SZGHS v Minister for Immigration - [2007] FMCA 268

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHS & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 268

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misapplied real chance test, failed to take into account relevant considerations, made irrational and illogical findings, applied an incorrect test for state protection or failed to ask the right question in a manner constituting jurisdictional error.

Migration Act 1958 (Cth)

Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
Attorney General (NSW) v Quinn (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Craig v South Australia (1995) 184 CLR 163
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 487
Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
Plaintiff S157 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SHKR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545
SZCCF v Minister for Immigration & Multicultural Affairs [2006] FCA 1089
SZDWR v Minister for Immigration & Multicultural Affairs [2006] FCAFC 36
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

SZGHS, SZGHT, SZGHU, SZGHV & SZGHW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1251 of 2005

Judgment of:

Barnes FM

Hearing date:

27 November 2006

Date of Last Submission:

20 December 2006

Delivered at:

Sydney

Delivered on:

13 March 2007

REPRESENTATION

Solicitors for the Applicant:

Silva Solicitors

Counsel for the Respondents:

Mr J. Mitchell

Solicitors for the Respondents:

Phillips Fox

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1251 of 2005

SZGHS, SZGHT, SZGHU, SZGHV & SZGHW

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 April 2005 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants who are husband, wife and three daughters, are citizens of Fiji who arrived in Australia on 22 December 1999. On

27 September 2004 they lodged an application for protection visas. Only the applicant husband (referred to hereafter as the applicant) made specific claims to have a well-founded fear of persecution for a Convention reason.
In a statement accompanying the protection visa application the applicant claimed to have been persecuted in Fiji by native Fijians by reason of his race (part European and part Fijian) and because he had campaigned for the Fiji Labour Party (FLP).
He claimed to have encountered racial slurs in the Fijian Army from 1978 to 1988 and to have had a difficult time during the 1987 coup and that he was concerned about the failure of the police and army to protect the Indian population and about the persecution to which they were subjected.
He claimed that in 1998, after he reported abuse of Indian Fijians by native Fijians to the police, his car was stoned, he was intercepted at a roadblock, dragged from the car and bashed by a group of men who called him an Indian lover and a half caste. He claimed that he was hospitalised, the car badly damaged and that the incident was reported to the police but that no action was taken.
The applicant claimed that he became involved with the FLP in 1999 as a helper and supporter and that while campaigning before the 1999 elections he was set upon by indigenous Fijian youths, injured and hospitalised. He reported the assault to the police but claimed he was called a half caste and that he should leave Fiji for true Fijians.
The applicant also claimed that in July 1999 intruders came to his home, that he was hit on the head with a bottle and that the intruders ran away after damaging some electrical goods. According to the applicant one of the neighbours heard the intruders say that the Indian-lover should be taught a lesson.
He claimed that in September 1999 he was asked to attend meetings of a pro native-Fijian group. He declined and subsequently was verbally abused by members of the pro native-Fijian Taukei movement. However he claimed that a few weeks later he was asked to join that movement by someone who knew of his involvement with the FLP. He agreed to attend one meeting but did not join the group. He claimed that he was fearful and afraid for the safety of his three teenage daughters and left Fiji for Australia in late 1999. He claimed to fear that if he returned to Fiji the Taukei movement may actively recruit people for the movement and might make life miserable for him. On

7 October 2004 a delegate of the first respondent refused the application for protection visas and the applicants sought review by the Tribunal.
The applicant attended a Tribunal hearing together with his wife on

8 February 2005. He elaborated on his claims and was recorded as having claimed that he did not want to return to Fiji because he felt something was going to happen, that there was political corruption, that many sentenced for involvement in the 2000 coup had been released, that there was an increase in serious violent crime limited to efforts to cause political instability. He believed that his life would be in danger, that Taukei could regroup and members of the Taukei movement seek revenge for his refusal to join them in 1999. He claimed that he could be located anywhere in Fiji and that he was concerned that his three children could be harmed in an effort to punish him. He provided press clippings and material from the internet to the Tribunal.

