CZAX v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 21
•31 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 21 |
| MIGRATION – Convention reason ‘fear of persecution’ – relevant evidence – membership of group (relative of former Prime Minister deposed by army coup) & political opinion – review of Refugee Review Tribunal decision – judicial review compared with merits review – political activism & profile of applicant – questions of degree in considering the totality of the evidence. |
| Migration Act 1958, ss.91R(1) & (2), 91S Convention Relating to the Status of Refugees 1951, Art 1A(2) |
| Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 M. Crock & L. Berg, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia, (Sydney: The Federation Press, 2011) |
| Applicant: | CZAX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
Second Respondent REFUGEE REVIEW TRIBUNAL
| File Number: | CAG 56 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 23 March 2011 |
| Date of Last Submission: | 16 September 2011 |
| Delivered at: | Canberra |
| Delivered on: | 31 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Nguyen |
| Solicitors for the Applicant: | City First Solicitors, Canberra |
| Counsel for the First Respondent: | Ms A Mitchelmore |
| Solicitors for the First Respondent: | Clayton Utz, Canberra |
ORDERS
A writ of certiorari issue to remove into this Court the record - including the decision - of the Refugee Review Tribunal, dated 10 August 2010, for the purpose of its being quashed.
A writ of mandamus issue to require the Tribunal to determine the matter according to law.
The First Respondent pay the Applicant’s costs in accordance with the Rules of this Court in the sum of $6240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 56 of 2010
| CZAX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to challenge a decision of the Refugee Review Tribunal (“the Tribunal”) made on 10th August 2010. The Tribunal affirmed the decision of the Delegate of the First Respondent, which was made on 12th April 2010, to refuse the Applicant’s application for a Protection (Class XA) visa. Formally, the Applicant seeks to have the matter remitted to the Tribunal for further consideration and that it occur “in light of the evidence.”
At the outset of the appeal I confirmed with Counsel for the Applicant that in order to achieve the result sought by his client – namely, a remittal to the Tribunal - he would in fact need to secure writs of mandamus and certiorari. No such relief had been sought in the original application. Counsel acknowledged this deficiency. I took it, and proceeded on the basis, that he sought to amend the application as indicated. There was no opposition from learned Counsel for the Respondent.
A. Factual Background
The Applicant was born in Fiji. She arrived in Australia on 12 December 2009 with her two children who are now aged 15 and almost 13.
Currently she lives in a large city in country New South Wales where she also works full time.
There was/is no dispute, and it was accepted by the Tribunal, that the Applicant is related to the former Prime Minister of Fiji, Mr Qarase, who was deposed in a military coup in 2006.[1]
[1] Sometime after the hearing, both parties were contacted by my Chambers to bring to attention the article by Associate Professor A. Twomey, “The Fijian coup cases: The Constitution, reserve powers and the doctrine of necessity,” (2009) 83 ALJ 319. The article provides some general background to the coups, including that which led to Mr Qarase being deposed. It also discusses a number of decisions by the Fiji High Court and Court of Appeal. Both parties confirmed that there was no need to make any further submission in the light of this article and the cases it considers.
It was also not disputed that when in Fiji she had been a member of a local political party colloquially known as the SDL. In Australia, she has continued to assist this same organisation.
In January 2010 she applied for a protection visa. At the time of that application she was employed as a personal assistant to the Chief Executive Officer of the Fiji Broadcasting Corporation Ltd (“FBCL”).
During her time of employment with FBCL, the Tribunal accepted that her emails had been monitored by the military, and that her probation period had been extended upon the FBCL learning that she was related to Mr Qarase.
Prior to her employment with FBCL, the Applicant contended that she had been dismissed from her job at the Fiji School of Medicine after she had appeared on television attending court in support of Mr Qarase. At that time, the Applicant was caring for Mr Qarase’s wife.
The Applicant remains married. Her husband works in Iraq as a UN security officer. He continues financially to support the Applicant and the children of the marriage.
On 12th April 2010 a delegate of the Minister notified the Applicant that her protection visa application had been refused.
On 3rd May 2010 the Applicant applied to the Tribunal for review of the delegate’s decision. A hearing was conducted by the Tribunal on 22nd July 2010.
On 19th July 2010 the Applicant provided the Tribunal with some documents which confirmed the progress of her children at school in Australia, and other documents which confirm that she has integrated into the local community in Australia to a quite significant degree.
On 10th August 2010 the Tribunal confirmed the decision of the Minister’s delegate refusing the Applicant’s seeking of a protection visa.
