SZDXZ v Minister for Immigration and Citizenship

Federal Court of Australia (Full Court)|2008-06-19|Before: Emmett JJ

Application for Protection Visa 1 By an application dated 9 July 1999 the first appellant applied for a protection visa. His wife and two sons were included in his application as members of the family unit but they did not advance independent claims of their own. All members of the family are citizens of Fiji of Indian ethnicity. 2 The reason given by the first appellant on his application form for leaving Fiji was: I have been receiving threats from native Fijians to leave our property on which my family and I have been living for many years. 3 He stated on the form that he believed that "these native Fijians will break into our home and assault our family" and that "[t]he native Fijians … are trying to drive us out of our property". He additionally made reference to his brother's home, which was on the family land, being broken into, his brother assaulted and valuable property being stolen. 4 A delegate of the Minister found that the first appellant did not have a real chance of Convention based persecution (ie persecution on a ground identified in clause 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention")) if he returned to Fiji because the Fijian authorities were willing to provide him with protection and that the protection would be effective.

Second Review by the Refugee Review Tribunal 10 The Tribunal, constituted by a different Tribunal member, thereafter again reviewed the decision of the delegate of the Minister to refuse to grant protection visas to the appellants. The Tribunal member conducted a hearing at which the appellants were represented by a lawyer who is apparently a registered migration agent. At the hearing both the first and the second appellants gave evidence. By the time of this hearing one of the sons of the family had been granted an Australian visa with the result that he no longer sought a protection visa as a family member of the first appellant. 11 The transcript of the Tribunal hearing records that, when asked by the Tribunal member what he feared if he returned to Fiji, the first appellant replied: I fear because of our religion, race and the instability back in our country. He identified his religion as Hindu. When asked what might happen to him as an Indo‑Fijian he replied that "[t]hey might persecute me … because of there's still hatred". When subsequently asked whether the hatred was of all Indo-Fijians or him in particular he replied: Me in particular because of the land issues…. 12 The first appellant also told the Tribunal member that there was "not much dispute" between him and his brother and that he did not have any contact with his brother and did not know if his brother was living on the family land in Fiji. 13 The second appellant told the Tribunal member that she had no personal experience of sexual assault in Fiji but feared it because those who had previously threatened to assault her might track her down. 14 Near the end of the hearing the Tribunal member indicated that he accepted that the appellants would probably need to relocate should they return to Fiji. He agreed to give the appellants' lawyer time to obtain instructions on whether relocation was a feasible option for them and to receive written submissions on that issue. 15 Under cover of a letter dated 30 October 2006 addressed to "The Presiding Member" of the Tribunal, the appellants' lawyer provided three letters (or copy letters) for the Tribunal member's attention. Only the third of the letters is of immediate relevance. It is dated 23 October 2006, addressed to the Deputy Registrar of the Tribunal and apparently signed by M J Khan, Senior Superintendent of Police, Divisional Police Commander - Southern. The body of the letter ("the Police letter") is in the following terms: We have received inquiries regarding [the first appellant] of Nadi and the following investigations were made regarding the subject. From the information we have received, we believe, [the first appellant's] problem comes from the fact that his family is Indian. His family's problem with the indigenous Fijian is unlikely to stop in Nadi. We believe [the first appellant's] problem with the indigenous Fijians could follow him wherever he resides in Fiji, be it Suva or any other district in Fiji. We cannot assure [the first appellant] will receive sufficient protection for his or her family's lives upon returning to Fiji. Thanking you in anticipation.

REASONS FOR DECISION OF THE TRIBUNAL 16 By a decision signed on 2 November 2006 the Tribunal again affirmed the delegate's decision not to grant the appellants' protection visas. 17 The reasons for decision of the Tribunal record that the Tribunal member accepted that the appellants may have to relocate to Suva to distance themselves from indigenous Fijians agitating for the return of land near Nadi. The Tribunal member concluded that it would be reasonable for them to do so. He found that it was "far-fetched" that those who in the past had a dispute with the first appellant over the land would wish after some seven years to pursue the appellants to Suva. The Tribunal member accepted independent evidence that ethnic relations in Fiji in general had improved over recent years and that the Fijian police force, under an Australian commander, had had its professionalism considerably enhanced and was providing protection to Fijian citizens on a non-discriminatory basis. He found that any fear of persecution the appellants might have for reason of their race in Suva (or any other location away from Nadi) would not be well‑founded. 18 The reasons for decision of the Tribunal make no reference to the Police letter the contents of which are set out in [15] above.

