CAJ16 v Minister for Immigration and Border Protection

1. The appellant's notice of appeal dated 23 February 2017 is dismissed.
2. The appellant is to pay the first respondent's costs of the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 15 February 2017. The primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 6 July 2016 affirming a decision of a delegate of the first respondent to not grant the appellant a Protection (Class XA) Visa. 2 The appellant is a citizen of Fiji. He claimed protection on the basis of his Indo-Fijian ethnicity, Hindu religion and political opinion. 3 The appellant made his application for a Protection Visa under s 65 of the Migration Act 1958 (Cth) (the Act). At the time the application was made, s 36(2)(a) of the Act provided that a criterion for a Protection Visa was that the applicant be a non-citizen in Australia in respect of whom the Minister was satisfied that Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Convention). Article 1A(2) of the Convention defines a refugee, relevantly, as any person who: …owing to well-founded fear of being persecuted for reasons 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… 4 Section 91R of the Act qualified some aspects of Art 1A(2) of the Convention. That section has been repealed but continues to apply in relation to applications for protection visas made before 16 December 2014. The appellant made his application prior to that date. 5 Section 91R of the Act provided, relevantly: 91R Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 6 At para [10] of its reasons, the Tribunal observed that s 91R(1) of the Act required that the persecution must involve "serious harm" to the applicant and noted that examples of serious harm were set out in s 91R(2) of the Act. 7 The Tribunal also referred to s 5AAA of the Act. That section provides, relevantly: 5AAA Non-citizen's responsibility in relation to protection claims (1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising). (2) For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim. 8 The Tribunal found as follows: 38. The applicant has claimed that he was subject to threats of physical violence and sexual harassment by indigenous Fijians at his workplace when he was a truck driver. However, he left this position a year before departing Fiji, and sought employment in his former trade as an electrician in Suva. The applicant has claimed that he was discriminated at this workplace when he was discriminated against and verbally abused by his indigenous supervisor on the basis of his ethnicity and religion and that this would continue if he were to return to Fiji and find another job. … 40. The Tribunal accepts that the applicant has experienced some discriminatory practices and verbal abuse and on one occasion, sexual harassment during his employment as a truck driver. The Tribunal accepts the applicant's evidence that he experienced some discrimination in his place of employment in Suva, however, he was never physically harmed, threatened with loss of life, torture or physical harm, sexual abuse or mistreatment at this workplace. He claims to fear further discrimination, insults and possible harassment at his workplaces. 41. The applicant did not claim to have suffered any serious harm (having regard to the examples provided in s.91R(2) of the Act as outlined in paragraph 10 above) or significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act and summarised in paragraph 17 above) in Fiji in the past. Nor does he claim to fear such harm if he returns to Fiji now or in the foreseeable future. 42. Taking the above findings into consideration both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of his race, nationality, religion or membership of a particular social group (truck drivers or electricians). Furthermore, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm in Fiji for reasons of his ethnicity, religion or his occupation. (Emphasis added.) 9 Before the primary judge, the appellant argued, amongst other things, that in para [41] of its reasons, the Tribunal misinterpreted s 91R(2) as exhaustively setting out what was "serious harm", rather than as merely setting out examples of "serious harm". The primary judge held that upon the proper construction of the Tribunal's reasons, the Tribunal had not interpreted s 91R of the Act in the way contended for by the appellant. 10 In the appeal, the appellant submits that there is no evidence of the application of s 91R(1) of the Act by the Tribunal. The appellant repeats the submission made before the primary judge that the Tribunal misinterpreted s 91R(2) of the Act as exhaustively setting out what will amount to "serious harm" for the purposes of s 91R(1)(b) of the Act. 11 Plainly, s 91R(2) merely provides examples of "serious harm". If the Tribunal did interpret s 91R(2) as exhaustively describing the circumstances in which "serious harm" could be demonstrated, then this would be a jurisdictional error: see NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 at [35]-[36]. 12 However, the issue in the appeal is whether the primary judge erred in failing to construe para [41] of the Tribunal's reasons in the way contended for by the appellant. 13 At para [41] of its reasons, the Tribunal said that the appellant "did not claim to have suffered any serious harm (having regard to the examples provided in s 91R(2) of the Act as outlined in paragraph 10 above)". There is some ambiguity in this statement. On one view, it may suggest that the Tribunal thought that the appellant was required to claim serious harm of a type falling within the examples set out in s 91R(2) of the Act. However, when the Tribunal's reasons are read as a whole, that is not the proper construction of the statement. 14 At para [41] of its reasons, the Tribunal referred to "the examples" in s 91R(2) of the Act. In para [10], the Tribunal had set out what it called the "examples" of serious harm in s 91R(2) of the Act. In para [41], the Tribunal referred to the "exhaustive definitions" in s 36(2A) and s 5(1) of the Act of "significant harm", in contradistinction to the "examples" of "serious harm" in s 91R(2) of the Act. Accordingly, it is clear that the Tribunal did not consider that s 91R(2) of the Act exhaustively set out the circumstances in which there could be "serious harm" for the purpose of s 91R(1)(b) of the Act. 15 Further, at para [40] of its reasons, the Tribunal found that the appellant did not experience treatment that amounted to physical harm or threats of loss of life, physical harm, torture, sexual abuse or mistreatment. These matters go beyond the examples in s 91R(2). This indicates that the Tribunal did not confine itself to consideration of the examples, but considered more broadly whether the appellant's treatment amounted to "serious harm" within s 91R(1)(b) of the Act. 16 When the Tribunal's reasons are read as a whole, it appears that the Tribunal engaged in a form of sequential reasoning. Firstly, in para [40], the Tribunal accepted that the appellant had experienced some discrimination, verbal abuse and sexual harassment in Fiji. Secondly, the Tribunal found that the appellant's treatment did not amount to more serious types of harm such as physical harm or threats of loss of life, physical harm, torture, sexual abuse or mistreatment. Thirdly, the Tribunal found that the treatment the appellant feared if he returned to Fiji was of the first kind, not the second. In conducting this analysis, the Tribunal must be understood to have rejected the appellant's claim that the persecution he feared amounts to "serious harm" within s 91R(1)(b) of the Act. 17 Then at para [41] of its reasons, the Tribunal indicated that the appellant had not claimed to have suffered any serious harm falling within the examples in s 91R(2). That is what the Tribunal meant by the words "having regard to the examples". The Tribunal was indicating that it was left with no other claims of harm to consider. 18 In para [42] of its reasons, the Tribunal, having decided that the appellant's treatment did not involve "serious harm", concluded that it was not satisfied that there was a real chance that the appellant would be persecuted for reasons of his race, nationality, religion or membership of a particular social group 19 It is true that the Tribunal's reasons could have been clearer and more explicit in its findings on the question of "serious harm". However, it is well established that a Tribunal's reasons are not to be read overzealously or with an eye attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. When the Tribunal's reasons are read as a whole, it is apparent that it did not misconstrue s 91R(2) of the Act. 20 Accordingly, the primary judge made no error and the appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves, Robertson and Rangiah.