S1338 of 2003 v Minister for Immigration
[2005] FMCA 1176
•21 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1338 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1176 |
| MIGRATION – Refugee – fear of harm for Convention reason of political opinion and religion with the breakdown of law and order following a coup – instability by the time of the Tribunal decision had disappeared – procedural fairness – unwarrantable delay – no reviewable error. |
| Migration Act 1958, ss.417, 422B |
| The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 576 Re Batuwantudawa[2003] FCA 684 Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 823 Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1266 Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1331 R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs; Re Minister for Immigration [2003] HCA 26 Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 “Applicant A” and Anor v Minister for Immigration and Ethnic Affairs and Anor [1997] HCA 4 Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 Stead v State Government Insurance Commission (1986) 161 CLR 141 Jones v National Coal Board [1957] 2 QB 55 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 |
| Applicant: | APPLICANT S1338 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2922 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 12 May 2005 |
| Date of Last Submission: | 2 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. T. Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Mr. T. Reilly |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant to pay the respondent’s costs set in the amount of $5200, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2922 of 2004
| APPLICANT S1338 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 24 September 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 October 1995 and notified to the applicant by letter dated 18 October 1995 to affirm the decision of the delegate of the respondent Minister made on 5 January 1995 to refuse a protection visa to the applicant.
The applicant is a Fijian national of Indian ethnicity. He arrived in Australia as a visitor on 3 January 1990 and applied to the respondent’s Department for recognition as a refugee on 11 September 1990. The Tribunal's record of decision outlines the history of the matter leading to the application for review at Court Book 54. The applicant’s claims, contained in his application to the respondent Minister’s Department, are reproduced at CB 19. His application for review is reproduced at CB 43 to CB 45. The applicant also appeared at a hearing before the Tribunal on 10 October 1995. His claims were summarised by the Tribunal as:
1)That he was subjected to abuse and harassment by ethnic Fijians after the coup in Fiji in 1987 because of his support for the Fiji Labour Party (CB 58.7).
2)That he was unable to go to work on a number of occasions because ethnic Fijians took his lunch from him on his way to work and the applicant was pushed and slapped by ethnic Fijians which made him very frightened as a result (CB 58.8).
3)That he was prevented from practising his Hindu religion because of the Sunday ban on non-religious activities (CB 58.8).
4)That the applicant was unwilling to return to Fiji because:
a)He would not be able to find employment.
b)He has no land and property.
c)He is afraid of being badly tortured by ethnic Fijians
(CB 58.9).At the hearing before me the respondent was represented by Mr. T. Reilly of Counsel and the applicant was represented by Mr T. Silva of Silva Solicitors who pressed three of the four grounds in an amended application filed by the applicant on 1 December 2004. I have set these out in the order of dealing with them:
1)Ground 4: That the Tribunal failed to deal with an important claim made by the applicant and therefore made a jurisdictional error. The important claim here was the failure to deal with the “Sunday ban”.
2)Ground 1: That the Tribunal made jurisdictional error in interpreting what is meant by “serious punishment” and in holding that what the applicant suffered was not persecution.
3)Ground 2: That the Tribunal used critical adverse information obtained after the delegate’s decision which was neither provided to the applicant before the hearing nor put to the applicant during the hearing.
4)Ground 3 was abandoned.
