NAKM v Minister for Immigration

[2004] FMCA 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAKM & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 194

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether the Tribunal failed to take into account relevant considerations asked itself the wrong question or failed to consider whether the applicants belonged to a particular social group – no jurisdictional error.

Migration Act 1958

Minister for Immigration & Multicultural Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
W396/01 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 68 ALD 69
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs;  Appellant S [2003] HCA 71
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
NAAT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 323
Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244

Applicant: NAKM & NAKN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ638 of 2003

Delivered on:	8 April 2004
Delivered at:	Sydney

Hearing date: 20 February 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Dr S Churches

Solicitors for the Applicant: Michaela Byers Solicitor

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ638 of 2003

NAKM & NAKN

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 17 June 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicants and their two children protection visas.  The applicants are citizens of Fiji who arrived in Australia on 24 February 2001.  On

   
   

   20 March 2001 they lodged an application for protection visas.  On

   
   

   5 April 2001 a delegate of the respondent refused to grant the protection visas and on 4 May 2001 the applicants applied to the Tribunal for review of that decision.  The Tribunal held a hearing at which both applicants gave evidence on 30 April 2002. 

2. The applicants, who are Indo-Fijians, claimed to fear persecution from native Fijians for reason of their race and their religion.  Essentially they claimed to have been discriminated against and subjected to numerous incidents of violence, threats, harassment, discrimination and demands for money by native Fijians while occupying leased farming property.  The applicant husband also claimed that following the May 2000 coup he was assaulted and threatened by Fijians to whom he had to pay money, that there was a lack of freedom of speech and opinion in Fiji and that he was unable to practise his religion.  His farm crops had been burned.  Further his wife had suffered a trauma having been raped by three native Fijian soldiers in 1987 coup.  He claimed that they could not rely on the authorities in Fiji to protect them and that the Fijian government discriminated against Indo-Fijian citizens and treated them as third class citizens.  He claimed that the non-renewal of his land lease had seriously affected his family and that the Native Land Trust Board had not responded meaningfully against native Fijians who were possessing land without compensating tenants.  He feared that his life and his family’s life would be at great risk if they returned to Fiji and that he could not guarantee shelter for his family as their land lease had expired. 

3. Both the applicants had previously lived for periods in Australia during which time they had each lodged unsuccessful applications for refugee status.  They met in Sydney and married in Fiji in 1995.  After his return to Fiji and marriage, the husband worked on a sugar cane farm (previously run by his father until his death in 1992 and then by his brother).  The rental was $560 per year.  He received a letter from the Native Land Trust Board dated 30 August 1999 offering him a new agricultural tenancy over the farm for 30 years from 1 January 2000 at a rental of $700 per annum on payment of consideration for the new lease of $14,790 including V.A.T. plus costs, stamp duty and registration.  The up-front costs including one year’s rental amounted to $16,514.75. 

4. The applicant husband told the Tribunal that the native Fijian landowners also wanted $5,000 to sign documents so that his application could proceed.  He stated that he had paid $2,000 to the landowners in May 2000 but the lease could not proceed unless he paid a further $3,000 to the landowner.  He did not pay the new lease consideration, rental or other fees or sign a new lease.  He claimed that the $5,000 that he was asked to pay was nothing to do with the amount required by the Native Land Trust Board and that the proposed lease would cost him $40,000 over 30 years and every day the landowners would still come and ask him for money.  The applicant husband complained that before the coup the board had dealt with native land leases on behalf of land owners, but that after the coup it was necessary to obtain the approval of the landowners themselves and he had been asked to pay $5,000 for their approval.  He later told the Tribunal that he had paid $560 rental during 2000 although he had no lease during that year.  He had no lease because he was unable to pay $16,000 to the board or the rest of the money the landowners wanted to sign the lease.  The applicant husband told the Tribunal that he had learnt to farm as a boy on weekends and had worked for nearly seven years as an electrician in the city in Fiji.  He suggested that from the time of the May 2000 coup native Fijians regularly asked him for money.  He had refused once and was “bashed up” in June 2000.