DECISION OF FEDERAL MAGISTRATES COURT 19 The appellant's application to the Federal Magistrates Court for judicial review of the decision of the Tribunal signed on 2 November 2006 was dismissed by an order of that court dated 12 October 2007. The learned Federal Magistrate relevantly rejected contentions that the Tribunal had failed to take into account a relevant consideration, namely the Police letter, or alternatively had failed to accord the appellants natural justice by giving them an opportunity to be heard before it rejected the content of the letter.

APPEAL 20 The appellants appealed to this Court from the judgment of the Federal Magistrates Court. Their appeal was heard by a Full Court pursuant to s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth). 21 The grounds of appeal relied upon at the hearing of the appeal were: 1. His Honour Nicholls FM erred by finding that the Refugee Review Tribunal ('the Tribunal') had not failed to take into account a relevant consideration: 1.1 His Honour erred by finding that the Tribunal took into account, or did not have to take into account, a letter from the Divisional Police Commander-Southern-Fiji, Southern Division headquarters of the Fiji Police Force, dated 23 October 2006. 1A His Honour erred by failing to find that the Tribunal had breached the requirement of s. 414 of the Migration Act by failing to consider a letter from the Divisional Police Commander-Southern-Fiji, Southern Division headquarters of the Fiji Police Force, dated 23 October 2006. … 3. His Honour Nicholls FM erred by finding that the Tribunal had not failed to accord the Appellants procedural fairness: 3.1 His Honour erred by finding that the Tribunal did not have to inform the Appellants, before it made its decision, that a letter from the Divisional Police Commander-Southern-Fiji, Southern Division headquarters of the Fiji Police Force, dated 23 October 2006, which showed the state protection was not available in Suva and that the Appellants' problems were unlikely to stop in Nadi, would not be accepted (implicit in the Tribunal's findings, in the event it is accepted that it was taken into account).

WAS THE LETTER CONSIDERED BY THE TRIBUNAL? 22 The appellant submitted that the Court should conclude that the Tribunal did not consider the Police letter. As mentioned above, the Police letter was one of three letters forwarded to the Tribunal member under cover of a letter from the appellants' lawyers dated 30 October 2006. The Tribunal's reasons for decision refer to two of the three letters but make no reference to the Police letter. 23 It appears that the covering letter and its three enclosures were sent to the Tribunal by facsimile transmission on 31 October 2006. The two letters referred to in the Tribunal's reasons for decision were: (a) a letter from the first appellant advising of his involvement with the Hindu Society of NSW Inc; and (b) a letter, in the form of a reference, signed by the President of a non-profit Hindu organisation in Nadi advising of the membership of the first and second appellants. 24 Although the Tribunal's reasons for decision do not refer to the Police letter, they include consideration of the issues with which the Police letter has been suggested to be relevant, namely, whether there was a real chance that the Indigenous Fijians who had threatened them in Nadi would threaten or otherwise seek to harm them in Suva and, if so, whether state protection would be available to them. In particular, the reasons for decision summarise independent evidence concerning human rights protection in Fiji and inter-ethnic relations in that country. 25 It is regrettable that the Tribunal referred to only two of the three letters sent to it under cover of the letter from the appellants' lawyers dated 30 October 2006. We agree that the express reference to two only of the three letters is capable of supporting an inference that the Tribunal did not consider the Police letter. However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter. It is necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference; that is, the appellants must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Police letter. 26 The cumulative effect of the following factors is such that we consider that it is more likely than not that the Tribunal did consider the Police letter. 27 First, we conclude that it is highly likely that the Tribunal member read the covering letter from the appellants' lawyers. We reach this conclusion because of the reference in the Tribunal's reasons for decision to the first appellant having written to the Tribunal on 31 October 2006. This reference to 31 October 2006 is conceded to be a reference to the date on which the covering letter was faxed to the Tribunal member. It is, in our view, highly unlikely that the Tribunal member would have considered the covering letter with sufficient care to notice that it was faxed on 31 October 2006 without also reading its contents. The covering letter separately identifies the three enclosed letters and describes the Police letter as "confirming that the [first appellant] is likely to face … problems with the indigenous Fijians even if he relocates from Nadi". We therefore conclude that the Tribunal member was alerted to the existence of the Police letter. 28 Secondly, it is not in dispute that the Police letter was in fact enclosed with the covering letter and became part of the materials relevant to this matter in the possession of the Tribunal member. Although of limited weight, this tends to suggest against the Tribunal member failing to consider it. 29 Thirdly, the Tribunal's failure to refer to the Police letter could reflect the Tribunal member's appreciation that, for the reasons given below, s 430(1) of the Act did not require the Tribunal to refer to the Police letter. As the learned Federal Magistrate observed, the letter made no new claims, nor did it add any integer to a claim, on behalf of the appellants. It was, at best, evidence inconsistent with the Tribunal's conclusions that it was "far-fetched that those who had a dispute, in the past, over the land occupied by the brother of the [first appellant] might now want to pursue the [appellants] to Suva after some seven years" and that state protection would be available to the appellants in Suva. 30 In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[65] McHugh J (sitting alone) approved the following observations of the Full Court of the Federal Court in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] and [31]: Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. 31 In Ex parte Durairajasingham McHugh J at [65] additionally said: … it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that: (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. 32 In any event, for the reasons given below at [34]-[37], the Police letter is not appropriately characterised as evidence or other material relevant to any issue that the Tribunal was required to determine. Analysis of the letter's contents reveals that its apparent relevance to those issues is entirely illusory.

