QAAH v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant, his wife and two children arrived in Australia from Fiji on 10 January 2001. An application was lodged for a protection visa shortly thereafter. The appellant and his family were nationals of Fiji of Indian ethnicity. It was said that they feared that they might be killed by indigenous Fijians if they returned to Fiji. Since the coup of May 2000, the shop of which the appellant was a manager was frequently vandalized and robbed by local Fijians if their demands for money were not met. Fiji-Indian employees were beaten. There had been demands that the appellant resign from his employment, and he had been beaten unconscious on the way home from work on one occasion. Despite being able to identify some of his attackers, the police took no action. He had been attacked on other occasions. His son was kidnapped for some hours on his way home from school. Threats had been made to kill his family and they said that they lived in fear. The Native Land Trust Board had refused to renew the lease of the land upon which they lived. The police, although advised of the family's difficulties, took no action. The appellant claimed that the government was unwilling or unable to protect citizens from threats and mistreatment by indigenous Fijians. 2 The application for the protection visa was refused and that decision was affirmed by the Refugee Review Tribunal ('RRT') on 7 May 2002. Dowsett J dismissed an application to this Court for review on 17 September 2002. The appellant did not file a notice of appeal from that decision within the time limited by the rules. He did not file an application for leave to appeal until some seven months later. 3 Whilst the appellant did not pursue an appeal in this Court, he did take other steps concerning the Tribunal decision. On 8 October 2002, his solicitors filed an application for constitutional writs in the High Court. The purpose of that step was to preserve the appellant's position pending the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 which had then been heard but not determined. His solicitors were the solicitors for the applicant in those proceedings. Dowsett J had applied the decision of the Full Court in NAAV v Minister for Immigration and Multicultural Indigenous Affairs (2002) 123 FCR 298, which gave effect to the privative clause in the Migration Act 1958 (Cth). The High Court subsequently held the approach in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs to be erroneous and that the Federal Court had jurisdiction to consider whether there was jurisdictional error in the decision under review. 4 The decision in Plaintiff S157/2002 was handed down on 4 February 2003. The proceedings in the High Court were discontinued on 10 April 2003. No application seeking leave to file a notice of appeal in this Court was filed until 2 May 2003, when the appellant put his solicitors in funds. 5 Order 51 rules 15(1) and (2) of the Federal Court Rules provide: 'Time for filing and serving notice of appeal (1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' 6 The 'special reasons' required to be shown under subrule (2) were considered by a Full Court in Jess v Scott (1986) 12 FCR 187 at 195. The Court held that the expression describes a 'flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served'. 7 In Minister for Immigration and Multicultural Affairs v Kabail(1999) 93 FCR 498, Tamberlin J considered whether any 'special reasons' had been shown and whether, as a matter of discretion, an extension ought to be granted. In the present case we do not consider an exercise of discretion to be appropriate. It is not, in our view, sufficient to refer to circumstances affecting the appellant which explain only part of the period after which an order for leave to appeal is sought. The situation identified as constituting the special reasons was the uncertainty about this Court's jurisdiction. That uncertainty was resolved on 4 February 2003. The only explanation for the delay in taking any step in this Court between that date and 14 May 2003 is the appellant's failure to pay his solicitors' fees. Without more, such a situation would not provide a reason for exempting a party from the application of the rules prescribing time limits. It cannot therefore provide a sufficient explanation for the continuing delay on the part of an appellant for filing an application for leave to appeal. 8 In any event, a review of his Honour's decision and that of the RRT strengthens our view that the grant of leave to appeal would not be appropriate. 9 The proposed appeal involves two questions. The first relates to the Tribunal's finding that the mistreatment that the appellant and his family experienced did not amount to persecution in a Convention sense (the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees). Additionally, the Tribunal found that the situation in Fiji is now very different from that which prevailed when the application was lodged. In the Tribunal's opinion, the appellant is now able to obtain effective protection from governmental authorities in Fiji. The notion of 'effective protection' arises from the definition of 'refugee' in Art 1A of the Convention as a person who has a well-founded fear of persecution for reasons which include race and 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. 10 The first mentioned question is the subject of proposed grounds of appeal concerning assessments of the seriousness of harm and the cumulative effects of actions under s 91R of the Migration Act. They are more expansive than the grounds agitated before Dowsett J. However, it will not be necessary to consider the question whether the conduct complained of amounts to persecution if the finding that there is effective protection available to the appellant and his family in Fiji is not attended by legal error. 11 The appellant seeks to argue that the finding of effective protection was arbitrary, capricious or irrational. It is not at all apparent how such conclusions could be reached given the evidence before the Tribunal. Dowsett J at [3] observed that the Tribunal had acted upon country information which indicated that there was no reason to believe that, in the future, Indian Fijians would not be afforded the general protection of the law. 12 The appellant placed reliance upon the terms of the finding by the Tribunal in support of these contentions. It said (at [106]): 'While it may be that the police are not always effective in controlling violence, there is no evidence before me which persuades me that the harassment and violence that may be suffered by Indo Fijians originates from the government or is tolerated by, or cannot be controlled by the government of Fiji.' 13 The appellant submits that it is irrational to suggest that the government is able to control violence but that the police cannot. It seems to us that the Tribunal was saying no more than that there was no guarantee against occasional racial harassment. Dowsett J observed that whilst the country information did not indicate there would be no harassment, it was difficult to see how a decision based on the information could give rise to any permissible ground for review. We respectfully agree. Protection in the relevant sense does not mean prevention of harm. The question is whether a State is able to protect its nationals: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 566-567. The question, which is one of fact, is the question the Tribunal addressed. 14 In our view the application for leave to appeal should 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 Justices Tamberlin, Kiefel and Weinberg.