NAKM v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1041

FEDERAL COURT OF AUSTRALIA

NAKM v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1041

MIGRATION – application for protection visa – persecution on grounds of race – Indo‑Fijian farmers ‑ appeal from Federal Magistrates Court – where Refugee Review Tribunal found that conduct did not amount to persecution – test for ‘well‑founded fear of persecution’ – s 91R Migration Act 1958 (Cth) – whether Tribunal applied the correct test – whether subsequent changes in country of residence relevant to whether subjective fear is well‑founded

Migration Act 1958 (Cth) s 91R

Chan v Minister for Immigration and Ethnic Affairs  (1989) 169 CLR 379

NAKM AND NAKN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 614 of 2004

BRANSON J
13 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 614 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAKM
FIRST APPELLANT

NAKN
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

13 AUGUST 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 614 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

NAKM
FIRST APPELLANT

NAKN
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	BRANSON J
DATE:	13 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court.  On 8 April 2004 Barnes FM dismissed an application made by the appellants for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the respondent refusing to grant the appellants protection visas.

   FACTUAL BACKGROUND

2. The appellants, who are husband and wife, are Indo‑Fijians who claim to have a well‑founded fear of persecution in Fiji from native Fijians for reason of their race and religion.

3. The appellants, who apparently met in Sydney, each have family members in Australia and each has lived for periods of time in Australia.  They married in Fiji in 1995.  They most recently entered Australia, with their two children, on 24 February 2001 on sponsored, single travel, visitor visas that permitted travel to, and stay in, Australia for one month.  On 20 March 2001 they lodged applications for protection visas under the Migration Act 1958 (Cth) (‘the Act’).

4. The appellant husband (‘the husband’) obtained the NZ School Certificate in 1981 from Nadi College.  His application for a protection visa discloses that he has worked as an assistant electrician, a machine operator and in customer service for Pizza Hut.  However, the application form shows his occupation as farmer.

5. It appears that it was after the appellants’ marriage in 1995 that the husband commenced to farm sugar cane on nine acres of land previously worked by his father, and after his father’s death, by his brother.  In 2000, after the Fijian coup led by George Speight, the Fijian owners of the land worked by the husband demanded a large amount of money to renew the lease over the land and the husband was unable to renew the lease.

6. The appellants claimed to have been discriminated against and to have experienced numerous incidents of violence, threats, harassment and demands for money by native Fijians, particularly following the 2000 coup.  They also claimed that there is a lack of freedom of speech and opinion in Fiji and that they have experienced difficulties in the practice of their religion.

   REASONS OF THE TRIBUNAL

7. The Tribunal accepted the appellants’ evidence that during and subsequent to the May 2000 coup they were subjected to assaults, threats, humiliation and intimidation for food and money.  The Tribunal also accepted that the appellants 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.  Additionally, the Tribunal accepted that the husband fears that he will not be able to provide food and shelter for his family in Fiji, as he may be unable to afford another farm lease.  The Tribunal was satisfied that, because of the economic downturn caused by the May 2000 coup, the husband will face difficulties in getting re‑employed as a farmer or as an electrician if he returns to Fiji.

8. As to the appellants’ fears concerning physical violence and acts of intimidation and humiliation, the Tribunal took the view that effective protection from the Fijian authorities would be available to the appellants if they return to Fiji.  Further, although the reasons of the Tribunal are not entirely clear on this point, it appears that the Tribunal was, in any event, satisfied that any harm, mistreatment or harassment that the appellants may experience in Fiji would be insufficiently serious to amount to persecution within the meaning of the Refugees Convention.

9. As to the appellants’ fears concerning their economic situation in Fiji, the Tribunal took the view that, although the appellants will experience difficulties re‑establishing themselves in Fiji, the indications of improved economic outlook together with the husband’s skills and experience as a farmer and an electrician meant that the husband would be able to find work and accommodation and continue to earn a living and subsist in Fiji.  The Tribunal concluded that any economic hardship that the appellants would face in Fiji would be insufficient to amount to persecution under the Convention.