In these proceedings the applicant has filed an affidavit sworn
23 September 2004 which sets out the applicant’s relevant action following the Tribunal decision to refuse him a protection visa on
16 October 1995. The applicant claims to have joined a class action through solicitor Mr. Adrian Joel on 27 June 1997 and that ultimately Justice Emmett in the Federal Court dismissed the consequent proceeding on 20 February 2004. The application to this Court was made on 24 September 2004. The respondent submits that relief should be refused in this matter in the exercise of the Court's discretion, because of the applicant's delay in bringing the proceedings. The time between the Tribunal's decision and the filing of this application in this Court is quite considerable. The Minister, consistent with undertakings and assurances given to the superior Courts, seeks to rely on the delay only between the making of the Tribunal decision and the joining of the class action, a period of one year and eight months, and then the delay between the dismissal of the applicant's matter by Emmett J. in the Federal Court and the making of the application to this Court, a period of seven months. This makes, in total, the period of delay relied upon by the respondent two years and three months.Mr. Silva for the applicant argued in explanation that the applicant had twice pursued recourse through seeking the Minister’s intervention pursuant to s.417 of the Migration Act and that this was justification for the delay in relation to the two periods making up the delay period now relied upon by the respondent to argue for dismissal on the basis of unwarrantable delay. Mr. Silva invited the Court to look at the issue from the applicant's perspective. He argued that what any such applicant for refugee recognition is seeking, is to remain in Australia, and that when faced with the two alternatives, that is the seeking of a visa through Ministerial intervention or seeking redress through the Courts, that writing to the Minister represents a less complex and cheaper option than going before a Court. Mr. Silva argued that this is particularly so in circumstances where it is still open to an applicant on a refusal by the Minister to exercise her power, to subsequently go to a Court and explain why there had been the delay. Mr. Silva argued, that in a life and death situation faced by refugee applicants, that it is legitimate for such an unsuccessful applicant to seek to approach the Minister to seek exercise of the Minister’s power of intervention before going to a Court. Mr. Silva emphasised that the applicant in the case before me was justified in taking this course of action because it is “easy financially”, and in every other sense. The argument was that when a person goes to Court he has to pay for lawyers, Court fees and if the applicant were to lose, would be required to pay the Minister’s costs. In comparison, in writing to the Minister the only costs involved are those associated with putting in “a detailed letter”. He argued that this was a much more sensible option and a much quicker process, because even if an applicant were successful before the Court that matter would still have to go back to the Tribunal for reconsideration.
As I have already said, Mr. Reilly for the respondent Minister sought not to rely on the extensive period between the Tribunal's decision and the application to this Court (nearly 9 years), but those periods of delay between the making of the Tribunal decision and the joining of the class action and the ultimate dismissal by Emmett J. and the making of the application to this Court. Mr. Reilly submitted that the delay in this case was plainly unwarranted delay that justified the withholding of relief: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. He argued that a delay of more than one year, and in this case the period relied on was well beyond two years, should ordinarily lead to relief being refused in the exercise of the Court's discretion: Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at 495 to 496. Mr. Reilly submitted that the applicant's claims to have sought Ministerial intervention pursuant to s.417 of the Act during both periods of delay is not an adequate explanation and gave as the example Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 per Goldberg J at [14] to [15]:
[14] Over nine months elapsed between the order dismissing the application for review in the Federal Court and the filing of the application in the High Court. The High Court application was made prior to the handing down of the decision in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. During that intervening period, on 14 July 2000 the letter had been written to the Minister requesting him to exercise his power under s 417 of the Act. The taking of that course of action by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. Indeed in his affidavit filed in the High Court, the applicant, after referring to the order of dismissal of his application for review in the Federal Court, said:
"I was left with the only avenue of requesting the ... [Minister] to exercise his power under s.417."
This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the Tribunal’s decision was correct and that he did not intend to challenge that decision further in the Court. A similar approach has been taken in a number of cases in this Court: Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 576; Re Batuwantudawa[2003] FCA 684; Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 823; Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1266; Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1331 at [16]-[20]. For reasons to which I shall refer later, I am also satisfied that the substantive ground sought to be made out by the applicant as being the error of law made by the Tribunal cannot be sustained.
[15] Adopting the observation of McHugh J in Re Commonwealth of Australia; Ex parte Marks (supra) I do not consider that there are any or sufficient exceptional circumstances which warrant allowing the extension of time. The basic submission propounded by the applicant as to the reason for the delay was his decision to seek a more favourable outcome from the Minister on humanitarian grounds, pursuant to s 417 of the Act. The applicant submitted that he acted reasonably in the circumstances in attempting to obtain a more favourable decision. However, I do not consider that the pursuit of such a decision constitutes a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the Tribunal’s decision was not to be the subject of challenge.
