SZHXA v Minister for Immigration
[2007] FMCA 1049
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1049 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 483A |
| Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Craig v State of South Australia (1985) 184 CLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 NIAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf (2001) 206 CLR 323 Syan v Refugee Review Tribunal & Anor (1995) 61 FCR 284 SZADJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 418 |
| Applicant: | SZHXA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3751 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Silva |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 20 December 2005 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3751/2005
| SZHXA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZHXA”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
20 December 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 November 2005 and handed down on 29 November 2005. The Tribunal decision affirmed a decision of the delegate of the first respondent (“the delegate”) made on 17 November 2000, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 2 March 2006. I have marked it Exhibit “A” and it was read into evidence.
The applicant in these proceedings filed the following affidavits:
a)Affidavit of Sylvia Nicholas Silva sworn on 10 December 2005 (first affidavit of Ms Silva). Attached to this affidavit is a copy of the Tribunal decision.
b)Affidavit of Sylvia Nicholas Silva sworn 10 March 2006 (second affidavit of Ms Silva). Attached to this affidavit is a transcript of the Tribunal hearing of 26 October 2005.
Background
The Tribunal decision of Ms P McIntosh, reference N05/52057, provides the following background information:
[SZHXA], who claims to be a citizen of Fiji, arrived in Australia on 1 November 1999. She applied to the Department of Immigration and Multicultural Affairs for a protection visa on 30 October 2000. A delegate of the Minister for Immigration and Multicultural Affairs refused the visa and the Tribunal, differently constituted, affirmed the delegate’s decision on 19 June 2001. She sought review of the Tribunal’s decision by the Federal Court and on 20 July 2005 the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.(CB 104)
In the protection visa application, the applicant stated that she was born in 1942 in Lautoka, Fiji. She is of Indian ethnicity and a Christian. She was married and her husband was still in Fiji. She claims she came to Australia to visit her brother and other friends. Her family lost their livelihood during the political turmoil in Fiji and the coup in May 2000. She claims that Indo-Fijians lost land, livelihood and homes, and that there was no law and order in Fiji.
The written submissions prepared by Ms Francois for the first respondent provide a convenient summary of the applicant’s claim.
I adopt paragraph 3 of those submissions:
3.The applicant submitted a statutory declaration to the second RRT in which she claimed that (CB 77-79):
(a)she did not wish to return to Fiji because she had “been seriously harmed in the past by native Fijians based on [her] race as an Indo-Fijian” and she genuinely feared that “native Fijians will harm me in the future if I return to Fiji” (CB 77 at [2]);
(b)there had been 5 pervious incidents of harm: an attack where her dog was killed; stones had been thrown at her house; she was threatened with a knife; her house had been broken into and food was stolen; and her groceries had been snatched (CB 77 at [3]);
(c)her family in Fiji had forsaken her as her husband left her for a younger woman, her sons had rejected her (CB 77 at [4] & [5]) and she did not speak to her daughter as she had married against the wishes of the family (CB 78 at [9]);
(d)If she is forced to return to Fiji she would end up “begging on the road” as she is old, uneducated and unable to earn a living (CB 78 at [10]);
(e)as she would be alone and without protection she would be harmed by native Fijians and she would not be able to obtain protection from the police (CB 78 at [12]).
Tribunal’s findings and reasons
A summary of the Tribunal’s findings is also contained in the first respondent’s written submissions, and I adopt paragraphs 4 and 5 of those submissions:
4.On 26 October 2006 the applicant, her friend and her solicitor attended the RRT hearing.(CB 98) During the hearing the applicant gave evidence that:
(a)she left Fiji over six years ago (Transcript of the Tribunal hearing p.4.43) because she was having problems with her husband and they needed some time apart (Transcript of the Tribunal hearing 8.37-45);
(b)at the time she left she thought that she might return to Fiji before her visitor’s visa expired (Transcript of the Tribunal hearing 9.1-15);
(c)she decided that she would not return because she heard about the “problems” which the RRT clarified was the coup in 2000 (Transcript of the Tribunal hearing 9.17-33);
(d)the five incidents of harm cited in her statutory declaration all occurred in 1999 (Transcript of the Tribunal hearing 9.35-10.6);
(e)the attacks were designed to force her family to move off the land and give up the lease (Transcript of the Tribunal hearing 11.12-30);
(f)the lease on the land where she had lived expired two years ago and her family no longer lived on that property (Transcript of the Tribunal hearing 11.21-39 and 12.20-41);
(g)since the attack on her elder son in 2001 the problems and harassment he has since experienced were because he “is a heavy drinker” (Transcript of the Tribunal hearing 15.37 and 16.25-41)
(h)while her younger son had problems with the native Fijians while he lived at their old home it was not as serious as what his brother experienced and he stayed on the land until the lease expired (Transcript of the Tribunal hearing 16.46-17.5 and 15.43-16.7).
