SWMB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1605

FEDERAL COURT OF AUSTRALIA

SWMB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1605

SWMB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS

SAD 148 of 2004

SELWAY J
16 NOVEMBER 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 148 OF 2004

BETWEEN:

SWMB
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

L NICHOLLS, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

SELWAY J

DATE OF ORDER:

16 NOVEMBER 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The Application be dismissed.

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

3.        No order for costs in relation to the second and third respondents.

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	SAD 148 OF 2004

BETWEEN:

SWMB
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

L NICHOLLS, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	SELWAY J
DATE:	16 NOVEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application made pursuant to s 39B of the Judiciary Act 1903 (Cth), seeking writs of prohibition, certiorari and mandamus, arising from a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 11 May 2004.

2. The applicant is a citizen of Fiji. He arrived in Australia on 9 November 2003. On 9 February 2004 he applied for a protection visa. In order to obtain such a visa, the first respondent (the Minister) had to be satisfied that Australia owed to the applicant protection obligations under the Refugee Convention: see s 36(2) of the Migration Act 1958 (Cth) (‘the Act’). In general terms, the Minister had to be satisfied that the applicant was a person who:

   ‘… 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.’

3. On 10 February 2004 a delegate of the Minister rejected the applicant’s application for a protection visa.  The applicant sought a review from the Tribunal.  On 11 May 2004 the Tribunal confirmed the delegate's decision.

4. The applicant claimed to be a member of the Nationalist Tako/Lavo Party.  He claimed that that political party had an agenda involving seizing political power from the eastern areas of the main island of Fiji.  The applicant claimed that in a pursuit of those political opinions he had been involved in the coup in Fiji in May 2000.  He claimed to have been one of George Speight's ‘front men’.  Following the coup he was charged and convicted of various offences relating to it.  He was released from prison in 2003.

5. The applicant claimed to fear persecution if he returned to Fiji and there were two bases for his claimed fears.  First, the applicant said that his life would be at risk from those whom he knew were involved in the coup and about whom he might give evidence in due course.  The applicant said that he knew of the involvement in the coup of a number of high‑ranking politicians and military and government officers.  Second, he said he would be at risk from the opponents of the 2000 coup, particularly the military, if there was in the future a breakdown of law and order in Fiji.

6. The Tribunal accepted much of the factual basis for the claims made by the applicant but did not accept that he had a well‑founded fear of persecution if he was returned to Fiji.  In that regard, the Tribunal said:

   ‘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 relation to the issue of “well-foundedness” of an applicant’s fear of persecution for a Convention reason, the courts have held that a fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility.

   …

   I do not accept that the military have a vendetta against the applicant for his role in the coup. He has given no reason for such a longstanding vendetta and whilst the country information indicates that immediately following the coup the military mistreated a number of persons involved in staging the coup the applicant has not claimed to have ever been mistreated by the military authorities either before his arrest or after his release from prison. The country information suggests that the Fijian Army was guilty of mistreatment of some persons, immediately following the coup, however generally the Army was responsible for the restoration of law and order and democratic government in Fiji during very difficult times. The Army is regarded as a professional force and despite criticism of its failure to discipline personnel for their role in mistreating prisoners immediately following the coup it appears that the Army has the respect of the Fijian community. There is no country information available that the military has been guilty of any excesses of authority or abuses of human rights following the restoration of civilian rule.

   I have considered the situation if the applicant returns to Fiji now or in the foreseeable future. After considering the available country information, I find that following the May 2000 coup that the police and military authorities restored security by July 2000 and the political situation stabilised after the 2001 elections. The current democratically elected government appears to have widespread community support and I do not accept that it is a “puppet government” as claimed by the applicant. The police and courts generally operate in a fair and impartial manner despite some suggestion that the courts have been subject to some political influence in relation to a number of high profile cases.

   The applicant had an active role in the coup and was convicted of a coup related offence. He has served his sentence in relation to that offence. Following his release there has been no further action taken against him and I find that he faces no risk of harm from authorities if he returned to Fiji now or in the foreseeable future. I do accept that he may from time to time find himself subject to further questioning and surveillance however given the history of his involvement in the coup and its related violence I accept that such action by government authorities would be relate to concerns regarding internal security and not amount to persecutory conduct.’

   The Tribunal also found that any persecution was not for a convention reason.

   ‘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 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 reasons of his association with that party and his political opinion.’

