SZEMS v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-04-07|Before: Edmonds J

Introduction 1 This is an appeal from the Federal Magistrates Court (Nicholls FM) dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of a delegate of the first respondent ('the Minister') to refuse to grant the first three appellants protection visas.

Background 2 The appellants are husband, wife and two sons. The husband and wife and the elder son are citizens of Fiji and arrived in Australia on 28 May 1999. They applied for protection visas on 22 May 2000. Their application was refused by a delegate of the Minister on 28 June 2000 and they applied for review of that decision by the Tribunal on 13 July 2000. 3 On 12 April 2001 the Tribunal handed down its decision, affirming the decision of the delegate. The second son, according to the husband, was born after the Tribunal decision was handed down but before the commencement of proceedings in the Federal Magistrates Court. 4 Only the husband (SZEMS) made specific claims to be a refugee in his own right before the Tribunal and he will be referred to as the appellant. 5 The appellant and his family are Fijian Indians. Before the Tribunal the appellant claimed that since 1987 the area where he lived was heavily populated by ethnic Fijians and the family had been the target of harassment, including stones being thrown at their house. He had complained to the police but no action was taken. He said that his wife and son were afraid to leave the house. 6 Relying on country information, the Tribunal concluded that the situation in Fiji had 'settled down' to the point that the Tribunal did not accept that if the appellant returned, there would be any real chance stones would be thrown at his house. The Tribunal did not accept that the appellant did not have the protection of the police force, which had brought the situation under control. The Tribunal observed that the Fijian Indian population is around 45 per cent of the total population of Fiji and, in coming to the conclusion it did, it was undoubtedly influenced by the appellant's own statement that 'his brothers who still live there have returned to their normal lives'. The Tribunal concluded that the appellant would be in the same position as his brothers if he returned now and that while it is impossible to predict the future, the Tribunal's assessment was that 'in the reasonably foreseeable future there is no real chance that [the appellant] will face persecution because of his ethnicity'.

Proceedings in the Federal Magistrates Court 7 The proceedings in the Federal Magistrates Court were commenced by an application filed on 29 September 2004. The Minister filed a Notice of Objection to Competency on 12 October 2004. An amended application, filed on 10 December 2004, asserted that the Tribunal had erred: 1. By failing to provide the appellant with particulars of adverse information upon which it relied; and 2. by failing to 'properly consider the question' of whether the appellants had a well-founded fear of persecution. 8 As to the first complaint, the court held that the asserted failure did not give rise to any breach of s 424A of the Migration Act 1958 (Cth) ('the Act') since it concerned only general 'country information'; it is not specifically about the appellant or another person, and its relevance to the Tribunal decision is that it concerns a class of persons which the appellant, or other person is a member. The appellant's assertion that the country information was about racial conflict between ethnic Indians and native Fijians and that therefore this places the material outside the exception contained in s 424A(3)(a) of the Act was clearly incorrect. It was also necessary to consider the general law principles of procedural fairness, since the Tribunal's decision pre-dated the commencement of s 422B of the Act. The matters dealt with by the relevant country information had been canvassed in the delegate's decision, to which the appellant (through his adviser) had specifically referred in his application to the Tribunal. Procedure fairness did not require that the appellant be given the actual text of the documents upon which the Tribunal relied. It was not possible to make a finding as to whether the country information had been discussed with the appellant at the Tribunal hearing, but this was not critical since the appellant must have been aware of the substance of the country information and the need to deal with it by providing further information. He did nothing. In the circumstances, the court below held that it was not possible to see any unfairness in how the Tribunal had proceeded. 9 His Honour then dealt with a complaint, apparently raised orally, that difficulties at the Tribunal hearing had prevented the appellant from advancing his case properly. This complaint had two aspects: technical problems with the video link and the absence of an interpreter. His Honour did not find any error by the Tribunal in the absence of evidence about what happened at the hearing. His Honour noted that the appellant had said he did not need an interpreter, and that he had made no complaint to the Tribunal about the hearing. 10 As to the second of the complaints raised in the Amended Application - failure to 'properly consider the question' whether the appellants had a well-founded fear of persecution - his Honour held that the Tribunal had identified the correct question and made findings that were open to it on the material. The particular point raised by the appellant - a failure to consider the impact of harm in circumstances where the appellants would have to relocate - did not arise because, on the Tribunal's findings, the appellant did not face a real chance of persecution in Fiji. There was no need for the Tribunal to consider the issue of relocation, and it did not do so.

The Appeal 11 The Notice of Appeal contains twelve grounds.

Ground 1 'His Honour erred in classifying instances of persecution and harm that is likely to flow to the persons in class as discrimination instead of confirming these as acts of persecution (par 14 of the decision).' 12 But it was not part of the task of the Federal Magistrates Court to assess whether instances of 'discrimination' amounted to 'persecution' in the relevant sense. His Honour did not do so either at [14] or elsewhere. This ground has no foundation.

Ground 2 'His Honour erred in holding that there was no denial of natural justice and procedural fairness in relation to the country information concluding that there "is no evidence before to show that the issues were not discussed" (at par 17 of the decision).' 13 His Honour was clearly correct to observe that there was no evidence as to whether the substance of the relevant country information had been discussed with the appellant. Absent such evidence, the appellant's procedural fairness argument must fail since he bore the onus of proving that the Tribunal had failed to comply with its obligations: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]. There was clearly no basis for an inference that the relevant matters had not been discussed. However, rather than deal with the argument solely on that basis, his Honour carefully noted the other means by which the appellant and his adviser must have become aware of the substance of the information upon which the Tribunal was likely to rely. The appellant had notice well before the hearing that the current state of affairs in Fiji, and information suggesting that tensions there had subsided significantly, were likely to be issues in the review.