5.In its decision, the RRT found that the chance was remote that the applicant would face serious harm for the essential and significant reason of her race or membership of a particular social group (CB120.2 and 120.7). In particular, the RRT:
(a)found that when the applicant left Fiji in 1999 she did not have a subjective fear of persecution but left because of her martial problems (CB118.3);
(b)considered that while the applicant lodged the application for a protection visa some months after the coup in 2000 it was required to “look at the present situation in Fiji, and the circumstances in which [SZHXA] might live if she returned to Fiji in the reasonably foreseeable future” (CB 118.5);
(c)held that as none of her family lived at her old home where she had experienced hardship from the native Fijians and native Fijians now lived there it is clear she would not (and could not) live at that address the RRT was thus required to consider the more general situation for Fiji Indians, taking into account her particular characteristics and circumstances (CB 119.2);
(d)found that while there was racist violence during the coups in 1987 and 2000, various sources of country information indicated there was now no significant trend of ethnically motivated violence (CB 119.5);
(e)held that her younger son had not been subjected to any serious harm in recent years (CB 119.7);
(f)found that the attacks on her elder son were not motivated by any Convention reason but because the criminals took advantage of the fact he was inebriated and has “mental problems” (CB 119.9);
(g)held while the criminal activity the applicant feared was a problem in Fiji the motivation for such crime was greed and not race and the applicant would not be harmed for any reason relating to race or her membership of a particular social group (CB 120.1); and
(h)found that the chance was remote that the applicant would face circumstances similar to those she faced before she left Fiji and that while there was discrimination against Fijian Indians it was not serious and systematic harm.(CB 120.5)
Application for review of the Tribunal decision
On 20 December 2005, the applicant filed an application for a review in this Court under s.39B of the Judiciary Act. At the commencement of the hearing on 14 March 2007, Mr Silva, for the applicant, sought leave to file an amended application. As no objection was raised by Ms Francois, leave was granted. The amended application contains the following grounds:
Ground 1
The Tribunal made jurisdictional error as failed to take relevant matters into account (or it failed to ask questions it should have asked), in finding that the chance is remote that the applicant will face serious harm because of race or membership of a particular social group.
Particulars
The Tribunal should have taken the following issues into consideration or must have asked the following questions before it made that finding:
(i)Is the applicant a member of a particular social group?
(ii)Even if the criminal activity is undertaken for greed and not primarily because of the race of the victim, will the applicant be especially vulnerable because of being a member of a particular social group and thus have a well founded fear of serious harm as a result of the criminal activity?
(iii)If initially she is vulnerable to theft or hardship is the applicant later particularly vulnerable to being bashed, robbed or sexually assaulted as a result of being a member of the particular social group or because of her race?
(iv)Since her elder son was seriously bashed by Native Fijians and thus became mentally upset and further that he has been robbed several times by Native Fijians, that is him being harmed exclusively by Native Fijians on all occasions would she have fear of real chance of being seriously harmed by Native Fijians on her return because of her race or membership of particular social group?
Ground 2
The Tribunal made jurisdictional error as it failed to consider whether there is a real chance of a coup and that would make the applicant’s fear well-founded. The Tribunal failed to engage in reasonable speculation necessary based on the past history of the coup in Fiji.
Particulars
The Tribunal referred to the importance of the fear of a coup to the applicant, at 16.5 (CB118.5) of its decision:
I also accept that two major factors led to her decision to lodge that application in October 2000. One was that it had become apparent to her that her relationship with her husband had broken down. The other was that in May 2000 there had been a coup in Fiji, and [SZHXA] had heard of the dangers facing Fiji Indians at that time.
However the Tribunal must look to the present situation in Fiji, and the circumstances in which [SZHXA] might live if she returned to Fiji in the reasonably foreseeable future.
If the Tribunal wished to look at the reasonably foreseeable future it could not have avoided looking at the possibility of the coup and what will happen to the applicant if a coup takes place.
Ground 3
The Tribunal made jurisdictional error as it failed to apply the right test for relocation.
Particulars
The Tribunal did not, as the decision in Randhawa requires, give proper consideration to the practical realities facing the applicant with respect to various factors stated below, should she relocate in Fiji.
