SWMB v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 112
•10 JUNE 2005
FEDERAL COURT OF AUSTRALIA
SWMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 112
MIGRATION – appeal from decision of a single judge of the Federal Court dismissing appellant’s application for judicial review of a decision of the Refugee Review Tribunal – whether the Tribunal was entitled to conclude that the appellant would not be likely to be persecuted and did not have a well-founded fear of persecution – whether the Tribunal misdirected itself, had regard to irrelevant matters or failed to have regard to relevant matters, or made a jurisdictional error – appropriateness of considering the merits of the claim – appeal dismissed.
Judiciary Act 1903 (Cth)
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied
Attorney-General for New South Wales v Quin (1990) 170 CLR 1 applied
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 appliedSWMB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS
SAD 260 of 2004
BRANSON, JACOBSON AND LANDER JJ
10 JUNE 2005
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD260 OF 2004
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SWMB
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTL. NICHOLLS
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTJUDGES:
BRANSON, JACOBSON AND LANDER JJ
DATE OF ORDER:
10 JUNE 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent.
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
SAD260 OF 2004
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SWMB
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTL. NICHOLLS
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGES:
BRANSON, JACOBSON AND LANDER JJ
DATE:
10 JUNE 2005
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from an order of a judge of this Court dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the RRT).
The appellant is a male who was born on 6 April 1965 in Fiji and who is a citizen of Fiji.
He entered Australia on 9 November 2003 and lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs on 9 February 2004.
On 10 February 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 16 March 2004 the appellant applied to the RRT for a review of that decision.
On 11 May 2004 the RRT affirmed the Minister’s delegate’s decision not to grant a protection visa.
On 5 July 2004 the appellant commenced proceedings in this Court, pursuant to s 39B of the Judiciary Act 1903 (Cth), seeking the issue of the constitutional writs. He sought an order that the RRT’s decision be quashed and a further order that the matter be remitted to a differently constituted RRT to rehear and redetermine his application for a protection visa.
On 16 November 2004 a judge of this Court dismissed that application. It is from that dismissal that this appeal is brought.
Relevantly, for the purposes of this appeal, the appellant would be entitled to a protection visa if the appellant:
‘… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’
The appellant was born in Vatukoula in Fiji where he received some of his education. He received further education in Nadi. The appellant comes from the Western part of the main island (Viti Levu Island). He is of Fijian ethnicity. He is a Christian. He speaks Fijian and English. He is divorced. He is also a member of the Nationalist Tako/Lavo Party.
The Nationalist Vanua Tako/Lavo Party is an extreme nationalist party which is opposed to the Fijian Constitution and campaigns for a ‘Fiji for the Fijians’. It has as one of its planks the repatriation of Indo-Fijians to India.
The appellant’s case before the RRT was that he actively participated in the 19 May 2000 coup in Fiji. He was one of the coup leader’s (George Speight) bodyguards. He said that he accompanied Mr Speight throughout the coup.
He said in his submissions to the RRT that there has been a long battle for political power between those in the West of Fiji who were in possession of the natural resources and the Eastern people, who he described as ‘islanders’. The latter have been in power for a long time and their politicians, he said, manipulated the system. They controlled the Army. They do not agree with the extreme nationalist views of those in the Vanua Tako/Lavo Party.
He said that when the coup collapsed the Army tortured other coup participants and members of the counter-revolutionary warfare unit who had aided those involved in the coup. He said that he hid with his de facto wife in caves in the Fijian hills for about two and a half months during which the Army searched for him.
Eventually he surrendered to the authorities and he was imprisoned for three years for offences arising out of the coup and released on 18 June 2003.
He did not suffer any mistreatment after he was released from imprisonment in June 2003 but he said that he was followed around Fiji by military intelligence officers between that date and his leaving for Australia.
His case was that if he were to return to Fiji the Army and some members of Parliament would hunt him to harm or kill him because he had been a rebel.
He said that the Army’s power was such that it could do anything to George Speight and his followers because the authorities, and in particular the police, would do nothing.
The appellant gave evidence before the RRT and provided the RRT with a number of documents. Those documents supported his claim that he was associated with George Speight and that he had been arrested for coup-related offences following upon the failure of the coup.
He said in his evidence that he feared the military people in Fiji. When asked why, he said:
‘Well, the current fear that I have now is because I’m going to open up my mouth to testify, about the truth. Four times be defeating, prior to the coup, within the coup, and after the coup. And some of the military persons therefore are, they have followed me around when I was a prisoner before I left for Australia.’
He said that there was a Commission of Inquiry in place inquiring into those who supported the coup. He said that the truth was that some top politicians and military people did support the coup but they were presently denying that fact.
It was his case that if he were to return to Fiji he would be called upon to give evidence before that Commission of Inquiry.