5. The Tribunal accepted that during and after the May 2000 coup the applicants were subject to assaults (one on the applicant husband being more serious) threats, intimidation for money for food and humiliating treatment in front of their children who were spat on.  The Tribunal also accepted that they had been hindered in the practice of their religion to the extent that they did not hold religious celebrations at home for fear that native Fijians would approach them for money.  The Tribunal also accepted that the applicant husband feared he would not be able to provide food and shelter for his family and that a major concern for him was the fact that he was unable to afford the lease renewal amount set by the native landowners, would not be able to return to the land and may be unable in the future to afford another farm lease. 

6. The Tribunal accepted that the applicant wife had suffered much trauma, mental stress and anxiety as a result of her traumatic experiences during the coup in 1987 (when she was raped) and that the husband had also suffered some trauma.  The Tribunal also accepted that their sugar cane crops were burnt in the May 2000 coup, that they experienced an assault and damage to their house windows at that time and that they had experienced fortnightly and then monthly visits from the native Fijian owners who subjected them to frightening but low level harassment and abuse.  The Tribunal also accepted that, because of the economic downturn caused by the May 2000 coup in Fiji, the applicant husband would face difficulties in getting re-employed as a farmer or as an electrician (the trade he had worked at for 7 years prior to farming) if he returned to Fiji.  While the Tribunal accepted that there was a slow police response to crime reports in Fiji during the period of the coup it did not have sufficient evidence to find that such slow responses were attributable to racial or religious reasons.

7. However, the Tribunal concluded that the applicants had not suffered sufficiently serious harm, mistreatment or harassment to enable it to be satisfied that they had been persecuted or would face persecution for a Convention reason if they returned to Fiji.  The Tribunal had regard to independent information in relation to the situation in Fiji at the time of and after the coup and at present.  It found on such information that security and safety for native-Fijians and Indo-Fijian citizens existed in Fiji today, that violence against Indo-Fijians was not tolerated by the interim Fijian government nor the previous caretaker government and that the present government was willing and able to control violence in the Fijian community.  The Tribunal also accepted country information that Fijian police do follow up reports of crime.  While it accepted that the applicant husband feared reprisals (in particular from a named Fijian criminal) and ineffective police investigations, it preferred the country information to the evidence of the applicant on this issue.  On the basis of this independent information the Tribunal found that effective protection from the Fijian authorities would be available to the applicants if they returned to Fiji.  The Tribunal also had regard to independent information in relation to the absence of a risk of institutionalised mistreatment of returning Indo-Fijians.  The Tribunal was of the view that if the applicants were to return to Fiji they would not face persecutory harm, discrimination or mistreatment from the native Fijian community and that the Fijian authorities and police have restored law and order.  The Tribunal did accept that the applicants would be wary of and have a general apprehension of the possibility of harm from native Fijians. 

8. The Tribunal accepted that the applicants would experience difficulties re-establishing themselves, obtaining a liveable income and suitable accommodation in Fiji.  However having regard to indications in independent country information of an improved economic outlook and to its conclusion that the husband had skills and experience as a farmer and electrician, the Tribunal was satisfied that the applicant husband would be able to find work and accommodation and continue to earn a living and subsist in Fiji.  The Tribunal did not consider, on all the evidence, that the applicants would experience on return to Fiji significant economic hardship, or denial of capacity to earn a livelihood of any kind, that would threaten their capacity to subsist.  In coming to this conclusion the Tribunal took account of the husband’s work experience and skills and the possibility of some family support from Fijian and Australian relatives (which the applicant had described as having occurred in the past).  The Tribunal was not satisfied that the economic hardship that the applicants had faced amounted to persecution nor was it satisfied that they would face hardship amounting to persecution on return to Fiji. 