The Tribunal referred to applicant’s evidence (regarding these factors) given by a Statutory Declaration to the Tribunal at page 7.4 (CB109.4) of its decision:
[SZHXA] stated that she was old, diabetic, uneducated and unable to earn an income. She would end up “begging on the road”. She would have nowhere to go from the airport and would be destitute. She also stated that indigenous Fijians bashed and robbed old women living alone “and specifically if they are Indo-Fijians”. She also feared sexual assault. The police were racist and would not protect her.
Ground 4
The Tribunal made jurisdictional error in that in making a about the latest country situation it failed to consider latest information given to the Tribunal. It used old information only to make finding about current situation.
Particulars
The applicant gave several pieces of country information. Two of them one dated 14/04/05 (CB86) and 18/04/05 (CB 87) deal with Hindu temples being attacked and desecrated. The Tribunal did not consider this information in making the finding above. This material is too relevant as to ignore. Also not considered in relation to state protection was the news about raid on a labour party politician (CB92). This questions the Tribunal’s finding at 18.3 (CB120.3):
While the independent evidence set out above reflects that there are fewer Fiji Indian police officers that indigenous Fijians, and that the police protection of Fiji Indians during the coup period in 2000 was inadequate, it does not indicate that police officers nowadays are generally differentiating between victims of crime on the basis of race. I am not satisfied that they are. The chance is remote that [SZHXA] might be denied protection for a Convention reason if she were the victim of some non-Convention-related harm.
Submissions and reasons
The first ground of the amended application asks the Court to infer that the Tribunal did not instruct itself on what constitutes a particular social group. Mr Silva’s written submissions refer to the following passage from the Tribunal decision:
While I accept that criminal activity is a problem in Fiji, I am satisfied that the reason for it is the greed of the perpetrators rather that the race of the victims (DFAT 2004). Although she may initially be more vulnerable to theft or hardship because of accommodation or income, the chance is remote that [SZHXA] might face any serious harm for the essential and significant reasons of her race or membership of a particular social group.(CB 119-120)
Mr Silva submits however that the Tribunal should have taken the following issues into consideration or asked the following questions before it made its finding:
(i)Is the applicant a member of a particular social group?
(ii) Even if the criminal activities is undertaken for greed and not primarily because of the race of the victim, will the applicant be especially vulnerable because of being a member of a particular social group and thus have a well founded fear of serious harm as a result of the criminal activity?
(iii) If initially she is vulnerable to theft or hardship is the applicant later particularly vulnerable to being bashed, robbed and sexually assaulted as a result of being a member of the particular social group or because of her race?
(iv) Since her elder son was seriously bashed by Native Fijians and thus became mentally upset and further that he has been robbed several times by Native Fijians, that is him being harmed exclusively by Native Fijians on all occasions would she have fear of real chance of being seriously harmed by Native Fijians on her return because of her race or membership of particular social group?
Mr Silva submits that the Tribunal avoided making a finding as to whether the applicant was a member of a particular social group and therefore avoided the issues in items (i) to (iii) above. Instead, it made a single finding as set out above. Mr Silva argues that this demonstrates that the Tribunal did not consider all of these legal issues carefully. He then referred to a passage in the decision where he, as the applicant’s solicitor and migration agent, made submissions to the Tribunal in respect of the applicant’s membership of a particular social group:
Mr Silva, her solicitor, then suggested that [SXHXA] was a member of a particular social group being “single, old, uneducated Fijian-Indian woman living alone”. He said that she had a well founded fear because she was alone, her circumstances were worse than others because she had no income and it would be easy to subject her to harassment. He then said that the reason for the persecution would be her race but her age and the fact that she would be living alone would make her more vulnerable. I told him that it was not clear to me from his argument that her membership of a particular social group, being single, old uneducated Fijian-Indian woman living alone was clear as a reason for the harm she feared. He agreed that she would simply be more vulnerable because of those characteristics but would be likely to be targeted for harm because she was a Fijian-Indian. He referred to country information.(CB 113.1)
The Tribunal then referred to the applicant’s statutory declaration:
[SZHXA] stated that she was old, diabetic, uneducated and unable to earn an income. She would end up “begging on the road”. She would have nowhere to go from the airport and would be destitute. She also stated that indigenous Fijians bashed and robbed old ladies living alone “and especially if they are Indo-Fijians”. She also feared sexual assault. The police were racist and would not protect her.(CB 109.4)
Mr Silva also directed the Court to a lengthy passage where the Tribunal discussed the applicant not having anyone support if she returned to Fiji.(CB 118.6 -119.3) Mr Silva submits that this passage clearly establishes that the Tribunal accepted that there was no one in Fiji who could help the applicant if she were forced to return. His written submissions reproduce part of the transcript of the Tribunal hearing, where he discusses with the member what he claims are the Convention reasons for the harm that the applicant fears.(transcript of Tribunal hearing pp.2.1-21.3) Mr Silva further referred to the transcript discussion between the member and the applicant about the harassment she experienced. Mr Silva submits that the exchange should have prompted the Tribunal member to consider question (iv) as raised above at [11].
