Qaraninamu v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This Application for Review is brought against the decision of the Refugee Review Tribunal ("RRT"), which was made on 22 August 2000, whereby the RRT affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because it similarly was not satisfied that the Applicant was a refugee within the Convention definition. Factual Background 2 The Applicant is an indigenous Fijian aged in his mid forties. He came to Australia in February 1990 as a student. Since then, he has held successive student visas, the last expiring in March of this year. He has not returned to Fiji for any reason since June 1990. He has a wife and six children who live in Fiji. 3 When the Applicant lived in Fiji he obtained a diploma in electrical engineering from the Fiji Institute of Technology in 1983. From 1978 until February 1992 he was employed by the Fiji Electricity Authority, and from 1990 to 1992, that Authority financially supported him as a student in Australia. 4 The Applicant's expression of apprehension relates to the political crisis and domestic tension which is said by him to have existed in Fiji since the military coup in 1987. The consequential civilian and military unrest is claimed by him to render it unsafe for him to live in Fiji in the foreseeable future. In his application form to the RRT, the Applicant states: "The present political crisis is just the beginning of fruition of intense tribal indigenous Fijian political and social payback and backlash against the Mara/Rabuka government administration." 5 The Applicant asserts that the military has been in control of Fiji since the more recent May 2000 coup which occurred in the context of Speight's occupation of the Parliament House, and that the army has been ordered to interrogate and/or shoot anyone who possesses political views against the military or any aspirations in favour of any political party in Fiji, irrespective of one's ethnic origin. The situation is said to be such that security forces have not and will not be able to maintain peace and order in Fiji. It was further contended in particular that the Applicant as a returning indigenous Fijian would face a real chance of human rights violation or mistreatment from Inter-Tribal political factions and local communities. In his application for a protection visa under the question "What do you fear may happen to you if you go back to that country?", the relevant parts of the Applicant's response stated: "The real reasons of all the coups were and still are the following: Firstly, the continuing internal political power struggle annoyed the Indigenous Fijians themselves. Fiji is divided into three major political confederacy - the Northern (Tovata), the Eastern (Kubuna) and S-E Western (Burbassaga)… Secondly, the Government Civil Service infrastructure and reunity forces leadership and personnel is predominantly "Tovata and Kubuna". There is a very clear resentment amongst the "Burbassaga" confederate Chiefs and people of these political, Government and social dominance of the Northern and Eastern tribes… The reality is not only the Native Fijians versus the Indigenous Fijians but also the S-E/Western Indigenous Fijians against the Northern and Eastern native Fijians. There is a very real and ever present fear of civil unrest and civil war amongst all the FIJIAN CITIZENS irrespective of political or ethnic orientations." One significant point highlighted before me on the part of the Applicant was that there was no evidence of the Applicant put before the RRT to indicate whether he was or remains a member of a particular Inter-Tribal group, and in particular, whether he was a member of any one of the three major political confederates above identified. There is no substance in such complaint. Nothing would have relevantly turned upon the revelation of any such answer, being an answer which the Applicant would have known in any event, and for reasons best known to himself chose not to disclose. 6 The Applicant provided further detail of a somewhat startling nature to the RRT about political developments in Fiji. He alleged that it was well known amongst the indigenous Fijian population that after the 1987 coup, all political aspirants and opponents (within and outside) of Mara/Rabuka were quietly and mysteriously eliminated. Some unidentified prominent persons are alleged to have been murdered. No authentic source for such surprising allegations has been proffered. The Applicant does not profess to support the Mara/Rabuka association nor Speight or his retinue of followers. The Applicant says that he has always been a supporter of the Labor coalition since the early 1980s, and maintains that he and his family were active in supporting and campaigning for the Labor coalition since the 1986/7 elections. He has never been a member of nor an office-bearer in the Labour coalition or any other political party. The Applicant claims that Fiji is not democratic, and that he does not want to return until Fiji is restored to a true democracy. He further claims that the reality of the political situation in Fiji today is one of indigenous Fijians fighting each other for political supremacy. 7 By reason of these political situations said to be prevailing in Fiji, the Applicant claims that there is no future for him in Fiji, both in terms of employment and as a so-called political person. Whilst he does not claim to have a present political profile or any record of involvement in politics in Fiji, the Applicant says that he would embark upon a political career upon his return to Fiji. At the moment, however, people are fearful of expressing themselves in terms of political allegiances. Initially, the Applicant based his case upon a fear of harm from the Fijian army, the Fijian police and "Inter-Tribal political factions". When the matter was argued before me, the Applicant limited his case to a fear of harm from Inter-Tribal political factions. The RRT's Findings 8 The RRT acknowledges that at the time the matter was before it for the taking of evidence, Fiji did not have a democratically elected government. Nevertheless, there is no evidence to show that indigenous Fijians who support the Labor Coalition are being in any way targeted by those in authority or by any other group or organisation. Furthermore, there is no evidence to support the contention that the Applicant is at risk of harm at the instance of the Fijian Army or Police. 