SZOVB v Minister for Immigration - [2011] FMCA 394

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVB & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 394

MIGRATION – Review of decision of Refugee Review Tribunal – whether second to fourth applicants made applications in their own right or as members of the family unit – whether Tribunal failed to consider persecution on the basis of race – Tribunal’s findings reasonably open to it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 414, 476

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287; (1999) 58 ALD 30
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195
WAFP v Minister for Immigration and Multiculturalism and Indigenous Affairs [2003] FCAFC 319
SZLGF v Minister for Immigration & Citizenship [2008] FCA 1369
SZLGF & Anor v Minister for Immigration & Anor [2008] FMCA 254
SZJKO v Minister for Immigration & Citizenship [2008] FMCA 370
NAEA of 2002 v Minister for Immigration & Multiculturalism & Indigenous Affairs [2003] FCA 341
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487; (2008) 247 ALR 467; (2008) 102 ALD 31
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412; (1989) 63 ALJR 561
Applicant A & Anor v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225; (1997) 142 ALR 331; (1997) 71 ALJR 381
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 170 ALR 553; (2000) 74 ALJR 775; (2000) 58 ALD 321
Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1; (2000) 175 ALR 585; (2000) 74 ALJR 1556; (2000) 62 ALD 1
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565; (1995) 130 ALR 314
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 205 ALR 487; (2004) 77 ALD 296; (2004) 78 ALJR 678
AZAAR v Minister for Immigration and Citizenship [2009] FCA 912; (2009) 111 ALD 390
SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; (2006) 150 FCR 448
MZ RAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1261
SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 264
VFAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1018
Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415
SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857
Osman v United Kingdom (1998) 29 EHRR 245

First Applicant:

SZOVB

Second Applicant:

SZOVC

Third Applicant:

SZOVD

Fourth Applicant:

SZOVE (BY HIS LITIGATION GUARDIAN)

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2618 of 2010

Judgment of:

Nicholls FM

Hearing date:

29 March 2011

Date of Last Submission:

29 March 2011

Delivered at:

Sydney

Delivered on:

1 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Kinslor Prince Immigration Lawyers

Counsel for the Respondents:

Mr D A Hughes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 2 December 2010, and further amended on

29 March 2011, is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $7,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2618 of 2010

SZOVB

First Applicant

SZOVC

Second Applicant

SZOVD

Third Applicant

SZOVE

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 2 December 2010, and further amended on 29 March 2011, under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 November 2010, which affirmed the decision of the delegate of the respondent Minister to refuse protection visas to the applicants.

Background

There are four applicants before the Court. All were applicants before the Tribunal. All are Fijian nationals. The first named applicant (“the first applicant”) is the wife of the second named applicant (“the second applicant”) and the mother of the third and fourth named applicants (“the third applicant”, “the fourth applicant”).
All applied for protection visas on 5 March 2010 (see Court Book – “CB” – CB 1 to CB 68). The applicants used the departmental form designated “866”. The first applicant completed that part identified as “866C” (“Application for an applicant who wishes to submit their own claims to be a refugee”) (CB 37). The second to fourth applicants did not provide any form “866C”. Rather, they each provided form “866D” (“Application for a member of the family unit”) (CB 51, CB 57, CB 63).

Claims to Protection

The first applicant’s claims to fear persecutory harm were said to emanate generally from the situation in Fiji after the “overthrow” (abrogation) of the Fijian Constitution in April 2009.
She, her husband and children were the subject of many racial threats. Her husband was of Indian ethnicity and Muslim religion and their children were also perceived in that light. The children received threats from “local” youths. No protection was received from the authorities. There was some reference that this also caused political difficulties.
She feared to return to Fiji due to her employment, albeit on a part time, home based basis, of a member of the former Fijian government.
The first applicant claimed that while in Fiji the military came to her home and business at odd hours. Further, her sister, a former magistrate, had sent a “local” youth to gaol and this had led to further difficulties.

