NAOO v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-02-13|Before: Tamberlin JJ

Introduction 1 This is an appeal from a decision of a Judge of the Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of the respondent Minister's delegate refusing to grant the appellant a protection visa. 2 The primary Judge outlined the history of the matter to the following effect: · The appellant is almost 23 years of age, a Fijian national who is of Indian background, speaking Fijian Hindi. The appellant arrived in Australia on 22 December 2001 and thereafter, with the assistance of a migration agent, he promptly applied for a protection visa on 15 January 2002. · The appellant was born in Nousori in Fiji and had lived there all his life. He claimed to fear persecution because he was a Fijian Indian. He said that he had witnessed attacks on Fijian Indians after the coup of George Speight, which took place in May 2000 and he said that he feared that indigenous Fijians would harm him. He said that he could not rely upon police protection because the police were hopeless and racist. He said that his family, including mother, grandmother and brothers, lived in Nousori and his younger brother was still at school. · When asked by the Tribunal why he left Fiji, the appellant said that he was fearful and that he wanted to earn more money to support his family. The appellant indicated to his Honour that he did not come to Australia for economic reasons, but came because he was in fear of his safety. · The appellant said that he was mugged in Suva on the day of the coup, his jewellery and money having been taken at knife point. He thereafter remained in Fiji for some 18 months. When the Tribunal put to the appellant that the violence had been brought under control shortly after the coup, the appellant responded in terms similar to those he used before his Honour, that is, that violence was a regular problem. · He said that he walked between his home and bus stop for some 30 minutes and that indigenous Fijians would ask him for money, especially at night. The Tribunal took it, and his Honour understood from the appellant, that these sorts of incidents made him somewhat fearful of how he would be treated by indigenous Fijians. The Tribunal asked him why he had not moved to Suva. The appellant agreed that the towns and cities were safe, but that if he had rented a place in Suva, he could not have given that money to his family.

The Tribunal's decision 3 After referring to country information (including Department of Foreign Affairs and Trade ('DFAT') reports) concerning the situation in Fiji, especially since the coup, the Tribunal made its findings, in summary, as follows. First, the Tribunal accepted in full the appellant's account of his experiences before he left Fiji. But analysing those experiences, the Tribunal drew a conclusion that what the appellant had suffered in the past did not amount to persecution involving serious harm and systematic and discriminatory conduct for the purposes of s 91R of the Migration Act 1958 (Cth) ('the Act'). 4 The Tribunal expressed part of its conclusion (based on past events), as follows: '... under s 91R(1) of the Act persecution must involve "serious harm" to the appellant, and systematic and discriminatory conduct. The expression "serious harm" includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the appellant's capacity to subsist. Minor racial harassment will often not rise to the level of persecution. In Lal v MIEA (1996) 42 ALD 535.) [the appellant], a Fiji Indian claimed to be the victim of several incidents of stone throwing at his house. The [appellant] reported such incidents to police but no action was taken. The Court characterised the incidents as a few relatively minor incidents of racist violence compounded by a few displays of low level police racism. The Court said that it was open to the Tribunal to find that such conduct did not amount to persecution, although it was not incapable of amounting to persecution. In the present case some indigenous Fijians robbed [the appellant] during the coup, some eighteen months before he left Fiji. However after that he returned to a relatively normal life, going to his workplace and living at his home. He was not subject to any discriminatory treatment in terms of his education or employment. He was not threatened or harmed. However I accept that, as he walked between the bus stop and his home, a walk which he said took some thirty minutes, he was asked by various local indigenous Fijians for money, and he felt obliged to give it to them. While I appreciate that the behaviour of these particular indigenous Fijians was mildly intimidating and he did not feel he could refuse, I do not consider that it constituted "serious harm", and I find that it did not fall within the definition of persecution set about above. I appreciate that [the appellant's] efforts to support his family, which are creditable, were undermined by the actions of these indigenous Fijians. However I am satisfied that [the appellant] was not being persecuted because of his race or for any other Convention reason at the time he left Fiji for Australia. His main aim in leaving Fiji was not to escape persecution but to try to earn a higher income, so that he could better provide for his widowed mother and his brothers.' 5 The Tribunal next turned to express its conclusion as to the future situation as follows: '[The appellant] gave evidence that the current situation in Fiji's towns and cities was safe for Fiji Indians. He also gave evidence that although he might have difficulty finding employment this would be because of the economic downturn in the country. He did not express the view that it would [be] because of his race, and I am satisfied that it would not. However I am not satisfied, on the basis of the evidence from DFAT set out above, that Fiji Indians are the target of Convention-related persecution in Fiji at present. I find that the chance is remote [the appellant] might be persecuted because of his race or for any other Convention reason if they returned to Fiji. I am sympathetic to [the appellant's] concerns for his family. However the Tribunal is not satisfied, on the evidence before it, that he has a well-founded fear of persecution within the meaning of the Convention. He is not a refugee.'

