S1891 of 2003 v MIMIA
[2005] FMCA 1069
•20 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1891 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1069 |
| MIGRATION – RRT – Indian Fijian housewife – claimed persecution on racial grounds – history of harassment accepted by Tribunal – finding that not “persecution” – failure to address relevant considerations – matter remitted to Tribunal. |
| Migration Act 1958 (Cth), ss.414, 417, 430, 422B, 474(1), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 Applicants S1573 v Minister for Immigration [2005] FMCA 47 Minister for Immigration and Multicultural Affairs v Respondents S152/200 (2004) 205 ALR 487 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57 SZAWW v Minister for Immigration [2003] FMCA 479 SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 |
| Applicant: | APPLICANT S1891 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3060 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 20 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Order that the Refugee Review Tribunal be joined as second respondent.
Order that a writ of certiorari issue directed to the second respondent quashing the decision of the second respondent handed down on 6 July 2001 in matter number VO1/12389.
Order that a writ of mandamus issue directed to the second respondent requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 20 December 2000
Liberty to the applicant to apply for a costs order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3060 of 2004
| APPLICANT S1891 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) which seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal dated 19 June 2001 and handed down on 6 July 2001. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A of the Migration Act gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is the Court's judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth). In matters concerning a decision made before the commencement of the “privative clause decision” limitations in Part 8 of the Migration Act, a transitional provision in cl 8 of Sch 1 of the Migration Legislation Amendment Judicial Review Act 2001 (Cth) provides that the amendments apply only in respect of judicial review proceedings if as at that date “an application for judicial review of the decision had not been lodged” (my emphasis). There is now a line of authority which accepts that, if as at the commencement date an applicant was party to an earlier application seeking judicial review, then the limitations do not apply to a later application in relation to the same decision and an applicant is entitled to relief under an unfettered s.39B jurisdiction (see SZAWW v Minister for Immigration [2003] FMCA 479 at [4], Applicants S1573 v Minister for Immigration [2005] FMCA 47 at [4-8], SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12], and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 at [33]).
In the present case, the applicant was party to one of the class actions in the High Court conducted for numerous applicants by the solicitors, Adrian Joel & Company. Details of this proceeding are not clear before me but the Minister does not challenge that fact. The Minister also accepts that those proceedings gave rise to a separate application for an order nisi by this applicant. Ultimately, this was dealt with by Emmett J on 20 February 2004, when his Honour refused to grant an order nisi, while preserving the rights of the applicant to commence fresh proceedings in this court.
The applicant did not immediately commence new proceedings but, on the advice of her solicitors, sought a decision by the Minister under s.417 of the Migration Act based on recent information concerning the applicant's circumstances. The request was made on 8 April 2004, and on 3 September 2004 the applicant was informed that the Minister had decided not to consider exercising her power. The present proceeding was commenced in this Court on 13 October 2004. The respondent Minister now submits to me that the applicant’s decision to pursue a request under s.414 gave rise to unwarranted delay in commencing the present proceedings, and that this should cause the Court to refuse to grant relief in the exercise of its discretion.
However, I am not persuaded that relief should be refused on the ground of the delay between Emmett J's dismissal of the proceedings and the commencement of the present proceeding. I prefer in the present case to accept the applicant's explanation in the same manner as the High Court in Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57 where, at [107], Gaudron J said, referring to a long delay while an applicant sought several times to obtain a Ministerial decision:
The delay has been explained. In brief, the delay occurred only because Mr Miah sought to have his claims properly considered without the need to institute the present proceedings. The Minister declined to exercise powers which may have rendered the proceedings unnecessary. That being so, the argument that relief should be refused on discretionary grounds is wholly without merit. (see also McHugh J at [152] and Kirby J at [219])
Turning to the merits of the matter, the background is as follows. The applicant last arrived in Australia in November 1999 to visit relations. While she was here, there was an outbreak of violence and a coup in her country of nationality, Fiji. She subsequently applied for protection from Australia under the Refugees Convention by applying for a protection visa on 30 October 2000.
