S2012 of 2003 v Minister for Immigration

[2006] FMCA 407

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S2012 of  2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 407

MIGRATION – Review of Decision of RRT – whether the Tribunal failed to correctly apply the law in relation to “persecution” for the purposes of the convention – “systemic” persecution - whether the Tribunal correctly applied the law in relation to state protection – whether the Tribunal failed to disclose adverse information to the applicants – whether the Tribunal failed to deal with a material claim of the applicants – whether discriminatory conduct must be motivated by an intent to harm.

Migration Act 1958, s.242(A)
Federal Magistrates Courts Rules 2001, Part 21 Rule 21.02(2)(a)

Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379
Chen Shi Lian & He v Minister for Immigration (unreported), Tamberlin J, 19 April 1996
Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1
Murugasu v Minister for Immigration (Unreported), Wilcox J, 28 July 1987
Chan, Mohammed v Minister for Immigration (1998) 83 FCR 234
SZDTM v Minister for Immigration [2006] FCA 188
S152/2003v Minister for Immigration [2004] HCA 18
Kioa v West (1985) 159 CLR 550
 Minister for Immigration v NAMW [2004] FCAFC 264
Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72
Htun v Minister for Immigration (2001) 194 ALR 244
NABE v Minister for Immigration(No 2) [2004] FCAFC 263
SBBA v Minister for Immigration [2003] FCAFC 90
Chen Shi Hai v Minister for Immigration [200] HCA 19
NAAA v Minister for Immigration [2002] FCA 362

Applicant: APPLICANTS S2012 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG801 of 2004

Judgment of: Raphael FM

Hearing date: 16 March 2006

Date of Last Submission: 16 March 2006

Delivered at: Sydney

Delivered on: 29 March 2006

REPRESENTATION

Counsel for the Applicant: Mr R Anthony

Counsel for the Respondent: Ms M Allars

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG801 of 2004

APPLICANTS S2012 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are a husband wife of Fijian nationality and Indian ethnicity.  They are Hindus.  The applicants came to Australia in 1996 ostensibly to seek medical treatment for the husband.  On 29 February 1996 they made an application for a protection visa (866) to the Department of Immigration and Ethnic Affairs. The application was accompanied by a letter dated 1 March 1996 from a firm of solicitors. The applicants were interviewed by the department on 20 August 1996.  On 1 November 1996 the delegate declined to give the applicants protection visas.  On 20 November 1996 the applicants applied for review of that decision.  On 19 February 1997 the Tribunal wrote to the primary applicant, the husband:

   “Dear Applicant

   I refer to your application for the review of a decision refusing you refugee status.

   The presiding Member has considered all the papers relating to your case.  It is her understanding that you fear returning to Fiji because you believe that you and your wife will be attacked by people of Fijian ethnicity who want you to leave the local area because of your ethnicity and your past support for the Fiji Labour Party, and that the police will be unable to help you.

   From the evidence currently before the Tribunal it appears that you would only face these problems if you returned to live in the area where you resided prior to your departure.  Applicants who can seek protection by relocating to another part of their home country are not generally considered to be refugees.  Thus, even if it were accepted that you faced serious problems because of your ethnicity in your local area, you would not appear to be entitled to a protection visa.

   As the presiding Member is unable to make a favourable decision on your case on the basis of the information currently before her, you and your wife has a right to attend a hearing of the Tribunal and give oral evidence on this and any other matter relevant to your application for a protection visa.

   As advised in the Tribunal’s letter dated 18 February 1997, you may also forward any document or written submission regarding your case to the Tribunal and they will be taken into account when your application is determined.

   A hearing has been arranged for you and for any person included in your application who wishes to give oral evidence to the Tribunal:

   Date:  Tuesday, 25 March 1997

   Time:  9.30AM

   Place:  Refugee Review Tribunal Hearing Room 11

   Level 29, Pacific Power Building,

   201 Elizabeth Street

   SYDNEY

   (corner of Park Street and Elizabeth Street opposite Hyde Park)

   Interpreter:”

2. On 25 March 1997 the Tribunal held a hearing which was attended by both applicants and the solicitor.  On 3 April 1997 the Tribunal determined to affirm the decision of the delegate not to grant protection visas.

