SZAYB v Minister for Immigration - [2004] FMCA 939

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYB & ORS v MINISTER FOR IMMIGRATION

[2004] FMCA 939

MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to make findings on material claims, failed to consider whether the applicants would face serious harm or misinterpreted and misapplied the law in relation to state protection.

Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 773
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Muralidharn v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural Affairs v Respondents S152/2003

Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 113
Osman v United Kingdom (1998) 29 EHRR 245
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Palme (2003) 201 ALR 327
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 224
SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545

Applicant:

SZAYB & ORS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1330 of 2003

Delivered on:

23 December 2004

Delivered at:

Sydney

Hearing date:

5 October 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr N. McNally

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1330 of 2003

SZAYB & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 June 2003 affirming a decision of a delegate of the respondent not to grant the applicants protection visas.
The applicants are husband, wife and two children who are citizens of Fiji who arrived in Australia on 3 May 2002 and applied for protection visas on 30 May 2002. On 28 June 2002 the delegate refused to grant them protection visas and on 11 July 2002 they applied to the Tribunal for review of that decision. The Tribunal held a hearing on 8 May 2003.
The applicants are of Indian ethnicity and claimed that they had suffered and feared persecution in Fiji at the hands of indigenous Fijians and the police, because of their Indo-Fijian ethnicity. Only the applicant husband completed the appropriate part of the protection visa application form for an applicant who wished to submit his own claims to be a refugee. His wife and children each completed forms on the basis that they were members of the family unit but did not have their own claims to be refugees. However at the Tribunal hearing the applicant husband clarified that the claims related to the whole family and they were so considered by the Tribunal.
The applicants claimed that two days after the coup in Fiji in May 2000 their home was invaded by a group of indigenous Fijians, that the applicant husband was punched and his hands were tied, a knife was placed at the neck of his wife, that neighbours came to their assistance, and that the applicant was punched again and a family member stabbed in the forehead, that the Fijians stole all the jewellery being worn by the applicant wife and family members and then fled. The police were contacted and attended three hours later. They took details of the attack but did not find the offenders. The applicants also complained that the children had been mistreated at school and suffered discrimination because of their ethnicity that they were given low marks because of their ethnicity, that one had his clothes and bag torn and that they were too scared to go to school. It was contended that the police always supported the indigenous Fijians and did not accept complaints from Indo-Fijians and did not provide Indo-Fijians with protection.
At the Tribunal hearing the applicant wife told the Tribunal that during the incident on 21 May 2000 one of the men raped her in the presence of her sisters and her husband and another one of the men raped her

17-year-old sister. She feared that if she went back to Fiji the police would not help her and the men who assaulted her might seek out her husband. When asked if anything had happened since May 2000 she said that she was always fearful and never felt at peace. The Tribunal put to the applicant wife that the first occasion on which the allegation of rape had been raised was at the Tribunal. She told the Tribunal that it had not been included in the primary application because her migration agent was Indian and she was ashamed to mention it to him.
When asked if the family had suffered any other mistreatment apart from the abuse and discrimination with respect to the children, the applicant husband said that the family had suffered a lot and that for a time he had been unable to go to work because he feared for the safety of his wife and children. He also claimed that at his work indigenous Fijians took money from him and even when police apprehended offenders they just released them. He claimed that indigenous Fijians had said insulting things to the family and that they would come to his work and demand money and if you argued with them they would damage the customers’ cars and say “This is our country, you people earn and we will enjoy”. He claimed that the police were ineffective.
The Tribunal accepted the applicants’ claims about the events of

