Delivered on 29 April 2005 as
[2005] FMCA 444
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUN v MINISTER FOR IMMIGRATION | [2005] FMCA 444 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91R(1), 91R(2), 91X, 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585
VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927
Applicant A165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 877
SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364
Lek v Minister for Immigration (1993) 45 FCR 418
| Applicant: | SZDUN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1774 of 2004 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr A Silva of Silva Solicitors |
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
CORRIGENDUM TO REASONS FOR JUDGMENT
Delivered on 29 April 2005 as [2005] FMCA 444
The above reasons are corrected in paragraph [10] by substituting Ground 2 of the applicant’s amended application filed in Court on 4 April 2005 as follows:
The Tribunal made jurisdictional error as there was apprehension of bias in the way the Tribunal dealt with some of the country information and also the way it conducted the hearing.
The above reasons are corrected in paragraph [10] by the addition of Ground 3 of the applicant’s amended application filed in Court on 4 April 2005 as follows:
The Tribunal made jurisdictional error as it failed to deal with some of the critical claims advanced by the applicant.
Particulars
(i)The claim that when Indo-Fijians complained about racial discrimination / racial harassment / racial persecution the police ignored it, or humiliated Indo-Fijians.
(ii)The applicant’s parents were forced to live separately due to Native Fijians refusing to extend lease based on race. Please refer Transcript page 5.80 as given below.
(iii)The claim that Native Fijians threatened the applicant and other Indo-Fijians threatening them with words to the effect they do not belong to Fiji, the seas do not belong to Indo-Fijians, implying that Fiji is not their country and they must leave Fiji.
Transcript page 5.80
THE INTERPRETER: Well we didn’t know much about it but this lease will expire and things like that. We just thought this was we bought it, it was our land, we’re living there. But when the time for the expiry came closer to pay they came and they were behaving – wasn’t good because they said you people, you Indians, this is not your place to live, not in Fiji. Then my father said but you people said you would extend our lease. They said no, this is our land, not yours. Then we had to leave that, we just took a few things with us and went to Lautoka.
Also, please refer to the discussion before on the Fishing incident.
Associate: Menna McMullan
Date: 21 June 2005
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1774 of 2004
| SZDUN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 April 2004 and handed down on 18 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 14 November 2003 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDUN”.
The applicant, who claims to be a citizen of Fiji, arrived in Australia on 26 October 2003. On 11 November 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 14 November 2003 the delegate refused to grant a protection visa and on 4 December 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
According to his visa application, the applicant was born in July 1971 and is a Hindu Fijian of Indian ethnicity. He stated that he speaks, reads and writes Hindu and English. The applicant claimed he completed eleven years of education and described his profession as a “truck driver”. He claimed he was fearful of both physical and mental harm in Fiji and had experienced verbal abuse in the past which he found humiliating. The applicant claimed that most indigenous Fijians are racist and Indian Fijians have been denied access to many basic rights. He stated that Indians are confronted with aggression and are vulnerable to harm. The applicant claimed that the authorities are partial towards indigenous Fijians and it is difficult to report acts of racial aggression. He stated that Indians are afraid of suffering further humiliation if they go to the police.
The applicant referred to three main incidents which led to his visa application. Firstly, when he was approximately twelve years old his family bought land in Nadi. The applicant and his family lived on this land until May 2003 when the applicant claims they were forced to evacuate the land by native Fijians following the expiry of their lease and despite previous assurances that their lease would be extended (Court Book p.59) (“CB”). As a consequence, the applicant stated that his father moved in with his brother in Nadi and the applicant’s mother and sister moved in with the applicant’s maternal aunt in Latoka. Between May 2003 and October 2003 the applicant claimed he sometimes stayed with his uncle in Nadi and at other times stayed with his aunt in Lautoka. The Tribunal asked the applicant if his father made any attempts to seek redress but the applicant stated his father was unable to do anything about the situation and the Government no longer provided compensation to evacuees.