3. After the decision had been handed down the applicants became part of the Muin and Lie class action.  Their claims in this regard were eventually dismissed by Justice Emmett in 2004.  On 18 March 2004 they lodged an application for review of the Tribunal’s decision in this court.  The court is left in the invidious position of having to analyse for jurisdictional error a nine year old decision in the light of modern jurisprudence none of which was available to the Tribunal at the time the decision was written.

4. The applicants’ claims to be persons to whom Australia owed protection obligations were said, so far as the Tribunal was concerned, to be:

   “I am unable to return to Fiji as I fear persecution by reasons of my race and general lawlessness in Fiji.”  [CB 70]

5. In the application to the Minister the applicant had stated:

   “36   Why did you leave that country?

   I left that country because I had a renal stone in my kidney for which their wasn’t any treatment, so I had to come here for a medical treatment, and I have decided to stay here because I have been going under lot of problem and difficulties caused by the Fijians in my village and work place.  Many times the Fijians have snatched my pay from me and if I don’t give, they beat me up.  Once they set fire to my house and I almost everything I had.  They know that I have voted to Labour Party and I had been a strong supporter that’s why they are threatening me.  They have even entered my house one night and threatened me that if I don’t give money to them then they will rape my wife or even kill her.

   37  What do you fear may happen to you if you go back to that country?

   If I go back to that country the same thing will happen with me and my wife again.  They’ll again threaten us.  For example all the violence that is happening in Fiji the news only is published in Indian newspaper.  They don’t publish that in the English Fiji times because people from other countries will reach and will be able to know about Fiji.  Some examples are as follows.  This is only some of the cuttings.

   38   Who do you think may harm/mistreat you if you go back?

   I am mostly afraid of the Fijians.

   39   Why do you think they will harm/mistreat you if you go back?

   Because I have voted the labour party and they know that I am a strong supporter that’s why they are threatening me.  Another thing the Fijians don’t give equal rights to the Indians.  Most of the students who get low marks than the Indians get the high position job.

   40  I don’t think so because since now they haven’t done anything.  The Fijians have threatened me many times but the police couldn’t do anything because now days the police are also afraid of those Fijians.  For example in January they broke in my house but the police couldn’t do anything.”

6. In the letter of 1 March from the solicitors found at [CB 36] the solicitors say:

   Specifically, this applicant claims that due to reasons of his race (Indo-Fijian) he is contantly being threatened and harassed by indigenous Fijians (Taukeis) who routinely assault, threaten, intimidate, and rob him.  This applicant claims that when he has reported these matters to the Police, they have failed to properly investigate his allegations due to reasons of the fact that the perpetrators are Taukeis.  This applicant fears for his personal safety and of the safety of his wife, and those members of his immediate family who remain in Fiji.

   These fears are genuinely held and satisfy the first limb of the test in Chan’s case.  Specifically, this applicant has a strong subject fear which upon closer analysis will approach the requirement as set out in Chan’s case of him being persecuted for a convention reason.  In particular, this applicant claims that there is a real chance of continuing persecution at a level and intensity consistent with the requirements of the international convention and protocol.

   The applicant also claims that the persecution detailed above, also arises out of the fct of him being a Hindu and the belief that the applicant is a strong supporter of the Labour Party in Fiji.

   It is a matter of public record that law and order issues have assumed a priority in Fiji and there is a corresponding lack of confidence in the Police force arising out of its apparent failure to be able to protect all persons residing in Fiji.

   This applicant claims that Indo-Fijians in particular, have been unable when resources have been scarce to obtain Police protection.  The applicant believes that the failure of the Police to protect him arises principally out of reasons of his race.”

