SZFPN v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCAFC 57

FEDERAL COURT OF AUSTRALIA

SZFPN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
[2006] FCAFC 57

MIGRATION – judicial review – protection visa – Fijian national – alleged discrimination against Indo-Fijians – judicial review of Refugee Review Tribunal decision – application for review dismissed – appeal against decision of Federal Magistrates Court – attempted revisiting of factual merits of Tribunal decision – no error disclosed – appeal dismissed.

SZFPN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 1906 OF 2005

FRENCH, FINN AND ALLSOP JJ
3 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1906 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZFPN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGES:

FRENCH, FINN AND  ALLSOP JJ

DATE OF ORDER:

3 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s 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	NSD1906 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZFPN
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGES:	FRENCH, FINN AND  ALLSOP JJ
DATE:	3 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:
Introduction

1. This is a case with a very long history.  The appellant, who is a Fijian citizen, came to Australia in August 1993.  He was refused a protection visa in 1994.  That refusal was affirmed by the Refugee Review Tribunal (the Tribunal) in 1996.  The appellant subsequently became a party to representative proceedings challenging a large number of Tribunal decisions in the High Court in 1999 for want of procedural fairness.  The proceeding was decided by reference to the lead applicant, Lie, only.  The members of the group were required to bring their own separate applications thereafter.  Pursuant to orders made by the High Court in 1992 the appellant filed an individual application in that Court for an order nisi for the grant of prerogative relief against the Tribunal’s decision for alleged failure of procedural fairness.  That application was remitted to this Court with hundreds of others in a similar category.  It was dismissed on 19 February 2004.  The appellant commenced fresh proceedings in the Federal Magistrates Court in February 2005 seeking prerogative relief against the Tribunal decision.  That application was dismissed in September 2005.  The appellant has now appealed against the decision of the Federal Magistrates Court.  His grounds of appeal disclose no error in the reasoning of the Federal Magistrates Court, nor any basis for judicial review of the Tribunal’s decision.  The appeal will therefore be dismissed with costs.

   Procedural Background

2. The appellant is a Fijian national of Indian ethnicity.  He came to Australia on a visitor’s visa in August 1993.  On 17 February 1994 he lodged an application with the then Department of Immigration and Ethnic Affairs for a protection visa.  He claimed that if returned to Fiji he would face persecution on account of his Fiji-Indian ethnicity and his support for the Fiji Labour Party (FLP). 

3. The application for a protection visa was refused by a delegate of the Minister on 11 October 1994.  The appellant applied, on 31 October 1994, for a review of that decision by the Tribunal.

4. A considerable delay ensued before the Tribunal hearing.  It appears, however, that the appellant was sent copies of independent country reports on 2 June 1995.  He was also given notice of issues to be ventilated at the hearing.  A complete copy of an independent country report previously sent to him in incomplete form was sent on 6 July 1995.  The hearing before the Tribunal proceeded on 2 February 1996.  The Tribunal affirmed the delegate’s decision on 14 March 1996 and a copy of the decision was sent to the appellant on 15 March 1996. 

5. The appellant subsequently became a named party in representative proceedings commenced in the High Court by Nancy Lie in 1999.  Those proceedings concerned alleged failures of procedural fairness arising out of failure of the Tribunal to have regard to certain documents which had been before the delegate who refused the applications.  Ms Lie succeeded in her case but the cases of individual group members fell for individual determination. 

6. On 25 November 2002, Gaudron J made an order in the representative proceedings giving leave to each of the named persons to file an application before 30 May 2002 seeking an order nisi in respect of the Tribunal’s decision affecting that individual.  Such application was to be remitted instanter, upon filing, to the Federal Court.  The period for filing such applications was extended to 20 June 2003 by order made on 16 June 2003 by McHugh J.  It seems that the appellant’s application for an order nisi was filed in the High  Court on 29 May 2003.

7. The remitted application came before Emmett J on 19 February 2004 along with 707 other matters remitted from the High Court pursuant to the orders made by Gaudron J.  Those applications were, as his Honour remarked, ‘in virtually identical terms’.  The draft order nisi in each case, including the appellant’s, sought an order that the Tribunal and the Minister show cause why prerogative writ relief should not be granted against the Tribunal’s decision.  An order for enlargement of time was also sought.  The single ground for relief was that:

   ‘The first respondent [the Tribunal] failed to accord the prosecutor procedural fairness.’

   No further particulars of the procedural unfairness were given in the affidavit or in the draft order nisi. 