Mr. Silva sought to distinguish the circumstances before Goldberg J. with the case before me by submitting that in the case of Daniel the applicant was left with only one avenue and that was requesting Ministerial intervention pursuant to s.417 and that the taking of that course of action by the applicant in that case indicated a decision to abandon any course that would seek to challenge a decision of the Tribunal on grounds available under the Act. He argued that in the case before me there was no evidence to suggest that the applicant had abandoned any recourse to the Courts that may be available to him, but merely chose the more attractive option.
Clearly delay is a discretionary criterion for the denial of the relief sought by the applicant, that of certiorari and prohibition. Also, unreasonable delay may be sufficient to justify discretionary refusal of mandamus: see Aronson and others: ‘Judicial Review of Administrative Action’ Third edition Thomson 2000 and Law Book Co. 2004 at page 736 to 737. An application may be dismissed on the grounds of unwarrantable delay and this could be done without deciding the merits of the applicant's alleged grounds of review. R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 at 570 per Barwick CJ Gibbs, Stephen, Mason and Aickin JJ. As the respondent submitted it is well accepted that relief under section 75(v) of the Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs; Re Minister for Im [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1. I also note McHugh J. in the recent High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80]:
“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant…”
I was not persuaded by Mr. Silva's arguments in this regard. The clear general principle applicable in this situation is that if there is a legal issue to be tested, then an aggrieved person should not delay in proceeding to have that issue tested. I do not accept Mr. Silva's argument that there should be a suite of options available to people such as the applicant before me, on the basis that in the life and death situations, as he put to me, that cheaper and less complex options should be undertaken first. I do not see that a raft of options was properly available to the applicant. The request to the Minister is for the Minister to exercise her non compellable power to substitute a more favourable outcome for the applicant than the decision by her delegate who refused the protection visa, as affirmed by the Tribunal. Neither the request nor any intervention by the Minister can be seen as any sort of ventilation of any legal issues involved. The only “option” available to a person aggrieved by a Tribunal decision who wishes to raise legal issues is to go before a Court. It is inconsistent that an applicant, in Mr. Silva's words, who is in a “life-and-death situation” and who feels that the Tribunal has erred in law, does not to go as soon as possible to the one place that can provide the relief in relation to legal issues. The applicant has not argued some ignorance of the availability of the Courts to provide relief in relation to legal issues. In fact the opposite is the case. The applicant did participate in other proceedings before the Courts. But in relation to the specific period of delay now being relied on by the respondent, and its two constituent periods, the applicant clearly knew throughout these periods that the Court option, as Mr. Silva puts it, was always there. Further, I also note that as Mr. Reilly submitted that the relevant authorities do not regard a request pursuant to s.417 as any sort of explanation for delay. Indeed he argued, that the effect of the relevant authorities is that the making of a s.417 request essentially indicates an acceptance of the legal correctness of the decision, and an attempt to have the decision changed in some other way. The applicant chose to pursue another course of action while knowing that the relevant course of action in seeking legal redress was to go before the Court. In all these circumstances, and in particular given the length of time of the delay (well over two years) it is appropriate that in the exercise of the discretion, in the context of the relief sought by the applicant, that the relief sought should be refused. The application is dismissed on this basis.
In any event, I can see no jurisdictional error in the Tribunal decision. The applicant's complaint in the amended application to the Court relates to the Sunday observance decree (Sunday ban) introduced by the Fijian Government which limited commercial and recreational activities on Sundays. The applicant relies on a transcript (“T”) of the hearing before the Tribunal (Annexure “A” to the amended application). Mr Silva for the applicant referred me to Transcript page 7 where at T 7.3 the applicant said:
“We can't go to Sunday prayer. They stopped us.”
Mr. Silva also referred to the exchange between the Tribunal and the applicant relating to religion, his temple and Sunday prayer. Continuing on T 8 (Prof Tsamenyi is the Tribunal member):
“PROF TSAMENYI: Really?
APPLICANT: Yeah.
PROF TSAMENYI: I thought they said you can go to your own church- - -
APPLICANT: No.
PROF TSAMENYI: - - - but you can’t do anything else, you can’t go and play ball or you can’t go…games, you can’t wash your car, if you want to go and pray to God, go and pray to God.
APPLICANT: Yeah, … but he said different church for different one.
PROF TSAMENYI: So what did you do?