The Delegate

The delegate refused the application (CB 77 to CB 91):
1)The delegate found that a person with the applicant’s low level political profile and the nature of the actual incidents of harm claimed meant that she did not have a real risk of persecution (CB 87).
2)The delegate found there was no evidence to support the proposition that the authorities would engage to “directly persecute on religious grounds” (CB 88).
3)
While the applicant and her family faced difficulties from

“non-official” members of the community, state protection was adequate (CB 88 – CB 89).
4)In relation to the claim based on ethnicity, again adequate protection was available (CB 90).
5)The applicant’s claims based on compassionate issues were found not to be Convention related (CB 90).

The Tribunal

The applicants applied for review by the Tribunal on 10 August 2010 (CB 92 to CB 95). They were represented by a registered migration agent (CB 93) who made written submissions on their behalf (CB 103 to CB 110). A number of attachments to the submissions were statutory declarations by three of the applicants and a relative. Other statements were provided from the fourth named applicant, a minor, and other persons (CB 111 to CB 129).
The applicants attended a hearing before the Tribunal on 30 September 2010. The Tribunal’s account of what occurred is set out in its decision record ([29] at CB 150 to [58] at CB 156).
Given the nature, in particular, of ground one, it is important to note that in its decision record the Tribunal extensively set out a summary of the applicants’ written claims ([23] at CB 143 to [25] at CB 145), additional matters raised at the interview with the delegate ([26] at CB 146), a pre-hearing submission of the advisor ([27] at CB 146), and the attachments ([28] at CB 148).
The Tribunal addressed the claims made under a series of headings which it understood to be relevant to the claims made ([66] at CB 159).
With obvious reference to s.91R of the Act, which provides that “persecution” (as that concept is derived from the UN Refugees Convention) must involve “serious harm” to the relevant person, the Tribunal considered the various instances and matters advanced where “serious harm” was claimed to have occurred ([68] at CB 159).
The Tribunal accepted that “the applicant and her family members had experienced some degree of harassment, theft and property damage at the hands of Fijian youths after they moved to a house… which belonged to her sister” ([68] at CB159). However the Tribunal considered that this had been exaggerated to some degree. It gave reasons for this ([68] at CB 159).
Notwithstanding this exaggeration, the Tribunal accepted “that the Applicant’s children, and in particular her daughter, may have been significantly distressed by threats made to them by Fijian youths, particularly if these included comments of a sexual nature as she claims” ([69] at CB 161).
Notwithstanding its concerns, the Tribunal gave the first applicant the benefit of the doubt that “she and her family members were subjected to ‘certain acts’ which taken together, can be said to have amounted to serious harm in a Convention sense” ([69] at CB 161). (But see [59] – [67] below.)
It was not satisfied, however, that, “to the extent the Applicants may have had contact with members of the Fijian military following the December 2006 coup, this ever resulted in serious harm to them” ([70] at CB 161).
Having accepted that serious harm had been occasioned to them by Fijian youths, the Tribunal then turned to consider the claimed motivation for this conduct, which was said to provide the Convention nexus for the harm claimed.
The Tribunal was not satisfied that this harm “experienced by the Applicant and her family” was motivated by her inter-racial marriage or the Indian ethnicity of her husband or the children. That is, that the harm feared was for reason of “race” ([72] at CB 162). Its reasons for this are set out at [71] (at CB 161 to CB 162).
In the course of this consideration, the Tribunal rejected as not plausible her claim that her employment with a former MP would motivate people (not just the local youths) to harm her. Further, that it was not plausible that her husband’s employment of both ethnic and Indian Fijians would cause anyone to harm the family ([68], [71] at CB 159 to CB 162).
The Tribunal found it difficult to see how her sister’s refusal to accept an offer for re-appointment to the magistracy would lead ethnic Fijians to believe the applicant favoured Indians. The Tribunal relied on country information which revealed that crime in Fiji was a general problem, and not confined to any one ethnic group. Further, and relevantly, that the Fijian regime was seen as supporting the rights of Indian Fijians ([68], [71] at CB 159 to CB 162).
The Tribunal also considered the first applicant’s claim to fear persecutory harm on the basis of imputed political opinion. There were a number of bases to this claim.
The Tribunal was not satisfied that she was ever regarded by the authorities as having an adverse political opinion by the regime or that she was forced to adopt a “low profile” to avoid harm from them ([74] at CB 162).
The Tribunal rejected the notion that the actions of her sister in resigning her magistracy, and not accepting re-appointment, were regarded unfavourably by the regime ([74] at CB 162).
Similarly, the Tribunal rejected a claim put forward in written submissions, but not pressed at the hearing, that the husband’s Muslim religion had been a motive for the harm she and the other family members had suffered. The Tribunal’s reasons were that no substantiation had been presented for this claim and that, in light of country information, it was not plausible ([77] at CB 163).
The Tribunal rejected that the applicants had suffered harm in the way claimed, other than for the “serious harm” occasioned by local youths. However, the Tribunal found that this was not motivated by any Convention reason ([84] at CB 164).
The Tribunal also found that the first applicant had not been denied protection by the authorities for any reason. Nor that she would be unable to obtain protection “from this harm” in future ([84] at CB 164).
The Tribunal addressed the issue of “State protection” at [78] to [82] (CB 163 to CB 164). It rejected the claim that the police were unwilling or unable to provide protection (see further below).
In all, therefore, the Tribunal found that the applicants did not have a well-founded fear of persecution for a Convention reason, and affirmed the delegate’s decision.