Mr Silva submits that had the Tribunal had considered whether the applicant met the criteria for a particular social group, it would have found that she was. The Tribunal did not consider the applicant’s case properly. He submits that the three part test to determine whether a group to which an applicant claims to belong falls within the definition of “particular social group” as in Article 1A(2) of the Refugees Convention was clearly stated in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 at [36] per Gleeson CJ, Gummow and Kirby JJ:
1 The group must be identifiable by a characteristic or attribute common to all members of the group.
2 Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.
3 The possession of that characteristic or attribute must distinguish the group from society at large.
The applicant claims to belong to a particular social group of single, old, uneducated, Indo-Fijian women living alone in Fiji. Mr Silva contends that this group meets the definition as set out in Applicant S. They are:
a)The group identified is defined by its members’ common attributes:
i)Single;
ii)Old;
iii)Uneducated;
iv)Indo-Fijian;
v)Women;
vi)Living alone in Fiji
b)The group is not defined by persecution.
c)As per Applicant S at [65] an “aged person” is recognised as a particular social group because of its members’ vulnerability.
Mr Silva contends that 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 a erroneous finding, or reaches a mistaken conclusion which effects the exercise or purported exercise of the tribunal’s power: Craig v State of South Australia (1985) 184 CLR 163 at [179]per McHugh, Gummow and Hayne JJ (also see Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389). Mr Silva submits that the absence of findings on the four issues identified at [11] above supports this argument. Further, this was not a situation of the kind referred to in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 per Mason J, where the factor was so insignificant that failure to take it into account could not have materially affected the decision.
Ms Francois contends that the Tribunal decision was predicated on two clear findings. The first was that while there had been racist violence during the coups in 1997 and 2000, the country information before the delegate indicated that there was at the present time no significant trend of ethnically motivated violence. The secondary finding was that the incidents of violence which the applicant feared were by young native Fijians committing crimes motivated by greed. On that basis, the Tribunal found that the applicant does not have a well-founded fear of persecution.
The first basis upon which the decision was challenged was the way the Tribunal dealt with the particular social group claim. Mr Francois contends that it was not clear whether the claim was a particular social group consisting of single, old, uneducated, Indo-Fijian women living alone, or simply Indo-Fijian women living alone.
Ms Francois referred to the Tribunal decision under the heading ‘Claims and Evidence’ and sub-heading ‘Tribunal Hearing’:
I discussed with her evidence from the Australian Department of Foreign Affairs and Trade (DFAT) from 2004, that violence towards Fiji Indians on the basis of ethnicity had declined significantly since 2000 and that DFAT was not aware of any current significant trend of ethnically-motivated violence directed at them by indigenous Fijians. However, most acts of robbery with violence were by young unemployed indigenous men who saw Fijian Indians and other minority groups as well as expatriates and tourists as affluent targets.(CB 112.7)
Ms Francois contends that the Tribunal did not misdirect itself by not understanding the elements of persecution. Rather, it was ascertaining the characteristics or features that lead people to be subject to harm. The word “greed” in the context used related to people who were perceived as affluent, which led to their persecution.
Ms Francois referred to a section of the transcript of the Tribunal hearing, also referred to by Mr Silva, where the Tribunal clarified with Mr Silva his submission that the applicant was a member of a particular social group. Initially the particular social group was characterised as:
MR SILVA: I would like to submit that the applicant be considered under a particular social group which is single, old, uneducated, Indo-Fijian woman and living alone. I submit that that is the situation if she is forced to go back. (Transcript p20.5)
The Tribunal then explored this submission as follows:
MS McINTOSH: Her circumstances that you have described do make her vulnerable to whatever is happening in the society.
MR SILVA: Yes, to harassment or persecution as an Indian person.
MS McINTOSH: So you think that the reason for the persecution would be her race?
MR SILVA: Yes, that is the main thing, but she will be made more vulnerable because of the other issues. The fundamental thing is the race because she has had experience – or she has particularly in the past.
MS McINTOSH: So in fact her being single, old, uneducated, living alone is not – it would make her more likely than other people to be harmed; that is what you are saying?
MR SILVA: That is right. I think so. My suggestion is that she should be considered under two categories: one is race, the other is membership of a particular social group.