APPLICANT: So we stopped going there. We closed the temple, we got big temple there but we can’t pray.”
Mr. Silva submitted that in its decision record at CB 58.8 the Tribunal summarised this exchange as:
“The applicant was also prevented from practising his Hindu religion because of the Sunday ban on non-religious activities.”
Mr. Silva referred to the Tribunal's finding at CB 59.6, that in relation to the Sunday ban the Tribunal noted that the Fijian Constitution guaranteed freedom of religion and that there was no evidence before the Tribunal that this Constitutional guarantee is not being honoured by the government. He submitted that the focus of the Tribunal was on the government and yet the claim was that the applicant had been prevented from going to his temple by private individuals and that further, this complaint should be seen in the context of the applicant's assertion in his application to the respondent’s Department as set out at CB 19.9 where the applicant says:
“Every day several assaults and criminal activities are done by these people which is simply overlooked by the police because they are still manipulated by the Rambuka regime"
Mr. Silva submitted that “they” were the rebels who were also ethnic Fijians. Mr. Silva's argument was that the applicant was prevented from going to the temple and that he was justified in not seeking police protection because of the applicant’s understanding of how police applied that protection. Mr. Silva's submission was that the Tribunal did not seek to clarify the issue with the applicant, that it did not state in its restatement of the applicant's claims the claim as put by the applicant, and that it did not deal with or make a finding about the applicant's claims and that there was no general finding that would cover this claim.
In response, Mr. Reilly submitted that if there was a misunderstanding in this case as between the Tribunal and the applicant at the hearing, then it is not one for which the Tribunal can be blamed. It was the applicant not being “articulate” enough or forthright to describe his claim precisely. The applicant's claim was not made with sufficient clarity to have made the Tribunal focus on it in the way that is now put forward by Mr. Silva. Second, and in any event, the Tribunal does deal with the applicant's complaint when it took into account the fact that the Fijian Constitution guaranteed freedom of religion and that there was no evidence before the Tribunal that this Constitutional guarantee was not being honoured by the government which would include the instrumentalities of the government, for example the police.
It is clear that the applicant did not raise this issue in any of the written material before the Tribunal. The applicant's reference to his temple is first raised at the hearing before the Tribunal. Mr. Silva did not submit anything to the contrary. Relevantly, I note that at CB 51, in the response to the “Request for Hearing” form, the applicant indicated to the Tribunal that he wanted to give evidence to the Tribunal at the hearing and that he did not require an interpreter. From the transcript of the hearing provided by the applicant, the exact nature of the source of the harm feared by the applicant is not well articulated by the applicant and is not clear. What is clear is that he is saying that he is prevented from observing his religion at the temple on Sundays. The reference to “they” as an indicator as to who stopped the applicant can perhaps be seen in the context of the previous discussion with the Tribunal as being generally the Fijian people who had also slapped the applicant and taken his lunch or people from the same ethnic group. The reference to “rebels” is left unexplained by the applicant. While there may have been, in parts, some aspect of the Tribunal and the applicant being at cross purposes, it is clear that the Tribunal understood that the applicant feared harm, and claimed harm, from ethnic Fijians in a range of circumstances as set out at CB 59 .3 in its decision record, where the Tribunal says:
“In the opinion of the Tribunal, the Applicant was not a victim of persecution. The Applicant’s evidence, which he alleges amounted to persecution, is that ethnic Fijians took his lunch from him on his way to work; that he was pushed and slapped by ethnic Fijians; and that he was prevented from practising his Hindu religion because of the Sunday ban on non-religious activities."
In the context of how the Tribunal sets this out, and on a plain reading of the Tribunal's decision record, the Tribunal clearly saw the claimed harm from ethnic Fijians as being the source of concern for the applicant. The findings by the Tribunal that the Fijian Constitution guaranteed freedom of religion and that there was no evidence before the Tribunal that this Constitutional guarantee was not being honoured by the government, and in that context the applicant's complaint that generally the police could not be relied upon, needs also to be seen in the context of the Tribunal's finding that the applicant's claims have originated from a breakdown in law and order and the general insecurity generated by the coup in Fiji in 1987 and its subsequent finding that, amongst other things, there had been changes, and that the return to the traditional roles of the military and the police and the independent functioning of the judiciary, established under the Constitution, as being core elements of the stability that had subsequently been brought back to Fiji. The applicant concedes that he never tested his claim that the police would not act. In this context the Tribunal clearly dealt with any claim by the applicant that the police could not be relied upon for protection. In my view, this ground does not succeed. The Tribunal saw the claim of harm as emanating from ethnic Fijians and answered this complaint by saying that the instability which led to these actions of harm taking place no longer existed in Fiji, and that the judiciary and relevantly the police, could be relied upon to provide adequate protection.
