SZDUN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 963

FEDERAL COURT OF AUSTRALIA

SZDUN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 963

MIGRATION – Appeal from Federal Magistrates Court; application for protection visa refused; alleged “persecution” by way of verbal abuse and failure by the Refugee Review Tribunal to deal with a “critical claim”

Migration Act 1958 (Cth) s 91R

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 cited
Craig v The State of South Australia (1995) 184 CLR 163 cited
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 cited

SZDUN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 776/2005

GRAHAM J
14 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 776 OF 2005

BETWEEN:

SZDUN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

14 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The Appellant pay the Respondents’ costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 776 OF 2005

BETWEEN:

SZDUN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	14 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By an Amended Notice of Appeal filed in Court on 11 July 2005 the Appellant, known as “SZDUN”, has appealed from the judgment of a Federal Magistrate given on 29 April 2005 in respect of a further amended application filed by the Appellant in the Federal Magistrates Court on 4 April 2005 by which the Appellant sought a review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 April 2004, which had been notified to the Appellant by post on 18 May 2004.

2. The Appellant arrived in Australia from Fiji on 26 October 2003.  On 7 November 2003 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs.  In that application the Appellant stated that he had been born in Fiji on 7 July 1971, that he was an “Indian Fijian” and that his religion was “Hindu”.  He described his occupation before coming to Australia as a “truck driver”.

3. In his protection visa application the appellant sought protection in Australia so that he would not have to go back to Fiji.

4. In the relevant application form the Appellant answered questions 40 – 44 as follows:-

   Q.40    Why did you leave that country? [Fiji]

   A.THE APPLICANT LEFT HIS COUNTRY TO ESCAPE EVERY DAY’S THREAT THAT COULD HARM HIM PHYSICALLY.  ALTHOUG (sic) THE APPLICANT HAS ALREADY SUFFERED VERBAL ABUSE ON SEVERAL OCCASIONS AND FEELS HUMILIATED BY THE ABUSIVE REMARKS TOWARDS HIMSELF. THE APPLICANT FOUND HIMSELF IN SEVERE DISTRESS AND LEFT HIS COUNTRY TO FIND SAVE (sic) PLACE TO LIVE A NORMAL LIFE.

   Q.41    What do you fear may happen if you go back to that country?

   A.THE APPLICANT IS AFRAID OF BEING HARMED BOTH PHYSICALLY AND MENTALLY IF HE RETURNS TO HIS COUNTRY.

   THE APPLICANT IS A YOUNG MALE OF AGE 32 AND GRIVELY (sic) UPSET OF HIS TREATMENT IN HIS OWN COUNTRY.  THE APPLICANT FINDS IT VERY HARD TO UNDERSTAND THAT WHY HE IS DENIED A PEACEFUL LIFE IN HIS OWN COUNTRY.  THE APPLICANT IS A BORN CITIZEN AND MUST HAVE A RIGHT TO ACCESS PROGRESSIVE OPPORTUNITIES TO LIVE A SUCCESSFUL LIFE.

   Q.42    Who do you think may harm/mistreat you if you go back?

   A.THE INDIGENOUS RACIST FIJIANS WILL HARM THE APPLICANT IF HE RETURNS TO HIS COUNTRY.

   Q.43    Why do you think this will happen to you if you go back?

   A.MOST OF THE INDIGENOUS FIJIAN ARE RACIST.  THE INDIGENOUS FIJIANS WANT TO LIVE AND RULE FIJI JUST BY THEMSELVE (sic).  THE INDIAN FIJIANS HAVE BEEN DENIED TO ACCESS TO MANY BASIC RIGHTS OF A CITIZEN.  THE INDIGENOUS FIJIANS HAVE BEEN DRIVED (sic) TO RACIAL ACTIVITIES BY THE POWERFUL AND EFFECTIVE PERSONALITIES LIKE ‘GEORGE SPEIGHT’ ETC. IT IS VERY COMMON IN FIJI THAT THE INDIANS ARE APPROACED (sic) AGGRESSIVELY AND SUFFER.  THE APPLICANT BEING THE MEMBER OF INDIAN COMMUNITY IS THE VICTIM OF RACIAL ACTIVITIES.