MS McINTOSH: Very well. You haven’t made clear why her particular social group would be the reason for her being harmed? The race, I understand your point.
MR SILVA: Yes, sure. The particular social group – the reason of belonging to the particular social group is if a single woman, Indo-Fijian woman, is living alone they are more susceptible to harassment and persecution by native Fijians.
MS McINTOSH: Because they are an easier target?
MR SILVA: Indeed. Easier target and also the racist element there as well. I mean if an Indo-Fijian woman living alone and a native Fijian woman living alone they will be picked up on – the Indian woman will be picked up on. And having no one to protect them. So whichever category you would consider – if yo would consider under race she would have all these elements making it a special case. But if you consider a particular social group then races is one of the elements but so many other elements as well. (T20.25-21.5)
Ms Francois submits that the transcript indicates that Mr Silva’s submissions on this topic were not entirely clear. The Tribunal decision records that Mr Silva agreed that the applicant would be targeted for reason of her race, and would be more vulnerable because of the factors he outlined.(CB 113.4) Nevertheless, in reaching its decision, the Tribunal had regard to whether the applicant would be targeted because of her membership of a particular social group. In particular, the Tribunal found as a fact that what motivated the crimes which she feared was not race but the “greed of the perpetrators” (CB 120.1): Syan v Refugee Review Tribunal & Anor (1995) 61 FCR 284; SZADJ v Minister for Immigration [2003] FCA 418 at [14] per Moore J. Having made this finding, it automatically excluded any Convention-based persecution as alleged by the applicant. Alternatively, in making this finding the Tribunal assumed that the applicant could be a member of a particular social group as variously described by Mr Silva, but its findings excluded any persecution on that basis.
Ms Francois referred to Mr Silva’s submission that the Tribunal did not undertake the analysis as set out in Applicant S. In that case, McHugh J (at [62]-[64]) observed that the perpetrator must at least recognise the group as a particular social group and intend to persecute them because of their membership of that group, even if that society does not recognise the group as such.
Ms Francois contends that the Tribunal in this case was not required to consider all the issues relating to whether the applicant may have belonged to a particular social group. This was because of its finding of the reason for the crimes. Further, that if the Tribunal finds a person can relocate it does not need to deal with the question of persecution. Similarly, a finding that greed was the motivation for a crime subsumes all other questions relating to the formulation of a particular social group. The Tribunal is not required to make findings on issues which are not relevant to its determination of the application.
I accept the submissions made by Ms Francois that the Tribunal found that the type of crime feared by the applicant was not directed towards her for any Convention ground, but rather, for reason of her affluence. It is clear that she was not targeted because she was an Indo-Fijian, a woman, an old woman or an uneducated woman.
In respect of the second ground of the amended application, Mr Silva submits that the Tribunal decision referred to the importance to the applicant of her fear of a coup:
I also accept that two major factors led to her decision to lodge that application in October 2000. One was that it had become apparent to her that her relationship with her husband had broken down. The other was that in May 2000 there had been a coup in Fiji, and [SZHXA] had heard of the dangers facing Fiji Indians at that time.
However the Tribunal must look to the present situation in Fiji, and the circumstances in which [SZHXA] might live if she returned to Fiji in the reasonably foreseeable future.(CB 118.5)
The Tribunal also referred to statements made by Mr Silva:
He also said that Fiji’s justice system and police force were not impartial. He further said that there was continuing talk of another coup so people were naturally fearful…(CB 113.5)
This is reflected in the transcript of the hearing:
MR SILVA: Just one more thing. Because of the governments efforts now to pardon all the coup plotters – as you know there is a new Amnesty bill – that is always the trait of the coup and that has been mentioned all the time and that is what really frightens people. Because where the coup takes place or not the very thoughts of that makes the fear well-founded. Because while it is mostly, as you know, associated in relationship to past coups so I am sure you will consider the latest developments of that.(transcript of Tribunal hearing, p23.5)
Mr Silva submits that the Tribunal had to consider the possibility of a coup in Fiji in the “reasonably foreseeable future” and what would happen to the applicant if one took place. The Tribunal decision refers to racist violence during the 2000 coup:
I accept that there was racist violence during the period of the coup in 2000. However the evidence from various sources set out above, including the CERD (2003), indicates that racist attacks against Indo-Fijians were concentrated around 1987 and 2000 coups. This is consistent with the evidence from DFAT (2004) that violence against Indo-Fijians on the basis of ethnicity has declined significantly since the coup in 2000 and that there is no significant trend of ethnically motivated violence directed at Indo-Fijians by Indigenous Fijians. It is also consistent with [SZHXA’s] own account of events effecting her family, which involves incidents of violence between 1999 and 2001.(CB 119.1)
Mr Silva then referred to the test in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [379] per Mason CJ and at [429] per McHugh J. Although the Tribunal referred to the “real chance test” in its decision, Mr Silva contends that it did not apply this test by asking whether there was a real chance of another coup occurring.(CB 106.5) Mr Silva argues that if another coup took place, the applicant would be persecuted based on her race and other characteristics.