8. Emmett J, in reasons which were in the same form as that for each of the remitted applications, took the view that the appellant was ‘... seeking an indulgence, both from the Court and from the Minister, to enable him to formulate an arguable case for relief.’  A refusal of the order nisi could only be an interlocutory decision and would not therefore act as a bar to appropriate relief if grounds could be established.  The Minister’s counsel assured his Honour that there would be no submission made on behalf of the Minister that the refusal of the order nisi would be a bar to further relief.  The Minister also assured the Court that no submission would be made in any future proceeding that there was no satisfactory explanation for the appellant’s delay from the time he was joined as a representative party in the High Court to the date the order nisi application was refused.  Any delay from the date of the Tribunal’s decision to the joinder in the High Court proceedings would remain to be explained as would delay from the refusal of the order nisi to the commencement of fresh proceedings.  His Honour dismissed the remitted application for an order nisi on 20 February 2004.

9. The appellant filed an application in the Federal Magistrates Court on 4 February 2005 seeking certiorari, prohibition and mandamus in respect of the Tribunal’s decision.  The application came on for hearing on 31 August 2005 before Pascoe CFM and was dismissed on 22 September 2005.  The appellant filed a notice of appeal which was amended to its present form on 17 November 2005.   

   The Tribunal’s Reasons for Decision

10. The Tribunal set out the appellant’s claims as provided in written submissions to the Department and to the Tribunal and in the course of the Tribunal hearing.  It characterised his claims as ‘... related to his race as a Fiji Indian and his political opinion as a supporter of the Fiji Labour Party’.

11. In explaining to the Tribunal his reasons for leaving Fiji the appellant had said that he had left high school in the mid 1980s without completing his studies.  He later did a course at a college in Fiji.  He claimed he had not been able to obtain a university entrance because Fiji Indians were required to have higher entry marks than indigenous Fijians.  He was evidently referring to the effects of a so-called ‘bell curve’ where all student examination results are adjusted depending on the number of students being examined.  The appellant claimed that Fiji-Indians were most affected by it. 

12. The appellant claimed to have been discriminated against in employment on account of his race.  His first job lasted several months.  He was told by his employer that his work was not of a reasonable standard and he lost the job ostensibly for that reason.  He contended, however, that the real reason was that he was a Fiji-Indian in a company where three quarters of employees were indigenous Fijians.  He was subsequently employed in another company for almost a year and resigned from that company and left Fiji the following year.  He claimed that the Fiji-Indian community suffered discrimination in Fiji generally and in the area of employment.  Asked if he had experienced discrimination in any form in 1993 before he left Fiji, the appellant said that he had been called names in the street by indigenous Fijians youths. 

13. The appellant complained that the Fiji government was taking no steps to review the Constitution which was biased against Fiji-Indians. He feared that there could be a build up of tension between the two major races in Fiji as a result. He also told the Tribunal that he had joined the FLP in 1986 but had not been involved in any political activities after May 1987, which was the time of the first Fiji coup. He claimed that he and members of his family had been harassed and intimidated by members of a nationalist indigenous Fijian movement known as the Taukei Movement between 1987 and 1988. His only political involvement after 1987 was to vote for the FLP in the 1992 general election. He did claim that between 1989 and 1992 he had received anonymous telephone calls in which he was threatened with death because of his past support for the FLP.

14. The appellant’s parents and siblings are resident in Australia and he is married to an Australian citizen.  The Tribunal accepted that he wanted to remain in Australia because his family was here.  He told the Tribunal it would be very hard for him to resettle in Fiji because he had no relatives there. 

15. According to the Tribunal’s reasons for decision it discussed with him what other concerns he had about returning to Fiji.  He said he might face further death threats.  He claimed that he had reported the threats previously made to the police who had not taken any real action.  They had merely assured him, upon inquiry, that they were ‘working on it’.  He made no further claim in relation to his fears before the Tribunal.

16. The Tribunal conducted an extensive review of independent country information and then set out the relevant legal principles governing the grant of protection visas.  The Tribunal accepted that the appellant was a member of the FLP prior to the military coup of May 1987 and that his political activities ceased from that time on.  The Tribunal also accepted that he had suffered injury as the result of an assault by members of the Taukei Movement during a melee in the streets of Suva shortly after the coup.  It considered that the assault was prompted by a combination of his race and a political opinion imputed to him, which he did in fact hold.

17. The Tribunal did not accept that he was denied entry to university education on account of his race.  It considered that his failure to complete his secondary education prevented his entry to university.  In any event, although denial of access to education might constitute persecution if imposed for a Convention reason, restricted access to higher education would not of itself normally be regarded as amounting to persecution.  The appellant was able to gain entry to college.  The Tribunal did not consider that he had suffered substantial prejudice because of his inability to enter university even if it had been denied him because of his race. 