In making her application she appears to have been assisted by her relations, but not by professional help from a migration agent or solicitor. Her grounds for seeking protection are written in handwriting not easily read, but they appear to have been accurately summarised by the Tribunal:
In her application for a protection visa, the applicant states that she was born on 14 July 1942 in Lautoka. She is of Indian ethnicity. She is a Christian. The applicant was married in 1967. Her husband is still in Fiji. The applicant states that she attended school from 1947 to 1955, and after that time she was engaged in domestic duties.
The applicant claims that she came to Australia to visit her brother and other friends. The applicant claims that her family lost their livelihood during previous political turmoil in Fiji, and they suffered badly as a result of the coup in May 2000. The applicant claims that Indo-Fijians have lost their land, their livelihood and their homes. The applicant claims that there is no law and order in Fiji and the police do not do anything.
The applicant claims that their land was used to dump stolen logs, and her family were threatened by indigenous Fijians. They were told to leave their house. She claims that the Indian temple and Indian stores have been burned down. The applicant claims that her husband and two sons have lost their jobs. The Fijian land owner has demanded that they leave their house. She claims that Fijians just walk into their house and take whatever they want.
The applicant claims that because stolen logs were dumped on their land she is afraid that she will be questioned about this if she returns and that she may be mistreated.
The applicant claims that the authorities are unable to protect her. She claims that there is no law and order as shown by the ability of a group of rebels to overthrow the government. The applicant claims that the police don't act if problems are reported to them, and people are afraid to go to them.
Her application was refused by a delegate of the Minister on 20 December 2000 upon the basis:
While there is evidence of general break down in law and order that occurred in some parts of Fiji during the recent coup led by George Speight, I am unable to identify any evidence of an orchestrated, state supported campaign of persecution directed against Indian Fiji's.
The delegate also said:
I have reviewed recent media coverage of the events in Fiji and can find no evidence of a campaign of human rights abuses or persecution directed at Indian Fijians generally.
The applicant appealed to the Refugee Review Tribunal on 18 December 2000. In her review application she said:
I claim that my family and I have suffered violence through the coups which have taken place in Fiji previous. We have lost our livelihood because of this coups. Now we are asked to get out of the land which we have lived for 26 years and not getting out is a death coming to my family that they will burn the house. There is no protection no help and many people had to go, because of this problem. Lost their land, house being burn down and also there is much violence, stone throwing in the night and robbering our chicken and anything that they find to do they do it to make us feel deep in our heart. My family have given me all this information from Fiji. I am so sad and also have fear.
The applicant's file was transferred to Melbourne, and the Tribunal on 18 July 2001 conducted a hearing by video with the applicant in Sydney. Unfortunately, a transcript of what transpired is not in evidence before me, and I am left with what may be an incomplete account given by the Tribunal and its reasons.
A significant passage in its description of the applicant’s evidence is:
The Tribunal asked the applicant if she had faced problems before she left Fiji. The applicant responded that the local shop which was run by Indians was regularly looted, houses and the Hindu temple had been stoned, people were afraid to go out and on one occasion a woman had died because she was too afraid to go to hospital. The Tribunal asked about difficulties she had personally experienced. The applicant responded that their house had been stoned and the Fijians had stolen things from the house. One day when she had gone shopping, the things she had bought had been stolen. The applicant said that these sort of incidents had taken place over many years.
The applicant informed the Tribunal that her family had told her that after the coup on 19 May 2000, large logs of stolen wood had been dumped near her house, blocking the road. When the road had been cleared, the stolen wood had been put on their land. The Tribunal asked why she was worried about this. The applicant responded that they were huge pieces of wood, and thieves could take shelter there and throw stones. She said that her son had told her that the logs of wood had now been removed.
There is then reference to uncertainty about the tenure of the family home in relation to their lease, and the Tribunal also received evidence about this from the applicant's brother. The following three paragraphs concluded the Tribunal's description of the hearing:
(The brother) informed the Tribunal that he understood that the situation in Fiji was very difficult for his sister's family. He had been informed that her son had recently been attacked by Fijian hooligans. There was a lot of fear in the Indian community. A temple had been burned not far from the applicant's house and a young person had been badly beaten.