9 The RRT's findings and reasons for decision may be wholly extracted, because of their comparable brevity, as follows "There has been widespread and detailed media reporting in Australia of developments in Fiji (for example, in the Sydney Morning Herald from May to August 2000), and while there have been differing emphases on aspects of the underlying power struggle, the actual situation as it has evolved is not in dispute. For example, although it is true that Fiji does not have a democratically-elected government at present, there was no evidence before the Tribunal to suggest that indigenous Fijians who support the Labour Party are being targeted by the authorities or anybody else. There was no evidence before the Tribunal to support the Applicant's assertion that he risks harm at the hands of the Fijian Army or police. Speight and many of his supporters are in custody and any other armed supporters appear to be few in numbers and on the run from the security forces. Whatever the merits of the Applicant's analysis of political developments in Fiji, there was nothing in the Applicant's particular circumstances to suggest that he would be of any interest to those involved in the power struggle. The Applicant does not have a political profile which would distinguish him from other ordinary ethnic Fijians or put him at any particular risk (or which gives any credence to his claim that he seriously contemplates a political career on return to Fiji). The Tribunal notes that the applicant has been absent from Fiji for the last ten yeas and there is no claim or evidence that before that he had any significant political profile or involvement. Nor does the current country information suggest that ordinary ethnic Fijians are at any risk because of their political opinions. To the extent that the Applicant's claims are based on his assertions that the Fijian military forces will shoot and interrogate anyone who has any political views or aspirations, there has been no report or evidence that during its period of executive power the Fijian Army undertook any such actions. The military has now relinquished executive power to a civilian (albeit unelected) president and government and there are no reports that the new government is engaged in political repression. The Applicant has also stated that the real problem is a fear of civil unrest and civil war among the Fijians irrespective of political or ethnic orientation. If all Fijians are at risk regardless of race or political opinion, then the danger does not arise for those Convention reasons. Although the Applicant may have a genuine concern about a heightened risk of violence in Fiji, with the spread of firearms into civilian hands, in the circumstances the Tribunal is satisfied that this does not give rise to a real chance of persecution of the Applicant for a Convention reason." Having regard to the Applicant's personal circumstances and the present situation in Fiji, the Tribunal was satisfied that the Applicant does not face a real chance of persecution for a Convention reason. Upon the basis of the foregoing findings and reasoning, the decision of the RRT presents with all the apparent hallmarks of invulnerability from review. The Applicant's Legal Contentions 10 The Applicant contends nevertheless that the RRT misunderstood the nature or substance of his claim, in that it was not put forward upon the footing of a risk of civil war based on political or ethnic orientation, but rather upon the footing of a risk of civil war based on inter tribal or ethnic divisions, in relation to which all Fijian citizens irrespective of political or ethnic orientation are at risk of involvement and harm in such civil war. Such a distinction does not strike one as compelling. 11 I do not understand how it can rightly be contended that the RRT was in error in characterising the contention so advanced by the Applicant as unsupported by any basis indicative of any real chance of persecution of the Applicant for a Convention reason upon his return to Fiji. The Applicant's postulation of a risk of civil war in Fiji based on inter tribal or ethnic divisions within Fiji cannot without more provide any viable basis for a sustainable fear on the Applicant's part of persecution "for reasons of race, religion, nationality, membership of a particular social group, or political opinion", much less a "well founded" fear of persecution for any of such reasons: Minister of Immigration and Ethnic Affairs v Guo(1997) 191 CLR 559 at 570. The RRT found, in my opinion rightly, that whatever the merits of the Applicant's analysis of political developments in Fiji might happen to be, there was nothing in the Applicant's circumstances provided at some length to the RRT to suggest that he would be of any interest, adverse or otherwise, to those involved in the Fijian power struggle which the Applicant has outlined. He has not apparently been a member of a Fijian political party or spoken out publicly on Fijian political, or for that matter, military affairs. 