Applicants A64 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 244

FEDERAL COURT OF AUSTRALIA

Applicants A64 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 244

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

Plaintiff S 157/2000 v Commonwealth of Australia; 211 CLR 476; [2003] HCA 2 referred to
Minister for Immigration and Multicultural and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

APPLICANTS A64 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

S 636 of 2003

MANSFIELD J
4 MARCH 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 636 OF 2003

BETWEEN:

APPLICANTS A64 OF 2003
APPLICANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

4 MARCH 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        Applicant pay to the respondents costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 636 OF 2003

BETWEEN:

APPLICANTS A64 OF 2003
APPLICANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MANSFIELD J
DATE:	4 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This application under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth) is for prerogative orders in respect of a decision of the Refugee Review Tribunal (the Tribunal) given on 19 December 2002. The Tribunal affirmed a decision of a delegate of the respondent of 25 October 2001 refusing to grant to the applicants a protection visa for which they had applied on 3 September 2001 under the Migration Act 1958 (Cth) shortly after their arrival in Australia.

2. The application was instituted in the High Court and was remitted to this Court for further hearing and determination by order of 11 June 2003.  It is common ground that the Court may make the orders sought in the application only if jurisdictional error on the part of the Tribunal is established.  See Plaintiff S 157/2000 v Commonwealth of Australia; 211 CLR 476; [2003] HCA 2

3. The applicants are citizens of Fiji, a mother and her two sons, now aged 18 and 11.  They are of Indian ethnicity and of Muslim religion.  The principal applicant is the mother, who claimed to have a well‑founded fear of persecution if she were to return to Fiji.  Her two sons' claims were derivative or dependent upon her claim as a refugee.  Hereafter I will refer to the mother as ‘the applicant’.

4. The applicant claimed that she had a well-founded fear of persecution if she were to return to Fiji by reason of a variety of experiences in the past.  She said that she had been discriminated against due to her religion whilst at school.  That did not feature significantly in her subsequent life and the Tribunal did not consider that it gave rise to any well-founded fear of persecution on her behalf.

5. She also claimed that she was discriminated against by native Fijians due to her ethnicity and that Indo-Fijians are treated as third-rate citizens in Fiji.  She further claimed that she was discriminated against in Fiji by other Indo-Fijians by reason of her religion.  She did not give any details with any precision of past treatment of discrimination and, again, the Tribunal did not regard that as of particular moment to any consequences which might be visited upon her if she returns to Fiji.

6. In 1995 she became an active member of the Lautoka branch of the National Farmers Union, a political organisation and a supporter of the Labour Party.  It was a supporter of the former Prime Minister Chaudhry.  She became prominent as a leader of the women's ring of that party and claimed that she was frequently arrested by the authorities.  Following the coup, supporters of George Speight (she claimed) destroyed her house and native Fijians destroyed much property of Indo-Fijians in Fiji.  Hence her claims to have a well-founded fear of persecution substantively were related to her ethnicity and her political beliefs.

7. She said she would be injured or killed by native Fijians if she returns to Fiji, and that the authorities in Fiji do not provide protection to Indo-Fijians and are unable to do so.  She also claimed to fear arrest and torture by the authorities in Fiji because she is a prominent Indo-Fijian political figure.

8. She did not attend the hearing arranged by the Tribunal on 6 December 2002, despite having been invited by the Tribunal to do so.

9. The Tribunal found that her claims were vague and lacking in detail.  They were not supported by independent country information.  In particular, it found on the basis of independent country information that by 2001, following the coup, the position in Fiji was stable and the police had safeguarded public security.  It considered that there was then and thereafter no risk of institutionalised mistreatment by the authorities of political figures in Fiji, including Indo-Fijian political figures.

10. It noted during 2001 that there had been no reports of violence against Fijian political figures, including Indo-Fijian political figures.  It noted further that the new Fijian government was committed to protecting the rights of all Fijian citizens.  It concluded:

    ‘Having regard to these reports, the Tribunal finds that law and order has been re-established in Fiji and that the democratically elected government which controls the police and security forces is committed to protecting human rights and to bringing the society together.

    Considering all of the claims of the applicant, both specific and general, I am unable to be satisfied that the applicant faces a real chance of persecution should she return to Fiji now or in the foreseeable future.’