The applicant confirmed that her son had told her that he had been attacked. He had gone to the police, however, the police didn't listen.
The Tribunal informed the applicant that the Department of Foreign Affairs and Trade had advised in April 2001 that the security situation had stabilised and that law and order had been restored.
Apart from the last paragraph quoted above, there is no evidence as to what was or was not put to the applicant concerning information before the Tribunal as to the situation of Indo-Fijians in Fiji relevant to the claims of the applicant, and which might be relied upon by the Tribunal.
Under the heading "Findings and Reasons", the Tribunal in less than four pages deals with the applicant's claims. The Tribunal at the start said that it “found the applicant to be a truthful witness”. It said:
At the hearing she made no attempt to fabricate claims or to exaggerate her situation. The Tribunal is satisfied that she has a subjective fear that she may be harmed if she returns to Fiji and that she fears that she will have nowhere to live.
The Tribunal made in one sentence its critical factual finding as to her history. The sentence also contained its conclusion on whether the applicant had experienced “persecution” within the meaning of the Refugees Convention definition of “refugee”. For reasons I shall explain below, it raises a serious concern whether the Tribunal misconceived the definition. The Tribunal said:
The Tribunal accepts that the applicant has suffered the harassment she claims prior to her departure to Fiji, but finds that this harassment is not of sufficient severity to constitute persecution.
The Tribunal then extracted passages from two Department of Foreign Affairs and Trade reports and two media reports. A Department of Foreign Affairs and Trade report in December 2000 included the statement:
Effective control over law, order and security has been re-established by the Police and Military.
A report by the same Department in April 2001 referred to positive statements by: “the new Qarase caretaker government” which led the author to conclude:
From a government perspective, therefore we maintain that there should be no risk of institutionalised mistreatment by authorities of returning Fijians, whether ethnic Fijian or Indo-Fijian.
The DFAT author also said:
From a community perspective, while we believe that there is no risk of mistreatment to indigenous Fijians, some Indo-Fijians remain at risk of intimidation and harassment. Isolated Indo-Fijian communities in the central division were subject to some violent criminal acts at the height of the crisis. Although such crime has since been brought under control by the military and the police, we continue to hear of isolated cases of minor harassment - mainly in the form of threats and low level theft. Increased police and military presence in potential trouble spots - plus continued media and NGO attention to this issue - leads us to assess that the risk of significant communal mistreatment of Indo-Fijians is currently low, if not lower, than reported previously.
The Tribunal then made its findings in relation to what would face the applicant if she returned to Fiji:
Based on the country information discussed above, the Tribunal finds that the security situation in Fiji has stabilised. The current ethnic Fijian-led government has publicly articulated its commitment to upholding the rights of all its citizens, and the military and the police have re-established effective control over law and order. In the current political and security climate, Indo-Fijians are not generally at risk of mistreatment, and only isolated cases of minor harassment have been reported recently. The Tribunal therefore finds that there is not a real chance that if the applicant were to return to Fiji now or in the reasonably foreseeable future that she would become the victim of violence because of her race.
The Tribunal then addressed possible concerns in relation to security of tenure and employment prospects for Indian Fijians, which I need not set out. It stated its general conclusion:
Taking into account the above, the Tribunal is not satisfied that there is a real chance that the applicant would be persecuted for reason of her race or for any other Convention reason if she returns to Fiji now or in the reasonably foreseeable future. The Tribunal finds the applicant's fears are not well founded.
The applicant in this Court had the benefit of assistance when preparing her application from somebody with an appreciation of the grounds of judicial review, but unfortunately has not obtained further legal assistance and has appeared today in person. She had the assistance of an interpreter and a friend who speaks English, but who, unfortunately, does not have a legal background. Their efforts were directed at drawing my attention to the applicant’s current circumstances which give rise to her having a continuing fear of returning to Fiji. Unfortunately, as I have explained to them, it is not my function to address those current fears. I have therefore been in a situation today where I have been forced to explore legal issues with the solicitor for the Minister unaided by useful legal submissions on behalf of an applicant.