7. On these bases the Tribunal affirmed the decision not to grant a protection visa.

8. The applicant says that the decision of the Tribunal is invalid for jurisdictional error.  The applicant argues that the Tribunal applied the wrong test for whether there was a well-founded fear of persecution.  The applicant accepts that the test, as stated by the Tribunal, is the correct test.  The applicant says that the Tribunal did not apply that test.

9. In my view there is no basis to conclude that the Tribunal did not apply the correct test.

10. The applicant says that he was ‘persecuted’ in that he was subject to surveillance.  The Tribunal accepted that he was subject to surveillance:

    ‘I accept that the applicant may have been under military surveillance following his release in June 2003, but I find that he was not mistreated or threatened by the military or police authorities following his release in June 2003 and prior to his departure in November 2003.’

11. The applicant says that finding needs to be contrasted with the Tribunal’s comment that the applicant was not harmed or threatened following his release from prison.  The Tribunal was in error in not treating surveillance as ‘persecution’.

12. The Tribunal specifically dealt with this question.  It accepted that if the applicant returns to Fiji he may from time to time find himself subject to questioning and surveillance.  It held that given the applicant’s past history such further questioning and surveillance could not be considered to be persecutory conduct.  In my view it was open to the Tribunal to reach that conclusion.  It does not suggest that the Tribunal has misunderstood the word ‘persecution’.

13. The issue before the Tribunal was whether there was a real chance that the applicant would be persecuted if he returned to Fiji.  The Tribunal held that he had served his sentence.  The applicant himself accepted that he had not been physically harmed after he completed that sentence.  The conclusion reached by the Tribunal that there was not a well-founded fear of persecution if the applicant returned to Fiji was plainly open on the evidence.  There is no jurisdictional error in that regard.

14. Related to that argument, the applicant also says that the Tribunal misinterpreted s 91R of the Act. That section defines ‘persecution’. The Tribunal referred to that section in its preliminary discussion of the applicable law. The reasons for the Tribunal’s decision do not rely upon that definition. Whether or not the Tribunal properly understood the section has no consequence in relation to the conclusion it ultimately reached. There was no jurisdictional error in that regard. It is unnecessary for me to consider whether the Tribunal’s analysis of that section was correct or not.

15. The applicant also said that the Tribunal failed to consider relevant material that was before it.  However, the applicant was unable to identify in what way the Tribunal failed to consider such material.  The only material that I was taken to was a report of the US Department of State which suggested that there were incidents immediately following the coup where some persons involved in it were killed, assaulted and otherwise mistreated.  The Tribunal referred to those events in its reasons.  The conclusion the Tribunal reached was that those events occurred immediately following the coup but that there was no country information available showing that the military had been guilty of any excess of authority following the restoration of civilian rule.  Nothing that the applicant has put to me suggests that the Tribunal misunderstood any material before it or has come to a conclusion that was not open to it within its jurisdiction.

16. Finally, the applicant argued that the Tribunal did not consider his claim.  That seems to be an argument based upon the alleged failure of the Tribunal to separately consider a claim based upon the applicant’s membership of the Nationalist Tako/Lavo Party.  As is clear from the material referred to above, the Tribunal did consider that claim but concluded that there was no information suggesting that members of that party had been targeted or harmed for reasons merely of that membership.

17. Nor did the Tribunal consider that the applicant had claimed mistreatment for that reason.  It is perfectly plain from the material set out within the Tribunal’s reasons that the applicant’s claim was not limited to membership of the party as such, but was fundamentally based upon his subsequent involvement in the coup.  It is clear from the quotations from the Tribunal’s reasons set out above that the Tribunal did consider the applicant’s claim in some detail and that it concluded that he did not have a well-founded fear of persecution if he was returned.

18. I note that the Tribunal also reached the view that the applicant’s fear of harm was not convention related.  This seems to be a finding of fact which was available within the jurisdiction of the Tribunal.  However, even if it were not, the Tribunal’s ultimate decision is also supported on the alternative basis that he did not have a well-founded fear of persecution.

19. In the result, no jurisdictional error is shown and the application must be dismissed. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             6 December 2004

Counsel for the Applicant:	M. Clisby
Solicitor for the Applicant:	Walkerville Chambers
Counsel for the Respondents:	K. Tredrea
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	16 November 2004
Date of Judgment:	16 November 2004