9. In relation to religious discrimination and harassment, the Tribunal accepted that a claimed incident had occurred but, on the basis of independent evidence to which it referred, particularly in relation to the current freedom of religion in Fiji, the Tribunal was not satisfied that the applicants had been sufficiently seriously harmed, harassed or discriminated against in the past to amount to persecution for reason of their religion or that there was a real chance that they would be persecuted for reason of their religion in the reasonably foreseeable future.  In conclusion, the Tribunal was not satisfied that there was a real chance that the applicants would suffer persecution for any Convention reason in the reasonably foreseeable future if they returned to Fiji or that their fear of persecution in Fiji was well founded. 

10. The applicants sought review of the Tribunal decision in an application filed in the Federal Court on 10 March 2003. It was not clear from that application whether the applicants sought review of the Tribunal decision handed down on 9 July 2002, of an earlier decision of the Refugee Review Tribunal of 17 May 1995 which had affirmed a decision to refuse to grant a protection visa to the applicant wife or of a decision of the Minister not to exercise his power under s417 of the Migration Act 1958 (the Act) to substitute a more favourable decision for the 2002 Refugee Review Tribunal decision. The matter was transferred to this Court on 14 April 2003. On 16 April 2003 the respondent filed a Notice of Objection to Competency on the basis that the Court lacked jurisdiction to consider the Minister’s decision whether or not to exercise power under s417 of the Act. Subsequently the applicant was ordered to file an amended application. The amended application, filed on 2 July 2003, makes it clear that the decision in relation to which review is sought is the decision of the Tribunal made on 17 June 2002 (albeit that the amended application refers to handing down of the decision on 9 September 2002 whereas it is clear from the material before the Court that the decision was handed down on 9 July 2002). The applicants filed a further amended application on 20 November 2003.

This application

Ground 1:  Whether the Tribunal failed to take into account relevant considerations?

1. The applicants claim first that the Tribunal failed to take into account evidence that was critical to the application for refugee status and that this failure constitutes a jurisdictional error.  The particulars of this claim are that it was contended that the Tribunal had failed to take into account –

   ‘the evidence of racial discrimination against Indian Fijians in the activities of the Native Land Trust Board which in late 1999 demanded from the applicants a sum totalling $19,500 for the opportunity to renew a 30 year lease for which the annual rental had previously been $560 per annum.  The male applicant put on evidence that the activities of the Board were conducted in an extortionate manner.  There was evidence that the vast bulk of the lease holders were Indo-Fijians renting from indigenous landowners.  There was independent country information (ICI) corroborating that the leaseholders were in a poor position after the 2000 coup.  The male applicant specifically couched his application in terms of the racial discrimination he faced because of the non-renewal of his lease, and the resultant insecurity he felt.  The DFAT Report of 3 April 2001 was set out in full in the Tribunal ‘Decision and Reasons for Decision’ under the heading ‘Country Information’, and that Report contains the information that farmers who are unable to re-lease their land are being housed in ‘displaced persons camps’ (a certain mark of inability or unacceptability to be assimilated in the community).  None of this material was analysed by the Tribunal in coming to its conclusion.’