The application contains two grounds which are directed at the Tribunal's finding which I quoted above, that:
the harassment she claims prior to her departure from Fiji…is not of sufficient severity to constitute persecution.
Ground 1 says:
The Tribunal made jurisdictional error in interpreting what is meant by serious harm and held that what the applicant suffered was not persecution as it was not of sufficient severity.
Ground 3 states:
The Tribunal misapplied the test for persecution and held that the harassment the applicant suffered is not of sufficient severity.
The particular for that ground is:
The Tribunal failed to look at the total claims of the applicant in order to decide whether the applicant has well founded fear.
I consider that there is substance in these grounds, although I prefer to characterise the Tribunal’s error as being a failure to address considerations which needed to be addressed before it reached a conclusion on whether the harassment complained of constituted "persecution" within the Refugees Convention as adopted by the Migration Act. I consider that the Tribunal failed to appreciate issues which it was required to consider when assessing the applicant’s history of harassment in her home in Fiji.
The baldness of the Tribunal’s consideration is apparent in its one sentence finding and conclusion. It was required under s.430 of the Migration Act to “set out the findings on any material questions of fact”, and in the present situation I consider that I should draw inferences from the absence of explanation or discussion of material issues in the Tribunal's reasons (c.f. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75]). The omissions lead me to conclude that the Tribunal has applied a simplistic test of "sufficient severity" when deciding whether the applicant suffered “persecution”, which is inconsistent with current High Court authority on what should be considered in a situation where a Tribunal has accepted a past history of harassment for Convention reasons and a current fear arising from it.
These considerations were described by McHugh J in Minister for Immigration and Multicultural Affairs v Respondents S152/200 (2004) 205 ALR 487 at [72-74]:
[72] In its ordinary meaning, persecution involves selective harassment or oppression of any kind. The terms “harassment” and “oppression”, particularly the former, imply repetitive, or the threat of repetitive, conduct. In its ordinary meaning, persecution always involves discrimination of some kind although discrimination is not necessarily persecution. The harassment or oppression will ordinarily be motivated by enmity or by the desire to achieve an objective. It frequently involves the infliction of systematic harm over a period directed against those who hold particular beliefs or who refuse to comply with the persecutor’s wishes.
[73] In the Convention, however, the notion of persecution is not at large. Either expressly or by necessary implication or inference, the Convention controls and narrows the meaning of persecution for its purposes. Thus, the selectivity and motivation of the harassment or oppression is defined by reference to five matters: reasons of race, religion, nationality, political opinion and membership of a particular social group. Further, not every kind of harassment or oppression constitutes persecution for the purpose of the Convention. The Convention is concerned with persons who are outside their country of nationality and are unable or unwilling to seek the protection of that country because of a well-founded fear of what will happen to them if they return to that country. This factor, together with the imposition of obligations on the country where asylum is sought, indicates that the feared harm must be of a serious nature that goes beyond simple discrimination and requires the country of asylum to protect the refugee. It is not to be supposed that the Convention required signatory states to give asylum to persons who were persecuted for a Convention reason but who were unlikely to suffer serious infringement of their rights as human beings. Thus, for the purpose of the Convention, the feared harm will constitute persecution only if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person. Implicit in that statement is the further proposition that there is a real chance that the feared conduct will be repeated or, if it has not already occurred, will occur, if the asylum seeker returns to the country of nationality.