21 May 2000 including that the applicant wife and her sister were raped, that the applicant wife had not fully recovered from the embarrassment and indignity which attended the assault and that she feared that if it were to become generally known she would be stigmatised in her own community. It also accepted that over the next two years the children experienced some low-level harassment in the form of insults and that there were thefts of money both from the applicant husband and the children.
However, while the Tribunal accepted that the assault upon the wife was frightful and notwithstanding her stated fears of future attacks, the Tribunal found that the attack upon her was an isolated and random incident. The subjective fear of future sexual assault which the wife held did not of itself ground a claim for refugee status. The Tribunal accepted that the events of 21 May 2000 were serious but was not satisfied that they were other than isolated opportunistic criminal activities occurring at a time of great political and social upheaval in Fiji. It was not satisfied that they were part of any systematic mistreatment directed at the family for a Convention reason. As to the harassment and mistreatment suffered by all the family members in the following two years before they left for Australia, the Tribunal found that while this may have been for a Convention reason, being the ethnicity of the applicants, it was not satisfied that the acts were of sufficient severity to amount to serious harm constituting persecution.
The Tribunal stated that even if it had found that what the family had suffered in the past amounted to Convention-based persecution, past persecution was not determinative of a claim, albeit that it may provide useful indicators of the nature and risk of harm in the future. Based on independent information to which it referred, the Tribunal was not satisfied that the applicants faced a real chance of Convention-related persecution in the foreseeable future if they returned to Fiji. The Tribunal had regard to the applicants’ claim that effective protection was not available from the Fijian police for Indo-Fijians but also to independent information as to improvements in the situation in Fiji and in the attitudes of police since the time of the coup. It concluded that, while it was prepared to accept that there were shortcomings in the Fijian police and that they suffered from a lack of resources, it was not satisfied that the protection available to all Fijians through the police force was so ineffective that it could be said to give rise of itself to a real chance that the applicant would suffer Convention-based persecution. The Tribunal was satisfied that, generally speaking, the Indian community was protected by the existing laws of Fiji which include a sophisticated criminal justice system. It was also satisfied that the same protection was available to all Fijian citizens particularly in or near the major centres. The Tribunal found that the prospect of the applicants suffering serious harm amounting to Convention-based persecution upon their return to Fiji was no higher than remote, that their fears were not well founded and that they were not refugees.
The applicants filed an application in this court on 14 July 2003. They filed an amended application on 28 September 2004. At the commencement of the hearing the solicitor for the applicants indicated that two of the grounds in the amended application were not pressed (ground 7 and ground 1(iii)). I have endeavoured to address the grounds raised by the applicant in the order in which they were addressed in the applicants’ written outline of submissions as expanded upon in oral submissions.

Whether failure to make findings on material claims made by the first applicant (grounds 5 and 1(ii))