B. The Tribunal’s Decision
As already noted, the Tribunal accepted that the Applicant was related to the former and now deposed Prime Minister of Fiji (Mr Qarase), and that she was a member of the SDL party. It also accepted that she was formerly employed by the FBCL and, while there employed, that there was monitoring of her email correspondence by the military. The Tribunal accepted also that the Applicant was dismissed from the Fiji School of Medicine following the televised broadcast of her attendance at Court with Mr Qarase, and that she was directed not to associate with Mr Qarase when it became aware of her familial relationship with him.[2]
[2] Decision Record of the Tribunal (“Reasons”) at [69] & [70]. The Reasons were before the Court in the Court Book (“CB”), beginning at p.193. [69] & 70] are in the CB at pp.203-204.
The Tribunal did not accept that she had been [physically] harmed in the past while in Fiji, or that there was a real or genuine chance that she has been, or would be, harmed by the military regime (or by her former employer – the FBCL) in the event that she was to return to Fiji. It found that there was no real chance that, because of her political opinion, membership of the social group comprised of her family, or that she was/is a spy, she would or could have a well-founded fear of persecution for a ‘Convention reason.’[3]
[3] Reasons, at [72] & [74]. CB at pp.122-131.
In reaching its decision the Tribunal noted the following:
a)Even though the Applicant’s emails were monitored during her time with the FBCL, and that she was directed not to associate with Mr Qarase, she remained in communication with her family and continued to visit Mr Qarase when she was in Fiji and did so without any apparent difficulty or consequence.[4]
b)The Tribunal was not persuaded by the Applicant’s evidence in relation to her contention that she possessed certain secret information that the current political / military regime would be most interested to learn. The Tribunal was not persuaded that whatever this information is, it would be of concern to the current political regime in Fiji.[5]
c)The Applicant was unable to persuade the Tribunal that she possessed any information that would substantiate her claim that she had been accused of being a spy.
d)The Tribunal accepted the advice from the Department of Foreign Affairs and Trade (“DFAT”) that, although the regime in Fiji is known to have engaged in threatening and intimidatory conduct, “the prospect of family members of former ministers being directly targeted is “highly unlikely.””[6]
e)The Applicant was unable to provide any evidence to the Tribunal to substantiate her claim that relatives of Mr Qarase were at any other or greater risk than those who had been identified by DFAT.
[4] Reasons at [70].
[5] Reasons at [71].
[6] See the decision record of the Tribunal at [73]. The Tribunal also noted that there was no evidence before the Tribunal to suggest that any other family member of Mr Qarase, “let alone more distant relatives have been harmed or mistreated.” It would appear that the only member of Mr Qarase’s family who has been directly “harassed” by the current regime is one of his sons who has been accused of corruption. Ibid., [73].
The Applicant also claimed that due to her assistance to and activities in the Fiji Democracy Freedom Movement (“FDFM”) whilst in Australia she would likely be put at further and or greater risk if she were to return to Fiji.
In this regard, the Tribunal noted, at [76] (emphasis added):
The applicant claimed at the hearing that she is a financial member of the FDFM and a member of an association for SDL members in Griffith. The Tribunal accepts that she may have attended some meetings and may assist the FDFM executive committee with its “paperwork”. As it was put to her at the hearing, DFAT has advised that they are not aware of reports of ordinary individuals who are ‘known’ to be opposed to the regime being subject to harm unless they have also publicly expressed opposition to or criticism of the regime. … DFAT was not aware of ordinary or past members of Fiji political parties being subjected to harm unless they are also high-profile politicians and vocal opponents of the regime. DFAT considered harm to these ordinary or past members fairly unlikely. DFAT has also advised ordinary Fijians participating in anti-protest activities outside of Fiji could potentially be subject to harm upon returning to Fiji, although generally only high profile activists are targeted by the regime.
The Tribunal concluded, also at [76] (emphasis added):
The Tribunal, on the basis of the evidence before it, is not satisfied that the applicant is perceived to be a high-profile politician or vocal opponent of the regime. Outside of the matters concerning her employment … the applicant did not suffer serious harm and was not targeted by the military regime for the reason of her familial ties with Mr Qarase. The Tribunal is not satisfied that she was or is perceived to be ‘high profile’ on account of her familial ties alone. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Fiji for the reason of her political opinion and activities in Australia. The Tribunal is not satisfied that the applicant faces a real chance of persecution for the reason of a combination of her membership of Mr Qarase’s family and her political opinion.
Finally, the Tribunal further concluded, at [78]:
The Tribunal does not accept that the applicant has been harmed in the past or that, if she were to return to Fiji now or in the reasonably foreseeable future, there is a real chance that she will be harmed for the reason of her race, religion, nationality, political opinion or membership of any particular social group. The Tribunal is not satisfied that the applicant’s fear of persecution is well-founded.