12 The Applicant submitted nevertheless that support for his contentions were to be found from within the reasons for judgment of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Adbi (1999) 87 FCR 280 and in particular in the following passages at 287 and 291 respectively: "Unless attention is focused on the reasons for the war, it is difficult, if not impossible, to determine whether the antagonism is based on Convention grounds. It is not enough to dismiss an application simply on the basis that there is a war without looking at the motivation or purposes involved. (at 287) It is evident from the discussion in the RRT decision… that the decision maker focused on looking for something "over and above" the existence of a civil war and thereby failed to direct his attention to the question whether the civil war itself was actuated by, or pursued for, a Convention reason. The approach taken was that everyone in a country engaged in civil war is at risk of injury and that it is necessary to find something "more" to establish refugee status. However, as discussed above, the existence of the war itself may be sufficient if, for example, it can be said to be aimed at wiping out an opposing clan. In such a case all members of the clan may be at risk for a Convention reason and are therefore within the definition [of a refugee under the Convention]. (at 291)" The difficulty for the Applicant however is that the civil war to which his testimony is directed is not presently being fought out, but is at this stage no more than something which is feared or anticipated by the Applicant. The hostilities between the Army and security forces on the one hand and Speight and his armed supporters on the other have not been shown to have been productive or likely to be productive of persecution of the Applicant in his capacity as an indigenous Fijian Labour Party supporter, or otherwise, upon his return to Fiji following upon ten years absence in Australia. 13 Adbi was decided against the context of the tragedy of prolonged civil war in Somalia conducted between warring clans since the 1980s in the context severe drought, a collapsed economy and reckless suppression, and all in the context of a truly clan-based rather than single orientated society (at 285-7). Abdi was decided after the House of Lords had determined a refugee status claim related to Somalia in Adan v Secretary of State for the Home Department [1998] 2 WLR 702, where Lord Lloyd of Berwick in the leading speech had concluded, appositely to the Minister's case here litigated, as follows (at 713): "I conclude from these authorities, and from my understanding of what the framers of the Convention had in mind, that where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show… a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare. I conclude from these authorities, and from my understanding of what the framers of the Convention had in mind, that where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be a risk if he were returned to this country. He must be able to show what Mr Pannick calls a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare. What I have said so far applies only so long as the state of civil war continues. Once the civil war is over, and the victors have restored order, then the picture changes back again. There is no longer any question of both sides claiming refugee status. If the vanquished are oppressed or ill-treated by the victors, they may well be able to establish a present fear of persecution for a Convention reason, and in most cases they would be unable to avail themselves of their country's protection." Here of course civil war in Fiji the subject of the Applicant's anticipation has not even started. The Speight intrusions hardly warrant any such description of civil war and it is not suggested by the Applicant to the contrary. The foregoing passages from His Lordship's speech nevertheless serve to emphasise again the kind of context needed to establish a well-founded fear of persecution against a background of past or present, and I would also think, anticipated civil war. 14 The Full Federal Court in Abdi (at 290) observed that the reasoning of the House of Lords in Adan had attracted criticism on the basis that their Lordships had unreasonably limited the protection given by the Convention by attempting to distinguish between refugees from a civil war and other refugees, and continued (also at 190): "In approaching the question of persecution in the context of a civil war, it is important to keep firmly in mind the wording of the Convention definition. The definition makes no reference to any different approach being adopted where the persecution exists in the context of civil war. There is no exclusion. The relevant question raised by the language of the definition requires a determination, on the evidence, of whether the harm of detriment is for a Convention reason. In the present case there appears to be a risk of serious harm in Somalia even to bystanders and those on the sidelines who are incidentally caught up in what might be called the "cross-fire". This, however, is not sufficient. The evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm. This in turn calls for a consideration, so far as can be determined on the evidence, as to the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war. In relation to Adan, we do not accept that a clan or race based war cannot, without some further and differential degree of risk amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan. If evidence establishes, for example, that the objective of a war is to harm the opposing party for one or more Convention reasons, then "persecution" will be made out. It is somewhat odd to suggest that claimants are precluded from refugee status solely on the ground, for example, that a conflict based on race or religion which gives rise to the fear, can be described as a "war". The task of the decision-maker in these circumstances must be to investigate the reasons underlying the war and the way it is conducted in order to ascertain whether it is based on a Convention ground or has an objective which is covered by the Convention, namely: race, religion or other stated reason. This responsibility cannot be curtailed by a conclusion that there is a state of war." 15 One obstacle in the Applicant's path in seeking whatever reliance he possibly can from the foregoing passages is that there is not just an absence of a Fijian civil war, in any event of the kind postulated by