the Tribunal. On 26 June 2002 the Tribunal confirmed the decision of the delegate. The Tribunal gave the following reasons: '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. 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. 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. 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. 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. 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. 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. 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. 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.' 5 On 28 February 2003 the appellant commenced a proceeding in the High Court seeking orders nisi for the issue of writs of certiorari directed to the second respondent (who was the member who made the relevant determination) for the purpose of quashing that determination, mandamus and an injunction directed to the third respondent (being the Principal member of the Tribunal) requiring the Presiding member to appoint a member to reconsider the application for review, and prohibition directed to the Minister prohibiting him from acting on the first decision. The appellant relied upon s 75(v) of the Commonwealth Constitution as the basis for the High Court's jurisdiction. 6 It was not disputed before us that, in order to succeed in these proceedings (both before the High Court and in this Court), it was necessary for the appellant to establish that there was jurisdictional error in the processes, reasoning or decision of the Tribunal. Nevertheless, neither the purported grounds in the draft order nisi nor anything in the affidavit gives any hint as to any specific errors that may have been made by the Tribunal. 7 It would not appear that the appellant sought an extension of time in the High Court in relation to any of the relief sought. Nevertheless, there were some time limits imposed by the High Court Rules. Those Rulesprovide that an order nisi for certiorari 'shall not be granted' unless the application is made within 6 months of the decision of the Tribunal: see O 55 r 17. That time can be extended. An application for mandamus in relation to a judicial Tribunal must be made within two months of the refusal of the Tribunal to exercise its jurisdiction or such longer period as may be allowed: see O 55 r 30. Consequently the time limits for certiorari and mandamus were exceeded - in the latter case by some seven months. No special time limits are imposed under the High Court Rules in relation to applications seeking prohibition or injunctions. However, all of the remedies are discretionary and may be refused for delay. 8 On 6 June 2003 Heydon J remitted the further proceedings in the High Court application to this Court. The power to make that order is to be found in s 44 of the Judiciary Act, 1903 (Cth) ('JA'), combined with JA s 39B(1), which gives this Court like jurisdiction to that of the High Court under s 75(v) of the Commonwealth Constitution. Pursuant to JA s 44(3)(b) the further proceedings of any matter remitted to this Court shall be as directed by this Court 'subject to any directions of the High Court'. Order 2 of the order made by Heydon J in this case expressly provided 'The application proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court.' 9 The rules of this Court do not make provision for an order nisi procedure in relation to what are now called the 'constitutional writs'. On the other hand, O 51A r 5 of the Federal Court Rulesat least implies that an application for an order nisi which is remitted to this Court should still be treated as an application for an order nisi. The Federal Court Rulesalso do not impose any time limits for certiorari or mandamus or for any of the other relief being sought by the appellant. 10 The procedural differences between the High Court and Federal Court Rules raise at least two issues in relation to these proceedings. The first relates to whether the time limits under the High Court Rules are applicable in the proceedings in this Court. The second is whether the orders made by the primary judge in these proceedings involved the dismissal of an application for an order nisi, or the dismissal of an application for an order absolute. It will be necessary to return to these issues in due course. 11 After the proceedings were remitted to this Court the appellant filed a Notice of Motion seeking an extension of time. On 24 October 2003 the appellant filed an Amended Application alleging ten specific jurisdictional errors. The Amended Application was dismissed by the primary judge on 13 February 2004 (see [2004] FCA 84). Some of the reasons of the primary judge in relation to some of the grounds that were argued before him are not challenged on this appeal. It is unnecessary to deal with those aspects of his reasons. However, we note that the primary judge concluded (correctly in our view) that the Tribunal had not rejected the appellant's allegation that he had been evicted from his former home or that that eviction was based on racial considerations or that he had not been protected by the Fijian authorities at that time. The primary judge found (correctly in our view) that the essential reason for the Tribunal's decision was that circumstances in Fiji had changed since those events occurred: '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. 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.' 12 The appellant alleges that the primary judge was in error in his reasons in relation to the following grounds argued before him: (a) The appellant argued before the primary judge that the Tribunal had made a jurisdictional error in not considering the 'country information', consisting of newspaper reports, provided to the Tribunal by the appellant. It will be necessary to return to these newspaper reports in more detail below. For present purposes it is sufficient to say that this material was not specifically referred to in the Tribunal's reasons. However, the primary judge found that the Tribunal had referred to the relevant information: '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.

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.

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