2. It was conceded by Counsel for the applicant that the Tribunal set out an accurate summary of the applicants’ claims in relation to the non-renewal of the land lease in the ‘Claims and Evidence’ part of the Tribunal reasons for decision.  However it was claimed that in making its decision the Tribunal had failed to take account of relevant considerations in the sense referred to in MIMA v Peko-Wallsend (1986) 162 CLR 24, MIMA v Yusuf (2001) 206 CLR 323, and Htun v MIMA (2001) 194 ALR 244 at [259] as discussed in SCAT v MIMIA [2003] FCAFC 80 and W396/01 v MIMIA (2002) 68 ALD 69 at [31] – [38]. It was contended that the Tribunal focus in its reasons for decision on the coup of May 2000 and the sequelae to the coup was not what the claim was about and that relevant considerations were not taken into account in the Tribunal’s consideration of the concept of persecution within s.91R of the Migration Act 1958, in particular “serious harm” within s.91R(2). It was submitted that in the ‘Findings and Reasons’ part of the Tribunal reasons for decision the Tribunal had failed to have regard to or address the integers of the applicant’s claims as necessary in the mere ‘passing reference’ as follows: ‘He [the applicant husband] mentioned the non-renewal of land leases, which has seriously affected his family, and complained that the Native Land Trust Board (NLTB) had not responded meaningfully against the native Fijians, who are continuously possessing land without compensating the tenants’. It was also suggested that the Tribunal had failed to have regard to the applicants’ claims in relation to changed circumstances in Fiji, the position of the land owners and extortion of Indo-Fijian farmers and the consequential impact on their capacity to earn a livelihood (in relation to which there was said to be further evidence from the applicant husband not taken into account). It was submitted that in failing to take into account such considerations the Tribunal had failed to ask the right question and that this was a constructive failure by the Tribunal to exercise its jurisdiction. It was contended that the correct question was whether the behaviour of the indigenous-run Land Board from January 2000 operated in a way such as to amount to discrimination being persecution of the applicant husband as an Indo-Fijian. It was said the brief consideration and dismissal of the applicant husband’s concerns in relation to non-renewal of the land lease was not a meaningful analysis and was not factually correct.

3. There are a number of points to note about this claim.  First the precise claim made by the applicants was not that the sum of $19,500 had been demanded by the Native Lands Trust Board in association with other moneys required for the renewal of the lease.  Rather it was claimed by the applicant husband that while prior to the 2000 coup he had dealt with the Land Board without difficulty, after that time he was forced to deal with the landowners themselves.  The landowners demanded $5,000 Fijian to sign papers so that his application with the Board could proceed with their agreement.  The Board required payment of new lease consideration of $14,500 (plus VAT), and payment of their costs, stamp duty, registration and survey fees and rental of $700 per annum.  Secondly, it is apparent from the Tribunal summary of the applicant husband’s claims and his evidence at the hearing that the actual claim made was correctly understood by the Tribunal.  While the relatively brief mention of the non-renewal of land leases in the ‘Findings and Reasons’ part of the decision could be said to be incomplete on its face, the Tribunal reasons should be read as a whole and this comment considered in the context of the more detailed (and accurate) summary earlier in the reasons for decision.  The Tribunal expressly stated in the ‘Findings and Reasons’ part of its decision that it accepted the applicant’s evidence described as “at pages 7 to 12 above” which includes the correct summary of the claims in issue in relation to a number of matters including:

   “that the applicant husband fears he will not be able to provide food and shelter for his family and that a major concern for him is the fact that he was unable to afford the lease renewal amount set by the native landowners, or not be able to return to it and maybe unable to afford another farm lease”. 

4. The Tribunal also accepted that the applicant had experienced regular visits from the native Fijian landowners who subjected him and his wife to frightening but low-level harassment and abuse.  I am satisfied that the Tribunal accepted that part of the applicant’s evidence which included the summary of the evidence given at the hearing in relation to the non-renewal of the lease.  Counsel for the applicants contends that it was not implicit in the Tribunal taking on board what the applicant husband had said in the hearing (in its reference to ‘accepting’ the evidence of the applicant) that such material was before the Tribunal and considered by it and that SCAT v MIMIA [2003] FCAFC 80 established that crucial matters and integers of the claim need to be dealt with expressly. In SCAT the Tribunal had made an inadequate summation of one item of evidence and omitted to refer at all to aspects of the material from the applicant which raised a claim of potential psychological harm.  However in this instance the Tribunal accepted all of the claims made by the applicant.  It went on to determine the matter on the basis that such events had occurred.  It was not necessary for it to refer in its reasoning to each of the items of evidence or all the detail of the claims accepted by it.  I am satisfied that in making its findings the Tribunal had regard to the accurate summary of the applicants’ claims earlier in its reasons. 