Principal Submissions
Applicant’s Submissions: Summarily stated, Counsel for the Applicant confirmed that the factual bases of the ‘well-founded fear of persecution’ within the terms of the Migration Act and under the Convention were three-fold:
i)Because the Applicant is a member of the family of the deposed former Prime Minister and therefore likely to be “targeted” as being associated with the former political regime;
ii)Because she was a member of and active in a political party in Fiji which is not currently in favour (the SDL); and
iii)Because she has also been involved while in Australia with the FDFM.
According to the amended Application filed on 16th December 2010, the legal grounds upon which the Tribunal’s decision was challenged also were three-fold: (1) the Tribunal failed to identify the relevant issues; (2) the Tribunal considered irrelevant issues; and (3) the Tribunal failed to consider properly the information before it. The relevant particulars for each ground of review were set out in paragraphs 17, 18 and 19 of Counsel’s submissions.
For ease of reference, these paragraphs from Counsel’s submissions are set out below:
First Ground – The Tribunal failed to identify relevant issues
Particulars:
(a) The Tribunal failed to identify the applicant as a member of a particular social group that are entitled to protection in accordance with the Refugee Convention definition;
(b) The Tribunal failed to consider the significance of the affiliation between the applicant and the former Prime Minister of Fiji, Mr Laisenia Qarase;
(c) The Tribunal accepted but failed to recognise the significance of the applicant being dismissed from her employment at Fiji School of Medicine as a result of her affiliation with Mr Laisenia Qarase;
(d) The Tribunal accepted but failed to recognise the significance of the applicant being constantly monitored throughout her employment with the Fiji Broadcasting Corporation (FBCL).
Second Ground – The Tribunal considered irrelevant considerations
Particulars:
(a) The Tribunal considered information from the Department of Foreign Affairs and Trade (DFAT) that the prospect of the family members of former ministers being directly targeted is highly unlikely;
(b) This consideration does not discount entirely the claims of the applicant that she is being targeted and is therefore an irrelevant consideration;
(c) The Tribunal took into account that the applicant’s brothers and sisters were not claimed to have come to harm. This is an irrelevant issue. The involvement that the applicant had with Mr Qarase compared to her brother [sic] and sisters is far greater.
Third Ground – The Tribunal failed to properly consider the information before it
Particulars:
(a) The tribunal considered the DFAT information that only high profile members of the community were at risk of being targeted;
(b) The applicant may be considered as being a high profile member of the Qarase family due to her level of involvement in the family. The information obtained from DFAT may therefore be used to the advantage of the applicant;
(c) The applicant’s profile in the community was significantly tarnished to a point of losing her employment at the Fiji School of Medicine as a result of being recorded and televised in the company of Mr Qarase at the Local Court in Fiji;
(d) The applicant faced discrimination when she was in employment of FBCL;
(e) Evidence before the Tribunal noted that the applicant feared ongoing harassment, intimidation and torture;
(f) Evidence provided by the applicant included her reasons for this fear. These reasons were that she was in possession of sensitive information which if disseminated may have effected [sic] the country. Particularly noted was the [sic] information which was broadcast through the news to the public was censored. The applicant had the ability to access the uncensored version of events which were broadcast;
(g) The abovementioned accessibility, coupled with the prior adversities during the applicant’s employment at the Fiji School of Medicine has caused her current fears. The Tribunal failed to make this connection.
The Applicant relied on the High Court decision of Yusuf.[7] Although Counsel referred specifically only to part of it, it is as well to set out in full the relevant paragraph from the joint judgment of McHugh, Gummow & Hayne JJ, at [82] (internal citations omitted):
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
[7] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
From this paragraph in Yusuf,[8] Counsel sought to rely directly (and only) on the well-known passage cited from Craig v South Australia.[9]
[8] Yusuf 206 CLR at p.351 [82].
[9] (1995) 184 CLR 163 at p.179. There are many discussions by the High Court of what is, and what is not, ‘jurisdictional error.’ See, for example, the very recent and prominent decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 891. See, in particular, the observations of French CJ at [59]. See also the comments of the High Court in Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at [23], [26] & [30].
Respondent’s Submissions: It may be said that the over-arching thrust of the First Respondent’s submissions was that the relief sought by the Applicant is nothing other than merits review, which is impermissible by this Court. In more detail, and directly in response to the submissions by the Applicant, Counsel for the First Respondent contended as follows.
The First Respondent contended that, contrary to the submissions of the Applicant, the Tribunal considered, and did so in appropriate detail, the relevant issues. For example, the First Respondent submitted that the Tribunal accepted that the Applicant’s relationship with the former Prime Minister brought her within a particular social group, but was not satisfied that membership of that group gave rise to any relevant risk of real chance of harm, based on information provided by DFAT.