CONTENT OF THE POLICE LETTER 33 The content of the Police letter is reproduced in [15] above. It is convenient to analyse it paragraph by paragraph. 34 The first paragraph refers to "inquiries" regarding the first appellant but does not disclose details of the inquiries or who made them. The paragraph goes on to state that "the following investigations were made regarding the subject" [ie presumably the first appellant]. No investigations are thereafter identified by the letter. 35 The second paragraph refers to "the information we have received" (we interpolate, presumably as a result of the inquiries and investigations referred to in the first paragraph) without identifying either the information received or its source or sources. 36 The third paragraph expresses the author's belief that the first appellant's problems with the indigenous Fijians could follow him wherever he resides in Fiji. The ambiguity inherent in the author's use of the word "could" may be put to one side. The letter does not disclose what the author of the letter understands the first appellant's problem with the indigenous Fijians to be. This, of itself, seriously undermines the significance of the author's expressed belief. But perhaps more importantly, it seems necessary to assume that the author's belief is based on the "information" referred to in the preceding paragraph; that is, it is a belief based on undisclosed information from an undisclosed source or sources. An expression of opinion where the basis upon which the opinion is held is not disclosed is of little, if any, probative significance (Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 374). 37 The final substantive paragraph states that the police cannot "assure" the first appellant will receive "sufficient" protection for himself and his family upon returning to Fiji. It is not contentious that a "well-founded fear of persecution" within the meaning of the Convention may be based on the conduct of non-governmental agents. However, complete protection of its citizens from harm is not expected of a country of nationality. In Minister for Immigration v Respondents S 152/2003 (2004) 222 CLR 1at [28] Gleeson CJ and Hayne and Heydon JJ observed: …The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state. See also Horvath v Secretary of State for the Home Department [2001] 1 AC 489 per Lord Hope of Craighead, with whom Lord Browne-Wilkinson and Lord Hobhouse of Woodborough agreed, at 497-500. 38 Having regard to the above authorities, the asserted inability of the Fijian police to "assure" the first appellant "sufficient" protection had little, if any, relevance to the issue to be determined by the Tribunal. This is even more clearly the case because it is not possible to know what level of protection the author of the letter would regard as "sufficient". 39 It is for the above reasons that we have earlier described the apparent relevance of the Police letter to the decision to be made by the Tribunal as illusory.

CONCLUSION 40 As indicated above, we are not persuaded that the Federal Magistrate erred in finding that the Tribunal had not failed to consider the Police letter. In our view it is more likely than not that the Tribunal member considered the letter but found it unnecessary to refer to it in its reasons for decision. For this reason grounds 1 and 1A of the amended notice of appeal fail. 41 As to ground 3 of the amended notice of appeal, for the reasons set out in [35]-[36] above, we reject the premise upon which it is based. The Police letter did not show, or even tend to show, that state protection was not available to the appellants in Suva. 42 The appeal will be dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Branson and Emmett.

Associate: Dated: 19 June 2008 Counsel for the Appellants: Mr L J Karp

Solicitor for the Appellants: Christopher Levingston & Associates

Counsel for the First Respondent: Mr G T Johnson

Solicitor for the First Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 424A, 430(1)

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