1. Reading the Tribunal reasons fairly and as a whole this is not a case where the Tribunal has omitted any reference to or failed to consider particular aspects of the applicants’ claim. The claims in this respect were accepted by the Tribunal in their entirety. Such claims were relevant to the Tribunal consideration of the notion of persecution within section 91R of the Act (in particular the concept of serious harm in paragraphs (d) and (e) of s.91R(2)). The Tribunal had regard to the applicant husband’s claim that he was unable to afford the lease renewal amount (and this clearly includes a reference to the lump sums he was asked to pay not simply the increased rental) in considering whether or not there had been persecution involving serious harm (particularly constituted by significant economic hardship or denial of capacity to earn a livelihood or threatening the applicant’s capacity to subsist). His claim of harsh treatment was associated with a claim that he could not afford the amount claimed and could not afford to go on living as a farmer, this being his source of income when he last lived in Fiji.

2. Having accepted the applicant’s claims in this regard and that he held the fears that he expressed, the Tribunal nonetheless correctly considered what would be the economic impact and whether there would be serious harm to the applicant from his inability to renew the lease. It is implicit in the Tribunal acceptance of the applicant husband’s evidence that it accepted that he could not afford to renew the lease on the conditions imposed. On this basis the Tribunal went on to consider the applicant’s prospects on return to Fiji, bearing in mind that he had been a farmer from 1995 to 1999 and in light of country information about the improved economic situation in Fiji after the coup. The Tribunal considered the individual circumstances of the applicant husband, his experience as a farmer and also as an electrician (which occupation, as correctly summarised in the Tribunal reasons for decision, he had carried out for some seven years). On the basis of these individual circumstances it found that the applicant husband would be able to find work and accommodation, continue to earn a living and subsist in Fiji. Such findings were open to the Tribunal on the material before it. It is not for the Court to review the merits of the claim. In concluding that it was not satisfied that the economic hardship the applicant had previously faced amounted to persecution or that the applicants would face hardship amounting to persecution under the Convention in Fiji (see section 91R(2)(d)) the Tribunal did not fail to consider an integer of the applicants’ claims. It accepted the applicant’s claims in relation to non-renewal of the lease and the events surrounding such non-renewal in their entirety, addressed the issue of economic hardship following the failure to renew the lease and the applicants’ departure from Fiji and found that the applicants did not face such hardship as to amount to persecution. The Tribunal addressed itself to the events of the future by reference to its findings of past events (including the acceptance of the claims about the non-renewal of the lease). Such past events did not of themselves determine the Tribunal’s decision. While the Tribunal accepted that the applicant husband subjectively feared that he would not be able to earn a livelihood or would suffer significant economic hardship it found that such fear was not well founded. The Tribunal properly considered relevant issues. It was not satisfied that the hardship the applicants had previously faced amounted to persecution or that they would face on their return to Fiji hardship amounting to persecution under the Convention. (See Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [192] per Gummow and Hayne JJ). It has not been established that the Tribunal failed to take into account relevant considerations (Yusuf, Htun and SCAT). 

Ground 2:  Whether the Tribunal asked itself the wrong question?

1. The particulars of this ground are that the Tribunal:

   ‘has failed to ask itself (in its reasoning, as opposed to a declamatory flourish in the last paragraph) whether the applicants have a real chance of being persecuted in the terms of the Convention:  do they have a well-founded fear of persecution for a Convention reason?  Instead the Tribunal has focused on whether there will be persecution, as opposed to the fear of persecution.’ 

