SZQWK v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The appellant is a Fijian citizen who claims to fear persecution by the Fijian authorities for reasons related to his actual or imputed political opinion and/or his religion. A month after he arrived in this country he applied to the Minister for Immigration and Citizenship for a protection visa but a delegate of the Minister refused his application. He sought review of the delegate's decision in the Refugee Review Tribunal but that application was also unsuccessful. He then applied to the Federal Magistrates Court for judicial review but failed to have the tribunal's decision set aside. He now appeals from the judgment of the Federal Magistrates Court, contending that the Court fell into error. 2 The appellant's claims are based on his leadership role within a religious youth group known as the Calvary Temple Youth Alive (apparently affiliated to the Assemblies of God Church) and its connection with a pro-democracy youth group whose philosophy he says he supports. The pro-democracy youth group is the Young People's Concerned Network/Pacific Concerns Youth Network ("YPCN"), which is opposed to the administration of Prime Minister Bainimarama. The appellant has expressed fears that he would be seriously harmed by the military or the police on account of both his position as president of the youth group and his personal beliefs and values. 3 In order to qualify for a protection visa the appellant had to satisfy first, the Minister and failing that the tribunal of a number of statutory criteria: Migration Act 1958 (Cth), s 65(1). One criterion was that Australia owes him protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol ("Convention"): Migration Act, s 36(2)(a). Those obligations are owed to refugees. A refugee is defined in Art 1A(2) of the Convention as a person who has a well-founded fear of being persecuted on one or more grounds. Those grounds relevantly include religion and political opinion. 4 A person has a well-founded fear of being persecuted if he or she has a genuine fear founded on a real chance that he or she would be persecuted for a Convention reason upon return to his or her country of nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. In other words, the test of whether a person has a well-founded fear of persecution involves both a subjective and an objective element (cf. Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [72]). Additional criteria are imposed by s 91R of the Migration Act. One of those is that the persecution involves serious harm to that person (s 91R(1)(b)). 5 Unless the decision-maker was satisfied as to these matters, the appellant was not entitled to a protection visa. 6 The appellant told the tribunal that he was summoned to military barracks for questioning about the affairs of his group, warned about organising meetings, given guidelines on what could be said in meetings and a message to relay to youth. He reported a particular occasion in April 2010 when he said he had been summoned to the Ministry of Youth and Sports where he was interrogated, warned that "the net was closing on him and that he needed to watch out" and was struck by a firm blow on the back before leaving (giving him a sore shoulder). He also said that he had been followed by a military vehicle to a meeting of youth leaders, and had received threatening phone calls (most recently in the month before coming to Australia) and text messages. The tribunal noted that in his visa application he expressed fears that he would be killed, like other young Fijians, if he were to return to Fiji. It also noted the appellant's complaints that the restrictions on the media would stifle his freedom of speech and prevent him from leading youth. In addition the tribunal made reference to his concerns that he could face adverse attention from Fijian authorities because of his anti-government contributions to a local internet blog, despite the fact that those contributions had been made anonymously. 7 The tribunal accepted most of the appellant's claims but it did not accept that he would face a real chance of persecution if he were to return to Fiji. 8 To succeed in the application before the Federal Magistrates Court the appellant had to show that the tribunal fell into jurisdictional error: Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 9 The appellant's contentions before the federal magistrate were that: (a) Although the tribunal purported to apply "a well founded fear test", it in fact applied a wrong test by asking itself whether the appellant was subject to serious physical harm in Fiji: (b) Whether the tribunal failed to consider an issue it was required to consider, namely whether the appellant had a well-founded fear of persecution in the reasonably foreseeable future. On appeal, this was put as a failure to consider whether the appellant held a subjective fear that serious harm would ensue. 10 The federal magistrate held that no such errors had been made. The appellant's case on appeal is that the federal magistrate erred by not accepting these contentions. There was no issue that, if the tribunal had made the errors attributed to it, they would be jurisdictional in nature.