Ground 5 of the amended application was addressed first. The applicant contended that “The first applicant claimed that he had been the subject of ongoing extortion at work because of his ethnicity … this was relevant in assessing whether there was a well-founded fear of persecution. However, the RRT failed to make a finding in relation to the claim; including threats to destroy his panel beating business.”
In support of this claim the applicants’ solicitor drew attention to the following paragraph in the Tribunal reasons for decision, referring to the Tribunal hearing:
Asked if there was anything else he wished to mention he said that indigenous Fijians would come to his work and demand money. If you argued with them they would damage the customers’ cars. They would say: “This is our country; you people earn and we will enjoy”.
It was contended that this statement amounted to a claim that customers’ cars would be damaged if the applicant argued with the Fijians and that this would destroy his business and livelihood given that he was a self-employed panel-beater. It was submitted that in failing to make findings on these material claims the Tribunal failed to ask itself the question it had to determine and hence constructively failed to exercise its jurisdiction.
In oral submissions the solicitor for the applicant also contended that the Tribunal had failed to deal with the claim made by the applicant husband on behalf of his children in relation to their mistreatment and other discrimination at school. While this ground was not addressed specifically in the amended application, it was contended that this issue was within the generally expressed ground that the Tribunal constructively failed to exercise its jurisdiction in that it misconstrued what can constitute persecution by finding that the “harassment and mistreatment” that the applicant suffered in the two years before leaving Fiji did not constitute persecution and/or persecution for a Convention reason. (Ground 1(ii)).
The bases for this claim was that in the original application it was claimed by the applicants that they could not send their children to school because they were treated badly by the native Fijians, were abused and told Fiji was for Fijians and India for Indians, that they were given low marks and pushed back and neglected and that one of the children had come home from school with his clothes and bags torn and that the family was continuously being tortured and harassed. It was contended that the Tribunal failed to deal with such claims, which were said to be matters capable of forming the basis of a claim of serious harm in the context of discriminatory action against Indian children in school amounting to a denial of basic services including education which would have an ongoing impact on the children’s livelihood and ability to earn a living.
The solicitor for the applicants also contended that the claim of the applicant wife that she feared the social stigma of being a victim of rape had not been considered by the Tribunal. It was submitted that the Tribunal had noted her concerns but failed to make findings about that aspect of her claim which constituted an integer of her claim. Although this ground was not contained in the amended application it was addressed by counsel for the respondent in oral submissions.
Further, and also in addition to the grounds in the amended application, it was contended that the Tribunal failed to deal with all of the claims cumulatively in determining whether the treatment of the applicants amounted to serious harm or persecution. In failing to deal with the whole course of conduct complained of by the applicant as persecution by indigenous Fijians the Tribunal was said to have failed to ask itself the proper question as to whether the treatment of this family by indigenous Fijians during the relevant period amounted to serious harm and if so whether that amounted to persecution under the Convention.
It was also contended in oral submissions that the Tribunal had failed to comply with s430 of the Act. It was submitted that it did not adequately set out or refer to matters by simply mentioning them in the initial narrative of claims. It was suggested that the failure to comply with s430 would in itself be a jurisdictional error on the authority of Applicant A99 of 2003 v MIMIA [2004] FCA 773 at [20]-[23] per Mansfield J.
It has not been established that the Tribunal failed to take into account relevant considerations in the manner contended. This is essentially because the Tribunal reasons for decision proceed on the basis that the Tribunal member accepted the claims of the applicants about what had occurred to them. The Tribunal correctly described those claims. While the findings and reasons part of the Tribunal decision does not set out those claims in detail, that was not necessary given the Tribunal’s acceptance of their claims about what had occurred (that is not only in relation to the events of 21 May 2000 but also what the applicant claimed had occurred at his business, what had happened to the children and the wife’s fear of social stigma). On a fair reading of the Tribunal reasons for decision (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291) it is clear that the Tribunal addressed all the integers of the applicant’s claims. The Tribunal is not obliged to deal specifically with every item of evidence in its reasons (Muralidharn v MIEA(1996) 62 FCR 402 at 414 per Sackville J; MIEA v Guo (1997) 191 CLR 559 at 593 per Kirby J). It did not fail to consider relevant considerations in the sense of the integers of the applicants’ claims (see MIMA v Yusuf (2001) 206 CLR 323 and Htun v MIMIA (2001) 194 ALR 224). Nor did it fail to ask the right question.
In its reasons for decision the Tribunal outlined the claims made by the applicant and his family. In this respect it is notable that while the solicitor for the applicant suggested that there had been a claim that the indigenous Fijians would destroy the applicant husband’s business, in fact it was not put in such terms, but rather as a claim that the Fijians came to his work and demanded money and if he argued they would damage customers’ cars. This claim is accurately summarised in the Tribunal reasons for decision. The Tribunal then considered such claim as part of what it described in the findings and reasons part of its decision as ‘harassment and mistreatment suffered by all family members in the following two years before they left Fiji’. The Tribunal was not satisfied that the harassment and mistreatment (and this included all the claims considered cumulatively) was of sufficient severity to amount to serious harm. The Tribunal stated correctly that even if the family had suffered Convention-based persecution (and again this proceeded on the basis that all of their claims were accepted) past persecution was not determinative of a claim. For reasons which it gave, based on independent information about the situation in Fiji, the Tribunal was not satisfied that there was a real chance that the applicants would face persecution in the Convention sense in the foreseeable future upon their return to Fiji. Its findings in this respect were open to it on the material before it. The weight to be given to particular items of evidence was a matter for the Tribunal. These findings dealt with the applicants’ claims individually and cumulatively.
Further the claims that the children were insulted and harassed at school are specifically mentioned by the Tribunal. It accepted that the children had experienced some low level harassment in the form of insults and that theft of money both from the applicant husband (and this is a reference back to the claimed “extortion”) and the children had occurred. Again this conduct was part of the “harassment and mistreatment suffered by all family members” which the Tribunal found was not of sufficient severity to amount to serious harm. It is clear that in considering such harassment and mistreatment that the Tribunal took into account all of the harassment and mistreatment claimed to have been suffered in the two years after the events of