   Q.44Do you think the authorities of that country can and will protect you if you go back?  If not, why not?

   A.THE AUTHORITIES OF THE COUNTRY ARE PARTIAL.  MOST OF THE POLICE AND SUCH SERVICES ARE FILLED BY THE INDIGENOUS FIJIANS AND ITS VERY HARD TO REPORT ANY RACIAL AGGRESSION.

   THE INDIANS ARE SO AFRAID TO GOING TO POLICE AS THE MEMBERS OF INDIAN COMMUNITIES HAVE EXPERIENCED FURTHER HUMILIATION WHILE REPORTING UNSUCCESSFULLY. 
   THERE IS NO PROTECTION FOR THE APPLICANT IN HIS COUNTRY.”

5. In the proceedings before the Federal Magistrates Court there were three issues, namely, whether the Tribunal applied the wrong test for “persecution”, whether there was an apprehension of bias on the part of the Tribunal and whether the Tribunal failed to deal with some of the critical claims advanced by the Appellant.

6. On the hearing of the appeal no issue has been raised in respect of apprehension of bias and the alleged failure by the Tribunal to deal with matters has been restricted to one only “critical claim advanced by” the Appellant.

7. The Appellant’s application for a protection visa was refused by the Minister’s Delegate on the basis that the Appellant was not a non-citizen in Australia to whom Australia had protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol.

8. On 4 December 2003 the Appellant sought a review of the decision of the Delegate of the Minister, by the Tribunal.

9. The hearing of the application for review took place before the Tribunal on 14 April 2004 and occupied approximately 40 minutes. 

10. Section 35 of the Migration Act 1958 (Cth) (“the Act”) provides for a class of visas to be known as protection visas. Section 36(2) relevantly provides:-

    “36(2) A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;

    …”

11. The decision of the Tribunal of 21 April 2004 was to affirm the decision of the Minister’s Delegate not to grant a protection visa to the Appellant.

12. The reasons for decision of the Tribunal included the following:-

    “… ‘Refugees Convention’ and ‘Refugees Protocol’ are defined to mean the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees respectively: s5(1) of the Act. Further criteria for the grant of a protection (class XA) visa are set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994.

    DEFINITION OF ‘REFUGEE’

    Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them.  Article 1A(2) of the Convention relevantly defines a refugee as any person who:

    owing to 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 High Court has considered this definition in a number of cases, notably Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293, Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, and Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1.

    Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.

    There are four key elements to the Convention definition.  First, an applicant must be outside his or her country.

    Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (2.91R(1)(c)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

    Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.

    Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion.  The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution.  The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

    Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason.  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.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

    In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or (countries) of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.

    Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.”

13. In relation to the question of persecution under Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol s 91R of the Act relevantly provides:-

    “91R(1)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.

    (2)Without limiting what is serious harm for the purposes of paragraph (1)(b) , the following are instances of serious harm for the purposes of that paragraph:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    ( c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.”

14. Plainly s 91R(2) is illustrative only. It does not purport to comprehensively define what may constitute “serious harm”.

15. The Appellant claims to be a non-citizen in Australia who is entitled to protection obligations under the Refugees Convention as amended by the Refugees Protocol owing to a well-founded fear of being persecuted for reasons of race and, owing to such fear, is unwilling to avail himself of the protection of Fiji. He contends that the persecution which he fears for reasons of race “involves serious harm to the person” within the meaning of s 91R(1)(b) of the Act.

    WHAT AMOUNTS TO “PERSECUTION” WHEN THERE ARE ABUSE CLAIMS

16. The Appellant’s case is that the Tribunal fell into error because it impliedly held that verbal abuse in whatever form could not amount to serious harm to a person in the position of the Appellant within the meaning of s 91R(1)(b). The Appellant submits that such an implication flows from an alleged failure by the Tribunal to inquire into the verbal abuse claims at all.

