CMF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 7 May 2019, by which an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, was dismissed. The Tribunal had, on 12 August 2016, affirmed a decision of a delegate of the first respondent, now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a protection visa to the appellant. 2 The appellant is a citizen of Fiji. He is of Indo-Fijian ethnicity and a member of the Islamic faith. He arrived in Australia on 4 October 2014 on a visitor visa and applied for a protection visa on 13 October 2014. In his written application he stated that he entered Australia for the purpose of visiting family members and while here noticed that Australia is a beautiful and true democratic country which gives its citizens the right to voice their opinions with no restriction on religious or political beliefs and no corruption. He was amazed at the vast difference between Australia and Fiji and decided to claim protection in Australia. He said that he believed that he is a victim and that Australia could protect him from further significant harm and help him. He said he was unwilling to return to Fiji due to fear of persecution and abuse. He said that if he was forced to return he would be significantly harmed and would be arbitrarily deprived of his life subjected to inhuman treatment. He said that the authorities in Fiji would not be able to give him the required protection as they do not have the resources to assist him and others in his position because they have many other internal and important matters to deal with. He did not claim that he had experienced any harm in Fiji. 3 On 23 February 2015, a delegate of the Minister refused the grant of a protection visa. The delegate accepted that, on the appellant's evidence, his purpose in coming to Australia was to work and to improve his and his family's financial and living circumstances. The appellant had said to the delegate that he did not fear returning to Fiji and that it was not his intention to seek protection in Australia. Rather, his intention in coming to Australia was to work, earn money and then return to Fiji. However he did not successfully get work through a person who was meant to help him. He said that the reason why he lodged a protection visa application was that he was told that the bridging visa granted in association with a protection visa application would give him work rights in Australia. 4 The appellant applied for merits review by the Tribunal on 20 March 2015. The appellant appeared before the Tribunal on 10 August 2016 to give evidence and present arguments in support of his application for review. On 12 August 2016, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa. The Tribunal recorded that the appellant had said he had no problems as a result of his religion or ethnicity in Fiji and did not fear returning to Fiji, but would have no job and no money and would find it difficult to survive. The Tribunal found that the appellant had provided consistent evidence and appreciated his honesty about his circumstances. The Tribunal discussed with the appellant the current employment situation in Fiji and the fact that many people lived in poverty. The Tribunal pointed out to the appellant that those circumstances on their own were not sufficient to meet the requirements for protection. 5 The Tribunal also noted that the appellant claimed to have suffered abuse at the hands of indigenous Fijians when they stole his livestock in 2014 just before he came to Australia. The Tribunal accepted that evidence and, based upon a report from the Department of Foreign Affairs and Trade (DFAT), an extract of which was reproduced, accepted that there is some level of social discrimination against Indo-Fijians in Fiji and that this theft may have had some basis in discrimination against Indo-Fijians. However the Tribunal noted that, based on the DFAT country information, the theft could just as easily have been motivated by poverty on the part of the thieves and was not satisfied that this incident fell within the category of serious harm as set out in s 91R(2) of the Migration Act 1958 (Cth), or significant harm having regard to the exhaustive definitions in s 36(2A) and s 5(1) of the Migration Act. 6 The Tribunal found that the appellant's claim to fear returning to Fiji due to his difficulty in finding employment which provided an adequate income had no Refugees Convention nexus as he did not have a fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. While the Tribunal was sympathetic to the appellant's economic circumstances, including the loss of his house in a cyclone, it was nonetheless satisfied that there was no real chance that he would suffer serious harm in the relevant sense, or that there was a real risk that he would suffer significant harm as a result of those circumstances, if he returned to Fiji now or in the foreseeable future. 7 On 6 September 2016, the appellant applied for judicial review of the Tribunal's decision by the Federal Circuit Court. That application referred to the factual findings made by the Tribunal by which his evidence as to theft of cattle, social discrimination against Indo-Fijians and loss of his house in a cyclone was accepted, and took issue with the Tribunal's conclusion that there was no real chance that he would suffer serious harm, asserting that to be contrary to the (statutory) definition. 8 On 7 May 2019, the primary judge dismissed the appellant's application for judicial review. His Honour found that the first two grounds in the application for judicial review, which referred to evidence that had been accepted by the Tribunal, did not make any meaningful assertion of jurisdictional error and accordingly were not grounds that were able to be made out. As to the third ground, taking issue with the Tribunal's conclusion that there was no real chance that he would suffer serious harm as defined, his Honour characterised that as merely arguing with the findings of the Tribunal and amounting to the seeking of impermissible merits review. His Honour further found that if and insofar as the ground asserted any misunderstanding of the law or the criteria for the grant of a protection visa, that also failed because the law was correctly stated in the Tribunal's reasons by reference to statute and case law. 9 On 3 June 2019, the appellant filed a notice of appeal to this Court. The grounds are as follows (verbatim): [1] I appeared before His Honour Judge Dowdy on Tuesday 7/5/2019 and I submitted my submission as to why I do not agree with the refusal of the Tribunal. [2] On the day of the hearing His Honour did not give me the Order. I went to the Registry on Monday 27 May 2019 and the Officer of the Court gave me copy of the Order which allowed me to lodged this application on or before 12 June 2019. Until now I have not received the judgment of His Honour Judge Dowdy but I do believe that I have an arguable case and I hope that the Honourable Judge of the Federal Court will look at my case differently. 