21 May 2000.
The contention that the Tribunal failed to take into account a claim that the applicant wife would suffer a social stigma is not established. It is clear from the Tribunal reasons for decision that in the course of the Tribunal hearing the applicant wife told the Tribunal that she had suffered low self-esteem since the incident and could not tell anyone in Fiji about the incident because of the stigma attached to victims of rape by other members of the Indo-Fijian community. However she did not complain that she had suffered or would necessarily suffer a social stigma, rather that she could not tell anyone because if she did she would then suffer from the stigma attached to victims of rape. Hence her silence meant that this concern could not of itself give rise to any fear of persecution because the nature of what was complained about was such that no-one else would know about it. The Tribunal accepted that the applicant wife had been raped as claimed, that she had not fully recovered from the embarrassment and indignity attending the assault and that she feared that if the assault were to become generally known she would be stigmatised in her own community. It dealt with such claims. While it accepted that she held such fears, the Tribunal found that the past attack was an isolated and random incident, that the wife’s subjective fears of future sexual assault did not of themselves ground a claim for refugee status and that the actions complained of were not part of any systematic mistreatment directed at the family for a Convention reason.
Section 430 of the Migration Act 1958 may entitle ‘a court to infer that any matter not mentioned in the s430 statement was not considered by the Tribunal to be material’ MIMA v Yusuf (2001) 206 CLR 323 at [69]. It is necessary for the Tribunal to record its findings of the facts it considers to be material. However as Mansfield J stated in A99 at [23] a Tribunal’s reasons ‘should not be read with an eye attuned to the perception of error … They are to inform, as required by s430 of the Act.’ In this instance the Tribunal adequately set out its reasons, findings on questions of fact it considered to be material and referred to material on which such findings were made. This is not a case in which there was a failure to mention aspects of the applicants’ claims such that it could be concluded that integers of the claims were not considered. Hence it is unnecessary to determine whether a failure to comply with s430 may constitute a jurisdictional error (but see MIMIA, Re; Ex parte Palme (2003) 201 ALR 327).

Did the Tribunal fail to consider whether the applicants would face serious harm on return to Fiji in the foreseeable future (Ground 6)

The applicant contended that the Tribunal failed to exercise its jurisdiction by failing to determine whether the applicants would face serious harm on return to Fiji. Under s.91R(1)(b) of the Migration Act 1958 persecution must involve “serious harm” to the applicant. There is a non-exhaustive list of matters which constitute serious harm in s.91R(2) as the Tribunal recognised. However the Tribunal clearly considered whether the applicants would face serious harm on return to Fiji – recognising that the issue was whether the applicant or applicants had a genuine fear founded upon a “real chance” as distinct from a remote chance. It acknowledged that, even if it found that what had been suffered in the past amounted to Convention-based persecution (in other words past serious harm constituting persecution), that was not determinative although it may provide a useful indicator of the nature and risk of harm in the future. It expressly stated and then considered the issue of whether or not there was a real chance that the applicants would face persecution in a Convention sense in the foreseeable future upon their return to Fiji. After considering independent information and the issue of state protection the Tribunal concluded that “for all the above reasons” it could not be satisfied that the applicants faced a real chance of Convention-related persecution upon their return to Fiji. It found the prospect of the applicants suffering serious harm amounting to Convention-based persecution upon their return to Fiji for any Convention reason to be no higher than remote. It is apparent from the Tribunal’s consideration of the independent information that it was satisfied that law and order had been restored in Fiji, that there was no evidence of any significant mistreatment of Indo-Fijians other than localised low-level harassment and theft and that effective state protection was available. Based on this information the Tribunal considered the likelihood of the applicants suffering serious harm constituting persecution as part of determining whether their fears were well-founded. In the circumstances of this matter it was not necessary for the Tribunal to address specifically each kind of harm listed in the non-exhaustive list in s.91R(2) as contended. The consideration of the independent information addressed relevant aspects of the applicants’ fears of violence and mistreatment as well as any ‘economic’ aspect of their fears. This ground is not established.