Secondly, the applicant stated that on one occasion when he was returning home after work three native Fijians chased him and made references to his ethnicity. The applicant stated that he managed to escape and save himself (CB p.59).
Thirdly, in July 2003 the applicant claimed he was fishing with four or five friends when they were approached by three native Fijians who took all the fish they had caught and told them the sea did not belong to them (Indian Fijians). The applicant stated that he and his friends were afraid they might be beaten. When asked by the Tribunal if he complained to the police the applicant answered that police would not do anything in these situations. The applicant said he later found out that other Indians had been threatened, abused and assaulted at the same fishing location (CB p.58-59).
The Tribunal’s findings and reasons
In its decision the Tribunal set out the constituent elements of the definition of a refugee (CB pp.56-58), summarised the claims and evidence before it, including the independent country information (CB pp.58-62) and then set out the findings and reasons for its decision (CB pp.62-64). In summary the Tribunal accepted:
a)The applicant and his family were evacuated from their land in May 2003 but found that compensation was available from the Fijian authorities and that therefore “effective and adequate protection [was] available to the applicant and to his family” (CB p.63);
b)The applicant was verbally abused and on one occasion chased by a group of Fijians (CB p.63);
c)The applicant and his friends had fish taken away from them on a fishing trip by a group of native Fijians (CB p.63);
d)The applicant’s ethnicity was the reason behind these acts of discrimination (CB p.63);
The Tribunal also noted:
a)The incidents were not sufficiently serious so as to amount to persecution (CB p.63); and
b)The present law and order situation in Fiji is stable (CB p.64).
In conclusion the Tribunal noted as follows:
“The Tribunal is not satisfied that Indo-Fijians are denied their basic rights or that persecution or mistreatment of them is permitted or condoned by the security authorities or the Fijian government. The Tribunal, based on the evidence before it, is satisfied that the applicant’s chance of facing persecution for the reason of his ethnicity is remote.” (CB p.64.5)
Application for review of the Tribunal’s decision
On 10 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). Subsequently the applicant filed an amended application dated 21 October 2004. On the day of the hearing on 4 April 2005 the applicant filed a further amended application which contained the following grounds:
“1.The Tribunal made jurisdictional error when it applied the wrong test for ‘persecution’
Particulars
The Tribunal on page CB 63.70 called the three incidents of harm ‘petty acts of discrimination’.
The Tribunal on CB 59.50-59.70 refers to the Applicant’s evidence and it says:
‘He stated that on one occasion when he was returning home after ……… at the same fishing spot.”
The Tribunal decided that they were petty acts as it did not appreciate the seriousness of those incidents.
2.The Tribunal made jurisdictional error when it applied the wrong test for ‘persecution’
Particulars
(i)CB 61.50 the Tribunal refers to Amnesty Report 2003 (last paragraph) to imply that human rights situation is getting better. This is vastly different from what the report itself says.
(ii)The Tribunal did not take material and critical information into consideration in its decision as it acted partisan manner and chose to use information that supported the proposition that situation is back to normal in Fiji:
(a)Page CB 60.80 the Tribunal refers to the US State Department’s 2003 Country Reports on Human Rights Practices which says “Senators appointed by the Prime Minister have made numerous racial slurs directed against Indo-Fijians.”
(b)Same report on page CB 60.90 says “During the year, the SDL Government worked to ensure the political supremacy of ethnic Fijians. During the year, approximately one-fourth of valid complaints to the HRC dealt with racial and ethnic equality issues”.
(c)On page CB 61.40 the Tribunal says “There were several cases of Fijian landowners extorting so-called goodwill payments from their Indo-Fijian tenants. Almost none of these were prosecuted”.
(d)On CB 61.45 the Tribunal says “In 2002, the Government implemented a new Rural Housing Assistance Scheme that, unlike the previous housing assistance plan, limited benefits to indigenous communities”.