[74] Most forms of persecution involve sustained discriminatory conduct or a pattern of discriminatory conduct against an individual or a group of individuals. But a well-founded fear of persecution may be established for the purpose of the Convention although it does not derive from conduct that is part of a pattern or involve sustained discriminatory conduct. The fear may arise from an announcement as to a future course of conduct or from a single act that was directed at the asylum seeker or at others. It is not necessary that the asylum seeker should have been persecuted in the past. The Convention looks to the future. What has occurred in the past does not determine whether a person is a refugee for the purpose of the Convention. In determining whether that person has a well-founded fear that he or she will be persecuted if returned to the country of nationality, the past is a guide – a very important guide – as to what may happen. But that is all. (citations omitted)
His Honour also illuminates the present situation:
[77] The case that presents most difficulty is one where harm to individuals for a Convention reason may come from any one or more of a widely dispersed group of individuals and the state is willing but is unable to prevent much of that harm from occurring. In societies divided by strongly held ethnic or religious views, it commonly happens that members of one group have a real chance of suffering harm – often violent harm – because of the pervasive but random acts of members of another group. Such harm occurs although the state makes every effort to prevent it. In such cases, it would be a misuse of language to say that the fear of persecution is not well-founded because the state has “a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected”. In Horvath, relying on the protection theory, the House of Lords limited the scope of the definition of “refugee” by requiring that a state be unwilling or unable to eliminate persecutory conduct by private individuals. Nothing in the Convention, however, supports this limitation. It should not be read into the Convention.
[78] If there is a real chance that the asylum seeker will be persecuted for a Convention reason, the fear of persecution is well-founded irrespective of whether law enforcement systems do or do not operate within the state. In Haji Ibrahim, all members of this court recognised that persons may be persecuted for a Convention reason although the state is unable to protect them because a civil war is raging in the country. No different view should be taken where in peace-time a state is unable to protect its citizens from harm inflicted for a Convention reason. As Gleeson CJ pointed out in Haji Ibrahim, “[p]ersecution and disorder are not mutually exclusive”. In the same case, Gaudron J said that persecution may exist for the purpose of the Convention “whether or not the conduct occurs in the course of a civil war, during general civil unrest or ... [where] it may not be possible to identify any particular person or group of persons responsible for the conduct said to constitute persecution”.
[79] In order to establish that fear is well-founded in cases of private persecution, an asylum seeker will no doubt have to show more than that persons holding the same beliefs, opinions or membership of races, nationality or particular social groups are being persecuted. The asylum seeker will have to show that there is a real chance that he or she will be one of the victims of that persecution. That person will have to show some fact or circumstance that indicates that there is a real chance that he or she will be among the victims. Thus, it may be enough to show that, by reason of the conduct of the asylum seeker, he or she stands a greater chance of harm than other persons who hold the same beliefs or opinions, or membership of the particular group. Or it may be enough to show that a very high percentage of such persons are persecuted for a Convention reason and the circumstances of the applicant are similar to those who have been persecuted. (citations omitted)
Of particular relevance to the present case is his Honour’s opinion that the Convention concept of persecution was intended to cover people who were likely to “suffer serious infringement of their rights as human beings”. His Honour also illuminates the concept of “persecution” with the idea, accepted by him and other members of the High Court in earlier cases cited by him, that:
The feared harm will constitute persecution only if it is so oppressive that the individual cannot be expected to tolerate it, so that refusal to return to the country of the applicant's nationality is the understandable choice of that person.
I do not understand his Honour's discussion of "persecution" in this case and in earlier cases to be unacceptable to other Justices on the High Court. It is consistent with, for example, the opinions of Gummow and Hayne JJ in another recent case, Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71:
[66] The term "persecution" is not defined in the Convention, and in the decisions of this Court there has been no precise tracing of the metes and bounds of its meaning in the Convention definition of "refugee" applied in the Act. It is not of great assistance and is apt to mislead to approach the matter by saying, as did an English court, that "persecution" is a "strong word". However, it is clear from the decision of this Court in Minister for Immigration and Multicultural Affairs v Haji Ibrahim that a systematic course of conduct is not required. Further, in the joint judgment of six members of this Court in Minister for Immigration and Ethnic Affairs v Guo, an approving reference was made to the proposition stated by McHugh J in Chan v Minister for Immigration and Ethnic Affairs that measures in disregard of human dignity may, in appropriate cases, constitute persecution. In the present appeals, there was no challenge to those propositions. (citations omitted)
In the same case McHugh and Kirby JJ at [31] identify “the nature, severity and likely repetitiveness of the harm feared” among the matters to which consideration should be given. This formulation does not present “severity” as a sufficient test. Moreover, their Honours also identified other essential considerations, including:
The extent to which the individual can be expected to tolerate the harm without leaving or refusing to return to the country of nationality.