His evidence was that there was a continuing tension between the Fijians themselves, the Western and Eastern people.
The RRT had regard to independent country information.
That country information traced Fiji’s political history following upon the 1987 coup led by Lieutenant-Colonel Rabuka. Colonel Rabuka remained effectively in power until 1999 when his government was defeated by the Fijian Labor Party which was led by Mahendra Chaudhary. That government was in power until toppled by the coup led by George Speight.
Fiji was politically unstable following the May 2000 coup. In July 2000 a civilian interim administration was appointed and the police and military restored order pursuant to an emergency decree issued by the President.
Elections were held between 25 August and 1 September 2001 and observers reported those elections to be free and fair.
Mr Qarase was invited, following the elections, to form a government and he was still in power at the time of the RRT’s deliberations.
On 9 November 2001 the government declared the state of emergency in Fiji to be over.
In February 2002 the coup leaders and participants were convicted of treason and other related offences. They received varying prison sentences.
The country information suggested that whilst there was still some political and racial issues which gave rise to some tensions, there had been few reports in recent years of violence or harm caused to persons for reasons of political opinion. The country information recorded that the overall situation was considered to be safe for Fijian returnees.
The country information disclosed:
‘At least 16 persons died as a result of political turmoil arising from the takeover of Parliament on May 19 and culminating in the mutiny in Queen Elizabeth Barracks on November 2 … Throughout this period, a number of rebel supporters reportedly were beaten in detention, and five rebel soldiers implicated in the November 2 mutiny were beaten to death … Two of the five rebels were not directly involved in the attack on the barracks, but were arrested elsewhere and subsequently killed. By years end [2000], no disciplinary action had been taken against the soldiers involved in these incidents …’
… Police and military personnel sometimes abused detainees and suspects …
… On July 26, the military-backed civilian interim administration arrested the rebel leadership, including George Speight and charged them with treason. Two to three dozen rebels reportedly were injured while resisting arrest by the military forces; one reportedly was shot and injured. In early September, Varinava Tiko, a cousin of George Speight and the rebel who led the takeover of Korovou Town, was admitted to a hospital after being interrogated by the military forces. He reportedly suffered a broken jaw and broken ribs. In August the Chief Magistrate stated publicly that he was concerned that military and prison officials abused rebel leader George Speight and his supporters following their arrest in July. At their first Court appearance, a number of rebels bore visible signs of beatings.’
The RRT accepted the appellant’s claim that he was an attendant of George Speight and that he took an active role in the May 2000 coup.
The RRT found that following George Speight’s surrender the appellant was pursued by the Fijian military, police and authorities. It accepted that the appellant hid for two and a half months in the rural area of the main island of Fiji before returning to Suva and surrendering to police in December 2000. It accepted that he was charged with offences arising out of the coup and that he was imprisoned and remained in custody until June 2003.
It accepted the appellant’s evidence that thereafter he was under military surveillance.
However, the RRT specifically found that the appellant was not mistreated or threatened by the military or police following his release in June 2003 and prior to his departure to Australia in November 2003.
It accepted the appellant’s evidence that the appellant would be a valuable witness in any inquiry into the circumstances surrounding the coup.
The RRT found, however:
‘I do not accept that the applicant faces a real chance of persecution from military or police authorities for reasons of his knowledge of matters surrounding the involvement of prominent persons in the May 2000 coup. The applicant was convicted by a Fijian court for his role in the coup. He was sentenced to a period of imprisonment and has served that sentence. He was released and no further action has been taken by authorities in relation to his role in the coup. The applicant was not harmed or threatened between his release and before he left Fiji and there is no country information indicating that any person with knowledge of circumstances surrounding the coup has been harmed or threatened for reasons of that knowledge. His fear of harm is based purely on speculation of what may happen if the political climate in Fiji changes, an incident takes place, he gives evidence to the current police enquiry or Fiji becomes politically unstable.’
In making that finding, the RRT was undoubtedly referring to the judgment of the High Court in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 389 and McHugh J at 429. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said (at 572):
‘A fear is “well-founded” where there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate … A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation …’
At 574 they said:
‘In determining whether there is a real chance … the Tribunal had no choice but to form an opinion as to what was likely to occur … In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the … authorities … as it was entitled and, indeed bound to do … It then used those findings as the basis for its conclusion that there was no chance of future persecution.’
Lastly, at 575, they said:
‘Determining whether there was a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened … to make a finding …’
The matters to which the RRT had regard were relevant and appropriate in considering whether the appellant had a well-founded fear of persecution.
For that reason, the RRT found that the appellant would not face a real chance of persecution were he to return to Fiji.