Tribunal decision

In its reasons for decision the Tribunal accepted the applicant’s account of the events which led to his departure from Fiji. It accepted that he was seriously assaulted in three occasions and that these assaults were, at least in part, motivated by the applicant’s perceived sympathy for Indo-Fijians and his perceived political opinions. However the Tribunal found that the assaults were “unrelated to each other” and that they had occurred in the specific circumstances of the time, that is, in the lead-up to the 1999 elections. It found:
Even if I were satisfied that such events constituted past persecution of the applicant, I am not satisfied that there was a real chance that the applicant would be subjected to similar or more serious incidents in the future amounting to persecution. In view of the changed circumstances there are no elections looming, a pro-Fijian government is in power there is no evidence to suggest that there was a real chance that serious and systematic violence amounting to persecution would resume, although the possibility of random, isolated racially-based incidents occurring cannot be ruled out.
The Tribunal also accepted that the applicant had been approached by extreme nationalist indigenous Fijians shortly before his departure from Fiji at the end of 1999 and that in light of the subsequent events it was possible that the group which sought to recruit him was in some way connected with planning the 2000 coup as the applicant had suggested. It accepted that many of those involved with the coup had been released from prison, in some cases in circumstances suggesting a lack of will on the part of the government to adequately punish them.
However it continued:
The applicant’s parents and sister live in the same area as he did; he gave evidence that he maintains regular contact with them and with other friends and relatives in Fiji. Yet he is not aware of any specific recent or ongoing threats against him, and none have apparently been made against his family members there. Nor does he know anything of the situation of ex-Army friends who he said were also approached by Taukei prior to the coup and refused to join. I gave the applicant additional time after the hearing to provide evidence of a current and specific threat to him and he was not able to do so, submitting only newspaper articles which, while supporting his claims of ructions between the Fiji Armed Forces and the government, provide no information specific to his circumstances. In the absence of recent evidence that the applicant, or people like him are still of adverse interest to Taukei, I am not satisfied that any risk of harm to the applicant is more than remote, speculative or insubstantial.
The Tribunal found that, assuming the applicant may have been at risk when he left Fiji at the hands of Fijian nationalists who sought his support in relation to their political activities, there was “no external evidence before [it] to suggest that the current political situation would give rise to similar activity”. In the absence of evidence as to the current circumstances of the people who approached the applicant or of any “recent or ongoing threat to the applicant” it was not satisfied that the men who had previously approached the applicant posed a real or substantial risk to the applicant. It found that while there was some evidence of “ongoing racial tension as a legacy of the coups” it was not satisfied that this would lead to serious or significant harm or harassment of the applicant or any other mistreatment amounting to persecution for reasons of his race or political opinion. The Tribunal stated that having searched the Tribunal’s information resources it was “unable to locate any external information which would indicate that the applicant’s fears were objectively well founded”.
The Tribunal also addressed the applicant’s claims in relation to his part-European ethnicity. It accepted that he may face some discrimination on that basis, but found no evidence to suggest that this would be more serious than in the past. It accepted the applicant’s evidence that the discrimination he suffered prior to the 1999 events was not of sufficient severity as to be considered persecution.
The Tribunal accepted that there was a general air of insecurity in Fiji and a high and rising crime rate, but was not satisfied on the evidence before it there was any political or racial element to this or that the police failed to provide protection to citizens in a discriminatory manner based on a Convention reason. It observed that in these circumstances the Refugees Convention did not provide protection against harm which was essentially criminal in nature. It was not satisfied that the applicant’s fear of persecution in Fiji was well founded.
The applicants sought review of the Tribunal decision by application filed in this Court on 16 May 2005. They now rely on a second further amended application filed in Court on 27 November 2006. Given the timing of the second further amended application the parties were given the opportunity to file further written submissions after the hearing. They did not do so.

‘Real chance’ issues

The first and fourth grounds of review were said to be associated. The first ground of review in the second further amended application is expressed in the alternative. It is that the Tribunal made a jurisdictional error as it:
(a) misapplied the real chance test in determining that the applicants did not have a ‘well-founded fear of persecution’ or, in the alternative,
(b) as it was not open on the material and evidence to impliedly find (if at all it was held that it found) that there was no real chance of an Indian dominated government being in power in Fiji and a election taking place in such an environment.
The particulars of aspect (a) of ground one are:
Had the Tribunal found that there was a real chance of an election looming and a non pro-Fijian government (Indian dominated government) in power then it would have found that the applicant has a well-founded fear. This is because that the Tribunal was willing to accept that the applicant husband was persecuted under such an environment. Tribunal was required to do this under the test for well-founded fear. As stated in WAAD it is important that regard be had to possible future events and this involves the Tribunal undertaking “reasonable speculation” and in this instance the Tribunal failed to do that.
The particulars for the alternative basis on which ground one is expressed are:
The fact that Indian dominated government has been in power in 1999/2000 and that the election had taken place in such an environment and that Indo-Fijian labour party is the main opposition with 39% of the seats in parliament should have been considered in any future assessment and the real chance of the same thing happening again. There is no information or explanation at all within the Tribunal’s decision that would support the proposition that the chance of an election taking place in the future while an Indian dominated government being in power is remote or insubstantial.
In oral submissions the legal representative for the applicants contended that the error in relation to the real chance test was two-fold, in that the Tribunal did not look at whether there was a real chance of persecution in the reasonably foreseeable future, and that even if it did so, it failed to apply the test correctly, in particular the requirement that a real chance is one that is not remote or insubstantial or a far-fetched possibility. Instead it was submitted that the Tribunal required “a higher certainty”.
It was acknowledged that the Tribunal correctly referred to the test for well-founded fear in the introduction to its statement of reasons. It was contended that it followed from this test that fear was not well founded if it was based on mere assumption or speculation, but also that it could not be said that a fear was not well founded based on mere speculation or mere assumption. It was said to be necessary for the Tribunal to consider whether there was a real chance that the environment critical to the occurrence of incidents accepted to have occurred would prevail in the reasonably foreseeable future.
Thus, in relation to the first aspect of ground one it was contended that the Tribunal was obliged to make an assessment of the circumstances in Fiji in the reasonably foreseeable future (see NAHI v MIMIA [2004] FCAFC 10 at [13]) and MIMA v W64/01A [2003] FCAFC 12 at [37] per French J).
It was submitted that while the Tribunal in this case had accepted that the applicant had experienced past persecution consisting of the assaults and the approaches from the Fijian nationalists, it had failed to undertake the necessary “reasonable speculation” about the future. Instead it was suggested that the Tribunal had focused only on the present and that it did not look to the foreseeable future, taking the past and the present into consideration. By way of illustration it was suggested that the Tribunal had had regard to the fact that there was no evidence that at the time of the decision the applicant was of adverse interest to the Taukei movement. However the applicant’s case was said not to be that he was being sought at the time of the Tribunal decision, but rather that if he went back to Fiji and engaged in political activity he would be sought by the Taukei movement. Similarly the Tribunal was said to have referred to the then current political situation, finding no external evidence suggesting that the “current political situation” would give rise to the same sort of activity as had occurred at the time the applicant had left Fiji. It was submitted that the Tribunal should have asked what was going to happen in the reasonably foreseeable future. It was contended that in making its findings about whether the serious harm that had occurred to the applicant would occur to him again and whether he would be sought by the extremist organisation, the Tribunal did not look to the future to see whether the environment that had existed before would persist into the future.
In the alternative, it was submitted that if it was accepted that the Tribunal had impliedly found that there was no real chance that these specific circumstances would occur in the reasonably foreseeable future, such an implied finding was not open on the evidence as the Tribunal merely assumed that the same circumstances would not take place.
It was suggested that the Tribunal should have had regard to evidence as to events in Fiji prior to the time of the decision, including country information to the effect that the Indo-Fijian Labour Party was the main opposition party with 39% of the seats in Parliament. It was submitted that there was evidence before the Tribunal (such as country information suggesting there was a possibility of the army threatening the government) that the army could stage a coup and of tension between the government and the army. On this basis, given the evidence of such volatility in the political situation it was said not to be open to the Tribunal to find that there was no reasonable chance of the opposition coming to power. It was submitted there was no information or explanation at all within the Tribunal’s decision to support the proposition that the chance of an election taking place in the future with an Indian-dominated government coming into power was remote or insubstantial. It was said that the Tribunal decision was not based on findings or inferences of fact that were grounded upon probative material and logical grounds (see MIMAv Eshetu (1999) 197 CLR 611 per Gummow J at [145]).
The first respondent submitted that the Tribunal did not err by misapplying the real chance test and that the findings made by the Tribunal were based on material before the Tribunal and were open to it (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 – 7). It was contended that the findings were not perverse (Bond at 367, Re MIMA; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9]) and that having engaged in an assessment of the probabilities of future persecution and made findings on that question, the Tribunal was not required to do anything further (See MIEA v Guo (1997) 197 CLR 559 at 575 to 577 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
It was said to be clear that the Tribunal correctly applied the authority of Guo. It first made findings as to what had occurred in the past. It considered and accepted the applicant’s claims as to past persecution and serious assaults. It then considered whether there was a real chance of something occurring in the future based on those past events having occurred. This was said to be consistent with what was said by the majority in Guo at 576:
It is true that, in determining whether there is a real chance that an event will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.