17. In the Tribunal’s reasons for decision the following appears in respect of the issue of verbal abuse:

    “The applicant claims that he … has experienced verbal abuse in the past which he found humiliating. …
    …
    He stated that on one occasion when he was returning home after work late at night he was spotted by three native Fijians who made references to his ethnicity and proceeded to chase him. …He added that in July 2003 he went fishing with four or five friends when they were approached by thee native Fijians who  … told them that the sea does not belong to them (Indian Fijians)…”

18. Apart from referring to the Appellant’s evidence the Tribunal quoted from a US State Department 2003 publication dealing with Human Rights Practices in Fiji where the report stated:

    “National/Racial/Ethnic Minorities

    Tension between ethnic Fijians and Indo-Fijians has been a longstanding problem. …
    Senators appointed by the Prime Minister have made numerous racial slurs directed against Indo-Fijians.”

19. Under the heading “FINDINGS AND REASONS” the Tribunal said:-

    “The applicant’s … case is … that he has been abused and threatened in the past.  Consequently he fears harm by indigenous Fijians and does not feel safe in Fiji.
    …
    The Tribunal … accepts that the applicant was verbally abused and on one occasion chased by a group of native Fijians. … The Tribunal is satisfied that the applicant’s ethnicity was the essential and significant reason behind … acts of discrimination.  The Tribunal appreciates that regular and petty acts of discrimination of the kind described by the applicant are unpleasant and undesirable.  However, whilst persecution involves discrimination that results in harm to an individual, not all discrimination will amount to persecution (see Haji Ibrahim (2000) 2004 CLR 1 at 18-19, per McHugh J). Without wishing to understate the unpleasant nature of the applicant’s experiences, the Tribunal is satisfied that the discrimination the applicant faced, assessed cumulatively, does not reach the standard of persecution within the meaning of the Convention …”

20. In the passage from the judgment of McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 18 [55] to which the Tribunal referred His Honour said:-

    “The Convention protects persons from persecution, not discrimination.  Nor does the infliction of harm for a Convention reason always involve persecution.  Much will depend on the form and extent of the harm.  Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. …”

21. Contrary to the Appellant’s submission it is blindingly obvious that the Tribunal saw the verbal abuse of the Appellant as constituting no more than petty acts of discrimination which were unpleasant and undesirable.  They did not amount to serious harm to the person of the Appellant.  Plainly, the Tribunal distinguished regular and petty acts of verbal abuse from persecution involving serious harm to the person of someone in the position of the Appellant.

22. The implication for which the Appellant contends is quite inconsistent with the express reasoning of the Tribunal.

23. In any event, one only has to go to the transcript of the hearing before the Tribunal to see that, contrary to the submissions of the Appellant, the Tribunal made appropriate inquiry into the claims of persecution detailed by the Appellant in his application for a protection visa.

24. The transcript of proceedings before the Tribunal on 14 April 2004 includes the following:-

    Tribunal:… The conduct of this hearing today is inquisitorial.  What this means is that I’m going to ask you questions and you’ll be replying to those questions.  I’ll of course allow you adequate opportunity to add anything else that you may wish to add.  If you do not understand any of my questions please let me know and I’ll rephrase or restate those questions for you. …

    …

    Tribunal:… first I need to ask you if the information contained in your application form is true and correct?

    …

    Tribunal:Is there anything in this application form that you would like to change at this stage?

    …

    Tribunal:… has anything else happened to you in Fiji apart from the situation with the land?

    …

    Tribunal:… tell me in your own words why you’re afraid to go back to Fiji?

    …

    Tribunal:… I have no further questions to ask you.  Is there anything that you’d like to say that you haven’t said so far?