7. In its decision the Tribunal under the heading “The relevant law” discussed the question of what constituted persecution.  At [CB 83] it said:

   “Persecution is not precisely defined in the Convention or in Australian law.  However, it is generally agreed that it means serious harm or discrimination or human rights abuses directed against a group or an individual as part of a systematic course of conduct by the government or other groups or individuals in an applicant’s country of nationality. “

   The Tribunal then referred to Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 at [388] and [430] as well as Chen Shi Lian & He which was a decision of Tamberlin J of 19 April 1996 and unreported.  At [CB 84] the Tribunal also said:

   “Persecution involves a systematic course of conduct aimed at an individual or at a group of people.  Therefore, harm suffered as a result of random or incidental violence is not generally to be considered persecution even if there is a racial or religious element to the violence.  However, if an individual or a group is targeted for systematic attack or their treatment is part of a pattern of serious harassment or discrimination directed against them they may be considered victims of persecution.  Murugasu v Minister for Immigration, Federal Court, 28 July 1987, Wilcox J, p.8 & 13 (unreported).”

8. The Tribunal then considered the applicants’ claims and evidence.  It noted that the applicant worked as a miner but also lived on a farm where he cultivated sugar cane.  It noted that the applicant’s father was a well known member of the Fiji Labour Party but that the applicant had never been a member of that party and that his father had not participated in any political activities since 1987.  The Tribunal told the applicant that it had independent country information to the effect that members of the FLP were no longer at risk of harm to which the applicant made no comment.

9. The Tribunal accepted that the applicants had been the victims of a number of crimes perpetrated by indigenous Fijians in May 1987, July 1988, mid 1990, December 1994 and June 1995.  The crimes involved robbery at their home and a threat to rape the wife.  There were threats to the male applicant and the burning of his sugar cane.  The incidents had been reported to the police, once some property was returned but on no occasion was anyone arrested.   The male applicant also told the Tribunal that he was concerned that his lease on the sugar cane plantation would not be renewed.  At [CB 86] the Tribunal says:

   “At the hearing I advised the applicant that, while I accepted that he had been the victim of a number of crimes, the attacks which he had faced appeared to have been motivated by a desire for financial gain rather than a desire to harm him because of his race or his political opinion.  I noted that while police protection in Fiji may be less than ideal this was a problem for all Fijians not just those of an Indian background.  I also observed that it appeared that he could avoid the problems he was experiencing in his local area by moving elsewhere in Fiji and noted that his brother and sister appeared to have been able to establish themselves in Nandi without any great difficult.”

   The Tribunal went on to say:

   “[e]ven if the lease on his property were not renewed, he had been in full time employment at the time he left Fiji and it did not appear that he would be serious disadvantaged if he could no longer live on the farm.”

10. The Tribunal then went on to give reasons for its decision and considered the claims of imputed political opinion arising out of his father’s support of the FLP.  Based upon certain DFAT cables and the US State Department country report of 1996 it concluded that there was no evidence that members of these or other political groups were at risk of arrest because of their political views.  The Tribunal then dealt with the specific claims of the male applicant relating to discrimination against Indo-Fijians.  In relation to education it stated:

    “The applicant himself completed secondary schooling and was in full time employment from then until his departure for Australia.  In the circumstances I find the chance that he or his wife will face serious discrimination amounting to persecution in areas such as employment or education as a result of their ethnicity to be remote.  The Tribunal then quoted from certain independent country information it had received on these matters.”

11. The Tribunal then dealt with the land tenure problem and came to the conclusion that the evidence indicated that leases were likely to be renewed albeit at a higher rent before stating:

    “It is possible that the applicant will not be able to renew the lease on his farm when it expires later this year.  However, I do not consider this constitutes persecution under the convention.

    As discussed above, not all forms of persecution faced by an individual or group constitute persecution under the convention.  To be considered persecution the discrimination must be motivated by an intent to harm.  Fiji’s land tenure laws date back to colonial times when they were introduced by the British to protect the traditional Fijian way of life.  … I do not consider that Fiji’s land tenure laws are a form of serious discrimination amounting to persecution of Indian Fijians in general.  In the applicant’s case he worked full time as a miner prior to his departure from Fiji and did not rely primarily on his farm to provide him with a livelihood.  There is no reason to suppose he would not be able to find similar work if he returned to Fiji now.”