2. It was contended that the Tribunal focused on the objective portion of the test of well-founded fear without taking into account the subjective requirement (as to which see Chan v MIMA (1989) 169 CLR 389 at 406 per Toohey J) and that in so doing the Tribunal failed to deal with the necessary question of whether the applicant has a well-founded fear of persecution for a Convention reason (Abebe at [199] per Gummow and Hayne JJ). It was submitted specifically that while the Tribunal had accepted “that the applicants would be wary of and have a general apprehension of the possibility of harm from native Fijians”, it had failed to deal with the applicants’ apprehensions (and evidence for them) and had considered not whether they had a well-founded fear of persecution but whether or not there will be future persecution. It was also submitted that it was not sufficient for the Tribunal to say that law and order had been restored in Fiji and that the applicants would not face persecutory harm.

3. As Toohey J said in Chan at 406:

   The use of the adjectival expression “well-founded” must be taken as qualifying in some way the “fear of persecution”.  It is hard to conceive of a fear which has no objective foundation at all as well-founded, no matter how genuine the fear might be.  If the test were entirely subjective, the expression “well-founded” would serve no useful purpose.  On the other hand, it is fear of persecution of which Art 1A(2) speaks, not the fact of persecution.  So it is apparent that while the requirement is not entirely subjective, it is not entirely objective.  Both elements are present.  There must be a fear on the part of the applicant and that fear must be of persecution. 

4. The applicant contended that the Tribunal did not properly set out its reasoning process in considering well-founded fear in accordance with the principles in Chan and Abebe or meet its obligation “to assess whether there is a real risk that an applicant may suffer persecution in future taking into account the possibility that the applicant may have experienced the events claimed before the Tribunal” (N1202/01A v MIMIA (2001) 68 ALD 21 at 49).

5. However in this case the Tribunal did address both the subjective and objective elements of the test of well-founded fear of persecution.  It accepted that the applicants would have some fear (in its description of “apprehension or wariness”) of harm from native Fijians.  It accepted such apprehension in the context of accepting what the applicants had said in relation to past events.  This is not a case where the Tribunal did not accept or had some doubt about whether or not an applicant had experienced claimed mistreatment (cf N1202/01A and Abebe at [192]). The Tribunal concluded, however, that the applicants had not suffered sufficient serious harm, mistreatment or harassment to enable it to be satisfied they had been persecuted. Nor, for reasons that the Tribunal gave, was it satisfied that they would face persecution under the Convention if they return to Fiji. In other words, while accepting that subjectively the applicants had some fear in relation to the future, the Tribunal considered but was not satisfied that the objective element of well-founded fear of persecution was met. If the Tribunal makes a factual finding that persecution will not occur, any fear, albeit genuine, cannot be well founded.

6. The Tribunal did not err as contended.  Indeed it would be open to the Tribunal to focus on the objective element of the test, as if that element of the definition were not satisfied the applicants would not be refugees within the meaning of Article 1A(2) of the Convention.  Part of the assessment of the objective part of that element was necessarily the question of the possibility of there being persecution and an assessment of the probability of it occurring (see Appellant S395/2002 v Minister for Immigration & Multicultural Affairs;  Appellant S [2003] HCA 71 at [72] to [77] per Gummow and Hayne JJ outlining the applicable principles in relation to consideration of this issue). As was stated at [72]: “It is well established that the Convention definition of ‘refugee’ has subjective and objective elements. Does the applicant fear persecution for a Convention reason (the subjective element)? Is that fear well-founded (the objective element)? The fear will be well founded if there is a real chance that the applicant will face persecution for a Convention reason if the applicant returned to the country of nationality”. As their Honours point out, the objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. As the question requires prediction of what may happen, it may be instructive for the decision-maker to examine what has happened in the past as well as how persons like the applicant have been or are being treated in the applicant’s country of nationality, while at the same time examining how the particular applicant before the Tribunal may be treated if he or she returns to the country of nationality (at [73] – [75]).

