NAOO v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 877

FEDERAL COURT OF AUSTRALIA

NAOO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 877

NAOO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 503 of 2003

ALLSOP J
19 AUGUST 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 503 of 2003

BETWEEN:	NAOO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	19 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent's costs.

3.The time for the filing of any notice of appeal be extended so as to run from Monday, 25 August 2003, that is, as if these orders were pronounced on Monday, 25 August. 

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 503 of 2003

BETWEEN:	NAOO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	19 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, the applicant seeks review of a decision of the Refugee Review Tribunal under s 39B of the Judiciary Act 1903 (Cth).  The decision of the Refugee Review Tribunal (the Tribunal) was made on 1 April 2003.  The Tribunal affirmed a decision of the delegate of the respondent Minister to refuse to grant the applicant a protection visa.  The application as filed, identified no particular grounds of jurisdictional error. 

2. The history of the matter is briefly, as follows.   The applicant is almost 23 years of age, a Fijian national who is of Indian background, speaking Fijian Hindi.  The applicant arrived in Australia on 22 December 2001 and thereafter, he promptly applied for a protection visa on 15 January 2002.  This application was refused by a delegate of the Minister on 21 March 2002.  The applicant applied for review by the Tribunal, which review was granted to him.  The Tribunal accepted the material, in particular, the evidence put forward by the applicant.  At pages 4 through to 6 of its reasons, the Tribunal recounted the oral evidence which the applicant gave to the Tribunal at a hearing held on 10 March 2003.  I should add that the applicant had had the assistance of a migration agent in formulating his written claims to the department, which written claims were before the Tribunal.

3. The applicant was born in Nousori in Fiji and had lived there all his life.  He claimed to fear persecution because he was a Fijian Indian.  He said that he had witnessed attacks on Fijian Indians after the coup of George Speight, which took place in May 2000 and he said that he feared that indigenous Fijians would harm him.  He said that he could not rely upon police protection because the police were hopeless and racist.  At the Tribunal hearing, the applicant provided further information to the Tribunal.  He said that his family, including mother, grandmother and brothers, lived in Nousori and his younger brother was still at school.

4. When asked by the Tribunal why he left Fiji, the Tribunal records that the applicant said that he was fearful and that he wanted to earn more money to support his family.  The applicant before me today indicated that he did not come to Australia for economic reasons, but came because he was in fear of his safety.  Nevertheless, I must, unless they are irrational and otherwise plainly unreliable, look to the Tribunal's reasons for the relevant facts in this matter.  On page 6 of the reasons of the Tribunal, the Tribunal recounts what the applicant said to the Tribunal about his difficulties around the time of the coup. 

5. The applicant said that he was mugged in Suva on the day of the coup, his jewellery and money having been taken at knife point.  He thereafter remained in Fiji for some 18 months.  When the Tribunal put to the applicant that the violence had been brought under control shortly after the coup, the applicant responded in terms similar to that which he described to me today, that is, that violence was a regular problem. 

6. He said that he walked between his home and bus stop for some 30 minutes and that indigenous Fijians would ask him for money, especially at night.  The Tribunal took it and I understood today from the applicant that these sorts of incidents made him somewhat fearful of how he would be treated by indigenous Fijians.  The Tribunal records that it asked him why he had not moved to Suva and that the applicant had agreed that the towns and cities were safe, but that if he had rented a place in Suva, he could not have given that money to his family. 

7. The Tribunal then turned to various country information concerning the situation in Fiji, in particular, since the coup. The Tribunal then, on pages 9 and 10, made its findings and drew its conclusions. Firstly, the Tribunal accepted in full the applicant's account of his experiences before he left Fiji. In analysing those experiences, the Tribunal drew a conclusion, as expressed on page 9, that what the applicant had suffered did not, in the past, amount to persecution involving serious harm and systematic and discriminatory conduct for the purposes of s 91R of the Migration Act1958 (Cth).