12. The Tribunal referred to evidence before it and suggested that relations between Indo Fijians and indigenous Fijians were not as bad as painted.  It cited an extract from a September 1996 magazine and a press report of a speech given recently in Australia which indicated that the agricultural leases were likely to be renewed.  The Tribunal accepted that the incidents of robbery and threats had occurred but said in relation to them:

    “I also accept that there was a strong racial element to these acts.  However, from the evidence it is clear that the incidents occurred within a short period of time and did not recur.  I consider they were isolated events and did not form part of a systematic course of conduct directed against the applicant because of his race.  They therefore do not constitute persecution under the convention.”

    The Tribunal then went on to consider the question of effective state protection and after indicating that the evidence did not suggest that violence against Indian Fijians was ignored or condoned and that a large percentage of the police force was in fact of Indian background stated:

    “It is generally agreed that police protection in Fiji is often inadequate but this is a problem which affects all Fijians [independent country information cited].  I do not consider that the police failed to protect the applicant because of his ethnicity.”

13. Finally, the Tribunal made the following decision in relation to relocation:

    “Finally, as discussed with the applicant at the hearing I believe he could avoid any potential problems with his neighbours by relocation elsewhere in Fiji.  I do not consider that it is unreasonable to expect him to take this step should it prove necessary.  The applicant and his wife are young and relatively well educated people.  They have relatives living and working elsewhere in Fiji.  In these circumstances I believe they could re-establish themselves with relative ease in another part of Fiji.”

14. The applicant attacks these findings on five bases.  The first ground alleges that the Tribunal failed to correctly apply the law in relation to the meaning of the word “persecution” for the purposes of the convention.  The gravamen of this claim was that the Tribunal fell into the error identified by the Full Court and accepted by McHugh J in the Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1 at [89]:

    "[89]  The Full Court said that [77]:

    In the light of the observations in Guo [78], it is important to note that the expression 'systematic' may be used in alternative senses. One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal. Hamad is one case where such an error was demonstrated.

    [90]  An identically constituted Full Courthttp:// - # [79] decided Minister for Immigration and Multicultural Affairs v Hamadhttp:// - # [80] approximately two weeks prior to the decision in this case. In Hamad, the Full Court said that "systematic" can be used in two senses [81]:

    "The phrase 'systematic conduct' can be, and often is, used in two senses - either to refer to the motive, or evidence revealing the motive for the acts of the perpetrator or alternatively to refer to a number of acts or the volume of acts which are necessary before persecution is established."

15. The applicant says that a close reading of the Tribunal’s decision would reveal that by the use of the words “pattern of serious harassment” the Tribunal indicated that it was using the word “systematic” in the sense of “habitual behaviour according to a system, regular or methodical”.  The difficulty which I have with this assertion is that the Tribunal bases its finding as to the meaning of the word “persecution” on the decision of Wilcox J in Murugasu and also the decision of McHugh J in Chan Yee Kin at [430]. The importance of the latter reference is that it is in this judgment that his Honour makes it clear that persecution can evolve out of only one incident and several incidents are not required. The importance of the reference to Murugasu is that in Ibrahim his Honour discusses the evolvement of the definition of persecution starting with Murugasu and moving through Chan, Mohammed v Minister for Immigration (1998) 83 FCR 234 to the position he was taking which is found at [99]:

    “[99]  It is an error to suggest that the use of the expression "systematic conduct" in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic." [101]. The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution [102] 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.”

1. The situation in this case is not that as described by Bennett J in SZDTM v Minister for Immigration [2006] FCA 188 at [37] where her Honour said:

   “[37]  The racial discrimination which the Tribunal described as "criminal offences" refers to the anti-Chinese riots and acts committed against the Chinese community in Indonesia by state and non-state elements. The Tribunal’s conclusion, that this was due to the economic position and the perception of wealth of the Chinese community and that this did not attract the protection of the Convention is, in my view, untenable. The Tribunal accepted that there was a racial element in these offences. It conceded that its theory that the offences were linked only to wealth does not explain the attacks on small Chinese businesses, yet it failed to consider the racial basis of the offences. The Tribunal’s conclusion, that offences perpetrated on a community because of its economic position are merely criminal in nature and not racially based, is a statement about the kind of offences that gave rise to the Convention itself.”