The RRT also found:
‘Further the applicant is not able to show that his fear of harm is Convention related. The essential and significant reason for his fear of harm is his knowledge of, and willingness to give evidence on, matters related to the circumstances of the coup and prominent people who supported and encouraged the staging of the coup. He does not claim to have been targeted for harm or threatened for reasons of his political opinion. Whilst his initial involvement in the coup may have resulted from his political opinions his current claimed fear of harm from members of the military arises from his knowledge of matters concerning prominent persons and their involvement in the coup. Accordingly I do not accept that the applicant’s fear of harm is Convention related.’
The RRT specifically found that the appellant’s fears were not, in any event, for a Convention reason. His fears arise out of his knowledge acquired in the coup. The RRT found that he has not been targeted nor will he be targeted for his political opinions.
For that second reason, the RRT found that the appellant was not entitled to the protection of the Refugees Convention.
In making those two findings the RRT specifically found, contrary to the appellant’s case, that the military did not have a vendetta against the appellant for his role in the coup. Moreover, it found that the Army had been responsible for the restoration of law and order and democratic government in Fiji and was a professional force, although there had been some criticism of its failure to discipline personnel for their role in mistreating prisoners immediately following the coup.
The RRT found that otherwise the military had the respect of the Fijian community.
The RRT found that the government was democratically elected and appeared to have widespread community support. The police and courts were largely, the RRT found, fair and impartial.
It found that the appellant faced no risk of harm from authorities if he returned to Fiji now or in the foreseeable future. Specifically, the RRT found that the applicant’s membership of the extremist Nationalist Tako/Lavo Party did not render him liable to be mistreated or persecuted.
The primary judge dismissed the application for review concluding that no error on the part of the RRT had been demonstrated. First, he found that there was evidence to support the RRT’s findings. Secondly, the RRT recognised the appropriate tests. Thirdly, the RRT had applied the correct test. Fourthly, the RRT had not failed to have regard to any relevant material.
This appeal is a rehearsal of the application before the primary judge.
The appellant has complained of the RRT’s failure to find that the appellant would suffer persecution if he were to return to Fiji. Further, he has complained of the RRT’s failure to find that he had a well-founded fear of persecution. Lastly, he has complained of the RRT’s failure to find that that well founded fear of persecution is for a Convention reason.
Although, of course, he submitted that it were otherwise, his complaints were that the RRT had made errors of fact in its determination.
Of course it is not for this Court to inquire into the merits of the appellant’s claim before the RRT: Attorney-General for New South Wales v Quin (1990) 170 CLR 1 at 35-36 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348.
There was evidence to support each of the findings made by the RRT.
There was evidence that, since 2001 and in particular since the election of the democratically elected government in 2001, Fiji had largely returned to normalcy. There was no evidence that the Army or anyone associated with the Army were continuing to victimise persons who had supported the coup either directly or indirectly.
In those circumstances, the RRT was entitled to conclude, as it did, that the appellant would not be likely to be persecuted. It followed, on making that finding, that he could not have had a well founded fear of persecution. Because the RRT found that his fears in any event were based on his knowledge of what transpired in the coup, the appellant could not be said to have a well-founded fear of persecution due to his politics.
In relation to that last mentioned matter, the appellant complained on appeal that the RRT did not separately consider his claim based upon his membership of the Nationalist Tako/Lavo Party.
In our opinion, that is simply not right. In its reasons, the RRT said:
‘The applicant was a member of the extremist Nationalist Tako/Lavo Party. The applicant has not claimed that he was mistreated for reasons of his membership of this party and his political opinion and there is no information suggesting that members of this Party have been targeted for harm for reasons of their membership or their political opinion. I do not accept that he faces any harm for reason of his association with that Party and his political opinion.’
There is no doubt, in our opinion, that the RRT addressed that aspect of the appellant’s case.
Indeed it did so again when it found that the appellant’s fears were not based upon his political association but upon his participation in the coup. We have already referred to the RRT’s further reasons which show that it considered whether the appellant’s fears were Convention based and rejected that claim: [44].
Although the appellant asserted, both in his written submissions supporting his application and in his oral evidence before the RRT, that there was a continuing dispute between the Western and Eastern people of Fiji nothing in the end seems to turn upon that. It was undoubtedly the case that some Fijians supported the coup and some, including the majority of the Army, did not.
There does not seem to be any significance in the place of origin of those who supported the coup and those who opposed it.
In our opinion, nothing has been demonstrated to show that the RRT in any way misdirected itself, had regard to irrelevant matters or failed to have regard to relevant matters or in any way made any jurisdictional error.
The primary judge was right to dismiss the application. The appeal must be dismissed and the appellant must pay the respondents’ costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 10 June 2005
Counsel for the Appellant: Mr M Clisby Counsel for the First, Second and Third Respondents: Mr M Roder Solicitor for the First, Second and Third Respondents: Sparke Helmore Date of Hearing: 13 May 2005 Date of Judgment: 10 June 2005
0
4
0