Ms Francois submits that the second ground deals with the failure of the Tribunal to expressly say how it considered the likelihood of a coup occurring in the future. Although the applicant argues that the Tribunal ignored what was contained in the country information about an imminent coup, Ms Francois submits that the country information made no such reference. Nothing in the country information referred to an impending coup.
Ms Francois also contends that the claim that the Tribunal failed to engage in reasonable speculation about the likelihood of a future coup misconceives the Tribunal’s task and formulates a principle of general application based on a particular type of harm. Ms Francois argues that this ground is essentially about a failure to make a particular finding of fact. The Tribunal’s task was to determine whether or not the applicant had a well-founded fear of persecution if she returned to Fiji.
It explicitly recognised that this task required it to determine the likelihood of persecution occurring in the reasonably foreseeable future and applied the principle in Chan.
Ms Francois submits that the Tribunal exclusively stated that it must have regard to “the present situation in Fiji, and the circumstances in which [SZHXA] might live if she returned to Fiji in the reasonably foreseeable future”.(CB 118.6) The Tribunal observed, on the basis of independent country information, that since the 2000 coup, violence against Indo-Fijians had declined significantly and there was no significant trend of ethnically motivated violence against them.(CB 119.5) The Tribunal concluded that:
The chance is remote that [SZHXA] will face circumstances similar to those she faced before she left Fiji. Further, while all the independent evidence set out above refers to discrimination effecting, at least some Fiji-Indians, it does not reflect an environment in which Fiji-Indians generally are facing serious harm and systematic and discriminatory conduct for reasons of their race. Generally speaking, there is insufficient evidence before the Tribunal to enable me to be satisfied that, for the reason of their race, Fiji-Indians are being targeted for serious harm.(CB 120.5)
Ms Francois submits that those broad findings encompassed the likelihood of violence during a coup in the reasonably foreseeable future. The Tribunal properly considered and assessed the applicant’s claims of persecution in the past, considered the independent country information about the present situation in Fiji and found that the applicant did not face a real chance of persecution upon returning to Fiji. It is submitted that there is no error manifest in this process: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575. Further, the Tribunal is not required to specifically address every piece of evidence or allegation before it: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641.
I note the contents of the applicant’s statutory declaration:
(11) Native Fijian youths break in, bash and rob old women living alone and specifically if they are Indo-Fijians. They throw stones on the house. Racism is so prevalent in Fiji.(CB 78)
I accept the submission that this paragraph sets out the main thrust of the applicant’s fear of native Fijian youths breaking into her home, bashing and robbing her. The Tribunal found that the type of harm the applicant fears occurred during previous coups and accepted that there was racist violence in 2000. Other sources indicate that racist attacks also occurred during the 1987 coup.Consequently the applicant does not fear the occurrence of coups themselves but rather what occurs around a coup.
In the Tribunal finding that there was no significant trend of ethnically motivated violence in Fiji, and little likelihood of further coups, meant that the applicant was unlikely to meet such violence again should she return to Fiji: see [31] above. In the circumstances, I am satisfied that the Tribunal has addressed the type of harm the applicant fears, that those circumstances are more likely to arise during a coup, and that the possibility of one reoccurring has diminished significantly. The country information does not identify any person who is likely to perpetrate another coup in the near future.
Mr Silva submits in the third ground that the Tribunal dealt with the issue of relocation in the following manner:
I am satisfied that if she were to return to Fiji, [SZHXA] would not return to live at her pervious address in Lautoka. That is apparent from her evidence, which I accept, that the lease on the land has expired, that her young son has vacated the property, and that the Indigenous owner has moved onto the land. While she may have had continuing problems with the Indigenous Fijians who had previously caused her family so much hardship if she had moved backed to her home, I am satisfied that she would have no contact with them because she will not be returning there. Therefore I have considered her circumstances if she were to return to Fiji and live elsewhere. That requires consideration of the more general situation for Fijian-Indians, taking into account her particular characteristics and circumstances. (CB119.2) [Emphasis added]
Mr Silva submits that where the applicant lives if she returns to Fiji is her choice. However the Tribunal comment, “I am satisfied that she would have no contact with them because she will not be returning there”, is consistent with a finding of persecution in her former place of abode. Mr Silva submits that the Tribunal was therefore making a relocation finding.