10. The Tribunal was not satisfied that the problems that the appellants have experienced in the practice of their religion were sufficiently serious to amount to persecution.  It concluded that there was not a real chance that they would be persecuted for reason of their religion in the future.

11. The Tribunal was not satisfied that there is a real chance that the appellants will suffer persecution for any Convention reason in the reasonably foreseeable future if they return to Fiji. It concluded that their fear of persecution was not well‑founded and therefore they did not satisfy the criterion set out in s 36(2) of the Act for a protection visa.

    APPLICATION TO THE FEDERAL MAGISTRATES COURT

12. The further amended application to the Federal Magistrates Court identified four grounds upon which an order of review was sought.  First, that the Tribunal had failed to take into account critical evidence, namely that the Native Land Trust Board was engaging in racial discrimination by conducting its affairs in an extortionate manner in relation to Indo‑Fijians.  Secondly, that the Tribunal asked itself the wrong question by failing to ask itself whether the appellants have a well‑founded fear of persecution as opposed to whether the appellants will in fact be persecuted.  Thirdly, that the Tribunal failed to note that the evidence showed that the appellants have a well‑founded fear of persecution by reason of membership of a particular social group, namely Indo‑Fijian farmers.  Fourthly, that the Tribunal wrongly focused on whether the situation had changed sufficiently since the 2000 coup to diminish the possibility of persecution.

    REASONS OF THE FEDERAL MAGISTRATE

13. The learned Federal Magistrate rejected the contention that the Tribunal had failed to take into account critical evidence.  Her Honour noted that the Tribunal had accepted in their entirety the appellants’ claims concerning the circumstances in which the lease of the sugar cane farm was not renewed.  Her Honour further noted that the significance of the non‑renewal of the lease was its economic impact on the appellants and that the Tribunal had concluded that the economic impact was not sufficient to constitute persecution.

14. The Federal Magistrate also rejected the contention that the Tribunal did not address both the subjective and the objective elements of the test of well‑founded fear of persecution.  Her Honour pointed out that the Tribunal was satisfied that the appellants subjectively fear persecution in Fiji but concluded that they would not in fact face a real chance of persecution.  For this reason the Tribunal found that their subjective fear was not well‑founded.  Her Honour observed that the conclusion of the Tribunal that the appellants did not face a real chance of persecution was also fatal to grounds three and four of their further amended application.  She was satisfied that the Tribunal had properly understood its task and made no error in its fulfilment of it.

    CONSIDERATION

15. The amended notice of appeal (‘the notice of appeal’) contends, in effect, that the Federal Magistrate erred in not upholding each of the grounds of the application for judicial review.

16. I remain uncertain as to the precise way in which the appellants contend that the Tribunal erred in considering their claims, and thus I remain uncertain as to the precise way in which it is contended that the Federal Magistrate erred.

17. The appellants, by their written submissions, appear to argue that the Tribunal did not properly examine the appellants’ claims so far as they were based on the conduct of the Native Land Trust Board and the husband’s inability to renew the lease on the sugar cane farm.  The Tribunal’s reasons for decision reveal that it did give consideration to the appellants’ claims so far as they were based on the conduct of the Native Land Trust Board.  It accepted that the appellants feared that they would not be able to return to the sugar cane farm because they cannot afford the lease renewal amount set by the native landowners.  It also accepted that they may be unable in the future to afford another farm lease.

18. Assuming, as it seems that the Tribunal did, that the appellants might be unable to resume farming in Fiji for a Convention reason (ie because of their race), it remained necessary for the Tribunal to determine whether the appellants have a well‑founded fear of persecution arising from their inability to resume farming.  If the appellants have a fear of persecution arising out of their inability to resume farming it must be a fear concerning economic hardship.  Being prevented from farming is not of itself persecution.  Counsel for the appellants eschewed any non‑economic claim of persecution based on the appellants’ historic or other connection with the particular parcel of land which they previously farmed.