(e)Page CB 58.95 “The authorities are partial towards indigenous Fijians and it is difficult to report acts of racial aggression. Indians are afraid of suffering further humiliation if they go to the police”.
(f)Page CB 60.10 breach of the constitution by the government – thus inflaming the race issue;
(g)CB 60.40 partisanship of the judiciary;
(h)CB 60.50 human rights complaints against the police;
(i)CB 60.70 constitution is aiming for paramountcy of the native Fijians; and
(j)Indians do not own land and at the mercy of the native Fijians for land.
(k)That the landlord tenant relationship is unique in Fiji in the sense that the tenants build their own home on the expectation of long lease, unlike a typical tenancy where the building is built and owned by the landlord. His family lived in the land for nearly 19 years. This is in the context of almost all land being owned by native Fijians.
(iii)The Tribunal (i) cut off conversation by changing the topic suddenly when the applicant wanted to expand on critical issues – transcript page 8.80 where it is said “He talked to a lawyer”, transcript page 11.70 “[Tribunal member]: Okay, just before I close do you have any relatives in Australia”; (ii) Showed disinterest in pursuing with critical issues – same pages as before (iii) Offered insufficient assistance or encouragement – same pages as before (iv) diverted attention of the Applicant from providing further information on critical issues – same pages as before.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs (“Dranichnikov”).
The hearing
At the hearing, Mr Silva, Solicitor appearing for the applicant, sought leave to tender and have admitted into evidence the following documents:
a)Further amended application
b)Affidavit of Sylvia Nicholas Silva sworn on 11 March 2005 and filed and served on 14 March 2005
c)
Schedule of agreed amendments to transcript which formed Annexure A to the affidavit of Sylvia Nicholas Silva sworn on
11 March 2005 and filed in Court on 4 April 2005
Counsel for the respondent in the course of the proceedings sought to have tendered and admitted into evidence a cassette tape of the Tribunal hearing on 14 April 2004, being Tape 1 of that hearing, which was subsequently marked “Exhibit RR”.
Applicant’s submissions
In respect of Ground 1, the applicant’s solicitor repeated the pleaded grounds and provided the following information:
a)The applicant’s evidence on this issue appeared in the transcript (pp.10.40-10.90). The applicant was not only subjected to extreme fear but his identity as a Fijian citizen was questioned. The threat to the applicant on the basis that the sea does not belong to his father implied that Indians do not belong to Fiji and was a very serious form of harassment which forced the applicant to wonder whether he had any rights as a Fijian citizen. In Minister for Immigration & Multicultural Affairs v Haji Ibrahim (“Ibrahim”) at [65] McHugh J defined persecution for the purpose of the Convention as
“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.”
b)In this case all the above elements were present. It was an unjustified and discriminatory conduct. The applicant’s human right as a Fijian citizen and his personal dignity were violated and he was afraid to seek redress from the police for fear of further humiliation.
c)Reference was made to the judgment of Merkel J in VTAO v Minister for Immigration & Multicultural & Indigenous Affairs (“VTAO”) at [60] and [62]. It was submitted that the Tribunal’s failure to give sufficient weight to these incidents of harm should be considered under s.91R(1)(b) and/or (c) as it appeared the Tribunal was applying a higher requirement such as the one that appeared in s.91R(1)(a).
d)Reference was also made to the decision of the High Court in Ibrahim per Gaudron J at [25]-[16]. The applicant submitted that based on the above authorities the incidents of harm related to the fishing incident fell under persecution when seen with the fear that police would humiliate further if the incident was reported.