Mr Silva argues that the Tribunal did not, as required by Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 277, give proper consideration to the practical realities facing the applicant with respect to factors which would arise should she relocate within Fiji. Mr Silva refers to the applicant’s statutory declaration as referred to in the Tribunal:
[SZHXA] stated that she was old, diabetic, uneducated and unable to earn an income. She would end up “begging on the road”. She would have no where to go from the airport and would be destitute. She also stated that Indigenous Fijians bashed and robbed old women living along “and specifically if they are Indo-Fijians”. She also feared sexual assault. The police were racist and would not protect her.(CB 109.4)
Mr Silva argues that the Tribunal failed to consider the relevant practical reality facing the applicant and therefore failed to apply the appropriate test: NIAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22].
Mr Silva submits that the generally accepted test for relocation is whether it is reasonable and practical in the circumstances: Randhawa; Applicant S256 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 170 at [18]; NAIZ at [22]. It is submitted that there was only a short discussion about relocation in the Tribunal decision. If the Tribunal raised the question of relocation on its own volition, then it was obliged to ensure that the scope of its investigation allowed it to be satisfied in the manner which Randhawa and NAIZ make clear. Mr Silva submits that a failure to do so constitutes jurisdictional error.
Ms Francois submits that the assertion in the third ground, that the Tribunal made a finding that it was reasonable for the applicant to relocate without considering her ability to do so, was not a finding it made. Rather, the Tribunal found as a fact that the applicant would not return to her old home.(CB 119.2) The evidence before the Tribunal on this issue was overwhelming and conclusive. The applicant had given evidence that the lease on her land had expired and it was now occupied by native Fijians. Further, she explained that it was her desire to reclaim the land which was the reason for the earlier harassment.(CB 111.3) The Tribunal accepted this evidence and found that she and her family had been “subject to a series of incident which were intended to intimidate them sufficiently to abandon their land”.(CB 118.2) Having regained the land, there was no longer any reason why native Fijians would continue to harass her in her hometown, nor was there any other reason why she would want to move back to that area as she no longer had a relationship with her husband or children. Ms Francois submits that it is also not clear from the evidence whether any of her family still lived in the area.
Ms Francois then directed the Court to the transcript of the Tribunal hearing:
MS McINTOSH: Okay. So if you did have to return to Fiji – and I know you don’t want to – but if you did have to go back, what would you do to try to secure some accommodation yourself?
THE INTERPRETER: Actually, ma’am, this is the main problem I am having because I don’t want to go back to Fiji. Everything I have lost I think is there left for me. My oldest son he doesn’t want me after he had been bashed up. So he is – he has got some mental problems and he is a heavy drinker and so that is why he doesn’t want me as well; that’s the problem.(Transcript p.5)
The Tribunal pressed that question again and the applicant answered:
THE INTERPRETER: I have no idea and I can’t go back. If I had my … or if I had a house, something, I was able to return to in Fiji but in this situation.(Transcript p.6)
The Tribunal member then clarified with the applicant the issue of her land:
MS McINTOSH: Did they have any interest in getting you off the land that you had a lease on?
THE INTERPRETER: They said they have taken the land from us. All the time they were saying that we really take your land.
MS McINTOSH: So they have taken over the land now? Is that what she means?
THE INTERPRETER: Yes. Actually the … they have taken the land now and the house was cemented, the complete house, so my children they couldn’t take their house from the land, they took the roof and things and my children are not there anymore. They just move to somewhere else.(Transcript p.11)
This was followed by a discussion about how the lease expired and what her children took from the house. There was no indication of where her children moved to since departing the family home. Ms Francois submits that it was clear that the applicant could return to the home she had lived in, did not want to return to Fiji and had no knowledge of the location of her children. The applicant indicated that she did not feel welcome by the children and she had separated from her husband. Therefore, the Tribunal did not make a relocation finding for two reasons:
a)The persecution that the applicant experienced in 1999, of harassment by the native Fijian land owner who wanted her off the land she leased, no longer existed.
b)If the applicant was to return to that neighbourhood there was no reason to think that she would be persecuted again. However, the Tribunal held that she was unlikely to return there because she no longer had a home.