Ground 3 'His Honour erred in not taking "judicial notice"' that the appellant's non-native English language may have contributed to the difficulties at the hearing (at par 19 of the decision).' 14 The first difficulty with this contention is that, as his Honour noted, there was not sufficient evidence of any 'difficulties at the hearing'. In those circumstances, his Honour did not need to consider why such difficulties might have occurred. 15 To the extent that the appellant's language skills were relevant, it would not have been appropriate for his Honour merely to assume, or accept a bare assertion, that the appellant did not speak English well enough to make his claims understood to the Tribunal. He had described himself in his visa application as able to speak, read and write English; he had not asked for an interpreter at the Tribunal hearing; and the Tribunal did not note any difficulty in communication. His Honour also had a chance to converse with the appellant at the hearing of the Application. Further, a finding that the appellant's limited English 'may have contributed' to some difficulties at the hearing would be only a first step. It would be necessary to identify some failure of the Tribunal to respond to such difficulties that constituted non-compliance with some binding legal requirement. That has not been attempted.

Ground 4 'His Honour erred in holding that there was no denial of natural justice in that may not have been denial of procedural fairness in relation to the country information concluding that there "is no evidence before to show that the issues were not discussed".' 16 This ground substantially repeats ground 2.

Ground 5 'His Honour erred in confirming the Tribunal's decision based on balance of probability test instead of "real chance" test.' 17 It was not argued before his Honour that the Tribunal had used a 'probability test' rather than a 'real chance test'. Such an argument could not have succeeded in any event, since the Tribunal framed both its statement of the test and its conclusions in terms of a 'real chance'.

Ground 6 'Alternatively, His Honour erred in not finding that the Tribunal erred in failing to exercise constructive jurisdiction to make any significant finding in relation to the Applicants.' 18 This ground does not identify any relevant error by the Tribunal or by his Honour. It may have been intended to allege that his Honour erred by not holding that the Tribunal had constructively failed to exercise its jurisdiction. However, such a contention would identify only the conclusion the appellant seeks to reach.

Ground 7 'His Honour should have found that the Tribunal non-native English language may have contributed to the difficulties at the hearing (at par 19 of the decision).' 19 This ground has been sufficiently dealt with under ground 3.

Ground 8 'The Tribunal erred in making decision based on balance of probability test instead of real chance test.' 20 This ground has been dealt with under ground 5.

Ground 9 'The Tribunal denied procedural fairness in failing to provide interpreter and difficulties caused by video conference.' 21 It may be accepted that a failure to provide a competent interpreter where one is needed may in some circumstances constitute a failure by the Tribunal to comply with its statutory obligation under s 425 of the Act, and possibly also the general law principles of procedural fairness (in a case not affected by s 422B). 22 It may also be accepted that the real opportunity to be heard, which s 425 contemplates, would not be provided if some other problem arose at a hearing - such as a malfunctioning video link - which prevented the visa applicant advancing his or her case and responding to the Tribunal's questions effectively. However, in either case, the nature and extent of the problem would need to be established by admissible evidence. It would then be necessary to consider whether the result was that the Tribunal had failed to provide the hearing it was obliged to provide: see Perera v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 92 FCR 6 (an approach that has been applied in more recent cases, in the context of jurisdiction error - e.g. STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 818). As noted above, the appellant's case failed at the first hurdle. It amounted to no more than assertion. On appeal, it must fail for the same reason.

Ground 10 'The Tribunal denied the appellant natural justice in failing to provide the country information on which the decision is based.' 23 This ground must fail for the reasons set out by his Honour: see [8], supra.

Ground 11 'The Tribunal failed to properly consider the availability of the effective state protection available in the foreseeable future.' 24 The Tribunal made an express finding that the appellant would not be denied protection by the authorities. The argument that the issue was not 'properly' considered (which was not advanced below) would appear to be, in substance, a challenge to that finding on the merits. Such a finding was, in any event, not strictly necessary in circumstances where the Tribunal had, in substance, concluded that the likelihood of the appellant suffering serious harm on account of his ethnicity was now something less than a 'real chance'.

Ground 12 'The Tribunal erred in failing to properly consider relevant materials in reaching its decision. Particulars The Tribunal failed to make enquiries in relation to the applicant as required and considered the application exclusively relying on the country information, thereby not addressing the real concern of the court in remitting the matter.' 25 The intended import of this ground is not clear. The contention may be that the Tribunal failed to undertake investigations, or that it failed to consider the individual circumstances of the appellant. In either case, it cannot succeed. The Tribunal is not under any duty to use its investigatory powers: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [1], [42] - [43]. The appellant's claims did not suggest any factor other than his ethnicity that made it likely he would suffer harm. It was not suggested, for example, that his status or occupation made him more likely to suffer harm compared to Fijian Indians generally. The Tribunal clearly turned its mind to whether any such factor was present. It asked itself, for example, whether the appellant would be in the same situation as his brothers (who had apparently returned to their normal lives), and concluded that he would. There was no error in this reasoning.

Conclusions 26 The appeal should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 7 April 2006 Solicitor for the Applicant: The appellant appeared in person

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