In other words, it was contended that the Tribunal entered into an estimation of the probability of certain persecutory events occurring in the future and based on the estimation of probabilities it then determined whether there was a real chance of Convention-related persecution. It was submitted that the Tribunal had applied the appropriate test from Guo in finding:
Even if I was satisfied that these events (the assaults) constitute past persecution of the applicant, I am not satisfied that there is a real chance that the applicant would be subjected to similar or more serious incidents in the future, amounting to persecution. In view of the changed circumstances – there are no elections looming, a pro-Fijian government is in power – there is no evidence to suggest that there is a real chance that serious and systematic violence amounting to persecution would resume, although the possibility of random, isolated racially-based incidents occurring cannot be ruled out.
It was also submitted that the applicant’s submission that the Tribunal should have considered whether the circumstances referred to (that there were no elections looming and that a pro-Fijian government was in power) would prevail was in a sense tantamount to a claim that the Tribunal should have asked “what if I am wrong?” However it was said that this approach was only to be followed where the Tribunal reasons could be characterised by doubt and that the findings made by the Tribunal in this respect were not characterised by doubt, although they admitted the possibility of random isolated racially-based incidents. (See Guo at 576).
It was further submitted that, having made findings with respect to the likelihood of future harm on the two alternative Convention bases, the Tribunal was not obliged to make findings with respect to every piece of evidence before it and in particular was not obliged to make findings in relation to the matters that the applicant now asserted were material. (See Yusuf at 68, 73 – 74 and 91; Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Applicant A169 of 2003 v MIMIA [2005] FCAFC 8 at [24]; WAEE v MIMA (2003) 75 ALD 630 at [47] and Paul v MIMA (2001) 113 FCR 396 at [79]). It was said that it was for the Tribunal to assess the weight to be given to various pieces of evidence and the materiality of various matters to the decision at hand (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40 – 41 and Yusuf at 67) and that it was clear that the information the applicant had provided was before the Tribunal and was considered by it. In circumstances where its concern was whether there were any direct threats or evidence of direct threats to the applicant, the Tribunal had referred to the documents and media reports about the current situation in Fiji provided to it and also the fact that it gave the applicant additional time after the hearing to provide evidence of current and specific threats to him. However it had regard to the fact that he submitted only newspaper articles which, “while supporting his claims of ructions between the Fijian Armed Forces and the government, provide no information specific to his circumstances”.
Further, it was submitted for the respondent that the findings of the Tribunal in respect of a change in circumstances were open to it based on the evidence before it, albeit other material was also before it and that while minds may differ as to the correctness or fairness of the Tribunal’s assessment of the evidence, the materiality of various matters raised by the evidence and the probability of future persecution, the Court could not review the correctness or fairness of factual findings made by the Tribunal (Attorney General (NSW) v Quinn (1990) 170 CLR 1 at 35 – 37; Plaintiff S157 v Commonwealth (2003) 211 CLR 476 at 78).