Ms Francois submits that this was not a case where the Tribunal accepted there was persecution in the area where the applicant lived and it now finds it reasonable for the applicant to live elsewhere. The Tribunal found there was persecution in that area for a particular reason, but that reason no longer exists. The applicant had also indicated reasons why she would not return to that neighbourhood. As a result, the Tribunal considered the applicant’s situation in the context of the whole country.
I agree with Ms Francois’ submissions that this was not a case where Tribunal found it was reasonable for the applicant to relocate to avoid harm. It was unlikely any further harm would occur as the applicant’s family no longer leased the land which was the reason for that harassment in the first place. The Tribunal’s finding was not one of expectation but a finding of fact about the applicant’s intention. Having found that the applicant would not return to her old home, the Tribunal appropriately identified that it was necessary to consider her application in the context of Fiji generally. Accordingly the principles in Randhawa do not apply in these circumstances.
The fourth ground of the amended application complains about the way the Tribunal addressed the evidence. In particular, that the Tribunal did not rely upon, and accept, the country information provided by Mr Silva. Mr Silva submits that he gave several pieces of country information, two from the Fijian Labour Party website, one dated
14 April 2005 titled “Attack on Temple Angers Hindi” (CB 86) and the other dated 18 April 2005 titled “Another Hindi Temple Attacked” (CB 87). The Tribunal did not consider this information, which Mr Silva contends was too relevant to be ignored. A further article dated
28 April 2005 concerned a labour official’s home being raided by the police.(CB 92)
Mr Silva argues that the Tribunal had located country information, most recently from 2004. Although Mr Silva provided the Tribunal with 2005 information, none of that information was referred to in the decision. It also did not rely on the later material as mentioned at [45] above, which he submits is contrary to Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [163] per Callinan J; ApplicantWAEE at [49]; SZGLQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1506.
Ms Francois submits that the amended application incorporates a number of documents not previously referred to in the original application. Ms Francois advised the Court that her written submissions were limited to the two articles referred to at [45] above. The Tribunal decision under the heading “Claims and Evidence” the Tribunal records the arguments that Mr Silva put on behalf of the applicant in a reasonable amount of detail. This is documented as follows:
Mr Silva…referred to country information about the circumstances in Fiji that she had already submitted. He also observed that the indigenous Fijian leaders in Fiji were racist, that the Prime Minister had benefited from the coup and was trying to placate coup elements, and the senators had made racist remarks in parliament. He said that DFAT cables tended to say that the government was bent on promoting unity, but that was not correct. He also argued that DFAT cables could not be relied upon because, in sum, DFAT had a conflict of interest. He also said that Fiji’s justice system and police force were not impartial. He further argued that there was continuing talk of another coup so people were naturally fearful. At this point the hearing ended. (CB 113.2)
Ms Francois argues that although parts of the above-mentioned country information may be tangentially relevant, they were not immediately relevant to the Tribunal’s deliberations. Ms Francois contends that this is not a case where the Tribunal has clearly ignored all submissions and arguments made on behalf of the applicant. It is a decision that was open on the evidence before it and made in accordance with the principles that were required.
Ms Francois brought to the Court’s attention that the articles referred to above detailing attacks against Hindi temples, which were acts of hatred against symbols of Hinduism. However, the applicant claims to be Christian and would not generally be near a Hindi temple. She would not be targeted for persecution for that reason.
Mr Francois submits that ApplicantWAEE and SZGLQ can both be distinguished on their facts from this matter. It is submitted that although it is clear that the Tribunal did not refer to any of the country information this was because the country information did not advance the applicant’s case. The material provided to the Tribunal refers to isolated incidents of attacks against Hindi temples but does not suggest that this was the overall situation in Fiji or part of a concerted campaign. Ms Francois submits that the Tribunal did record all of Mr Silva’s arguments in its decision (see [47] above).
Ms Francois submits that this ground of review merely attacks the merits of the Tribunal decision and the evidence that the Tribunal chose to accept or reject. It is submitted that the Tribunal is not required to address every piece of evidence or allegation unless it can be shown that the failure to consider the material meant that the Tribunal failed to address an integer of the applicant’s claims; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; Applicant WAEE.
I am satisfied that the material submitted by Mr Silva at the Tribunal hearing, and the subject of the fourth ground, was not ignored by the Tribunal. The Tribunal formed the view that those submissions were not germane to its considerations and I accept Ms Francois’ argument in respect of its handling of that material. The issue is less to do with the age of the information but rather its direct relevance to the circumstances of the applicant.
Conclusion
I thank both parties for providing the Court with detailed written and oral submissions. I am satisfied that none of the grounds set out in the further amended application can be sustained and consequently the matter should be dismissed.
I am satisfied that an order for costs should be made. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 5 July 2007
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