In respect of Ground 2, the pleadings were repeated and the following submissions were made:
a)The Tribunal referred to the Amnesty Report 2003 to imply that the human rights situation was getting better. This was vastly different from what the report itself says. The applicant reproduced the Summary as part of the submissions (CB p.70) and submitted that the Summary, as well as the overall message of the report, was completely ignored by the Tribunal to give an opposite message.
b)In the case of Applicant A165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (citation omitted) per Lander J the principles involving apprehended bias were clearly set out. It was submitted that an impartial bystander would think that the Tribunal was looking for information to deny the applicant refugee status. It was further submitted, that the Tribunal was not balanced and was manipulating the Amnesty Report to present the picture it wanted to present. The applicant then cited Lander J further at [85]-[86].
In respect of Ground 3 and in particular (i), the pleadings were repeated and the following submissions were made:
a)In relation to racial discrimination and/or racial harassment, the Tribunal made reference to the applicant’s reasons for claiming to be a refugee as they appeared in his visa application:
“The authorities of the country are partial. Most of the police and such services are filled by the indigenous Fijians and it is very hard to report any racial aggression. The Indians are so afraid to going to police as the members of Indian communities have experienced further humiliation while reporting unsuccessfully there is no protection for the applicant in his country.” (CB p.20)
The applicant’s claims in relation to the Fijian authorities appear at pp.58-59 of the Court Book.
b)Particulars (ii) and (iii) of Ground 3 were repeated and it was submitted that the Tribunal would make jurisdictional error if it failed to understand and address the claim that the applicant put to it: Dranichnikov; SGBB v Minister for Immigration & Multicultural & Indigenous Affairs at [16]-[18].
Respondent’s submissions
Mr R Beech-Jones of Counsel, appearing for the respondent, filed written submissions prior to the hearing. The first ground asserted that the Tribunal wrongly applied the test of “persecution” by its failure to conclude that the incidents of harassment described by the applicant constituted persecution. In respect of Ground 1, it was submitted:
a)A reading of the Tribunal’s reasons revealed that, at the outset, it correctly described the operation of s.91R of the Act (CB p.57.3). It then applied this definition to the facts as found by it (CB p.63.10-64.1). The Tribunal did not make the error identified by Merkel J in VTAO of treating s.91R(2) as an exhaustive statement of the concept of serious harm in s.91R(1)(b). Otherwise a determination of what constitutes “persecution” is clearly a question of fact and degree: Lek v Minister for Immigration at 427. The position is no different in relation to the phrase “serious harm”. There was no basis for suggesting that the Tribunal misapprehended or misapplied the correct test
In respect of Ground 2, it was asserted that the Tribunal committed jurisdictional error in that a reasonable observer would have apprehended bias on the part of the Tribunal in the manner in which it dealt with country information and conducted the hearing. Three particulars of this ground were provided:
a)The first particular asserted that the Tribunal referred to an Amnesty Report in 2003, “to imply the human rights situation is getting better”. It was then said that a reading of the Amnesty Report did not support the assertion that the human rights situation was improving and that this discrepancy demonstrated bias on the part of the Tribunal. This was misconceived. The only significance of the quote from the Amnesty Report in the Tribunal’s Reasons (CB p.61) was that it explained the operation of the Human Rights Commission in Fiji. It was clear that the Tribunal’s later findings concerning the situation in Fiji were based upon the various DFAT Reports (CB pp.59-62). To the extent that the DFAT Reports represented the situation in Fiji differently to the Amnesty Reports then the reasons merely revealed that the Tribunal preferred the DFAT Reports. Such a process of reasoning does not raise any apprehension of bias, by way of pre-judgment. It merely revealed the process by which the Tribunal arrived at its final judgment.
b)The second particular asserted that bias was made out because the Tribunal did not take into account critical information set out in the US State Department report on Human Rights in Fiji for 2003 (CB pp.60-61). The very fact that the Tribunal chose to refer to this material in its Reasons was a strong indication that it did take into account this material. However, as noted previously, in its final assessment it appeared to have preferred the DFAT Reports.