Similarly, the First Respondent submitted that the Tribunal properly considered the Applicant’s relationship with the former Prime Minister, her dismissal from the Fiji School of Medicine, and the FBCL’s monitoring of her email correspondence. The First Respondent submitted that the complaint that the Tribunal failed to recognise the significance of these matters “is a complaint about the merits of its conclusions.” In support of this submission, the First Respondent relied upon the recent comments by the High Court in Minister for Immigration and Citizenship v SZJSS regarding the impermissibility of merits review.[10]
[10] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23].
Further, the First Respondent submitted that, while the Tribunal accepted each of the matters raised (namely, the Applicant’s relationship with Mr Qarase, her dismissal from employment, and the monitoring of her emails), it was open to the Tribunal to find, as it did, that either singly or jointly they established that the Applicant’s fear of persecution was not well-founded.
The second area of complaint raised by the Applicant related, as contended by the First Respondent, to the weight to be attributed to the independent information provided to the Tribunal by DFAT. The First Respondent submitted that the information provided by DFAT was “highly relevant to the applicant’s claims.” Accordingly, so the First Respondent submitted, the Tribunal did not take into account any irrelevant considerations.
In relation to the Tribunal’s consideration of the relevance of information concerning the treatment of the Applicant’s siblings, such matters, according to the First Respondent, were also relevant.
In response to the third and final ground of appeal, namely the failure to consider properly the information before it, the First Respondent submitted that, in the light of the High Court’s comments in SZJSS at [30] in relation to the risk of a court ‘sliding into impermissible merits review’, the Applicant’s focus on whether there was proper consideration was in fact exactly the kind of thing against which the High Court warned. In this case, so it was said, there was a pre-occupation with the epithet “proper”, and which, therefore, in the circumstances of this matter, amounted to merits review.
The First Respondent submitted as follows: “[The Tribunal’s] conclusion that the applicant would only attract the attention of the authorities if she was a high profile member of the regime, and that she had no such profile, and its rejection of her claims to have been accused of being a spy and as to holding confidential information about which the authorities might have a concern, was [sic] open to it.”
Supplementary Submissions
In mid-July 2011, following the delivery of reasons by the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZONJ, the parties were afforded the opportunity, should they so wish, to make any further submissions in the light of the Full Court’s decision in that case, either as to its relevance and or any point of principle.[11] That case concerned an application for a protection visa by a person who is an indigenous national of Fiji. The Applicant in SZONJ fled Fiji because of domestic violence perpetrated against her by her husband, and her fear of it continuing because she would not be able to obtain any refuge in Fiji due to its geographical size and relatively modest population.
[11] Minister for Immigration & Citizenship v SZONJ [2011] FCAFC 85.
Both parties in the current proceeding provided the Court with additional written submissions.
The Applicant in the current matter contended that there were similarities between the matter before the Full Court and this case, primarily because of both applicants being women, and both of them being unable to rely upon appropriate protection being afforded to them by the State.
Further, the Applicant submitted that the reasoning of the Full Court emphasised the importance of all relevant evidence being properly evaluated.
The First Respondent submitted that the Full Court decision in SZONJ was of no relevance to the current matter. Among other things, the grounds upon which the decision in SZONJ was challenged were materially different to those under consideration in the current matter. Additionally, the factual circumstances of both cases were significantly different so as to be of no utility to the Court in the present proceeding.
Statutory Context & Legal Principle
In broad terms, there are three parts to the jurisprudential framework that are relevant to these proceedings. They are (a) the definition of “refugee” under the Convention, (b) the refinement of that definition of “persecution” pursuant to s.91R of the Migration Act 1958 (Cth) (“the Act”), and (c) the case-law in relation to “persecution” and whether, on the facts of this case, the Applicant has a “well-founded fear of persecution.”
However, before dealing with the matters just mentioned, in considering appeals of the kind currently before the Court, it is as well to recall three important cautions, albeit with quite some overlap in the basal principle articulated.
First, there is the signal instruction of Mason J (with whom Gibbs CJ and Dawson J also generally, but in separate judgments, agreed) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[12] His Honour said (internal citations omitted):[13]
[12] (1986) 162 CLR 24 (“Peko-Wallsend”). See Gibbs CJ at p.30, and Dawson J at p.71.
[13] 162 CLR 24 at pp.40, 41 & 42. Peko-Wallsend has, of course, been regularly cited in later decisions. See, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at p.627 [44] (Gleeson CJ & McHugh J); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] (McHugh, Gummow & Hayne JJ); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [38] (Gummow & Hayne JJ); and perhaps most recently, Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at [23].
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in
mind. It is not the function of the court to substitute
its own decision for that of the administrator by
exercising a discretion which the legislature has vested
in the administrator. Its role is to set limits on the
exercise of that discretion, and a decision made within
those boundaries cannot be impugned…. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker
and not the court to determine the appropriate weight to
be given to the matters which are required to be taken
into account in exercising the statutory power…
I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable…
… a court should proceed with caution
when reviewing an administrative decision on the ground
that it does not give proper weight to relevant factors,
lest it exceed its supervisory role by reviewing the
decision on its merits.