I consider that the terseness of the present Tribunal’s finding, in the context of the facts which it has accepted, shows that it has overlooked or not appreciated that more is required than an assessment of “severity” of individual acts of harassment suffered by the applicant in the past. It has not appreciated that a history of harassment must be assessed on broader considerations, including its cumulative effects on the claimant’s enjoyment of human rights and the extent to which he or she can be expected to continue to tolerate the harassment.
In the present case the Tribunal has accepted that a 59 year old housewife had lived in a home environment where the neighbourhood local shop was regularly looted, the local Hindu temple and local homes were stoned, and people of the applicant’s community were afraid to go out - to the extent that one woman had died because she was too afraid to go to hospital. The Tribunal accepted that the applicant herself had experienced her house being stoned, and Fijians stealing things from her house, and that she had encountered a thief when going shopping. The Tribunal also accepted that “these sort of incidents had taken place over many years”. The country information which it accepted showed that the situation likely to face the applicant in her home and neighbourhood had worsened during and after a coup.
Upon these factual findings one would expect, if the Tribunal had properly directed itself as to what could constitute persecution under the Convention, a consideration of whether the applicant living in this condition of insecurity resulting from racially based harassment was encountering an affront to human dignity which she could not be expected to tolerate and return to, and to make findings directed at these and the other considerations which the High Court has identified. In the present case, I think the Tribunal failed to do this.
The solicitor for the Minister sought to persuade me that no error had been made by the Tribunal in its consideration of the applicant’s history of harassment. Her first argument was that, in the usual ‘boiler plate’ legal description at the start of its reasons, the Tribunal had said:
Second, an applicant must fear persecution. Not every threat of harm or interference with a person’s rights for a Convention reason constitutes “being persecuted”. In Chan’s case Mason CJ referred to persecution as requiring “some serious punishment or penalty or some significant detriment or disadvantage”. In the same case, McHugh J said that the notion of persecution involves selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights, and measures “in disregard” of human dignity. In Applicant A's case, his Honour stated that whether or not conduct constitutes persecution does not depend on the nature of the conduct but on whether it discriminates against a person for one of the Convention reasons. Persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.
She pointed out that this discussion includes reference to McHugh J's judgment in Chan's case which referred to “measures in disregard to human dignity” as being able to constitute persecution.
However, I am led by the present Tribunal's reasoning on the particular facts in this case, and in particular by its unequivocal acceptance of the applicant's evidence, to conclude that its terse finding on this issue reveals that it has not properly appreciated what aspects of human dignity are protected by the Refugee's Convention. These must include the right to live in a secure home environment where people are not regularly stoned in their houses and temples and are not afraid to leave their homes to go to hospital. No doubt it may be difficult at times to decide the point at which such harassment transgresses the human rights standards reflected in the Refugees Convention. However, it was the duty of the Tribunal in the present case to squarely address that issue. In the absence of adequate discussion of the issue by the Tribunal, I conclude that it did not appreciate the law correctly.
The Minister's solicitor's second contention was that I should read the Tribunal's finding that “this harassment is not of sufficient severity” as being directed solely at the applicant's individual experiences in relation to her own house and her own possessions. She submitted that the Tribunal’s assessment was only directed at a personal history where “their house had been stoned and Fijians had stolen things from the house” and where she had been robbed once “one day when she had gone shopping”. However, I am unable to read the Tribunal's finding as being so narrowly directed.