7. In this instance the Tribunal had regard not only to past events but also to general circumstances in Fiji as well as to the specific circumstances of the applicants.  It did not simply rely on independent information in relation to the situation in Fiji, albeit that it had regard to such information in considering how Indo-Fijians like the applicants have been or are being treated in Fiji.  (See S395 at [75]).  The Tribunal did not ignore the subjective element of the Convention definition, rather it found that the objective element (of whether the fear was well founded) was not established.  It was not satisfied that there was a real chance that the applicants would face persecution for a Convention reason if they returned to Fiji.  No error is apparent in this aspect of the Tribunal reasons for decision.

8. Moreover, the associated complaint that the Tribunal erred in failing to address the applicant’s fears that he would be unable to earn a livelihood because of the difficulties of returning to farming without a lease and that he had a well-founded fear of persecution consisting of the serious harm of significant economic hardship imposed by native Fijians by reasons of his race is not made out.  The Tribunal accepted the applicant had fears and addressed the real chance test to determine whether the applicants had a well-founded fear.  It was not satisfied that the applicant would face persecutory harm, discrimination or mistreatment from the native Fijian community. In other words in relation to the economic and associated issues the Tribunal was not satisfied that the applicants would face what amounted to persecution within section 91R, in particular that what would eventuate would constitute serious harm within section 91R(2). This is clear from the Tribunal’s conclusion that it was not satisfied that the applicants will face on return to Fiji hardship amounting to persecution under the Convention. Hence there was no real chance of harm amounting to persecution and no real chance that the applicants will suffer persecution for any Convention reason. It is not established that the Tribunal misunderstood the real chance test. It properly applied this test. In relation to the particular issue of religious discrimination and harassment raised by the applicants, the Tribunal considered that the applicants had not been sufficiently seriously harmed, harassed or discriminated against in the past to amount to persecution for reason of their religion. On the evidence before it including country information on the freedom of Fijians to practice their faiths freely, it concluded that there was not a real chance that the applicants would be persecuted for reason of their religion in the reasonably foreseeable future. No error is established in this approach.

9. The applicant also claimed that the Tribunal engaged in ‘sloppy reasoning’ in relation to addressing the real chance of persecution, particularly in the suggestion that the applicant husband could make his living as an electrician.  It was said that the Tribunal erred in drawing the inference that the applicant could earn a living as an electrician, given the evidence before it of the low pay for electricians and the fact that the applicant husband had worked as a farmer since 1995.  However it is apparent from the Tribunal reasons for decision that the Tribunal did not state that the applicant could earn a living as an electrician.  Rather it accepted that he had skills and experience both as a farmer and electrician and on this basis was satisfied that he would be able to find work and accommodation and continue to earn a living and subsist in Fiji.  The applicants’ disagreement with the Tribunal reasoning in this respect takes issue with the fact-finding process which is a matter for the Tribunal.  It was also submitted that it was not appropriate to take possible family support into account in relation to whether there was a real fear of persecution in the future.  However, in assessing whether there was serious harm in the sense of significant economic hardship threatening a person’s capacity to subsist, the position of the particular person must be taken into account (see Appellant S395).  In this instance the applicant husband had given evidence that he had the assistance of family, particularly family in Australia, who had provided financial assistance in the past.  Such evidence was relevant and no error is apparent in the Tribunal reasoning or conclusions in this respect. 

Ground 3:  membership of a particular social group

1. It was contended in the further amended application that the Tribunal had asked itself the wrong question by failing to consider whether the applicants had a well-founded fear of persecution for reason of belonging to a particular social group of ‘Indo-Fijian farmers’.  In contrast it was claimed in the written submissions that the Tribunal failed to analyse the claim of persecution in terms membership of a social group of “non-indigenous Fijians” and that the Tribunal erred in analysing the evidence entirely in terms of the security provided by the Fijian government after the 2000 coup as the claim in respect to discriminatory leasing practices had nothing to do with post-coup security and indeed began prior to the coup.  It was suggested that the applicant had provided evidence going to the Convention definition of persecution and that it was necessary for the Tribunal to consider the claim on the basis of membership of a social group whether or not the claim was made in those terms (MIMIA v Applicant S (2002) ALD 354 at [54] and [55] per North J and [73] per Stone J and also see SDAQ v MIMIA [2003] FCAFC 120 and Htun v MIMIA (2001) 194 ALR 244 at [13] and [14]).