Did the Tribunal misinterpret and misapply the applicable law in relation to state protection (Ground 4)

The applicant submitted that the way the Tribunal approached the question of effective state protection was affected by jurisdictional error. The grounds relied on were as follows:
The RRT misinterpreted and misapplied the applicable law
Particulars:
(i) The Refugee Review Tribunal failed to ask, when determining whether or not the Applicants had a well-founded fear of persecution, if Fiji had a reasonably effective and impartial police force and justice system.
The RRT also failed to ask if the standards of protection that Fiji could offer met the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245. It was required to do so: MIMA v Respondents S152/2003 [2004] HCA 18; VRAW v MIMIA [2004] FCA 1133 (3 September 2004).
Rather, the RRT applied a test of ‘so ineffective’ (RRT decision at paragraph 82), and despite finding that ‘there are shortcomings in the Fijian police and they do suffer from a lack of resources’ (RRT decision at paragraph 82) and that although the police force is small but efficient, it is one that appears to be under-resourced (RRT decision at paragraph 81)
(ii) The RRT misinterpreted the law relating to what persecution is for the purposes of the Refugees Convention.
The RRT erred in its interpretation because it was of the misunderstanding that one of the elements of the formula for persecution is that the state protection provided by the authorities had to be so ineffective that it could be said to give rise, of itself, to a real chance that the Applicant would suffer persecution (RRT decision at paragraph 14). It then applied this erroneous interpretation to the facts, with the consequence that it failed to determine if the standards of protection that Fiji could offer met the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245: MIMA v Respondents S152/2003 [2004] HCA 18; VRAW v MIMIA [2004] FCA 1133 (3 September 2004). It is also indicative that the RRT did not understand that persecution equals serious harm plus ineffective State protection. As such, it simply did not exercise its jurisdiction because it never addressed the task at hand because of its misunderstanding of the law.
In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [23] Gleeson CJ, Hayne and Heydon JJ considered a situation where the harm feared was not inflicted by the state or agents of the state and went on to say:
“But where the state is complicit in the sense that it encourages, condones or tolerates the harm … [t]he attitude of the state is relevant to a decision whether the fear of harm is well founded; it is consistent with the possibility that there is persecution; it is consistent with the person being outside the country of nationality because of a well-founded fear of persecution; and it supports a conclusion of unwillingness to seek (external) protection based on a fear of persecution because of the State’s encouragement, condonation or tolerance of the persecution”.
As was pointed out in Respondents S152/2003 at [26] a State is ‘obliged to take reasonable measures to protect the lives and safety of its citizens and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’. (Also see Gleeson CJ in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 113 indicating that in relation to persecution by non-State agents the victim would only be a refugee if the State condoned or tolerated the persecution or refused or was unable to offer inadequate protection).
In essence it was submitted by the applicant that the Tribunal misunderstood and failed to apply the correct test. It was contended that the part of the Tribunal decision that recorded what occurred in the Tribunal hearing and matters put to the applicant during the hearing demonstrated the Tribunal’s misunderstanding of the proper test at law in respect of well-foundedness. In the hearing the Tribunal had suggested to the applicant that for there to be Convention-based persecution there must be some ‘involvement’ of the government. It was said that in this respect the Tribunal was in error. However reading the Tribunal reasons for decision fairly and as a whole it has not been established that the Tribunal erred in the manner contended. First, that part of the reasons relied upon by the applicant is the Tribunal summary of what occurred in the Tribunal hearing. Reading all of that summary it is clear that the Tribunal went on to clarify what it meant by ‘involvement’ of the government, in particular in situations such as this one where the conduct complained of was essentially by non-State actors. Neither this account nor any other part of the reasons establishes that the Tribunal misunderstood the test of well-foundedness or the relevance of state protection where the conduct feared was that of non-state actors. The Tribunal recorded that it discussed with the applicant various ways in which the government might be involved, including the issue of the availability of state protection in relation to the harm that was allegedly feared from indigenous Fijians. The Tribunal’s questioning of the applicant husband canvassed a number of issues about state protection in Fiji in relation to involvement of the government, whether the government was implicit in, supported or was responsible for violence or mistreatment of Indo-Fijians as well as the fact that there was no evidence before the Tribunal suggesting that state protection available to all Fijians was so ineffective that it could be said to give rise in itself to a real chance that the applicant would be persecuted. The Tribunal’s description of the lack of evidence of that nature does not mean that it was applying the wrong test.