Moreover, if I were to give the finding on “persecution” that reading, then the Tribunal would have fallen into the significant jurisdictional error of failing to address significant elements in the applicant's claims which were clearly presented to the Tribunal (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263). In the present case it is clear that the core of the applicant's concerns about her own security in her own home was the situation in her immediate neighbourhood of herself and other members of her household and community. It was not confined to a history of her own individual experiences. If the Tribunal failed to appreciate this element in her claims and to address findings at it, then it ‘constructively’ failed to exercise its jurisdiction to review the delegate's decision.
I therefore consider that, within grounds 1 and 3 raised by the application, errors of law were made by the Tribunal when reviewing the delegate’s decision. I consider that she has made out an entitlement to relief by way of a writ of certiorari and mandamus directed at the Tribunal's decision, and that I am not precluded by s.474(1) from giving relief since the errors involved serious misconception of the effect of the Refugee’s Convention definition of “persecution” and affected its purported exercise of jurisdiction.
I shall also refer to two other grounds in the application, because I consider that there may be substance in them and they may need to be addressed if the matter proceeds further.
Ground 2 in the application was:
The Tribunal made jurisdictional error as it failed to deal with the claim about the attack on her son and the police not providing state protection.
This I consider is properly framed, and gives rise to the issue as to whether the Tribunal did fail to assess the significance to the applicant's current fears of returning to Fiji of the history which she and her brother had given to the Tribunal of a recent attack on the applicant's son by Fijian hooligans. Certainly, there is no discussion of this in the Tribunal's reasons and, given the terseness and other unsatisfactory aspects of the reasoning, I am inclined to infer that the Tribunal did fail to assess this aspect of the applicant's claims.
Some support for this inference may be found in the single paragraph in which the Tribunal assessed the current ‘security situation in Fiji’ which I have quoted above. In this reasoning, the Tribunal proceeds from an acceptance of country information “that the security situation has stabilised” and that “Indo-Fijians are not generally at risk of mistreatment and only isolated cases of minor harassment have been reported recently” (my emphasis). It then draws the conclusion:
The Tribunal therefore finds that there is not a real chance that if the applicant were to return to Fiji now or in the reasonably foreseeable future she would become the victim of violence because of her race". (my emphasis)
If the Tribunal had properly appreciated the claimed significance of the history of the recent attack on the son, one would have expected it to have considered whether the applicant and her family lived in circumstances exceptional from the “general” situation of Indo-Fijians. It would then have considered whether they came within the "isolated cases" which the Tribunal appears to have accepted were occurring, based on the DFAT report of April 2001 which I have quoted above. This aspect of the applicant’s claims did, in my opinion, raise for consideration whether the Tribunal could apply directly to the applicant an opinion as to the general situation of Indo-Fijians. The absence of discussion referable to the claimed recent circumstances of the applicant's family suggests to me that the Tribunal did overlook that aspect of the claims and the need to assess it. However, since I base my orders on grounds 1 and 2, I do not need to reach a firm conclusion about this.
Ground 4 stated:
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.
Reference is made to the four pieces of country information extracted by the Tribunal in its reasons. This ground needs to be assessed against “common law” rights to procedural fairness, since s.422B does not apply to the matter.
The difficulty facing the ground is that the applicant has not put before the Court the transcript of the hearing before the Tribunal, so as to allow me to assess the extent to which the Tribunal alerted the applicant in the course of the hearing to the significant statements in these extracts which it relied upon. All that is in evidence is a statement in the Tribunal’s reasons that:
The Tribunal informed the applicant that the Department of Foreign Affairs and Trades had advised in April 2001 that the security situation had stabilised and that law and order had been restored.
This does not indicate that the applicant was sufficiently advised as to the content of the “information” which the Tribunal used adversely when affirming the delegate’s decision, nor that she was asked to respond to the information and given a reasonable opportunity to do so. However, it remains possible that she was given such an opportunity, and I am not able to infer either that such an opportunity was given nor that it was not. On the current evidence before me, I am not able to draw conclusions supporting the grant of relief based on ground 4.
However for the above reasons, I have concluded that the applicant is entitled to relief, and I shall make orders which require the Tribunal to rehear her application for review.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 11 August 2005
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