10 The appellant appeared in person at the hearing of the appeal. He did not provide any written submissions prior to the appeal hearing. The Minister did provide written submissions in accordance with the procedural orders made by a registrar of the Court. It is convenient to reproduce the Minister's submissions verbatim as they succinctly capture the difficulty with the appellant's grounds of appeal as pleaded (omitting appeal book and paragraph references): These grounds fail to meaningfully identify any error in the primary judge's decision. Insofar as the appellant asks the Federal Court to look at the case "differently", the [Minister] understands that the appellant seeks to rely upon the same grounds as advanced in the Court below. As held by the primary judge, grounds one and two in the Court below did not point to any jurisdictional error in the Tribunal's decision but merely restated the Tribunal's findings. To the extent that ground three in the court below amounted to a contention that the Tribunal applied the incorrect test for 'serious harm', or otherwise misapplied the test, that contention is without merit for the following reasons. The Tribunal set out the definition of 'serious harm' in s 91R of the [Migration Act]. As stated by the primary judge, the Tribunal was correct to apply s 91R of the [Migration Act] in circumstances where the appellant applied for the visa on 14 October 2014. That was prior to the repeal of s 91R, which took effect on 18 April 2015: SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 at [21]. Consistent with s 91R of the [Migration Act], the Tribunal recognised that the harm in question may be directed against a person as an individual or a member of a group and must have an official quality in the sense that it is tolerated or uncontrollable by the authorities. The Tribunal found that the country information did not indicate that discrimination was uncontrollable or condoned by the authorities. The Tribunal was therefore not satisfied that the claimed harm met the definition of 'serious harm' as set out in s 91R of the [Migration Act]. Further, having regard to the examples of 'serious harm' set out in s 91R(2) of the [Migration Act], the Tribunal was not satisfied that the appellant's economic circumstances amounted to 'serious harm'. Having found that the appellant's claims did not meet the definition of 'serious harm', the Tribunal found that there was no real chance that he would suffer serious harm if he were to return to Fiji. These findings were reasonably open to the Tribunal and do not reveal any misapplication of the statutory test. As held by the primary judge, ground three merely expressed disagreement with the Tribunal's conclusion and invited impermissible merits review. Ground three did not establish any jurisdictional error in the Tribunal's decision and the primary judge was correct to dismiss this ground. 11 The appellant handed up written submissions at the hearing of the appeal. He did not wish to say anything by way of oral submissions. Those written submissions were as follows: I received First Respondent's Outline of Submissions dated 31 October 2019. His Honour Judge Dowdy on 7 May 2019 could not see any error of law to be able to remit my case back to the Tribunal. I continue to believe that I have had a subjective fear of harm to return to Fiji because of what happened to me in the past that my livestock had been stolen and the Tribunal accepted my evidence about the theft of my cattle by indigenous Fijians prior to my departure to Australia. I am glad that my evidence was accepted as credible witness and my honesty I value all the time made me give my evidence without exaggeration. Even though according to His Honour Judge Dowdy I failed to establish that the decision of the Tribunal is affected by error of law I continue to believe that because my home was destroyed in the cyclone and I have suffered abuse at the hand of indigenous Fijians I am a victim and I do meet the definition of refugee and the fact that theft could have easily been motivated by poverty on the part of the thief I do not agree because those people who stole my cattle are malicious and I continue to believe that I have a genuine fear of being harmed for reasons of membership of particular social group. As an Indo-Fijian of Muslim religion my life continues to be at risk if I return to Fiji. I now lost my mother, who was killed in a cyclone, my home has been destroyed and I suffered abuse at the hand of indigenous Fijians and the Tribunal accepted my claim to fear returning to Fiji clue to my economic circumstances and contrary to the finding of the Tribunal my circumstances had convention nexus. I continue to rely on my grounds listed in my Notice of Appeal. According to the Minister's argument, namely Sparke Belmore Lawyers. I do not have an arguable case but the Tribunal recognised my harm but was not satisfied that the claimed harm met the definition of serious harm. In my opinion what happened to me should be accepted as serious harm as I continue to believe that it was not open to the Tribunal to say that the harm I endured is not meeting the definition. I hope that the Honourable Federal Court will look at my situation differently and recognise me as a refugee. 12 The Minister submits, in relation to the appellant's written submissions, that they do not materially advance the appellant's case. The Minister submits that they, in effect, repeat the grounds of judicial review before the primary judge. They amount to a submission that, the Tribunal having accepted the claims as to theft of cattle, social discrimination against Indo-Fijians and loss of his house in a cyclone, it followed that the Tribunal was bound to find that he was entitled to a protection visa. The Minister submits that his Honour correctly rejected such a proposition. Although the incidents were found to have occurred, they lacked the necessary nexus to serious or significant harm so as to engage protection obligations. The Minister in substance further submits that the appellant's written submissions and the grounds of appeal do not rise higher than attempting merits review and do not establish any error in the understanding or application of the since repealed statutory tests for serious or significant harm. 13 I accept the Minister's oral and written submissions. The Minister's submissions demonstrate why there was no error, let alone legal or jurisdictional error, on the part of the Tribunal and accordingly no error on the part of the primary judge. 14 The appeal must therefore be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.