Reasoning

In W64/01A French J summarised the principles in Guo as follows (at [37]):
The Tribunal, in assessing claims and evidence before it, is required to undertake a process of ‘looking to the future’ which is the ‘essence of the Chan test’ - Wu at 278. Chan was acknowledged in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 as establishing that a person can have a well-founded fear of persecution even though the probability of persecution occurring is well below fifty per cent. But the joint judgment in that case went on to caution:
‘... to use the real chance test as a substitute for the Convention term "well-founded fear" is to invite error.’ ( p 572)
The application of that test may require findings that an event might or might not occur in the future but does not require the decision-maker to engage in conjecture or surmise (at p 572). The future-looking process accepted in Wu was elaborated in Guo where it was said that:
‘... unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’ (p 575)
In most cases that process will require findings of past events as the bases for inferences about what will happen in the future. The Tribunal is entitled to weigh material before it and to make findings before it engages in any consideration of whether or not a fear of persecution on a Convention ground is well-founded. If the findings are sufficiently strong, the Tribunal may not be bound to consider the possibility that they are inaccurate. The examination of past events does not require definitive findings as to their occurrence for:
‘... in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’ (p 576)
The question to be addressed by the Tribunal is whether an applicant has ‘a well-founded fear of persecution for a Convention reason having regard to possible past occurrences and possible future events’ - WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [38].
First, insofar as the applicant relied on what was said by the Full Court of the Federal Court in WAAD v MIMA [2002] FCAFC 399 at [38], in that case that the Tribunal had found that it did not accept that the applicant had received certain letters in the past. The Court found that the Tribunal had failed to accept, and had made a qualified finding about, an aspect of the applicant’s claims about a past event (see [36] – [37]). It was in that context that their Honours found at [37] that, not having “reached the stage that it had no real doubt about its findings on past and future events” that the Tribunal was “obliged to have regard to the possibility of the occurrence of the claimed events in assessing the degree of risk of persecution faced by the appellant (Abebe per Gleeson CJ and McHugh J at [85] – [86]).”
Their Honours then found that the Tribunal had to have regard to “possible past occurrences and possible future events” (at 38). In other words it had to “assess the risk that the appellant may suffer persecution … by having regard to the possibility that the claimed events had occurred and by balancing the material as a whole” (at [38]).
In this case, in contrast, the Tribunal accepted the applicant’s account of the events which led to his departure from Fiji. This was not a case in which there was a need for it to have regard to “possible” past occurrences in the sense considered in WAAD at [38]).
More generally, it has not been established that the Tribunal failed to apply the correct test in considering possible future events in determining whether it was satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
While Ground 1 is expressed generally, the particulars make it clear that the applicant’s contention is that the Tribunal erred in failing to consider whether there was a real chance that there may be an election looming and a non-pro-Fijian government in Fiji, on the basis that if such circumstances existed it would follow that the Tribunal would have found that the applicant had a well-founded fear, as it was said to have been willing to accept he had been persecuted in the past in such an environment.
However, as contended by the first respondent, the Tribunal considered whether there was a real chance of Convention-related persecution occurring to the applicant in the future based on an acceptance that past events (the three claimed assaults and the approach by extreme nationalist indigenous Fijians in 1999) had occurred and by “balancing the material as a whole” (WAAD at [38]). In considering the future the Tribunal had regard to evidence about the political situation in Fiji. Its findings that at the time of the decision there were no elections looming and that a pro-Fijian government was in power did not constitute a rejection of the possibility that other circumstances may emerge in the future. Rather the Tribunal took into account the fact that the past assaults were unrelated to each other and that they had occurred in the specific circumstances of the lead up to the 1999 elections as well as the subsequent change in circumstances that had occurred since the applicant left Fiji and the absence of any evidence to suggest that there was a real chance that serious and systematic violence amounting to persecution would resume. It did not make a finding that there was no reasonable chance of the Fijian opposition coming to power. It acknowledged the existence of some ongoing racial tension and that the possibility of random, isolated racially-based incidents occurring could not be ruled out. It did not have to address specifically the possibility of a looming election and a non pro-Fijian Government in power. Rather what it had to, and did, address was whether on all the material before it the applicant had a well-founded fear of persecution for a Convention reason. It addressed his clamed fears, finding first that it was not satisfied that there was a real chance that the applicant would be subject to assaults amounting to persecution in the future.
Further, it is clear, reading the Tribunal reasons for decision as a whole, that the Tribunal then considered more generally (on the assumption that the applicant was at risk when he left Fiji at the hands of Fijian nationalists who had sought his support in relation to their political activities) whether such persons posed a real or substantial risk to the applicant in the future (not simply at the time of the decision) as claimed. The applicant did not claim to fear harm simply because the political situation was volatile or might change.
The Tribunal considered the evidence not only of what occurred before the applicant left Fiji, but, critically, the absence of any specific recent or ongoing threats against him or of any evidence as to the current circumstances of those who had approached him. In that context it found no external evidence to suggest that the political situation at the time of the decision would give rise to similar activity. It went on to accept there was evidence of some ongoing racial tension as a legacy of the 2000 coup, but was not satisfied that this would lead to persecution of the applicant “for reason of his race or political opinion” (emphasis added) given the absence of any independent information indicating that the applicant’s fears (that is, of persecution for reason of race or political opinion) were objectively well founded.
In making these findings the Tribunal applied the test in Guo (and also see Chan v MIEA (1989) 169 CLR 379) as to whether the applicant had a well-founded fear of persecution for a Convention reason. It did not simply assume (as appears to be suggested) that the fact that no elections were looming and a pro-Fijian Government was in power at the time of the decision meant that circumstances would not change in Fiji. However, in the absence of any external evidence about the circumstances of those who threatened the applicant or that people like the applicant were still of adverse interest to Taukei it was not satisfied that any risk of harm to the applicant was more than remote. I note in that respect that, as was stated in Guo at 572, in looking to the future the Tribunal is not required to engage in conjecture or surmise (see WAAD at [37]).
In these circumstances, as submitted for the first respondent, in addressing its concern as to whether there was information specific to the applicant’s circumstances, the Tribunal was not obliged to make findings with respect to every item of evidence before it or on the matters the applicant now asserts were material.