18. While it was plausible that the appellant had lost his first job because of his race he did obtain another job in which he remained for about a year and from which he chose to resign a few weeks before travelling to Australia.  The Tribunal found no evidence that he was denied employment.  Indeed, it noted from independent country information that Fiji-Indians traditionally dominate the private sector and that while there is some discrimination in the public service there is not a policy of denial of access for Fiji-Indians in Fiji today. 

19. Having considered the appellant’s own circumstances in the context of the evidence with regard to Fiji-Indians generally, the Tribunal found that the chance was remote that he would face persecution by reason of his race if he returned to Fiji. 

20. As to the claimed death threats made to the appellant, the Tribunal doubted whether they had occurred.  The appellant had not mentioned them in his initial application for refugee status nor in his written submissions to the Tribunal. He only raised them in oral evidence at the Tribunal hearing.  It was significant that he remained at the same address for four years after the alleged threats were made even when it became clear to him that the police were taking no action.  The Tribunal found this as an indication that he did not regard them as constituting such a serious threat that he must flee in order to avoid being killed.  There was no attempt made on his life.  The Tribunal was satisfied also that if the calls did recur the evidence it had cited from independent country information with regard to the police force and the judiciary indicated that the protection of the State was available to the appellant.

21. The Tribunal accepted that there might be discrimination directed from time to time at the appellant because of his race or past political opinion but found that the evidence indicated there was no real chance that he would face persecution for a Convention reason if he returned to Fiji.

    The Grounds of the Application for Judicial Review

22. The grounds for judicial review were as follows:

    ‘1.The tribunal did not correctly address the question of whether the applicant faced a real chance of persecution by reason of his perceived persecution because of an un-equitable distribution of opportunities amongst indigenous Fijians of Indian ethnicity (Dranichikov)  The States Department Report and Profile states:

    “ethnic and communal differences, however, do cause significant social tension in Fiji.  In some cases, this tension results in the harassment and intimidation of ethnic Indians by ethnic Fijians.  The police are sometimes either unable or unwilling to prevent harassment ... In adequate (sic) police protection contributes to the frequency and seriousness of incidents” (Pushpa Kumari Kamini and others v Immigration and Natrulization Service No 98-70768)-(United states Court of Appeals For the Ninth Circuit) (sic)

    2.The Tribunal having determined that “He may encounter some detriment on account of his ethnicity” failed to apply the “real chance test” adequately as prescribed in the High Court case of Chan v Minister of Immigration and Ethnic Affairs (1989).  In the Chan case the High Court held that 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 for his minority thnicity (sic) even though the possibility of the persecution occurring is well below 50%”.

    3.The Tribunal further failed to consider an important element of the persecution test as advanced in the equation by His Honour Justice Kirby in numerous High Court decisions ie the non-availability of state protection to the applicant by the Government Authorities (Khawar)

    Particulars

    4.The Tribunal used critical adverse information obtained after the delegate’s decision which was neither provided to the Applicant before the hearing nor put to the applicant during the hearing. MUIN.

    5.The Tribunal misapplied the test or alternatively misinformed the Applicant about the test.

    6.The Tribunal member’s reasoning of the kind that could be labelled irrational or so illogical as to indicate a failure to perform the review function at all.  See: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Applicant S20/2002 [2003] HCA 30.

    7.The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do, and, therefore the Tribunal failed to exercise its jurisdiction.

    8.The RRT erred in failing to consider all claims and issues put forward by the applicant.’

    The Reasons for Decision of the Federal Magistrates Court

23. The learned Federal Magistrate set out the appellant’s grounds for judicial review.  He considered each of them under the following headings:

    1.        Whether the Tribunal failed to correctly address [the appellant’s] fear of persecution.

    2.        Whether the Tribunal failed to apply the real chance test.

    3.        Whether the Tribunal considered the issue of State protection.

    4.Whether the Tribunal used critical adverse information obtained.

    5.Whether the Tribunal misapplied the test or alternatively misinformed [the appellant] about the test.

    6.Whether the Tribunal’s reasoning was irrational or illogical.

    7.Whether the Tribunal failed to provide adequate and proper reasons.

    8.Whether the Tribunal failed to consider all claims or issues of [the appellant].

24. His Honour, after reviewing the Tribunal’s reasons, found that the Tribunal had ‘plainly addressed and considered each of [the appellant’s] claims’.  He saw no departure from the ‘well-founded’ and ‘real chance’ test as discussed in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Tribunal had before it independent country information. It considered the appellant’s oral and written evidence. Together those matters constituted the basis upon which the Tribunal acted to reach its findings. They were findings of fact reasonably open to it. The Tribunal did not fail to state or apply the principles in Chan’s case.  It ‘... plainly looked to the future’.  The relevant test was correctly applied and set out on pp 56 to 59 of the Tribunal’s decision.