The Tribunal did not fail to ask the right question in this case as contended. In particular, contrary to the applicant’s contention, it addressed the question of whether there was a reasonably effective police force. The Tribunal considered independent information. It had regard to the situation immediately after the coup of May 2002 when police resources were stretched and the police were unable to cope with all the calls for assistance and there was some evidence of corruption. It acknowledged that this, together with experiences at the time of the coup, had led to a loss of confidence in the police force which continued in the Indo-Fijian community. However it also took into account country information as to the existence of a small but efficient police force, albeit one that appeared to be under resourced, information to the effect that by April 2001 there was increased police protection which had led to a significant reduction in communal violence as well as to evidence of senior police officers, local community leaders and government officials having worked to reduce ethnic tensions and helped to foster reconciliation at a local level. The Tribunal accepted that there were shortcomings in the Fijian police and that they suffered from a lack of resources. It was not satisfied, that the protection available to all Fijians through the police was so ineffective that it could be said to give rise of itself to a real chance that the applicant would suffer Convention-based persecution. Importantly it also went on to consider, in determining whether there was a well-founded fear, whether there was a reasonably effective police force and justice system. It found that the Indian community was protected by the existing laws of Fiji “which include a sophisticated criminal justice system” and that the same protection was available to all Fijian citizens particularly in or near the major centres. Such findings about the attitude of the state were relevant to the decision that the applicants’ fear of harm was not well founded.
The applicant also contended that the Tribunal erred in failing to ask if the standards of protection that Fiji could offer met the standards of protection required by international standards such as those considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245. No such error is established. The Tribunal did consider whether the Fijian government provided a reasonably effective police force and a reasonably impartial system of justice. As was stated in S152/2003 at [28] it is not necessary for the state to guarantee an applicant’s safety to the extent that they need have no further fear of harm. The Tribunal considered the attitude of the state in determining whether the applicants’ fear of harm was well founded. As was said by the Full Court in A v MIMA (1999) 53 ALD 545 at [38] “The availability of protection in the country of origin or nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for Convention protection rests.” It was for the Tribunal to assess whether adequate state protection was available to the applicants to render their fears of persecution not well founded (see A v MIMA at [54]). The Tribunal explicitly dealt with the question of state protection at some length.
It has not been established that there was any evidence before the Tribunal to support a conclusion that Fiji did not provide its citizens with the level of state protection required by international standards. The Tribunal could not be satisfied that international standards had not been met unless there was evidence to that effect (see Respondents S152/2003 and SHKB v MIMIA [2004] FCA 545 at [31] – [37]).
Given the Tribunal’s conclusion about the nature of the past conduct, as in RespondentsS152/2003, the Tribunal’s finding about the willingness and ability of the State to protect the applicants must be understood as a finding that the information before the Tribunal did not justify a conclusion that the government would not or could not provide citizens in the position of the applicants with the level of protection which they were entitled to expect according to international standards (S152/2003 at [28] and [29]). As was stated in that case at [29] per Gleeson CJ, Hayne and Heydon JJ:
“It was not enough for the [applicant] to show that there was a real risk that if he returned to his country, he might suffer further harm. He had to show that the harm was persecution, and he had to justify his unwillingness to seek the protection of his country of nationality...”
No jurisdictional error is established in the Tribunal’s consideration of state protection.