Whether failure to take into account relevant considerations or irrationality and illogicality

Mr Silva for the applicant suggested that ground 4 was associated with ground 1. Ground 4 is that the Tribunal made a jurisdictional error:
since in making some critical findings the Tribunal:
(a)     failed to take into account the following relevant issues by themselves or in combination:
(i)      the current tension between the army and the government because of the threat of a coup threat from the army
(ii)     the threat of assassination of the Army Commander
(iii)    the threat to the opposition leader Chaudhary
AND OR
(b)     it was irrational and illogical in making those findings which contradict the country information provided by the Applicants and specifically in relation to the issues stated under (a) above.
The particulars of this ground are that the Tribunal made four findings that were said to be affected by such errors, being the findings that:
in the absence of recent evidence that the applicant, or people like him are still of adverse interest to Taukei, I am not satisfied that any risk of harm to the applicant is more than remote, speculative or insubstantial;
The applicant left Fiji six years ago. Assuming that he may have been at risk when he left at the hands of Fijian nationalists who sought his support in relation to their political activities, there is no external evidence before me to suggest that the current political situation would give rise to similar activity. (emphasis added);
While there is evidence of some ongoing racial tension as a legacy of the coups, I am not satisfied that this would lead to serious or significant harm or harassment of the applicant, or any other mistreatment amounting to persecution for reason of his race or his political opinion; and
I have searched extensively through the Tribunal’s information resources in Fiji for information supporting his claim that he faces serious harm if he returns to Fiji. However, I have been unable to locate any external information which would indicate that the applicant’s fears are objectively well founded.
It was submitted for the applicant that in making these findings the Tribunal failed to take into consideration the issue of the tension between the army and the government because of the threat of a coup from the army, the threat of assassination of the army commander and the threat to the opposition leader Chaudhry.
It was submitted that there had been a failure to take into account relevant considerations in the sense considered in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 having regard to the subject matter, scope and purpose of the Migration Act 1958 (Cth). It was suggested that when making the findings about the activities of the Taukei Fijian nationalist organisation it was necessary for the Tribunal to consider such matters, because there was evidence that the tension between the government and the army was because of the nationalists.
It was suggested that the Tribunal was not conscious of the critical nature of the issue of racial tension as a legacy of the coups and that while the Tribunal stated that it was unable to locate any external information indicating that the applicant’s fears were objectively well founded, in fact there was information from the applicant (such as the 2005 information provided by the applicant which post-dated the information referred to by the Tribunal) which showed tension, threats and political volatility in Fiji.
In the alternative, while it was acknowledged that in Re MIMA; Ex parte Applicant S20/2002 (2003) 198 ALR 59 it was suggested that the mere fact of irrationality and illogicality may not constitute jurisdictional error but might point to other legal errors that might constitute jurisdictional error, it was suggested that the Tribunal decision was irrational and illogical in the sense considered in MIMIA v SGLB (2004) 207 ALR 12 at 38 per Gummow and Hayne JJ.
Counsel for the first respondent referred to his submissions in relation to Ground 1 and submitted that the Tribunal did not fail to have regard to relevant considerations and that the fact that there were no specific findings in respect of the three matters highlighted by the applicant did not reveal that there was any jurisdictional error, as it was for the Tribunal to determine what was material and what was not. It was acknowledged that the Tribunal was obliged to take into account the applicant’s claims and the integers of the claims, but said that beyond this the Tribunal was not obliged to make findings in respect of every piece of evidence or every piece of evidence that was contended by the applicant to be material (see MIMA v Yusuf (2001) 206 CLR 323).

Reasoning

As contended by the first respondent, while the Tribunal is obliged to address the elements of an applicant’s claims it is not required to make findings in relation to every item of evidence or information before it. Further, the assessment of what is material is a subjective matter for the decision-maker. It is not for the Court to substitute its view for the Tribunal’s assessment of materiality. As was stated by Allsop J in Paul vMIMA (2001) 113 FCR 396 at [79]:
Whatever may be the outer boundaries of relevant and irrelevant considerations of the point of jurisdiction, they do not, in my view, encompass a failure expressly to mention or grapple with part of a competing body of evidence before the Tribunal, relevant to a finding made in circumstances where the elements or integers of a claim for asylum are addressed.
In this instance the Tribunal addressed the elements of the applicant’s claim, in particular in relation to his fear of Fijian nationalists in general and the Taukei movement in particular.
In its reasons for decision the Tribunal referred to the media reports submitted to it by the applicant (press clippings and reports from a website It is these December 2004 to February 2005 reports which the applicant submitted identified issues that the Tribunal was obliged to take into account.
The Tribunal also referred to the applicant’s claims at the March 2005 Tribunal hearing that he felt something was going to happen in Fiji, that there was political corruption, that many of those imprisoned for their role in the 2000 coup had been released after serving only part of their sentence, that serious violent crime was increasing and that the applicant believed this was linked to efforts to cause political instability. The Tribunal described the applicant’s claims that the Fijian press, friends and family told him the situation was worsening, and that he believed a large number of recent resignations from the military was the result of hostility between the Council of Chiefs and the Commander in Chief of the army.
It is important to note that, as discussed above, the applicant’s claims were not simply that he feared harm because the political situation may be volatile or could change. The crux of the applicant’s claim to fear persecution for a Convention reason was that, as he told the Tribunal, he believed his life would be in danger if he returned, that Taukei “is still active, although under cover, but could regroup at any time”, that he believed “they could still seek revenge for his refusal to join them in 1999”, that some of those who tried to recruit him had been investigated or charged in relation to the 2000 coup but then released. He claimed he could be found anywhere in Fiji and that his daughters could be harmed in an effort to punish him.