c)The third particular of apprehended bias concerned the course of the Tribunal hearing. It was asserted that the Tribunal “cut off conversation” with the applicant (transcript p.8.8). A reading of that part of the transcript revealed no such thing. It was further asserted that the exchange during the hearing in which the Tribunal member asked the applicant about his relatives in Australia (transcript p.11.7) showed some lack of interest on the part of the Tribunal member in relation to the critical issues for its determination. A reading of the entirety of that transcript provided no support for this submission. Immediately prior to that exchange the Tribunal member indicated that it had no further questions to ask of the applicant. It then gave him the opportunity to put anything he would like to say (transcript p.11.6). After the applicant had exhausted that opportunity it then asked the question concerning his relatives in Australia (transcript p.11.8).
Ground 3 of the application asserted that the Tribunal ignored the applicant’s claim that complaints by Indo-Fijians of discriminatory treatment were ignored by the police. This “claim” appeared to be a reference to that part of the visa application form (CB p.20) in which the applicant was asked, “Do you think the authorities of that country [Fiji] can and will protect you if you go back? If not, why not?” The applicant responded, “The authorities in the country are partial”. The applicant appeared to assert that this claim was not understood nor addressed by the Tribunal. This ground has no substance because the claim was “addressed” in two ways, namely:
a)Firstly, to the extent that applicant claimed he had been harassed, the Tribunal found that the harassment did not constitute a sufficiently severe interference with his rights to amount to persecution. Accordingly, no question of the adequacy of the State authorities’ response was required to be decided to determine his claim.
b)Secondly, in any event, the Tribunal addressed this claim but rejected it in that it made findings that adequate protection was available from Fijian authorities for Indian Fijians (CB p.64.3).
Reasons
Ground 1
In respect of the Ground 1, I accepted the submissions made by the respondent’s Counsel that the concept of persecution has a statutory definition under s.91R(1) of the Act and has three elements. The first element is the causation element, that is:
“a)… the essential and significant reasons, for the persecution …”
– and that ultimately ties in with the Convention reasons.
The second element is that:
“b)The persecution involves serious harm to the person.”
The third element is that:
“c)The persecution involves systematic and discriminatory conduct.”
Then in subsection (2) there is a discussion of what is meant by “serious harm”.
This amendment to the Act postdates the decision of Ibrahim which was relied upon by the applicant. However, Counsel for the respondent took me to the decision of Her Honour Gaudron J at [15]-[16] to which the applicant had referred:
“ … to establish that the conduct in question is "for reasons of" race, religion, nationality, etc, the individual concerned may seek to establish that that conduct is systematic, in the sense that there is a pattern of discriminatory conduct towards, for example, persons who belong to a particular religious group.
The Convention does not require that the individual who claims to be a refugee should have been the victim of persecution. The Convention test is simply whether the individual concerned has a "well-founded fear of persecution". Nor does the Convention require that the individual establish a systematic course of conduct directed against a particular group of persons of which he or she is a member. On the contrary, a well-founded fear of persecution may be based on isolated incidents which are intended to, or are likely to, cause fear on the part of persons of a particular race, religion, nationality, social group or political opinion.”
It was submitted that Her Honour was directing herself not to whether the harm was sufficiently serious to amount to persecution but to the interrelationship between whether there was systematic conduct directly towards a person or a group and whether that was necessary for there to be persecution. It was submitted that was the debate in Ibrahim and that debate is now addressed in s.91R of the Act.