Secondly, in Attorney-General (NSW) v Quin, Brennan J said:[14] “The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
[14] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at p.36.
Thirdly, the High Court has cautioned, not infrequently, of the distinction between administrative decision-making, on the one hand, and judicial review, on the other.[15] In this case, plainly, the decision of the Tribunal was administrative, while the responsibility of this Court is limited to judicial (as opposed to merits) review.
[15] Among many places, see, for example, the comments of Hayne J in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [180] & [181]. And in Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367, Heydon J cautioned, at [85] (note 60), against “construing the words of non-judicial decision-makers minutely and finely either with an eye keenly focussed on the perception of error, or with an ear keenly attuned to the perception of error.” To similar effect, see the plurality reasons of Brennan CJ, Toohey, McHugh & Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272, and Kirby J at p.291.
With these points of principle in mind, I note the following.
Definition of Refugee: Australia’s obligations in relation to refugees derive from being a signatory to the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) ("the Convention"). Article 1A(2) of the Convention defines a “refugee” as applying to any person who
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being ... outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The “elements” of that definition have been the subject of significant, and considerable, judicial comment. It is sufficient to note the observations from the joint judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh & Gummow JJ) in Minister for Immigration and Ethnic Affairs v Guo, repeated by Gummow J in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs, thus:[16]
The definition of 'refugee' in Art 1A(2) of the Convention contains four key elements: (1) the applicant must be outside his or her country of nationality; (2) the applicant must fear 'persecution'; (3) the applicant must fear such persecution 'for reasons of race, religion, nationality, membership of a particular social group or political opinion'; and (4) the applicant must have a 'well-founded' fear of persecution for one of the Convention reasons.
[16] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at p.570; VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1 at pp.6-10 [11] – [22]. The citation from Guo in VBAO is in 233 CLR at [11].
Subject to further comment later, that definition must now be read in the light of its ‘refinement’ in s.91R of the Migration Act 1958 (“the Act”). Section 91R(1) provides:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct."
Section 91R(2) provides:
Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Relevant Jurisprudential Touchstones: The most relevant matters to consider here in the light of the respective contentions of the parties concern cases that relate to (a) what does and what does not constitute a ‘well-founded’ fear of persecution; (b) the relevance, nature and degree of ‘political opinion’; (c) the family as a social group; (d) the necessary caution required in the use of country information; and (e) ‘work rights’ and persecution.
‘Well-Founded Fear of Persecution’: Subject to the consideration of the legislative prescription in s.91R(2) to which I have referred, the following summary of principle will suffice for current purposes.
A convenient starting point for this discussion is the High Court decision in Chan Yee Kin v Minister for Immigration & Ethnic Affairs.[17] In that case, Mason CJ said:[18]
[12] I agree with the conclusion reached by McHugh J. that a fear of persecution is "well-founded" if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. This interpretation accords with the decision of the House of Lords in Reg. v. Home Secretary; Ex parte Sivakumaran [1987] UKHL 1; (1988) AC 958. There Lord Keith of Kinkel spoke (at p 994) of the need for an applicant to demonstrate "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" and Lord Goff of Chieveley spoke (at p 1000) of "a real and substantial risk of persecution". Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v. Cardoza-Fonseca [1987] USSC 32; (1987) 94 L Ed 2d 434 where Stevens J., with reference to a statutory provision (which reflected the language of Art.1(A)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v. Stevic [1984] USSC 124; (1984) 467 US 407, at p 425, observed (at p 453) that the interpretation favoured by the majority would indicate that "it is enough that persecution is a reasonable possibility". I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v. The Queen [1986] HCA 29; (1986) 161 CLR 10, at p 21, per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[13] Viewed in this light the decision of the delegate was so unreasonable that no reasonable person could have reached it. It seems that the delegate and, for that matter, the DORS Committee, misconceived the concept of persecution under the Convention.
[17] (1989) 169 CLR 379.
[18] 169 CLR at p.389. See also the comments by Gaudron J at pp.412-413; and by McHugh J at pp.423-431.
In Applicant A v Minister for Immigration & Ethnic Affairs, McHugh J said:[19]
Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.
[19] (1997) 190 CLR 225 at p.258.
In Chen Shi Hai v Minister for Immigration & Multicultural Affairs, the plurality judgment of Gleeson CJ, Gaudron, Gummow & Hayne JJ stated:[20]
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.
[20] (2000) 201 CLR 293 at p.303 [29]. See the broader discussion of “persecution”, in the course of which this passage from Chen is cited, in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at pp.401-404, and particularly at [41] – [49].