It was in light of these claims about the harm the applicant feared that the Tribunal set out relevant extracts from country information including the 2000 and 2001 US Department of State Country Reports, the most recent (November 2000) DFAT advice on the security situation and the situation of Indo-Fijians and also earlier advice as well as Amnesty International’s 2004 Annual Report in relation to the security situation in Fiji.
The Tribunal noted that there was “little or no information available which specifically addresses the situation of mixed race Fijian, or of Fijians who support the FLP.” In considering whether the Tribunal failed to have regard to relevant considerations however, it is important to distinguish, as Allsop J did in Paul, the elements of a claim and items of evidence before the Tribunal. The Tribunal understood and addressed relevant considerations in the sense of the integers of the applicant’s claim to have a well-founded fear of persecution for a Convention reason.
The Tribunal summarised the applicant’s claim to fear being killed by members of the Taukei Fiji nationalist movement, although it had been lying dormant since the 2000 coup and that he believed further political instability was brewing. It also had regard to the possibility of future assaults constituting persecution.
The Tribunal accepted the applicant’s claims about past events. It then considered the future. In that context it took into account not only that the three past assaults were at least in part motivated by the applicant’s perceived political opinion, but also that they were unrelated and had occurred in the specific circumstances of the lead up to the 1999 elections. It then addressed the current circumstances in Fiji as part of a consideration of whether there was a real chance that the applicant would be subjected to similar or more serious incidents of violence in the future.
The general information about the tension between the army and government and alleged threats relied on under this ground is not such that it can be said that the Tribunal findings that there were no elections then looming and that a pro-Fijian government was then in power were not open to it. It was open to the Tribunal to have regard to the present in assessing the well-foundedness of a fear of future harm for a Convention reason. Further, relevantly, the Tribunal went to on to address the applicant’s claims that he may be of interest to or at risk from Taukei in the future. In that context it had regard to and accepted some of his claims about the situation in Fiji. While it did not refer to the specific content of the particular items of information submitted by the applicant and made no finding about the alleged threat of assassination of the army commander or to the opposition leader referred to in the 2005 articles, it did accept that the information submitted by the applicant supported his claims of ructions between the Fiji Armed Forces and the government and also that it was possible that the Taukei group was connected with planning the 2000 coup and that many of those involved with the coup had been released from prison “in circumstances suggesting a lack of will on the part of the present government to adequately punish them.”
However, critically, what was lacking (despite information about tension in Fiji), was evidence as to the current circumstances of the men who previously approached the applicant or of any specific recent or on-going threats against the applicant, his family or others who had refused to join Taukei before the 2000 coup or who were otherwise like him. It was the absence of recent information specific to the applicant’s circumstances that such people were “still of adverse interest to Taukei” that led the Tribunal not to be satisfied that any risk of harm to the applicant was more than remote, speculative or insubstantial.
Contrary to the submissions for the applicant the Tribunal did not find that there was no reasonable chance of a coup or of the opposition coming to power. Rather it considered in light of the information before it whether the applicant’s fear (in particular that he would be harmed by Fijian nationalists for a Convention reason if he returned to Fiji) was well founded. In that context its finding that there was no external evidence to suggest that the current political situation would give rise to “similar activity” is a reference to the risk to the applicant from Fijian nationalists who had sought his support in the past.
The Tribunal addressed the applicant’s claims about a risk of future harm to him for reasons of his race and political opinion. In so doing it was not necessary for it to make findings as to whether it accepted that there was tension between the army and government because of the threat of a coup or about threats to the army commander and opposition leader as such. What was critical, and was addressed, were the applicant’s claims that he faced serious harm for a Convention reason if he returned to Fiji. No jurisdictional error is established on this basis.
Nor did the Tribunal make irrational and illogical findings constituting jurisdictional error. Whatever the scope for irrationality and illogicality to constitute or give rise to jurisdictional error in this case the Tribunal findings in relation to the risk to the applicant were open to it on the material before it (including the absence of evidence about the current situation of those who had sought his support or of any recent or ongoing threat to the applicant). No jurisdictional error is established on this basis.