Whether the Tribunal misconstrued and/or misapplied the expression well-founded fear of persecution by requiring persecutory acts to be part of systematic mistreatment (ground 1(i))

The applicant contended that the Tribunal had required that the applicants be the subject of systematic mistreatment and that this imposed a higher test than that required by law. The solicitor for the applicant referred to Chan Yee Kin v MIEA (1989) 169 CLR 379 per McHugh J at [36] in support of this proposition and contended that this error went to whether or not the applicants had been persecuted in the past which, as the Tribunal correctly observed, was said to be relevant when assessing the risk of serious harm in the future. The applicants’ complaint in this regard is based on the following finding by the Tribunal:
I do not doubt that what the [applicant] family experienced on the night of 21 May would have been terrifying and most distressing to all members of the family. While I accept that the events of that evening are serious I am not satisfied that those events were other than isolated opportunistic criminal activity occurring at a time of great political and social upheaval in Fiji. I am not satisfied that they were part of any systematic mistreatment directed at the [applicant] family for a Convention reason.
Section 91R(1) of the Act (which was not in force at the time of the decision in Chan) provides that:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
The Tribunal did not err in considering whether the requirements of s91R(1)c were met.
The applicant contended that the Tribunal was imposing a requirement that there be systematic conduct directed at the particular applicant family and that this implied that if there had been more widespread systematic conduct directed at a larger group, such as the Indian community in Fiji, that would not have been accepted by the Tribunal as satisfying the test of persecution. Had the Tribunal reasoned in such a way it may well have been in error, but the passage quoted above from the Tribunal reasons for decision does not establish that the Tribunal misunderstood the definition of persecution. The Tribunal was reiterating that the attacks upon the applicant and his family were isolated and random incidents rather than a part of any systematic and discriminatory conduct.
In light of the Tribunal description of what occurred to the applicant wife as an isolated and random incident and what occurred to the whole family on 21 May 2000 as not other than isolated opportunistic criminal activity occurring at a time of great political and social upheaval in Fiji, it is clear that the Tribunal was rejecting the proposition that the conduct was part of any systematic and discriminatory conduct as required by s.91R(1)(c), be that conduct directed either at the family or the wider group of Indian Fijians. The Tribunal did not err in considering whether the events of 21 May 2000 and thereafter were part of any systematic mistreatment in light of the requirement of s.91R(1)(c).

Whether the Tribunal misconstrued what can constitute persecution by finding that the “harassment and mistreatment” that the applicants suffered in the two years before leaving Fiji did not constitute persecution and or (sic) for a Convention reason (Ground 1(ii))

In written submissions it was clarified that this was a contention that the Tribunal misconstrued s.91R of the Act in failing to consider whether extortion and threats to destroy the first applicant’s business fell within s.91R(2)(b), (d) and (f) as serious harm consisting of significant physical harassment, the denial of the capacity of the applicant to earn a livelihood or as significant economic hardship threatening the applicant’s capacity to subsist. It was contended that the Tribunal limited itself to an assessment of whether the mistreatment amounted to serious physical mistreatment or physical harassment and that this was an incorrect test applied by the Tribunal in determining whether the threats were serious harm. It was submitted that had the Tribunal not so erred it might have then found that the first applicant had suffered serious harm in the past and it would then have had to take that into account when considering the risk of serious harm and persecution in the foreseeable future.
There were two aspects of the past conduct – the events of 21 May 2000 and all the other conduct complained of in the following two years. As to the events of 21 May 2000, the Tribunal did not dispute that what had occurred constituted serious harm.
As indicated above the Tribunal accepted the applicants’ claims about what occurred thereafter. It also accepted that it may have been for a Convention reason. However the acts were not of sufficient severity to amount to serious harm constituting persecution. It was not necessary for the Tribunal to engage in a detailed analysis of which of the subparagraphs in section 91R (which merely set out instances of serious harm) might apply. The Tribunal’s finding that the acts were not of sufficient severity was at a greater level of generality.
The factual finding about the severity of the conduct complained of was a matter for the Tribunal. The legal representative for the applicant referred several times to ‘extortion’ and “threats of destroying the first applicant’s business”. However while the applicant’s claims did include a claim that indigenous Fijians would come to his work and demand money and if he argued they would damage the customers’ cars, he did not make a claim of being subjected to threats that his business would be destroyed as distinct from demands for money and threats of damage if the money was not paid. Nonetheless the possible practical consequences of any such future harassment and mistreatment are adequately addressed in the Tribunal findings about the future, as it considered the future on the basis that even if it had found that what the family had suffered in the past amounted to Convention-based persecution, it was not satisfied that the applicants faced a real chance of Convention-related persecution in the foreseeable future if they returned to Fiji.