8. This conclusion is elaborated in the long paragraph on pages 9 and 10, which was in the following terms:

   I have noted that under s 91R(1) of the Act persecution must involve “serious harm” to the applicant, and systematic and discriminatory conduct. The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist. Minor racial harassment wil often not rise to the level of persecution. In Lal v MIEA (1996) 42 ALD 535.) the applicant, a Fiji Indian claimed to be the victim of several incidents of stone throwing at his house. The applicant reported such incidents to police but no action was taken. The Court characterised the incidents as a few relatively minor incidents of racist violence compounded by a few displays of low level police racism. The Court said that it was open to the Tribunal to find that such conduct did not amount to persecution, although it was not incapable of amounting to persecution. In the present case some indigenous Fijians robbed [the applicant] during the coup, some eighteen months before he left Fiji.  However after that he returned to a relatively normal life, going to his workplace and living at his home.  He was not subject to any discriminatory treatment in terms of his education or employment.  He was not threatened or harmed.  However I accept that, as he walked between the bus stop and his home, a walk which he said took some thirty minutes he was asked by various local indigenous Fijians for money and he felt obliged to give it to them.  While I appreciate that the behaviour of these particular indigenous Fijians was mildly intimidating and he did not feel he could refuse, I do not consider that it constituted “serious harm”, and I find that it did not fall within the definition of persecution set about above.  I appreciate that [the applicant’s] efforts to support his family, which are creditable, were undermined by the actions of these indigenous Fijians.  However I am satisfied that [the applicant] was not being persecuted because of his race or for any other Convention reason at the time he left Fiji for Australia.  His main aim in leaving Fiji was not to escape persecution but to try to earn a higher income, so that he could better provide for his widowed mother and his brothers.

9. As can be seen from that long paragraph, the mental process undertaken by the Tribunal as to past events was one of characterising what had happened as falling short of actual persecution in the past. 

10. Of course, what has happened in the past, whilst important, is not the only question for the Tribunal.  The ultimate question is whether the applicant has a well-founded fear of persecution should he be returned to Fiji.  Conformably with authority, an important part of that analysis is what has happened to the applicant in the past.  The Tribunal dealt with that, as I have just indicated.  The Tribunal then turned to the future.  It dealt with this shortly on page 10 of its reasons as follows:

    [The applicant] gave evidence that the current situation in Fiji’s towns and cities was safe for Fiji Indians.  He also gave evidence that although he might have difficulty finding employment this would be because of the economic downturn in the country.  He did not express the view that it would because of his race, and I am satisfied that it would not.  However I am not satisfied, on the basis of the evidence from DFAT set out above, that Fiji Indians are the target of Convention-related persecution in Fiji at present.  I find that the chance is remote [the applicant] might be persecuted because of his race or for any other Convention reason if they returned to Fiji.

    I am sympathetic to [the applicant’s] concerns for his family.  However the Tribunal is not satisfied, on the evidence before it, that he has a well-founded fear of persecution within the meaning of the Convention.  He is not a refugee.

    CONCLUSION
    Having considered the evidence as a whole, the Tribunal is not satisfied that [the applicant] is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore he does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

    DECISION
    The Tribunal affirms the decision not to grant a protection visa.

11. In the light of what is contained there, in particular, the evidence apparently given by the applicant himself, especially set in the context of the country information to which the Tribunal plainly had reference, I think the conclusion that was drawn by the Tribunal that the material before it did not satisfy it that the applicant had a well-founded fear of persecution upon return, was a conclusion open to the Tribunal and one which was made without any apparent jurisdictional error, necessary for a successful invocation of s 39B.

12. In particular, the Tribunal appears to have asked itself the right question.  It appears to have given consideration to the material placed before it by the applicant.  It appears to have made a real and genuine attempt to consider the case of the applicant in the light of the available material.  Whether I would have come to the same conclusion, or whether another Tribunal member would have come to the same conclusion, is not the question.  The question is, is there jurisdictional error displayed by the approach and reasoning process of the Tribunal?  In my view, there is none and, in the light of these matters, the application, in my view, should be dismissed.

13. I do not see any basis for varying any usual order as to costs.  I propose to dismiss the application. 

14. Therefore the orders of the court are:

    1.The application be dismissed.

    2.The applicant pay the respondent's costs.

    3.The time for the filing of any notice of appeal be extended so as to run from Monday, 25 August 2003, that is, as if these orders were pronounced on Monday, 25 August.  

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             22 August 2003

The applicant appeared in person.
Counsel for the Respondent:	Mr Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	19 August 2003
Date of Judgment:	19 August 2003