19. As is mentioned above, the Tribunal concluded that the degree of economic hardship that the appellants will face because of their inability to farm is insufficient to amount to persecution.  This is a finding of fact within the Tribunal’s jurisdiction.  The Federal Magistrate was right to conclude that no jurisdictional error affects this aspect of the Tribunal’s decision.

20. The appellants further submitted that the Tribunal’s reasons for decision disclose that it asked itself whether the appellants would suffer persecution if they return to Fiji, not whether their fear of persecution, should they return to Fiji, is well‑founded.  As the appellants’ submissions rightly recognise, a fear of persecution will be well‑founded within the meaning of the Convention if there is a ‘real chance’ of the persecution occurring (Chan v Minister for Immigration and Ethnic Affairs  (1989) 169 CLR 379 (‘Chan’) per Mason CJ at 389 and McHugh J at 429). It is not necessary that there be a finding that the persecution will occur.

21. The reasons for decision of the Tribunal disclose that the Tribunal understood the Chan test and applied it.  In the critical area of economic hardship the Tribunal was simply not satisfied that the degree of economic hardship that the appellants had suffered in the past, and would suffer on their return to Fiji, is sufficient to constitute hardship amounting to persecution.  The Tribunal’s reasons for decision include the following statement:

    ‘The Tribunal does not consider, on all the evidence, that the [appellants] will 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.’

    The Tribunal was satisfied that the husband ‘would be able to find work and accommodation and continue to earn a living and subsist in Fiji’.

22. The reasons for decision of the Tribunal disclose that the Tribunal was conscious of the terms of s 91R of the Act. Section 91R relevantly provides:

    ‘(1)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.

    (2)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;

    …

    (d)significant economic hardship that 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.’

23. In my view, the reasons for decision of the Tribunal demonstrate that the Tribunal was satisfied that there is not a real chance that the appellants will suffer economic hardship that constitutes serious harm within the meaning of s 91R of the Act if they returned to Fiji. No error has been demonstrated in the approach of the Federal Magistrate to the decision of the Tribunal so far as the ‘real chance’ test of persecution is concerned.

24. It is not clear whether the appellants pressed their complaint that the Federal Magistrate should have found that the Tribunal’s decision was affected by jurisdictional error because it failed to analyse the appellants’ claims by reference to their membership of the alleged particular social group ‘Indo Fijian farmers’.  I proceed on the assumption that they did.  The Tribunal was satisfied that security and safety for native Fijian and Indo‑Fijians exists in Fiji today and that violence against Indo‑Fijians is not tolerated.  On this basis the Tribunal was satisfied that the appellants, whether considered as individuals or as Indo‑Fijian farmers, would have the effective protection of their State against racially motivated crimes of violence and other criminal activity.  Similarly, as is discussed above, the Tribunal was satisfied that the appellants, whether considered as individuals or as Indo‑Fijian farmers, would not suffer persecution of an economic nature.  In the circumstances, her Honour rightly concluded that it was not necessary for the Tribunal to consider whether there was a particular social group constituted by Indo‑Fijian farmers.

25. The appellants’ contention that the Tribunal wrongly focused on improvements in the security situation in Fiji since the 2000 coup must be rejected.  The Tribunal was required to form a view about whether the appellants’ fear of persecution in Fiji should they return there was well‑founded.  This made it necessary for the Tribunal to give consideration to improvements in the security situation in Fiji since the 2000 coup.  Had the Tribunal adopted the approach that the present circumstances in Fiji would not engender in reasonable Indo‑Fijians a well‑founded fear of persecution and thus the appellants’ fear of persecution is not well‑founded, this complaint may have had some substance.  I do not commit myself to the position that it would have had substance.  However, the approach of the Tribunal was that, as to economic matters, the harm that the appellants’ fear is insufficiently serious to amount to persecution and, as to non‑economic matters, State protection is now available to the appellants.  Her Honour rightly rejected this contention.

    CONCLUSION

26. The appeal will be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            13 August 2004

Counsel for the Appellants:	A Cotter‑Moroz
Solicitor for the Appellants:	Ramrakha Jenkins
Counsel for the Respondent:	R Beech‑Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	29 July 2004
Date of Judgment:	13 August 2004