And in Minister for Immigration & Multicultural Affairs v Ibrahim, McHugh J again detailed some non-exhaustive criteria by which “persecution” may be measured. His Honour said:[21]
[21] Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at p.21 [65]. See also his Honour’s further, brief discussion in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at p.14 [33], and again in the joint judgment of McHugh & Kirby JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at p.486 [31].
Framing an exhaustive definition of persecution for the purpose of the Convention is probably impossible. Ordinarily, however, given the rationale of the Convention, persecution for that purpose is:
. unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason
. which constitutes an interference with the basic human rights or dignity of that person or the persons in the group
. which the country of nationality authorises or does not stop, and
. which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.
The final case to consider here is the High Court decision in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs.[22] There, a number of Convention integers were considered in the light of s.91R of the Act.[23] It is important to consider the High Court’s instruction.
[22] (2006) 233 CLR 1.
[23] The legislative and antecedent jurisprudential history of s.91R is set out in detail in the judgment of Gummow J in VBAO 233 CLR at pp.6-9 [10] – [17].
First, in the joint judgment of Gleeson CJ and Kirby J, their Honours said, at [1]:
Depending upon context, the word "threat" can mean a communication of an intention to harm, or it can mean a likelihood of harm. The word has other meanings as well, but those are the two possibilities of present relevance. Where the word has the second of the two meanings mentioned, a communication of an intention to harm might be some evidence of a likelihood of harm, but, if there is an issue about the matter of threat, the question to be decided concerns the existence of the likelihood of harm.
Their Honour’s note that, in the context of s.91R, “threat” is used only in the second sense articulated. They continued, at [3]:
The decision-maker is required to consider future persecution that involves serious harm, and one instance of such serious harm is a threat to life or liberty. The decision-maker is to decide the risk of future harm, not the risk of future communications.
Secondly, in the judgment of Gummow J, his Honour observed, at [18] – [20] (internal citations omitted):
[18] Counsel for the appellant urged a reading of par (a) of s 91R(2) which would include a past or current communication of an intention to kill or deprive a person of liberty which, looked at objectively, is capable of instilling fear in the person and does so. The Minister supports the construction adopted by Marshall J, in particular that (i) threats to life or liberty in the form of declarations of intent do not, without more, constitute the serious harm which persecution must involve, (ii) the term "threat" connotes "risk" in the sense of danger or hazard, and (iii) the threat to life or liberty must manifest itself as an instance of serious harm as distinct from a possibility of danger. The submissions for the Minister should be accepted.
[19] It is trite to observe that the six pars (a)-(f) of s 91R(2) should be considered together; they all take their colour from the specification of "serious harm" in the opening words of the sub-section. That phrase in turn may be traced to judicial statements such as that of Mason CJ in Chan to which reference has been made. His Honour also used the adjective "significant" to describe a detriment or disadvantage which answers the description of persecution. The phrase "a threat" to life or freedom was used in Chan by Dawson J. The term "significant" qualifies the physical harassment, physical ill-treatment and economic hardship spoken of in pars (b), (c) and (d) of s 91R(2). The consequence of an action or state of affairs spoken of in pars (d), (e) and (f) must be one which "threatens the person's capacity to subsist".
[20] This reading of the whole of the text of s 91R(2) suggests that no less an element of comparable gravity is involved in the stipulation of a threat to the life or liberty of the person in question. More is required than a possibility which is capable of instilling a fear of danger to life or liberty.
Finally, it is important to recall the following instruction from the joint judgment of Callinan and Heydon JJ in VBAO. Their Honours said, at [49] – [50] (emphasis in original):[24]
[49] Section 91R(1) emphasizes that Art 1A(2) of the Convention will not apply to persecution unless three conditions are satisfied, relevantly: that membership of a political group or the holding of a political opinion is the essential and significant reason for the persecution; that the persecution involves serious harm to the person; and, that the persecution involves systematic and discriminatory conduct. For the reasons which we have given, it must be concluded that not all of those necessary conditions have been satisfied, and indeed none have. However, the requirement that they must be in any particular case, provides a manifestation of a statutory intent to define persecution, and therefore serious harm, in strict and perhaps narrower terms than an unqualified reading of any unadapted Art 1A(2) of the Convention might otherwise require.
[50] We come then to s 91R(2). No one would doubt that what has occurred in the past may provide a good indication of what might, but not always necessarily will, happen in the future. Section 91R is not concerned exclusively with, or applicable to events in the past, rather than current or future circumstances. The Convention is framed to ensure that persons will not be exposed to persecution, as defined by Australian law, if they were to return to the country which they have left. If any threat or relevant risk is not current or prospective, then there can be no well-founded fear of persecution. Neither the Convention nor s 91R of the Act can be read as if a threat of sufficient gravity which has passed, has not been renewed or revived, and is unlikely to be renewed or revived for a Convention reason, will suffice to give rise to the requisite well-founded fear.