   In the instant case the Tribunal cited evidence from the applicant that both Indian Fijians and indigenous Fijians have been robbed in a similar fashion to the applicant and that he believed the later attacks were brought on because:

   “That Fijians were jealous of the fact that he owned a tractor which he loaned to other Indian Fijians.”

   The Tribunal therefore considered the racial basis of the offences and discarded it as having any importance.  This seems to me to be a question of fact with which the court cannot interfere.  I must reject the submission of the applicant that the Tribunal fell into jurisidctional error in regard to this definition of persecution.

2. The second ground is that the Tribunal failed to correctly apply the law in relation to state protection.  The respondent accepts that S152/2003v Minister for Immigration [2004] HCA 18 stands for the principle that in deciding the question of effective state protection the Tribunal should consider whether the applicant has provided evidence that the state lacks “the standard of protection required by international standards” [29]. In this case (and not unexpectedly considering the reference to international standards was made some seven years after the decision) there was no particular discussion on that issue but there was some relevant evidence about the state of the Fijian Police Force

   “However, the evidence before the Tribunal does not suggest that violence against Indian Fijians is ignored or condoned by the police or other Fijian authorities.  Nearly 40% of the police officers are of Indian background and concerted efforts to restore professionalism and neutrality to the police force from the early 1990s resulted in increased confidence in the police from all ethnic groups.  It is generally agreed that police protection in Fiji is often inadequate but this is a problem which affects all Fijians.”

3. There is a discussion about the Fijian police force at [CB 63] in the delegate’s decision and from my mind it was the responsibility of the applicant to provide further evidence to the Tribunal to ensure that it was satisfied of his allegations concerning the alleged inability of the police force to provide protection for himself and his family.  He could not be said to have been unaware that the Tribunal did not consider this allegation sufficient.  As was pointed out by both the delegate and the Tribunal the applicant made complaints to the police about each incident and that in respect of one some property was recovered whereas in respect of the others he had difficulty in identifying his assailants.  This would presumably have made it difficult for the police to have apprehended anyone in respect of these crimes.  This is not one of those cases where the applicant has identifed his assailants and informed the police and yet they have done nothing.  I am not able to find jurisdictional error in the Tribunal’s approach.

4. The third ground alleges a failure by the Tribunal to disclose adverse country information to the applicants. It is to be remembered that this Tribunal hearing took place before s.424A was inserted into the Migration Act 1958 so that the general rules of procedural fairness would apply.  The Tribunal makes reference to independent country information in a number of places in its decision.  It is used to rebut the suggestion that the applicant was unlikely to have his farming lease renewed [CB 89].  It was used in relation to the inadequate state protection claim [CB 90] and it was used in relation to the claim in relation to inadequate educational opportunities [CB 88].  I am prepared to accept the submission made by the applicant that whereas some information was put to the applicants [see CB 85 & 86] the information that I have referred to was not.  The information is adverse to the submissions put by the applicant and it is credible relevant and significant to the making of the decision.  I believe that the principles of natural justice that applied at the time, in particular Kioa v West (1985) 159 CLR 550 per Brennan J at [629] and the later decisions such as Minister for Immigration v NAMW [2004] FCAFC 264 and Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72 support a finding that a failure to allow the applicant an opportunity to comment on this information constitutes a jurisdictional error.

5. The fourth ground raised by the applicants is that the Tribunal failed to deal with the material claim based on religion.  In a letter from his solicitor to the delegate it was submitted on behalf of the applicant:

   “The applicant also claims that the persecution detailed above also arises out of the fact of him being a Hindu and the belief that the applicant is a strong supporter of the Labour Party in Fiji.”

   The applicant filed an affidavit which indicated that he had listened to the tape recording of his interview with the delegate.  At [3] of the affidavit the applicant deposes:

   “During the interview I was asked the following questions to which I gave the following answers:

   Q:      What is your religion?

   A:     Hindu

   Q:What public expression do you give of your religion?  What things do you do in public to show you are a Hindu?

   A:     Preaching.

   Q:      Do you preach do you?

   A:     Yes.

   Q:      Where do you preach?  Do you preach at the temple.

   A:     Temple.

   Q:      Do you have any problems practising your religion.