    …”

25. Even if the express findings of the Tribunal left open, which they do not, the possibility that the Tribunal may have impliedly held that verbal abuse in whatever form could not amount to serious harm to a person in the position of the Applicant within the meaning of s 91R(1)(b), it is clear beyond argument that the basis for the Appellant’s submission as to why the implication for which he contends should be drawn is without foundation. The Tribunal gave the Appellant every opportunity to provide evidence of verbal abuse that might have constituted persecution involving serious harm to the Appellant.

26. The Appellant’s solicitor acknowledged on the hearing before the Court that there was no evidence before the Tribunal of persecution involving significant physical harassment of the Appellant, significant physical ill-treatment of the Appellant or a threat to the Appellant’s life or liberty and, also, that the possibility that further inquiry by the Tribunal may have revealed evidence of such persecution was a matter of speculation.

27. In the reasons for judgment of the Federal Magistrate from whom the current appeal is brought a statement of principle as to what constitutes jurisdictional error is to be found, which was not challenged by the Appellant, in the following terms:-

    “12.An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs (‘Dranichnikov’).”

1. The passage from the joint judgment of Justices Brennan, Deane, Toohey, Gaudron and McHugh in Craig v The State of South Australia (1995) 184 CLR 163 at 179 was expressed in the following terms:

   “If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunals’ exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error and will invalidate any order or decision of the tribunal which reflects it.”

   See also per Black CJ, French and Selway JJ in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53-4] in which their Honours said:-

   “An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …

   … McHugh and Gummow JJ, with whom Callinan J agreed [in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59] rejected a submission by the Minister that the presence of an error of law was essential for a finding of jurisdictional error to support the grant of relief under s 75(v) of the Constitution. …

   …The observations in the joint judgment in S 20/2002 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s75(v) or the exercise by this Court of its analogous statutory jurisdiction under s 39B of the Judiciary Act.  The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error are likely to be quite limited.”

2. In my opinion, for the reasons indicated above, the first ground of appeal has not been made out by the Appellant.

   ALLEGED FAILURE TO DEAL WITH A CRITICAL CLAIM

3. The Appellant submits that the Tribunal failed to deal with the Appellant’s claim that when Indo-Fijians complain about racial aggression to the police they are humiliated by the police. 

4. In NABE at [55] the Court held:

   “Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error.  Where the Tribunal fails to make a finding on ‘… a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. …”

5. The reasons for decision of the Tribunal in this case include the following:

   “[The applicant claims] …The authorities are partial towards indigenous Fijians and it is difficult to report acts of racial aggression.  Indians are afraid of suffering further humiliation if they go to the police.”

6. In respect of the situation where the Appellant was told by the native Fijians that the sea did not belong to Indo-Fijians and those native Fijians apparently took fish away from the Appellant and four or five of his friends who had gone fishing together, the Tribunal’s reasons included the following:-

   “The Tribunal asked him if he complained to the police.  He said no because the police do not do anything in these situations.”

   There was no suggestion that had the Appellant complained he would have been humiliated.

7. One of the Tribunal’s findings on this aspect of the matter was expressed in the following terms:

   “The Tribunal is not satisfied that Indo-Fijians are denied their basic rights or that persecution or mistreatment of them is permitted or condoned by the security authorities …”

8. After dealing with all of the Appellant’s evidence, the Tribunal was not satisfied that the discrimination the Applicant faced “assessed cumulatively” reached the standard of persecution necessary to bring the Appellant within the reach of the Convention.

9. In the foregoing circumstances it is simply not correct to say that the Tribunal failed to deal with the Appellant’s claim that when Indo-Fijians complained to the police about racial aggression the police humiliated them.  Accordingly, the second ground of appeal has not been made out by the Appellant.

10. I am of the opinion that the appeal should be dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham

Associate:

Dated:  14 July 2005

Solicitor for the Appellant:	Silva Solicitors
Counsel for the Respondents:	R T Beech-Jones
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	11 July 2005
Date of Judgment:	14 July 2005