Further, if the Tribunal had erred in finding that the past conduct did not amount to serious harm constituting persecution, the finding that state protection would render the applicants’ fears not well-founded is a sufficient basis for the Tribunal decision.

Whether Tribunal erred in failing to ask whether the applicant husband would be subject to ongoing extortion because of his ethnicity (ground 2(i))

The applicant contended that the Tribunal failed to ask a material question that it had a statutory duty to ask, that is, whether the applicant husband would be subject to ongoing extortion because of his ethnicity if he returned to Fiji. It was suggested that the Tribunal failed to ask this question because of its failure to construe s91R correctly and to consider the issue of state protection properly. However the Tribunal did deal with this claim in its findings as to persecution and effective protection. The applicant did not claim that he would be subject to ‘ongoing extortion’ as contended. It has not been disputed that the Tribunal accurately described the claims that he made in the hearing about intimidation, verbal abuse, theft and occasional violence.
It considered the future on the basis that the events complained of by the applicant had occurred, in light of independent information about changes in the situation in Fiji, in particular that law and order had been restored, that there was no evidence of more recent significant mistreatment of Indo-Fijians other than localised low-level harassment and threats as the restoration of the economy and the absence of evidence of any destabilising backlash from the indigenous Fijian community after the arrest of Mr George Speight. Such independent evidence was relevant in relation to the applicant husband’s fears that the conduct complained of (whether described as extortion or harassment and mistreatment) would reoccur. Further the Tribunal found that there was effective state protection. Hence the prospect of future persecution for a Convention reason was remote and the applicants fears of persecution were not well founded. Such findings adequately addressed the applicant husband’s fears about the future, including any fear of ongoing mistreatment which might be described as extortion. No error is established in the manner contended.

Whether the Tribunal failed to ask if the applicant wife was raped because of her ethnicity (ground 2ii) and whether Tribunal erred in its understanding of the applicable law in finding that there was no evidence of any significant mistreatment of Indo-Fijians other than localised low level harassment and theft when there was evidence to the contrary such as that of the applicants and a US State Department report (Ground 3).

Two other grounds raised in the amended application were not the subject of submissions by the applicants (grounds 2(ii) and 3). Neither is established. The Tribunal found that the rape of the applicant was an isolated and random, albeit serious incident, being part of opportunistic criminal activity at a time of political and social upheaval. According to the Tribunal the actions of 21 May 2000, including the rape, were not part of any systematic mistreatment for a Convention reason (see s.91R(1)(c)). In any event the availability of effective state protection meant that the prospect of serious harm in the future was not higher than remote and hence any fears were not well-founded. These findings meant that any failure to address specifically the issue of whether the rape was by reason of the applicant wife’s ethnicity could not be determinative as the other elements of Article 1A(2) were not met.
Secondly no error of law has been demonstrated. The weight to be given to particular items of evidence was a matter for the Tribunal and the finding in relation to ‘significant’ mistreatment of Indo-Fijians was open to the Tribunal on the material before it including the more recent country information report.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 23 December 2004.