the Applicant, but more importantly there is an absence of any demonstrated persecution or threat of persecution of the Applicant, whether referrable to civil war or otherwise, of any group of persons with which the Applicant would identify himself on his return to Fiji. The Applicant's apprehension is rather of a civil war, not yet declared or otherwise in defacto operation, involving the three geographical indigenous factions identified by the Applicant, with one of which the Applicant might have been connected when he departed from Fiji for Australia about ten years ago. 16 It follows that the Applicant's submission that "…the RRT has failed to make a finding on the Applicant's claim of fear of persecution arising from civil war based on inter tribal divisions, [thereby] giving rise to a reviewable error under s430(1)(c) and s476(1)(a) of the Migration Act" is inherently misconceived. No such civil war presently exists, and may never exist for all the RRT could conceivably have known. For an Applicant to postulate the pendency of a civil war not yet materialised, involving three indigenous politics-geographic factions, yet a present fear on his part of civil unrest and civil war involving such factions, irrespective of political and ethnic orientation, took the Applicant's case before the RRT nowhere in terms of persecution, or justifiable fear of persecution, for a Convention reason. Particularly was that the case where all that the Applicant could further materially advance was that he would be returning to Fiji as an indigenous person having Fijian Labour sympathies or affiliations. Contrary to the submission of Counsel for the Applicant, there were no potentially material questions of fact upon which the RRT could have made findings for the purposes of s430(1)(c). Plainly it was not incumbent upon the RRT to embark upon its own investigations as to likely future events in Fiji (cf Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611). Moreover, I am unable to identify any basis upon which it can conceivably be contended that the RRT failed to observe any procedures that were required by the Act or the regulations thereunder in relation to s476(1)(a); and no such procedures have been satisfactorily identified. 17 The Applicant has made an alternative submission based upon non-compliance on the RRT's part with s476(1)(e) of the Act, by reason of the testimony of the Applicant to the Tribunal that "[t]here is a very real and ever present fear of civil unrest and civil war [in Fiji]", and further that the struggle amongst the native Fijians "is a social and political dynamite keg that has already been ignited and will explode anytime now or in the future". The Applicant has not however identified why the RRT has incorrectly interpreted or applied or failed to apply any legal principle in so far as the same would be material in the light of such forebodings on the Applicant's part, being forebodings which do not establish any well founded basis, either alone or in combination with other testimony of the Applicant, for the Applicant's fear persecution or likely persecution of the Applicant for a Convention reason. This alternative supposition fails to come to issue with the analysis of the material placed by the Applicant, and the lack of legal significance appertaining thereto, as set out in the RRT's reasoning and findings extracted in [9] above. 18 Since the conclusion of the argument in the present Application for Review, the High Court handed down judgment in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55, where the country involved was again Somalia, as in the case of Abdi and Adan. In expressing his agreement with Gummow J, one of the majority, Gleeson CJ observed as follows: "Persecution and disorder are not mutually exclusive. The existence of disorder may provide the occasion of, and perhaps the opportunity for, persecution of an individual or a group. Nothing in the reasoning of the Tribunal was inconsistent with that. As the clans and subclans in Somalia struggle for power and resources, it is inevitable that from time to time, and from place to place, some will be in the ascendancy and others will be vulnerable. In such a situation, an inquiry as to whether the motivation of those temporarily in the ascendancy is to harm their enemies rather than to secure the benefits of domination is unlikely to be fruitful. The distinction, in a context of the kind revealed by the evidence in the present case, lacks practical content." To similar affect was the theme of Gummow J's judgment, where, following upon a detailed examination of the Full Court's judgment in Abdi and of the speech of Lord Berwick in Adan, his Honour said at [147]: "The notions of 'civil war', 'differential operation' and 'object' or 'motivation' of that 'civil war' are distractions from applying the text of the Convention definition. In so far as Adan and the decision of the Full Court in Abdi and the present case expound or apply them, those decisions should not be followed." Here of course Fiji has not reached the stage of internal struggles for power and resources of the kind above discussed, and may well never do so, but these warnings of members of the High Court as to the need for establishing the requisite fear of persecution, in addressing circumstances where all that is clear is that one or more internal group or groups has or have achieved ascendancy by force, provides a timely caveat, particularly in circumstances where as here the Applicant has proffered only forebodings as to future conflicts which may or many not ever crystallise. 19 I have included the foregoing extracts from Ibrahim because they provide a timely emphasis upon the task which confronts those applicants, such as Mr Qaraninamu here, of establishing legal error in circumstances of cases constructed largely upon forebodings as to future events which have not and may not even crystallise. 20 The Application should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.