Counsel for the respondent submitted that this consideration was not relevant to this case and that the Tribunal addressed the correct issue in its decision as follows:
“The Tribunal is satisfied that the applicant’s ethnicity was the essential and significant reason behind these acts of discrimination.” (CB p.63)
It was submitted that the Tribunal clearly directed itself to subsection 91R(1)(a) of the Act. The reference to discrimination was simply noting the kind of discussion that Her Honour Gaudron J was talking about, namely, conduct directed against the applicant by reason of his race. The submission was that the Tribunal’s finding was in the applicant’s favour. However, the Tribunal had to address the question of whether the harm was sufficiently serious. The Tribunal also noted:
“The Tribunal appreciates that regular and petty acts of discrimination of the kind described by the applicant are unpleasant and undesirable. However, whilst persecution involves discrimination that results in harm to an individual, not all discrimination will amount to persecution (see Haji Ibrahim (2000) 204 CLR 1 at 18-19 per McHugh J). Without wishing to understate the unpleasant nature of the applicant’s experiences, the Tribunal is satisfied that the discrimination the applicant faced, assessed cumulatively, does not reach the standard of persecution within the meaning of the Convention as outlined on page 3 of this decision.” (CB pp.63-64).
Page 3 of the Tribunal’s decision set out the concept of persecution and in particular the concept of serious harm (CB p.57).
Counsel for the respondent submitted that the Tribunal applied the correct test in that it first asked whether the applicant’s race was an essential and significant reason for the conduct. The Tribunal then asked whether the conduct was serious harm. In respect to the applicant, the Tribunal stated that it considered the harm to be unpleasant and undesirable but it was not sufficiently satisfied that it reach the standard of serious harm. The process of reasoning involves the assessment of an issue which is clearly a question of fact and degree. The respondent’s submission was that it was an application of the correct test and I accepted that submission.
The remaining issue under this ground was the applicant’s parents’ lease over the land they occupied expiring and the refusal by the owners to renew the lease. The Tribunal noted that there was eligibility for compensation and for the allocation of alternative land but no question of serious harm arose in relation to the applicant’s concerning this non renewal of his parents’ lease.
Ground 2
In Ground 2 the applicant alleged bias on the part of the Tribunal. The applicant referred to reports from the US Department of State, Amnesty International and the Department of Foreign Affairs & Trade (DFAT). All three reports were referred to in the Tribunal’s decision. It was the applicant’s contention that DFAT was inherently biased in relation to refugee matters and that the Tribunal preferred the DFAT reports in preference to other material. The respondent submitted that the allegation of bias was no higher than the Tribunal was mistaken in preferring those allegedly biased DFAT reports to those allegedly impartial US State Department and Amnesty International reports. The respondent Counsel, however, submitted that it could be demonstrated that there was no difference in the reports. To illustrate this matter, Counsel for the respondent referred to the Amnesty International report which dealt with the question of people responsible for coup related racist violence, torture and extra jurisdictional executions. The report paid special attention to these issues under the heading “Post Coup Legal Developments”. What Amnesty addressed in particular were the somewhat notorious events involving the coup and then the interrelationship and the incriminations at the high end of the Fijian political system as to what was to happen to those responsible. It was argued that Amnesty was not addressing in any way the circumstances involving the applicant, which was what the Tribunal was addressing. There was nothing to suggest that the applicant would fall within any of the relevant areas of discourse which concerned the treatment of Fijian people who were either victims of coup related violence or were perpetrators.
The applicant also made criticisms in relation to the DFAT report in that the defect in the report was that it constantly addressed the situation in Fiji from a government perspective. The counter argument and the explanation for the report’s approach lay with the question that was being asked.
Question: [24/09/01]
“Subsequent to the recent election in Fiji, can you provide an update on the latest security situation for significant groups in Fiji especially Indo Fijian and indigenous Fijian communities opposed to Speight?”
It was submitted that the report referred to the position in Cabinet and the position from the government perspective and the position of Mr Speight and concludes that there was no significant change. The submission by the respondent was that that was an appropriate answer to the question posed but it did not demonstrate a systematic bias, either on the part of the DFAT or bias on the part of the Tribunal.
Having read the three reports in their entirety and then the relevant sections extracted and reproduced in the Tribunal’s decision, I accepted the respondent submission that the Tribunal’s reliance on the material supplied by the DFAT accurately addressed the situation of the applicant in Fiji and did not support the argument that the way in which the reports were used produced bias.