The applicant's second complaint is that the Tribunal accepted that the applicant was unable to go to work because of the number of occasions ethnic Fijians took his lunch from him on his way to work and that he was pushed and slapped and that the applicant became very frightened as a result of these incidents. Mr. Silva submitted that these experiences were sufficient to constitute persecution. That the repetitious nature of what the applicant encountered, as for example the many incidents of being slapped, would constitute serious harm and therefore persecution. It is clear that the applicant's fear of harm was sourced to actions by ethnic Fijians. The pushing and slapping, the taking of his lunch, and even on what Mr. Silva has now submitted, the prevention of his going to temple on Sunday.
The High Court has said that although the “paradigm case of persecution contemplated by the Convention is persecution by the state or agents of the state”, it has accepted that the serious harm involved in what is found to be persecution may be inflicted by persons who are not agents of the state Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [18] per Gleeson CJ, Hayne and Heydon JJ. Further as McHugh J. said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [430]:
“The threat need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution.”
In “Applicant A” and Anor v Minister for Immigration and Ethnic Affairs and Anor [1997] HCA 4 the High Court stated at page 4:
“A person ordinarily looks to "the country of his nationality" for protection of his fundamental rights and freedoms but, if "a well-founded fear of being persecuted" makes a person "unwilling to avail himself of the protection of [the country of his nationality]", that fear must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent…Thus the definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality.”
In the case before me, whatever the level of the harm as seen by the Tribunal, whether serious enough to have amounted to persecution or not, it must be seen in the Tribunal's ultimate conclusion that the applicant's claims originated from a breakdown in law and order in the period following the coup in Fiji in 1987. While finding that these circumstances, as put forward by the applicant, did not amount to persecution within the meaning of the Convention, the Tribunal also found that the insecurity created by the 1987 coup in Fiji had by the time of the Tribunal's decision disappeared, and that political stability had been restored in that country and it gave reasons for this. The Tribunal clearly found that the election of the civilian government, the promulgation of the Constitution guaranteeing certain fundamental freedoms for all Fijians (including ethnic Indian Fijians), the independent functioning of the judiciary established under the Constitution and the return to the traditional roles of the military and the police all pointed to adequate protection being available to the applicant and that, in any event, the circumstances which gave rise to the applicant's claims no longer existed in Fiji.
The applicant's third complaint is that the Tribunal used critical adverse information obtained after the respondent Minister’s delegate’s decision which was not put to the applicant for comment and that this was a denial of procedural fairness. Mr. Silva referred to the information at CB 60 of the Tribunal’s decision record, and in particular to the sources for this information as recorded at CB 60.
In relation to the information concerning the Labour Party in Fiji the substance of the information was that Labour Party members were not being persecuted. The issue of the Labour Party was put to the applicant at the hearing (T 10 to T 11). In relation to this information, Mr. Reilly for the respondent submitted that, prior to the enactment of s.422B of the Act (which is the situation in the case applicable before me), there was no general rule concerning the disclosure of country information. He further submitted that it depended on the facts of the case and the nature of the information. He referred me to the Federal Court decision of Weinberg J in Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 and described this case as, although not factually analogous, a helpful collection of what is a “rather dispirit set of case law on the point”. In M1015 the applicant sought prerogative relief based on an alleged failure of the Tribunal to accord procedural fairness in relation to country information that related to the risk to particular Tamil groups in Sri Lanka. Weinberg J. stated that the starting point in such a case must be the High Court decision in Stead v State Government Insurance Commission (1986) 161 CLR 141, where the High Court referred to the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [1957] 2 QB 55, at p 67:"there is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it."