   A:     No.”

6. There is no evidence that the question of the applicant’s religion was raised at the hearing before the Tribunal either by the applicant or by the Tribunal itself.  In all probability the Tribunal subsumed the applicant’s religion into his race and assumed that in the absence of any differentiation by the applicant the attacks upon him and the fear which he held by reason of his race and religion were one and the same.  I cannot accept the submission by the respondents that the claim in relation to religion was abandoned by virtue of the responses to the delegate that I have set out above.  That is a response in relation to the overt practice of the religion as opposed to persecution that might have been directed to the applicant merely because he was a person of that religion.  A failure to deal with a particular claim is a constructive failure to exercise jurisdiction Htun v Minister for Immigration (2001) 194 ALR 244; NABE v Minister for Immigration(No 2) [2004] FCAFC 263. The real question is whether or not this reference to his religion in the letter from his advisor without more can constitute a claim. Where a relevant consideration arises on the face of the material before the Tribunal, that information will constitute a claim of an applicant that must be addressed, even though the applicant does not specifically articulate the claim. In SBBA v Minister for Immigration [2003] FCAFC 90 the Full Court stated at [8] that:

   “It is well established that all substantive issues raised by the eivdence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCA 287 at 294; and Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 at [24]. It is, however, no part of the Tribunal’s function

   “to make good a case, which the applicant has not articulated, only because there is some evidence to elements of a claim”

   Parra v Minister for Immigration and Multicultural Affairs [2001] fca 85 at [13]”

   A similar point was stressed by the Full Court in NABE v Minister for Immigration (No 2) FCAFC 263, wherein the Court made reference to the High Court decision of Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [63]:

   “ It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.”

   The Court also stated at [58]:

   “The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J).”

   It was clearly before the Tribunal from the letter that it was the belief of the applicant that the persecution he suffered was at least partially a result of his religion. In all the circumstances, although the claim was not seriously pressed by the applicant, it was not treated as the independent claim that the letter intended it to be and this failure does constitute a jurisdictional error.

7. The fifth complaint raised is that the Tribunal committed a jurisdictional error by misconstruing or failing to apply the law by holding that for discrimination to be considered persecution, the discrimination must be motivated by an in intent to harm.   Discriminatory conduct does not require a motivation of emnity or malignity towards people within the convention related classes; Chen Shi Hai v Minister for Immigration [200] HCA 19 at [33] to [35] per Gleeson CJ, Gauldron, Gummow and Hayne JJ.

8. The respondent argues that the words used by the Tribunal do not do more than point to the necessity for a causal link between the harm suffered and the convention related status of the applicant.  But I think the Tribunal goes further than this.  In saying that the land tenure laws dated back to colonial times and were introduced to protect the traditional Fijian way of life the Tribunal is expressly comparing benevolance with malignity.  The correct question to ask is whether or not the activity was discriminatory and in this case it clearly was.  It is convention related discrimination because the discrimination is against persons of a particular race.  I believe the Tribunal here fell into jurisdictional error.

9. Although I have dealt with these matters in detail it may well be that there was no need to do so because there appears to exist an independent finding of the availability of relocation. The question of relocation was taken up by the delegate and raised with the applicant by the Tribunal.  It formed the basis of the letter dated 19 February 1997 found at [CB 72] and set out in (1) above.

10. There was clearly an issue that the applicants were required to satisfy the Tribunal upon; namely that relocation was not a reasonable proposition for them.  They failed to do so.  The applicants argue that the relocation finding is limited.  They say it is based upon an assumption that the problems which they faced were problems from their neighbours. But that seemed to be implicit from their own evidence.  To the extent that there may be some residual suggestion of a general antipathy towards them resulting in convention related persecution, that would appear to be negated by the Tribunal’s finding that their relatives lived and worked elsewhere in Fiji. The relocation finding itself was not impugned a being infected with jurisdictional error. I am unable to see how the jurisdictional errors which I have found might  impact upon this finding by the Tribunal on relocation.  In those circumstances I would not be prepared to grant the constitutional writs requested; NAAA v Minister for Immigration [2002] FCA 362. I dismiss the application and I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:  29 March 2006