SKFB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1492

FEDERAL COURT OF AUSTRALIA

SKFB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1492

SKFB, SKGB & SKHB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 459 OF 2003

MANSFIELD J
9 DECEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 459 OF 2003

BETWEEN:	SKFB, SKGB & SKHB APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	9 DECEMBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay to the respondent costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 459 OF 2003

BETWEEN:	SKFB, SKGB & SKHB APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	9 DECEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for prerogative relief under S 39B of the Judiciary Act 1903 (Cth) and s 75(v) of the Constitution to set aside a decision of the Refugee Review Tribunal (the Tribunal) made on 4 March 2003. The Tribunal affirmed a decision of a delegate of the respondent, refusing to grant to the applicant and to his wife and son protection visas for which they had applied on 15 January 2002, soon after their arrival in Australia. I shall refer to the first-named applicant as the applicant. It is apparent from the Tribunal's reasons that his was the substantive claim to be entitled to a protection visa, and that the claims of his wife and son were derivative by reason of the family relationship.

2. The applicant and his family are Fijian Indians.  They claimed to fear persecution if they were to return to Fiji, by reason of their Indian ethnicity, because they feared that indigenous Fijians would assault them.  The applicant told the Tribunal that he operated a sugar cane farm as lessee but that in August 2000 he had been told to leave that farm, despite the lease not having expired.  That was soon after the armed nationalist revolution which took place in Fiji on 19 May 2000, during which Fiji's first ethnically Indian Prime Minister was taken hostage.

3. The applicant complained that he had been ejected from that farm in the Ba Province by reason of his ethnicity, and that he feared persecution from the landowners and the friends of the landowners at that time.  Following his eviction from that farm, he had various short-term jobs, including a short‑term job as a motor parts salesman, and survived through those jobs and through support from friends.

4. As counsel for the applicant pointed out, he told the Tribunal that even if he moved away from the farm area in the Ba Province he would not be safe because indigenous Fijians provided an ongoing threat to Indo‑Fijians in Fiji up to the present time.  It was not simply indigenous Fijians wanting the land which he farmed or to prevent him from farming other land but because of his Indian ethnicity generally in Fiji.

5. The Tribunal approached the claim on the basis that the applicant was a farmer in the Ba Province and was forced off his farmland by the landowner in August 2000 before the expiration of his lease.  It was not satisfied, however, that the applicant might still be at risk from those previously responsible for threatening him at the time and following his removal from the land.  The Tribunal said

   ‘Firstly, he gave clear evidence that the reason the harassment continued after he moved off the land was because the owner was aware that Mr Tahir’s lease had not expired.  From this I infer that the owner wished to deter Mr Tahir from resorting to the law to regain his right to farm the land.  Mr Tahir also gave evidence that the lease has now expired.  It follows that the owner of the land now has nothing to gain by threatening him.  Secondly, I am satisfied that the previous threats came from the owner or owners of farm-land in Ba province.  They occurred no more than about a mile from the farm, and I can see no logical reason why relatives of the landowners might be motivated to locate and harm Mr Tahir wherever he lives in Fiji.  I am satisfied that the harm he fears is confined to a small area around the farm.  Mr Tahir has no reason to return to live in Ba province at all.  He has no relatives there and owns no property there.  On that basis I am satisfied that it would [sic] reasonable for him to settle in some other part of the country.  If he were to do so, I am satisfied that the chance of his being harassed would be remote.  Whatever difficulties Mr Tahir may have had with the owner of land in Ba province, I am not satisfied that they might recur if he returned to Fiji.’

6. The applicant contends that the Tribunal's reasons demonstrate jurisdictional error on its part because it failed to take into account a relevant consideration.  It is pointed out that the applicant, to be eligible for the protection visa for which he had applied, would need to fall into the category of persons about whom the Tribunal was satisfied that Australia owed protection obligations under the Refugees Convention, as amended by the Refugees Protocol (the Convention).

7. In practical terms, that meant that the Tribunal had to be satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention.  To do so, it is necessary that the Tribunal be satisfied that the applicant has a well-founded fear of persecution under the Convention for a Convention reason.  A well-founded fear is one where there is a real, substantial base for the fear, and not simply one which is speculative, although, as was pointed out, a real chance of persecution may be one which involves a risk considerably below 50 per cent.  See, for example, the discussion in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

8. The Tribunal was obliged to consider whether the applicant at the time of its decision was a refugee as defined in the Convention.  It addressed that question.  It is claimed that it failed to have regard to his evidence that he could not safely move to some other part of Fiji because of his ethnicity and because he had friends in all the villages.  In my judgment, the Tribunal did have regard to that consideration.  It appears to have accepted that the applicant, at least in August 2000, was subjected to adverse treatment by indigenous Fijians by reason of his ethnicity.  However, it regarded the harm which he feared as being confined to the local area of farmland in the Ba Province.

9. It considered whether it was reasonable for the applicant to settle in some other part of Fiji.  In addressing that question, the Tribunal has, in my judgment, addressed what is called "the relocation principle" in conventional terms.  See, eg, Randhawa v the Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 441 to 442. It is an important step in the consideration of that issue as to whether the applicant could relocate to another area of Fiji, and whether he could reasonably be expected to do so.

10. The Tribunal then turned its attention to whether it was reasonable to expect the applicant to be able to remove to some other part of Fiji, where he would not be exposed to persecution.  To make that determination, it was necessary to consider his claim that in other parts of Fiji he would be vulnerable to harassment from indigenous Fijians because of his ethnicity.  By reference to independent country information, the Tribunal specifically addressed that claim and rejected it.

11. In my judgment, it has, therefore, addressed the applicant's claim and made a finding of fact adverse to his claim.  That is, the Tribunal found that the applicant could settle in some other areas of Fiji, where the chance of being subjected to treatment amounting to persecution by reason of his ethnicity would be remote.  Necessarily that involved consideration of the applicant's claim which, it is contended, was not considered.

12. That is the only ground upon which jurisdictional error on the part of the Tribunal is asserted.  For the reasons given, I do not consider it is made out.  I accordingly dismiss the application.  I order that the applicant pay to the respondent costs of the application.

I certify that the preceding twleve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             15 December 2003

Counsel for the Applicants:	Mr M Clisby
Solicitor for the Applicants:	M W Clisby
Counsel for the Respondent:	Ms C White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 December 2003
Date of Judgment:	9 December 2003