Nans v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 442

FEDERAL COURT OF AUSTRALIA

NANS v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 442

NANS & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N29 OF 2004

STONE J
7 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 29 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY DRIVER FM

BETWEEN:

NANS
FIRST APPELLANT

NANX
SECOND APPELLANT

NANY
THIRD APPELLANT

NANZ
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

7 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The adult appellants (NANS and NANX) bear the costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 29 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY DRIVER FM

BETWEEN:

NANS
FIRST APPELLANT

NANX
SECOND APPELLANT

NANY
THIRD APPELLANT

NANZ
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	STONE J
DATE:	7 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants in this matter, a husband, a wife and their two sons, appeal from a decision of the Federal Magistrate given on 22 December 2003.  Prior to the hearing in the Federal Magistrate Court, their applications for protection visas had been refused by a delegate of the Minister and then by the Refugee Review Tribunal (‘Tribunal’).

2. The notice of appeal in this matter does not specify any grounds of appeal.  At a directions hearing before me on 18 February 2004 I gave the appellants leave to file an amended notice of appeal and in doing so, explained in some detail that the notice of appeal provided no basis for a successful appeal.  I explained to the appellants that the grounds of appeal needed to be stated and unless this were done the appeal would be extremely unlikely to succeed.  Despite this, no amended notice of appeal was filed.

3. At the hearing of the appeal I again explained in some detail the basis of this Court's jurisdiction and my understanding of the Tribunal's decision and the reasons for that decision.  The first appellant spoke on behalf of his wife and their infant children but, not being legally represented, it is not surprising that the appellants were unable to point to any legal basis for intervention by this Court.  That being so I have reviewed carefully both the decision of the Tribunal, the decision of the learned Federal Magistrate, the material in the appeal book and the supplementary appeal book.

4. The background facts are set out in the decision of the Tribunal and have not been challenged except in one minor matter, which is not germane to this proceeding.  The family is from Fiji.  They are ethnic Indians and, as a result of racial tensions in Fiji, they claimed to have been threatened by indigenous Fijians.  The first appellant's car was attacked on a number of occasions and his wife was robbed.  They were in fear of indigenous Fijians and this fear was exacerbated following the attempted coup led by George Speight who stormed the Fijian Parliament on 19 May 2000.  As is well known, Mr Speight is now serving a life sentence in prison for treason.

5. It is not necessary for me to dwell on the appellants’ claims because the Tribunal accepted their account of their experiences in Fiji.  The Tribunal noted that the appellants gave their evidence in a very frank and open manner and stated that it accepted in full the account of their difficulties in Fiji during 2000.  The Tribunal stated:

   ‘I accept that, between May and July 2000, their television was stolen from their home, [the second appellant’s] necklace was stolen in the street, the family car was damaged on three occasions and the two children were subjected to some bullying by fellow students at school.  In all cases the perpetrators were indigenous Fijians.  There was significant racial tension in Fiji in this period.  I accept that all these incidents occurred, at least in part, because the applicants were Fiji Indians.

   I have no doubt that the family remained frightened and intimidated after this.  However, between July 2000 and February 2001, a period of seven months, there were no further such incidents directed at them.  The children returned to school and [the first appellant] went to work.  On that basis I am satisfied that the chance of the applicants being subjected to persecutory treatment because of their race was remote by the time they left for PNG in early 2001.

   That is broadly consistent with DFAT’s observation that the harassment of Indo-Fijians and the destruction of their property during 2000 did not continue during 2001, and that the security situation remained stable throughout 2002.  While I note DFAT’s observation that there is currently some criminal activity in urban areas, particularly theft, they appear to be saying that the reason for it is not the race of the victim but the perception that he or she is affluent and thus a profitable target.  There is no independent evidence before me from which I might infer that Fiji Indians living in Suva are being subjected to treatment amounting to persecution because of their race.’

6. As this passage indicates, despite accepting the appellants’ account, the Tribunal rejected their claim for protection visas because of the change in the political climate in Fiji.  Basing its decision on independent country information, the Tribunal came to the conclusion that there was no evidence that ethnic Indians living in Suva were being presently subjected to persecution because of their race. The Tribunal said that there was no evidence from which it might infer that another coup might occur in the reasonably foreseeable future.  The Tribunal was satisfied that if the appellants were to return to live in Suva, their fear of being persecuted because of their race, or for any other Convention reason, would not be well-founded.  Having come to that conclusion, the subsequent conclusion that Australia has no protection obligations to the appellants under the Refugee Convention was inevitable.

7. The Tribunal's decision on the facts is a decision that was open to it in all the circumstances and this Court has no jurisdiction to interfere with that decision.  The appeal must be dismissed.  The adult appellants must bear the respondent's costs of this appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             15 April 2004

Counsel for the Appellants:	The Appellants appeared in person
Counsel for the Respondent:	Mr A McInerney
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 April 2004
Date of Judgment:	7 April 2004