The High Court in Stead went on to qualify this general principle by describing as futile the remittal to a decision maker where the provision of further information would have made no practical difference. Stead was cited in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 where, in finding for the applicant and ordering that the application be redetermined according to law, Gleeson CJ employed the approach in Stead, although in that case to conclude that the information would have led to a different view being taken. In Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069, Hely J summarised the position after Aala as:
"If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (supra) at 116-117.
Mr. Reilly also referred me to NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262, and particularly to paragraph [18] (and I include paragraph [17] for clarity), where Ryan and Finkelstein JJ. state:
“[17] It is not clear whether the Minister meant by this submission that in every case where the complaint is that there has been a denial of procedural fairness it is incumbent upon the complainant to lead evidence to explain in precisely what way he has been adversely affected by a particular omission. If this is what the Minister means it should be rejected outright. There is no principle which is to this effect. Indeed, it is a submission which is contrary to well established principle. In Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82, 122 McHugh J said that: "once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because `[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'", citing Stead v State Government Insurance Commission (1986) 161 CLR 141, 145.
[18] On the other hand, there no doubt will be cases where it is not clear what, if anything, a complainant could have done with the information which had not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, in such a case, a court is unable to see how the complainant has suffered "practical injustice", then the complainant may be required to adduce evidence to explain why he has been unfairly treated. Another example may be found in the case of Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489, 500-501.”
Mr. Reilly further referred to VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 where the approach as seen above at [18] was adopted in dismissing the applicant’s application. Mr. Reilly, relying on these cases, submitted that in the case currently before the Court the country information in question was background information and the nature of that information was not such that non-disclosure was unfair in that it could not have affected the outcome.
The applicant clearly raised his support of the Labour Party in his application to the respondent’s Department. At CB 19.1 he said:
“I was an active supporter of the Labour Govt in Fiji and Labour Party too. I was publicly identified by my opposition people after the…coup and was very much harassment and physically assaulted.”
The applicant then went on to describe being harassed and physically assaulted and that on his way to work he was bashed by “the Fijians". He claimed at CB 19.9:
“Every day several assaults and criminal activities are done by these people which is simply overlooked by the police because they are still manipulated by the Rambuka regime”
In his application for review to the Tribunal at CB 44.9, the applicant said:
“I am an identified person having supported the Fiji Labour Party during the election of 1987. I will not be given effective protection by the Fijian government as claimed by the decision maker. I am unable to return to situation already experienced and be subject to further trauma and torture.”
It is also relevant to look at the circumstances in which the applicant presented his concerns regarding his support for the Labour Party to the Tribunal at the hearing that the Tribunal conducted. The transcript, beginning at about T3.3 shows the Tribunal beginning with the question asking the applicant the reason as to why he came to Australia. The applicant's response was to the talk of the Fijian people who harassed him on the way to work and who took his food and by T.5.1 that they slapped him many times and it is at about T5.5 that the Tribunal prompts the applicant by way making reference to politics and the applicant responds with a reference to “Federation Party” and saying that he was supporting them with food and that because of that the indigenous Fijians slapped him and took his lunch. At T6.8 the applicant stated that this commenced after the coup and that that was when he came to Australia. The applicant's presentation of his claims then went into the complaint about the Sunday ban. At T10 the Tribunal specifically asked the applicant about the Labour Party and the applicant's responses appear to focus on the lack of majority in the Labour Party in the Fijian Parliament. At T12.7, when the Tribunal attempted to focus the applicant on the fear of harm when he left in 1990, the applicant's responses were that he had nothing left in Fiji, that he could not buy land he could not find a job and again a vague reference to people in the Fijian village at T13.3. The Tribunal again at T13.8 attempts to focus the applicant on his membership of the Labour party. The applicant's explanation as to his support for the leader of the Labour Party, and the Tribunal's attempts to obtain information from the applicant in the circumstances of being afraid to live in Fiji because of this support, the applicant appeared by T15.7, following some vague responses, to again come back to the issue of people in the village who robbed his house pinched his cattle. It is clear in looking at the material contained in his applications and in the hearing before the Tribunal that the applicant's concern about his membership in the Labour Party and support for the Labour Party does not rise above the claim that this membership and support identified him as someone to whom ethnic Fijians or village people would seek to harass and attack in the away that he has described in the various incidents that he said occurred to him. There is nothing in what the applicant has put before the Tribunal to show that his membership and support for the Labour Party was the cause of any other harm that he suffered or that he feared would occur should he returned to Fiji. The Tribunal's decision record shows that it saw the applicant’s claims in these terms. At CB 58.7 the Tribunal summarised the applicant’s claims as follows:
“1) The applicant claimed that his entire family (including the Applicant) joined the Fiji Labour Party 1987. After the coup, the Applicant was subjected to abuse and harassment by ethnic Fijians because of his support for the Labour Party. The Applicant was unable to go to work because on a number of occasions, ethnic Fijians took his lunch from him on his way to work. The Applicant was also pushed in slapped by ethnic Fijians. The applicant became very frightened as a result of these incidents.