State protection issue

The next ground relied on in the second further amended application is that the Tribunal made a jurisdictional error “as it applied incorrect test for state protection in relation to whether the applicant will have state protection in Fiji.”
The particulars of this ground refer to the Tribunal statement as to the test for state protection but claim that the Tribunal failed to apply that test. It is said that the Tribunal looked only at whether the state deliberately withheld protection and did not consider whether the state was able to provide protection in spite of the severe transport problem faced by the police.
It was suggested that the relevant Tribunal finding was that after referring to the applicant’s feelings of vulnerability as a part-European outside the main political or racial groups and based on the general air of insecurity in the country, it accepted that there was a high and rising crime rate but was not satisfied there was any political or racial element to this nor “that the police failed to provide protection to citizens in a discriminatory manner, based on race, political opinion, or any other Convention reason”.
It was submitted that the applicant’s case in relation to state protection was that the police were discriminating by denying protection based on race and political opinion and also that they were unable to provide protection because of the serious shortage of transport and that whether this was articulated or not it should have been obvious from the material before the Tribunal (see NABE v MIMIA (No 2) (2004) 219 ALR 27 at [58] – [63]).
It was said that it was relevant to have regard to the following observations of McHugh J in MIMA v Respondents S152 of 2003 (2004) 205 ALR 487 at [76] – [78]:
The case that presents most difficulty is one where harm to individuals for a Convention reason may come from any one or more of a widely dispersed group of individuals and the state is willing but is unable to prevent much of that harm from occurring. In societies divided by strongly held ethnic or religious views, it commonly happens that members of one group have a real chance of suffering harm – often violent harm – because of the pervasive but random acts of members of another group. Such harm occurs although the state makes every effort to prevent it. In such cases, it would be a misuse of language to say that the fear of persecution is not well-founded because the state has “a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected”. In Horvath, relying on the protection theory, the House of Lords limited the scope of the definition of “refugee” by requiring that a state be unwilling or unable to eliminate persecutory conduct by private individuals. Nothing in the Convention, however, supports this limitation. It should not be read into the Convention.
[78] If there is a real chance that the asylum seeker will be persecuted for a Convention reason, the fear of persecution is well-founded irrespective of whether law enforcement systems do or do not operate within the state. (Footnotes omitted)
[83]… once the asylum seeker is able to show that there is a real chance that he or she will be persecuted, refugee status cannot be denied merely because the state and its agencies have taken all reasonable steps to eliminate the risk. Nothing in the Convention supports such a conclusion.
It was submitted that in this instance, whilst the Tribunal acknowledged that the police had a serious transport problem, it did not consider whether the government was able to provide protection in the sense of being able to respond in a timely manner so that persecution was controllable. It was said to be apparent from the Tribunal reference to country information which referred to lack of equipment, a serious shortage of vehicles for the police force as an ongoing problem affecting response times and also information as to a decrease in the budget allocated to the police force, that the Tribunal was aware of the transport issue. Further, it was pointed out that this issue was discussed in the course of the Tribunal hearing. The Tribunal member herself was said to have suggested that it was a problem that “the police don’t have resources including vehicles that allow them to get to places”. In response the applicant confirmed that this was an issue for the whole of the country. Subsequently the Tribunal member referred to evidence suggesting that the police and government were committed to providing protection to the best of their ability “but that there were resource problems, especially with the police”.
On this basis it was argued that although the Tribunal understood the transport problem, it did not consider the legal relevance of that problem to the state protection issue. In other words it was suggested that the Tribunal had not considered that aspect of the test for state protection which refers to persecution being uncontrollable by the authorities or consider whether the government had failed or was unable to protect the applicant from persecution. It was submitted that any submission based on MIMA v Khawar (2002) 210 CLR 1 that the Tribunal properly applied the test was misconceived, because in Khawar the persecution was for a non-Convention reason but the state did not provide protection for a Convention reason, whereas in the present circumstances it was submitted that the persecution by third parties was for a Convention reason so that even if the state failed to provide protection for a non-Convention reason the requirements of the Refugees Convention could still be satisfied.
It was said that the issue was whether the state could provide protection to international standards and that as there was ample evidence that the police did not attend when people were persecuted because of the acute shortage of vehicles and the lack of transport, the question needed to be asked as to whether the state was able to provide protection and that as this had not occurred the Tribunal had misunderstood and misapplied the test of effective state protection.
It was submitted for the first respondent that there was no error in the Tribunal’s approach to state protection and that it took into account the independent country evidence that suggested that the Fijian police force, although under-resourced, was not ineffective. It was submitted that the country information did not justify a conclusion that the Fijian state had not taken reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law and the provision of a reasonably effective and impartial police force and justice system (see Respondents S152 of 2003 at [9], [26] and [33]; SZDWR v MIMA [2006] FCAFC 36 at [20] and [22]) but that in any event the fact that the Tribunal did not make a finding to that effect, did not mean that it erred in the sense of not making a decision under the Act (Plaintiff S157 of 2002). It was submitted that the Tribunal was not obliged to set out its findings in respect of all the material before it, but only findings on the questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision (Yusuf at 68). It was said that the Tribunal finding that it was not satisfied that the police failed to provide protection for citizens in a discriminatory manner was based on the authority of Khawar and was clearly the proper approach to state protection (see Khawar at 26, 30, 84 and 87). Moreover it was contended that the fact that Fijian police were under resourced was not determinative for the question of state protection, as the mere lack of resources did not of itself give rise to the kind of lack of state protection that was necessary to establish a well-founded fear of persecution for a Convention reason (SZCCF v MIMA [2006] FCA 1089 at [14]; S152 at [26] and [33]).
In oral submissions it was clarified for the first respondent that the Tribunal had clearly found that it was not satisfied that there was a real chance of future persecution in relation to the applicant’s claims based on race and political opinion. Hence it was submitted that it was not necessarily material for the Tribunal to make findings in respect of state protection. It had found that the risk of harm was no more than remote, speculative or insubstantial in relation to the claimed fear. It was not satisfied that ongoing racial tension would lead to serious or significant harm or harassment of the applicant or other mistreatment amounting to persecution for reason of his race or political opinion.
It was suggested that the Tribunal had effectively found that while there was a possibility of random isolated racially-based incidents, there was no real chance that the applicant would be subjected to similar or more serious incidents in the future amounting to persecution. Hence, as there was a finding that there was no real chance of persecution, the ability of the country to eliminate those random isolated incidents was irrelevant.
It was submitted moreover, that the issue of state protection (in the sense of whether there was a failure to provide protection for a Convention reason) was addressed by the Tribunal in the context of its consideration of the applicant’s claim that he felt vulnerable as a part-European outside the main political or racial groups and that the general air of insecurity in the country gave him grave concern in relation to the safety of his daughters in particular. In that context, while accepting there was a high and rising crime rate the Tribunal was not satisfied that there was any political or racial element to this nor that the police failed to provide protection to citizens in a discriminatory manner.
More generally, it was contended that the Tribunal did not have to consider the effectiveness of state protection unless there was clear evidence before it that the policing was below international standards (see SHKR v MIMIA [2004] FCA 545 at [38] per Selway J). It was submitted that there was no clear statement in the material before the Tribunal that the problems with policing were clearly below international standards, and that as McHugh J had stated in MIMA v Respondents S152 of 2003 (2004) 205 ALR 487, it could not be said at any point of time that the police force was inadequate because it could not guarantee the security of its citizens 100% of the time.
It was argued that while the Tribunal had referred to the information in relation to problems in the Fijian police force, in its findings and reasons it was not required to go beyond what was spelled out in the applicant’s claims and elements of those claims and that insofar as it had regard to the information in relation to policing this was subsumed in its finding as to past persecution and that the past assaults had occurred. It was submitted that the information was considered and there were findings made in respect of it, even though there was not a clear finding to the effect that the Tribunal was satisfied that the Fijian government was able to protect its citizens (see RespondentsS152 of 2003 per McHugh J at [33]).