[24] See also the brief further comments of Heydon J in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [60] – [62].
Political Opinion: In relation to this aspect, it is important to note two decisions of the Full Court of the Federal Court of Australia. First, in V v Minister for Immigration & Multicultural Affairs, both Wilcox and Hill JJ, in separate judgments, noted the following basic principles in relation to “political opinion” for the purposes of the Convention. Wilcox J said (emphasis in original):[25]
[14] … it is useful to note that Beaumont J approved two comments by Hathaway, The Law of Refugee Status (1991). The first is it will suffice "to rely on evidence of engagement in activities which imply an adverse political opinion, and which would elicit a negative governmental response tantamount to persecution" (Emphasis added). Second, it is not necessary to show a prominent political profile.
[16] … It is not necessary that the person be a member of a political party or other public organisation or that the person's opposition to the instruments of government be a matter of public knowledge. Of course, the higher the person's political profile, the easier it may be to persuade a tribunal of fact that the person has been persecuted on account of political opinion, rather than for some other reason; but that is a matter going to proof of the facts, not a matter of law.
[25] V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355 at pp.362 & 363 [14] & [16].
In his judgment, Hill J said, at [33]:
It is not necessary in this case to attempt a comprehensive definition of what constitutes "political opinion" within the meaning of the Convention. It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy. It is probably narrower that the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society. It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts (which where corruption is involved, either demonstrate that the government itself is corrupt or condones corruption) reflective of an unstated political agenda, will be the holding of a political opinion. With respect, I agree with the view expressed by Davies J in Minister for Immigration & Ethnic Affairs v Y [1998] FCA (unreported, 15 May 1998, No. 515 of 98) that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention. Whether they do so will depend upon the facts of the particular case.
In the later decision of Htun v Minister for Immigration & Multicultural Affairs, the Full Court of the Federal Court considered the distinction between political activity in the country from which the refugee has fled, and activities in the country from which protection is sought.[26] In that case, both Merkel and Allsop JJ, in separate judgments, noted the distinction to which I have referred, and of particular significance to the current proceeding, that a person who is engaged even in “low level political activities in Australia” can, in relevant circumstances, be afforded refugee status and protection on the ground that their activity is “political opinion” for the purposes of the Convention.[27]
[26] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244.
[27] See, for example, the discussion by Allsop J at 194 ALR p.260 [43].
Also of note to the current matter are two further observations by Merkel J. First, his Honour highlighted the importance of treating activities in the country from which the applicant flees and activities in the country of refuge as simply different elements of the one claim or activity.[28] Secondly, Merkel J opined, without the need for further discussion, his concern in the case before him about the Tribunal appearing to require that the risk of persecution on the return to the country there in question (Burma) be assessed on the balance of probabilities, whereas it should, in his view, have been approached on the basis of “the possibilities of persecution.”[29]
[28] See 194 ALR p.248 [12].
[29] 194 ALR at p.248 [15].
As learned commentators have observed:[30] “An applicant for refugee status may succeed in her or his claim where the very act of seeking refugee status abroad may lead to their having a political opinion imputed to them by the authorities.”
[30] M. Crock & L. Berg, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia, (Sydney: The Federation Press, 2011) at p.404 [13.122]. Among cases cited in support of this proposition is Htun.
“Family” as a “Social Group”: There is little to note here, other than the fact that it has been accepted for some time that a family, or indeed a group of many millions, may constitute a “particular social group.”[31]
[31] See, for example, the discussion in Applicant A (1997) 190 CLR 225 at p.240 ff (Dawson J), at p.259 ff (McHugh J), and at p.283 ff (Gummow J), and in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at p.393 [17] ff. (Gleeson CJ, Gummow & Kirby JJ) and at p.407 [60] ff. (McHugh J).
Use of Country Information: It is sufficient to note here that the High Court has observed that “country information” is, by its nature, somewhat generalised and is not directed specifically to the circumstances of any particular applicant.[32] In my respectful view, it follows that the comments of the High Court suggest that a degree of circumspection or appropriate caution is required in considering relevant country information in the light of the facts of each particular case.[33]
[32] See, for example, the remarks of Gleeson CJ in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at pp.3-4 [8] – [10] and by McHugh J (dissenting in the result) at pp.6-7 [21] – [23].
[33] See also the comments of McHugh & Kirby JJ in Appellant S395 216 CLR at [38].
‘Work Rights’ & Persecution: In Minister for Immigration and Multicultural Affairs v Ibrahim, McHugh J (dissenting in the result) considered that denial of a person’s employment is [usually] to be considered as discrimination rather than persecution.[34] In the same place, his Honour noted that persecution “involves discrimination that results in harm to an individual.” The qualification will always be, as his Honour said, also at [55]: “Much will depend on the form and extent of the harm.”