The other allegation of bias related to the Tribunal member interrupting and preventing the applicant from giving his answer to the questions asked. Counsel for the applicant suggested in his submissions that it was the Tribunal’s approach to hinder the applicant and to cut off his conversation on critical matters. A transcript of the Tribunal hearing was attached to the affidavit of Sylvia Nicholas Silva which was previously tendered as evidence. The respondent sought leave to tender the cassette tape of the hearing and to play the relevant parts of the tape that have been pleaded in respect of this ground. Leave was granted and the tape was entered into evidence as Exhibit RR. The relevant section of the transcript where the first of these interruptions were alleged is set out as follows:
Transcript (p.8.8)
Tribunal:But how do you know if your father hasn’t done anything about it? You said that your father hasn’t done anything about it so has he approached the authorities, has he gone to ask someone about compensation?
Interpreter (responding on behalf of applicant):
He talked to a lawyer.
(Alleged interruption)
Tribunal:Are you working in Australia?
The suggestion in the applicant’s submissions was that he was cut off before he could complete the answer “He talked to a lawyer”. The suggestion was that the Tribunal was somehow distracted or bored or could not be bothered with the significant matters. The whole exchange preceding the brief section reproduced above addressed the position of the applicant’s father’s land and what options were open to his father. When the Tribunal tape was played in Court there was a considerable pause of approximately 26 seconds before the Tribunal member asked “Are you working in Australia?”.
The second incident complained of by the applicant’s Counsel occurred later in the Tribunal hearing and is reproduced as follows:
Transcript (p.11.4)
Tribunal:But the blue print doesn’t exactly say that. It’s more like an affirmative action that provides more facilities or more opportunities for indigenous Fijians but it doesn’t necessarily take away the rights of Indian Fijians.
Interpreter: Everywhere you see now, everywhere, every place there are indigenous Fijians there.
(Alleged interruption)
Tribunal:Okay. I have no further questions to ask you. Is there anything that you’d like to say that you haven’t said so far?
Again the applicant was given the opportunity to add further information. There was nothing to suggest any kind of hindrance or cutting off by the Tribunal member and, in fact, it was quite to the contrary when the tape was played in Court there was a distinct and clear pause lasting approximately 15 seconds between the last words repeated by the interpreter and the next question asked by the Tribunal member. Counsel for the respondent submitted that the Tribunal hearing was conducted with courtesy and the applicant had every opportunity to put what he wanted to the Tribunal member. There was nothing to suggest the Tribunal had formed any credence to the view concerning the applicant. Having had the benefit of hearing the tape of the Tribunal hearing, I cannot accepted the allegation of apprehended bias by the Tribunal and I believe the applicant was given every opportunity to express his views without any hindrance or interruption.
Ground 3
Ground 3 related to the issue of the police in Fijian being not responsive to complaints made by people such as the applicant. The first argument submitted in response to this ground was that because of the basis of the Tribunal’s reasoning that the incidents complained of did not constitute persecution then the question simply did not arise. If the applicant was not persecuted then it was not an issue of whether or not the state could protect him from the alleged harassers. However, in any event, the Tribunal did address the position in Fiji with regard to the Indian Fijians who have access to protection (CB p.64). The Tribunal referred to there being no evidence of any significant mistreatment of Indian Fijians and proceeded to address the law or situation in Fiji as being stable. The Tribunal did appear to accept that there was a likelihood of what could be called “low level harassment” continuing, but that harassment was not considered to be persecution. If there was something of greater mistreatment then it saw that the agencies of the State were there to protect the applicant. I accepted that the Tribunal considered and adequately addressed this question whilst acknowledging that protection cannot be absolute but that the State did offer the Indian Fijians protection.
Conclusion
Having considered the submissions made by both Counsel, I have not been able to identify any grounds that the Tribunal has committed any jurisdictional error. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 April 2005
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