Reasoning

In the statement accompanying his protection visa application the applicant claimed, relevantly, that when he reported the first assault, the police told him that they did not have transport. The applicant claimed that after the second incident was reported the police took no action, treating the applicant “in a funny way” as if it was none of his business to help Indians, kept them waiting and made excuses. After the third incident the police officer was said to have called the applicant names for helping Indians and told him he should “go back to colonial place that my forefathers came from and leave Fiji for the Fijians.” It is not clear whether the applicant reported the action of intruders in July 1999, as he claimed that his wife called for “help” and “when help arrived the intruders had smashed the tv and stereo” and ran away. The Tribunal recorded that it noted that the Fijian police lack of transport was a serious problem although it also found the applicant’s claims about the circumstances of his reports to the police to be vague.
It is clear from these claims, as elaborated on at the hearing and which are summarised by the Tribunal, that the applicant raised the issue of willingness as well as ability of the police to provide protection and the issue of Convention motivation in relation to police inaction.
Relevantly however, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution by non-State actors (that is Fijian nationals or the Taukei movement) for a Convention reason in the future. Hence, whatever may have occurred in the past, the situation considered by McHugh J in Respondents S152 of 2003 at [76] was not in issue. As contended for the first respondent, it was not necessary for the Tribunal to address the issue of the ability of the state to provide protection in that context, as it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. As there was a finding that there was no real chance of persecution the ability of the authorities to provide protection in relation to persecution did not arise.
The Tribunal considered (but rejected) the applicant’s separate claim that the police failed to provide protection to citizens in a discriminatory manner for a Convention reason. It found no failure for a Convention reason. In other words, no lack of willingness to provide protection for a Convention reason was established. The issue of the ability of the police to provide effective state protection against harm essentially criminal in nature did not have to be addressed where the Tribunal was not satisfied that there was any Convention reason (that is no political or racial element for this activity). No jurisdictional error is established on this basis. It has not been established that the Tribunal applied an incorrect test for state protection.

Whether the Tribunal asked the right question

The final ground is that the Tribunal made a jurisdictional error “since it failed to ask the critical question in making the decision and thereby failed to reach a state of satisfaction necessary to dispose of the matter before it.”

The particulars of this ground are that the Tribunal failed to ask “If the Applicant husband is to return to Fiji and as he has done in the past resume his friendship with Indo-Fijians and actively campaign for Indo-Fijians in the lead up to the next election will he be persecuted”. It was submitted that this question should have been asked because that was essentially the applicant’s case. Thus it was said that the Tribunal did not ask the question the Act required to be asked (see Craig v South Australia (1995) 184 CLR 163 at 179; MIMA v Yusuf (2001) 206 CLR 323 at [82]).
Counsel for the respondent submitted that the Tribunal did ask itself the critical question, which was whether the applicant had a well-founded fear of persecution for a Convention reason and that in so doing it clearly applied the Guo test and the principles in Khawar. It was submitted that the issue was not whether or not one agreed or disagreed with the factual findings of the Tribunal and that the materiality of particular items of evidence was a question for the Tribunal (see Yusuf). It was also contended that the Tribunal had considered the likelihood of persecution in the future as it was required to do, and that its findings were clearly made in the context of the personal circumstances of the applicant, in particular the past persecution that had occurred and the nature of the applicant’s claims based on political opinion and support for the FLP.

Reasoning

The applicant’s claim is that the Tribunal failed to consider the position if he resumed friendship with and active political activities for Indo-Fijians (as he did in 1999).
In 1999 the applicant campaigned for the FLP although he was not a member of that party. He claimed he was assaulted for these activities. The Tribunal accepted that the events the applicant recounted had occurred before his departure from Fiji in late 1999. It correctly considered whether there was a real chance that the applicant would be subjected to similar or more serious incidents in the future amounting to persecution. In so doing it clearly took into account the claims that the applicant’s perceived sympathy for Indo-Fijians and perceived political opinion would be maintained. However, in light of the changed circumstances in Fiji it was not satisfied that there was a real chance “that serious and systematic violence amounting to persecution would resume”. As set out above, it also addressed his claims to fear harm from the Taukei group, implicitly accepting that he may resume his past allegiances and activities, but found no evidence that people like him were still of adverse interest to the Taukei or that the current political situation would give rise to similar activity against the applicant for reason of his race or political opinion. In proceeding in this manner the Tribunal addressed the question of whether the applicant had a well-founded fear of persecution for a Convention reason based on his claims and the material before the Tribunal. No jurisdictional error is established by this ground.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 13 March 2007