[34] Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [55].
In Prahastono v Minister for Immigration and Multicultural Affairs, Hill J said:[35]
What the cases … stand for is the proposition that discrimination in employment may amount to persecution in a particular case.
… Discrimination in employment may constitute persecution in the relevant sense if for a Convention reason. However, whether it does so depends on all the circumstances.
… whether restriction on employment amounts to persecution in a Convention sense will depend upon all the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person.
[35] Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at pp.266, 267 & 268.
Discussion and Resolution
In my view, on the facts as found by the Tribunal and in the light of the legal principles outlined in these reasons, the appeal from the Tribunal’s decision may be disposed of by two short points, either or both of which lead to the relief sought by the Applicant being granted and the matter being remitted to the Tribunal for re-determination according to law.
The first ground on which I find there has been jurisdictional error relates to the Tribunal’s consideration of the “country information.” As noted earlier in these reasons, at [76] of the Tribunal’s reasons, it accepted the following proposition:
DFAT has also advised ordinary Fijians participating in anti-protest activities outside of Fiji could potentially be subject to harm upon returning to Fiji, although generally only high profile activists are targeted by the regime.
The reality is that the Applicant cannot properly be described as an “ordinary Fijian.” She is closely related to a deposed former Prime Minister. In the past, she has lost her employment, and had her email communication monitored. Such matters were accepted by the Tribunal. While such matters may be at the lower end of a spectrum of harm, and certainly so when compared to threatened or actual physical harm, nonetheless the matters complained of and accepted by the Tribunal, in my view, come within the parameters of s.91R(2), and in particular, sub-paragraphs (d), (e) and/or (f).
If it be the case that DFAT’s advice, which was accepted by the Tribunal, was that “ordinary Fijians participating in anti-protest activities outside Fiji could potentially be subject to harm upon returning to Fiji”, it must follow that a higher profile person, such as the Applicant, who (it must be accepted) has engaged in ‘political [opposition] activities’ while in Australia, must be at greater risk than the “ordinary Fijians” to which the DFAT country information referred.
In such circumstances, in my view, the Tribunal did not consider sufficiently, fairly or properly, the country information before it in the light of the accepted circumstances of the Applicant.[36]
[36] In my view, there is no need to consider, nor was it argued in any event, whether the decision of the Tribunal was “illogical” or “irrational” as those terms have recently been considered by Crennan & Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [121] – [136].
The second ground on which I find that there has been jurisdictional error in this case concerns the Tribunal’s failure to consider, or consider properly, the “profile” of the Applicant. Notwithstanding authority of the Full Court of the Federal Court regarding the [relative] irrelevance of the nature and or prominence of the profile of the applicant in question in V v Minister for Immigration and Multicultural Affairs[37] and in Htun,[38] both cases now of long-standing, the Tribunal plainly considered that the Applicant’s “profile” was insufficient to warrant any real or realistic chance that her activities in Australia in support of political parties would place her at any relevant risk upon her return to Fiji. As the cases mentioned confirm, and contrary to the view expressed by the Tribunal, it is not a requirement that the risk of harm can or should be confined only to “high profile” applicants.
[37] (1999) 92 FCR 355.
[38] (2001) 194 ALR 244.
Coupled with her familial relationship with the former, deposed Prime Minister of that country, in my view, the Tribunal failed to consider properly the political activities of the Applicant in Australia in support of political activists who are opposed to the current military regime in Fiji. The Tribunal improperly imputed to the Applicant the necessity that her activities were, or be, of such a kind that her “profile” would thereby be of such an order that her antipathetic activities would certainly come to the attention of the Fijian authorities. Only in such circumstances, it would appear, would the Tribunal consider her to be at risk of the relevant ‘serious harm’ on a return to her native country. To so require, in my view, amounts to jurisdictional error.
It may be taken that, apart from the two grounds identified, I do not consider any of the grounds of appeal raised by the Applicant and set out earlier in these reasons, at [24], to have been made out.[39]
[39] This includes any relevant reference to the Applicant being dismissed from her employment at the Fiji School of Medicine. In my view, the Tribunal’s findings, at [70] of its reasons, in relation to the Applicant’s employment in Fiji were open to it in the light of the evidence before it, and in the light of the admittedly brief consideration of s.91R(1)(b) of the Act.
For the reasons given, a writ of certiorari should issue to bring the record of the Tribunal into this Court in order that its decision be quashed. A writ of mandamus should also issue to require the Tribunal to determine the matter according to law.
In addition to these writs, the Applicant’s costs should be paid by the First Respondent in accordance with the Rules of this Court in the sum of $6240.
The Court so orders.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Federal Magistrate Neville
Date: 31 January 2012