2. In oral submissions the claim was also put in terms of the applicants being members of a particular social group being Indo-Fijians.  There is nothing in the material before the Court (and it does not now seem to be pursued) to suggest that Indo-Fijian farmers formed a social group likely to suffer persecution any different to that posited by the applicants who put their claim on the basis of race.  More relevantly, the Tribunal found that there would not be persecution of the applicants on their return to Fiji.  Where harm does not amount to persecution the reason for the harm is not relevant.  As Sackville J suggested in NAAT v MIMIA [2002] FCA 332 while the Tribunal has an obligation to address an arguable claim notwithstanding that an applicant had not adverted expressly to the legal argument supporting the claim, such an inquiry is not necessary where the findings by the Tribunal are inconsistent with any claim by the applicant to fear persecution in his or her country of nationality for a Convention reason (at [43]). On appeal the Full Court in NAAT of 2001 v MIMIA [2002] FCAFC 323 agreed with the reasoning of Sackville J. It was also referred to with approval by Stone J in Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244 at [73]. As her Honour pointed out the Tribunal “should not limit itself to the case articulated by an applicant where the facts found by it (or, as Sackville J stated in NAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 332 at [43], not negated by its findings) might support an argument that the applicant is entitled to the protection of the Convention” at [73]. In this instance the Tribunal found that there was no real chance of harm amounting to persecution in relation to the claims of the applicants. Hence it was not necessary for the Tribunal to consider whether there was a particular social group of Indo-Fijians or, indeed, Indo-Fijian farmers.

Ground 4 – wrong question:  change since 2000 coup

1. Finally it was contended that the Tribunal asked itself the wrong question by focusing on whether the situation in Fiji had changed sufficiently since the 2000 coup to diminish the possibility of persecution.  It was contended that the Tribunal focused on what it saw as the improvements in security offered by the Fijian government since the 2000 coup, yet the applicants had offered evidence as to their persecutory treatment in the past at the hands of indigenous Fijians, not just in the coups but in numerous ways including (as was accepted by the Tribunal) assault, rape, crop damage and slow police response.  It was submitted that the Tribunal did not properly take into account the fear engendered by these past events in determining whether there was presently a well-founded fear (despite the fact that the current circumstances alone would not engender a well-founded fear in others).  Reference was made to what Gaudron J said in MIMA v Miah (2001) 206 CLR 57 at 69:

   Further, and as I pointed out in Chan [169 CLR at 415], a fear which is well founded because of persecution to which an individual has been subjected in the past will not, in the case of that individual, cease to be well founded simply because circumstances have so changed that the current circumstances would not, of themselves engender a well-founded fear in others. It is true, as Gummow J pointed out in Minister for Immigration & Multicultural Affairs v Eshetu [1999] 197 CLR 611 at 658 [150], that what I said in Chan did not represent the view of the Court in that case. However, nothing that was said in Chan or that has been said in subsequent cases suggests that what I said was wrong.

2. However, as discussed above in relation to ground two the Tribunal did accept the applicants’ claims of past concerns and that they would be wary of and have a general apprehension of the possibility of future harm from native Fijians.  The Tribunal properly, and in accordance with Chan, considered what may happen in the future starting with the events of the past, albeit that such events were not determinative of the task.  The Tribunal did not accept that the applicants’ fear was, in view of all of the circumstances, well founded.  The Tribunal properly understood its task and made no error in its fulfilment of it.

3. No jurisdictional error is established.  The application must be dismissed. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

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