11. Accordingly, it was not satisfied that the applicant has a well-founded fear of persecution for any convention-related reason and affirmed the decision of the Tribunal.

12. Although the grounds of alleged jurisdictional error in the initial application are quite extensive, counsel for the applicant has today limited the grounds upon which jurisdictional error is sought to be established to one refined point.  It arises out of the first paragraph of the reasons for decision of the Tribunal quoted above.  It is that the Tribunal has misdirected itself in law, and has therefore failed to ask the correct question as to whether the applicant, if she returns to Fiji, would be faced with the prospect of persecutory conduct by reason of her ethnicity.

13. The focus is upon the use of the word ‘committed’ in that passage.  Counsel for the applicants contends, and I accept, that if there is substantive unrest and violence in a country perpetrated against an ethnic minority by other members of the community, there may be a well-founded fear of persecution, unless it is established that the authorities of the state are able to provide effective and meaningful protection to the minority group.  He contends further that the Tribunal has not addressed the question of whether such state protection is available or would be provided to the applicant, but has simply found that the present government is committed to providing that protection.  He contends that it is necessary for the Tribunal to have gone beyond that and to have considered whether that commitment is in fact being fulfilled in an effective and meaningful way.

14. I accept that if the evidence were, and if the Tribunal accepted that there was ongoing conduct on the part of the native Fijian community of significant detriment to the Indo-Fijian community, including the applicant, it would be necessary for the Tribunal to consider whether the Fijian authorities do in fact provide effective and meaningful protection to that ethnic minority.  If those circumstances arose and if the Tribunal did not address that question, in my view there would be a basis for asserting jurisdictional error on its part.  However, in my judgment the Tribunal's reasons do not demonstrate that the Tribunal erred in the way in which it is contended.

15. In the first place, the premise upon which the criticism is based is not made out.  The premise is that there is ongoing violence by the native Fijian community towards Indo-Fijians of such a nature as to amount to persecutory conduct.  That premise is inconsistent, in my judgment, with the findings of the Tribunal.  In the independent country information to which the Tribunal referred, there is extensive reference to the state of affairs following the completion of the coup at the end of July 2000, and more particularly during 2001 and subsequently.

16. The Tribunal referred to reports from the Department of Foreign Affairs and Trade indicating that law and order had again prevailed and that the security situation is under control.  It noted that there are only isolated reports of minor harassment in the form of low-level thefts.  It noted that the military have assisted the police in safeguarding public security.  It noted that there is, in view of the actions being taken, no real risk of institutionalised mistreatment by the authorities of returning Fijians, whether ethnic Fijian or Indo-Fijian.  It noted that there were no reports of physical violence against any Fijian political figures, whether indigenous or Indo-Fijian.  Following the institution of a new government with a policy of bringing Fiji's multiracial and multicultural society forward together, it noted that there is no foundation for any perception of institutionalised mistreatment by the authorities against any Fijian community members.

17. Accordingly, I do not think that the Tribunal accepted that there is ongoing violence by an ethnic majority of Fijians, the native Fijians, against Indo-Fijians which required the Tribunal to address further whether the authorities were then providing effective and meaningful protection in respect of that conduct.

18. The second reason why, in my judgment, jurisdictional error is not made out emerges from the passage of the Tribunal's reasons which is particularly under attack.  It is plain that the Tribunal's reasons should not be read with an eye keenly attuned to the perception of error.  See Minister for Immigration and Multicultural and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In the passage referred to, apart from the reference to commitment to protecting human rights and to bringing the society together, the Tribunal positively found that law and order has been re-established in Fiji. In the light of the independent country information to which it has referred, I understand that to be that the authorities are providing effective and meaningful state protection to all sections of the community. There is nothing in the Tribunal's reasons to indicate that it has failed to consider whether Indo-Fijians are deprived of meaningful and effective state protection, even if it were otherwise established that there was significant violence proffered towards that ethnic minority by native Fijians.

19. For those reasons, I do not consider that the jurisdictional error asserted has been made out.  The application must be dismissed.

20. I order that the applicants pay to the respondents costs of the application.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             15 March 2004

Counsel for the Applicant:	M W Clisby
Solicitor for the Applicant:	Mark Clisby
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	4 March 2004
Date of Judgment:	4 March 2004