The Decision of the Primary Judge 6 His Honour held that the evidence apparently given by the appellant himself, especially set in the context of the country information to which the Tribunal plainly had reference, explained the conclusion drawn by the Tribunal that the material before it did not satisfy it that the appellant had a well-founded fear of persecution upon return, and that this was a conclusion open to the Tribunal and one which was made without any apparent jurisdictional error necessary for a successful invocation of the power to order judicial review under s 39B of the Judiciary Act 1903 (Cth). 7 In particular, the Judge noted, the Tribunal appeared to have asked itself the right question. It appeared to have given consideration to the material placed before it by the appellant. It appeared, also, to have made a real and genuine attempt to consider the appellant's case in the light of the available material. Accordingly, his Honour could find no jurisdictional error displayed by the approach and reasoning process of the Tribunal, so that the application was dismissed.

The Appellant's Ground of Appeal to the FUll COurt 8 By his amended notice of appeal, the appellant contends that before the Tribunal 'there was a procedural error in determining the case, since the evidence was based on international media and the actual facts were not taken into account'. 9 Before us, the appellant developed this contention in a written submission stating that his claim was 'very much similar to that in Muin v Refugee Review Tribunal [2002] 190 ALR 601'.

Conclusions on the Appeal 10 In our opinion, his Honour's decision to dismiss the application, and his reasons for doing so, were correct in principle and in their application to the circumstances of the present case. There was, in our view, no 'procedural' or 'jurisdictional' error. 11 In his ground of appeal, the appellant has contended that 'evidence was based on international media ... .' 12 It will be recalled that, in its reasons, the Tribunal stated that, 'on the basis of the evidence from DFAT set out above, [the Tribunal was not satisfied] that Fiji Indians are the target of Convention-related persecution ... .' 13 As has been mentioned, the Tribunal referred to various country information. For our purposes, this may be summarised as follows: · A US State Department Report (2002) concluding that the harassment of Indo-Fijians and the destruction of their property during 2000 did not continue during 2001. · DFAT assessed in late 2001 that there should be 'no risk of institutionalised mistreatment by authorities of returning Fijians, whether ethnic Fijian or Indo-Fijian'. During the period of the elections and the post-election environment they did not receive any reports of physical violence against any Fijian political figures, indigenous Fijian or Indo-Fijian. · DFAT advised in late November 2002 that it saw no significant change in the general security situation during the previous twelve months. Prime Minister Qarase and his government continued to enjoy a high level of support and the short-term economic outlook remained positive. Of the law and order situation, the report observed that there was an initial surge in crime following the May 2000 coup, but indicators in 2001 showed crime had settled back to a level which was slightly increased in comparison with the pre-coup situation. This level increased again in the first half of 2002. Official police statistics particularly showed an increase in the level of violent crimes over the year. Of Fiji Indians, the report observed that members of this group, particularly those living in remote areas, continued to be subject to incidents of 'low-level theft and violence, due to a low police presence and continuance of post-coup ethnic tensions between indigenous Fijians and Indo-Fijians'. 14 The Tribunal was, of course, entitled to have regard to all of this information in its assessment of the appellant's claims. Further, there is no ground for judicial review available, as the appellant now claims, because country information 'was not actually utilized properly'. This is no more than a claim for 'merits review'. 15 Moreover, Muin's Case provided no analogy to the present matter. There was no representation here of the kind made in Muin's Case (c.f. NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 317 per Allsop J at [81]). 16 It must follow that the appeal fails.

Orders 17 Accordingly, we order that the appeal is dismissed, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice the Court.

Solicitor for the Appellant: The appellant appeared in person

Solicitor for the Respondent: Blake Dawson Waldron

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