25. On the issue of State protection, his Honour observed that in its reasons, after considering evidence, the Tribunal expressly found there was effective State protection in Fiji. 

26. On the question whether the Tribunal used critical adverse information obtained without notice to the appellant, his Honour said (at [27]):

    ‘It was contended by the applicant that the Tribunal used critical adverse information obtained after the delegate’s decision which was neither provided to the applicant before the hearing nor put to the applicant during the hearing.  The applicant fails to identify the critical adverse information he says was used against him and was not put to him during the Tribunal hearing.  On 2 June 1995 the Tribunal wrote to the applicant and provided him with copies of the relevant country reports.  I note also that on 4 July 1995 the Tribunal sent a letter to the applicant indicating that further country information had come to its attention.  The letter enclosed a complete copy of that report for the benefit of the applicant.  It is apparent from the Tribunal’s decision that it put to the applicant country information at the hearing.  The applicant has not provided evidence of the transcript of the hearing and thus fails to make good this ground.’

27. As to the alleged misapplication of the relevant test, his Honour found the ground to be without particular clarity and incomprehensible. 

1. The appellant, so his Honour held, had failed to demonstrate any want of rationality and logic.  In any event mere want of logic would not of itself constitute error of law.  His Honour was not satisfied the Tribunal’s reasoning was irrational or illogical.

2. His Honour also rejected a contention that the Tribunal had failed to provide adequate and proper reasons and that it had failed to consider all of his claims and issues.

   The Grounds of Appeal

3. The grounds of appeal, set out in the notice of appeal, are as follows:

   ‘1.The Tribunal by failing to give the applicant an opportunity to comment on materials which the tribunal relied on in its decision and the tribunal was denied to procedural fairness by not providing this opportunity to the applicant. (sic)

   2.The Tribunal made an error in considering the totality of the claim

   Particulars

   2.1.His Honour failed to consider the causal nexus in the grievous bodily harm inflicted on the appellant and his membership of the Taukei Movement that gives rise to a Convention based fear of persecution for an imputed political reason (Para 16)

   2.2His Honour had failed to consider an important integer in the equation constituting persecution as formulated by Justice M Kirby: “Persecution = Serious harm + The Failure of State Protection”  The Learned Judge had erred in not giving sufficient appreciation to the appellant’s statement to the tribunal when he said (at Para 16) “... Had reported the threats to the police but they did not take any “real action” but had instead made numerous assurances that they were “working on it”.  This clearly manifests failure of state protection for a serious physical harm inflicted by state authorities that had left the appellant permanently disabled (his collar bone was permanently destroyed).  police (Also see Current trends in US Civil Courts attached)’ (sic)

   The Merits of the Appeal

4. The appellant represented himself in the appeal and his lack of legal assistance was apparent from the formulation of the grounds of appeal and the written submissions in support of them.  He relied upon the written submissions at the hearing of the appeal and put no further oral argument.

5. The first ground of appeal went to the learned magistrate’s rejection of the procedural fairness ground.  The learned magistrate found that the critical adverse information allegedly relied upon by the Tribunal had not been identified by the appellant.  He also found that the Tribunal had given the appellant notice of independent country information relevant to his application.  In addition he observed that the appellant had not provided any evidence, based on transcript, of any relevant failure by the Tribunal to give notice of any matter.  In his written submissions on this point the appellant did not further advance the matter.  He did not identify the critical adverse information allegedly relied upon by the Tribunal as to its form or its content.

6. The second ground of appeal related to alleged error by the Tribunal in ‘considering the totality of the claim’.  The particulars of this ground reduced to a complaint that the learned federal magistrate ‘erred in not giving sufficient appreciation to the appellant’s statement to the Tribunal’ when he referred to having reported harassment or assaults to the police who took no ‘real action’ on his complaints.  This evidence, which had been put before the Tribunal, was said to manifest a failure of ‘State protection’.  As particularised, this ground identified no legal error but rather raised a complaint about the factual findings made by the Tribunal. Such findings could not have been reviewed by his Honour. 

7. In his written submissions the appellant also raised a matter going to the factual merits of the Tribunal’s decision in not finding that he held a well-founded fear of persecution based upon discrimination he experienced in the provision of educational opportunities and the consequential inequitable distribution of job opportunities against him as against other Fiji-Indians.  This again was a matter going to the merits of the decision and not amenable to judicial review.

8. None of the matters raised in the grounds of appeal or in the appellant’s written submission disclosed any basis for interfering with the decision of the Federal Magistrates Court.  The appeal will be dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:
Dated:             3 May 2006

The Appellant appeared in person
Counsel for the Respondent:	Ms L Clegg
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 May 2006
Date of Judgment:	3 May 2006