2)The Applicant was also prevented from practising his Hindu religion because of the Sunday ban on non-religious activities.
3)The applicant is still unwilling to return to Fiji because (a) he would not be able to find employment; (b) he has no land and no other property in Fiji; (c) he is afraid of being treated badly by ethnic Fijians.”
On what was before it this is an accurate summary of the applicant's claims to refugee status. The Tribunal clearly dealt with the applicant's claims as presented by the applicant. In relation to the claims of harm from ethnic Fijians the Tribunal was not satisfied that these incidents amounted to persecution within the meaning of the Convention (CB 59.4). The Tribunal's critical finding however, was that based on country information available to the Tribunal, was that the insecurity created by the 1987 coup in Fiji had disappeared and that political stability had been restored in that country. The Tribunal relied on information that core elements of this stability included the election of the civilian government, the promulgation of the Constitution guaranteeing certain fundamental freedom for Fijians, the independent functioning of the judiciary and the return to the traditional roles of the military and the police. The substance of this information was certainly known to the applicant as he himself confirmed in his application to the Tribunal at CB 44.5:
“Although I do not deny that due to substantial changes in the circumstances in Fiji in the areas such that human rights situation in Fiji has improved significantly since the immediate post-coup period and the reconvening of Parliament in 1992 has provided an outlet for political expression"
Significantly the applicant's own statement as to why he will he made the application to the Tribunal was that:
“…the point I am trying to make here is that I was a plain refugee in terms when I came to Australia and I am still a refugee the way I abandon my property and belongings back in Fiji and escaped to Australia. I seek its protection”
The Tribunal's finding that the situation in Fiji had improved and that political stability had been restored in that the police and judiciary had returned to their traditional roles in the context of the Constitution guaranteeing certain fundamental freedom for all Fijians, this was sufficient to deal with the applicant's complaints as put by the applicant and in particular that the actual harm that he claimed was to some extent because he had been identified as a supporter of the Labour Party. The Tribunal's specific finding in relation to persecution, because of his membership of the Labour Party, must be seen in the context of what precedes it in relation to stability having returned to Fiji and the guaranteeing, backed up by the judiciary and the police, of fundamental freedom for all Fijians. In this context, any nondisclosure to the applicant of specific information contained in the DFAT cable could not have altered the key findings of the Tribunal which were not based on that specific information. In any event, that information in part goes to activities relating to the freedom of political parties to meet and it is important to note that the applicant made no such claim before the Tribunal. Secondly, that reports of opposition Indian groups being harassed in the post-coup period, having now being overtaken by the return of Parliamentary democracy in 1992, is in substance the same information which the applicant himself concedes in his application to the Tribunal. Specifically, the information in the DFAT cable, in all of these circumstantial, would not have led to a different outcome by the Tribunal and to a great extent is consistent in substance with information already known to the applicant and in any event, I could not see in these circumstantial, that it is anything other than information of a type which would be difficult to controvert. The applicant has not brought forward any evidence in this regard to explain why he has been unfairly treated. On this basis of this ground is not made out.
In any event this application is dismissed on the basis of unwarrantable delay in bringing the matter before this Court.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 21 September 2005