Application to the Court

The application before the Court as further amended asserts two grounds with particulars:
“1. The Tribunal failed to review the decision as required by s.414 of the Migration Act 1958.
Particulars
(a) In considering the reasons for the persecution suffered by the Applicants, the Tribunal failed to consider the applicants’ claims and the evidence supporting those claims to the effect that the Applicants were subjected to racial vilification by those who had persecuted them.
2. The Tribunal erred in its consideration of the issue of state protection.
Particulars
(a) The Tribunal made no definitive findings on state protection applicable to the Applicants.
(b) The Tribunal failed to address the question, which it was required to address, of whether Fiji provided its citizens with a level of state protection required by international standards.”

Before the Court

Mr L Karp of counsel appeared for the applicants. Mr D A Hughes of counsel appeared for the first respondent.
The applicants’ attack on the Tribunal under ground one, what Mr Karp described as “the major error” made by the Tribunal, was that the Tribunal dealt with the claims before it on the basis of only the first applicant having made claims to fear persecutory harm and that the second, third and fourth applicants had only applied as members of the first applicant’s family unit. At least in this regard, therefore, the Tribunal was said not to have properly dealt with the claims that the second to fourth applicants feared persecutory harm in their own, and individual, right.
The Tribunal was therefore said to have failed to review the delegate’s decision as it was obliged to do pursuant to s.414 of the Act. (The applicants rely on Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287; (1999) 58 ALD 30 (“Sellamuthu”) at [19] per Wilcox and Madgwick JJ and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J (Spender J at [1] and Merkel J at [7] agreeing).
Mr Karp’s submission was that, while the second to fourth applicants did only complete “Part D” of the application form (see above at [3]), they made claims to fear persecutory harm in their own right both through the first applicant and, in relation to the second and third applicants, on their own behalf.
Mr Karp referred to:
1)The first applicant’s statutory declaration, attached to the application for protection visas (CB 29), where she declared that she and her family had “received continuous racist treats while residing in” a home owned by her sister in Fiji “because of my husband and children being Indians”.
2)The second applicant’s statutory declaration, also attached to the application for protection visas (CB 31), in which he declared: “I was threatened together with my children because of race…”.
3)The third applicant’s statutory declaration, also attached to the protection visa application (CB 33 to CB 34), in which she declared that she had been harassed by a Fijian “boy”:
“… he began to threaten me and alleged that he would physically harm and beat up my brother and I if we stepped out of our home. He was threatening us due to the fact that my brother and I were of indian ethnicity living in our Fijian family home.”
4)Further, at CB 34:
“At time, drunken neighbourhood boys would climb the fence and come into our compound yelling and swearing at my brother and I. Together with this, the boys usually made sexual remarks at me which left me in fear of being sexually abused as well. Stones were thrown at our family home which resulted in our sliding glass door breaking and adding more fear in our lives.”
5)The first applicant’s further statutory declaration provided to the Tribunal (CB 113):
“7. On further investigation and discussion with my children I learned that the motivation was to get us out of property, based on the fact that I was married to an Indian.
8. I base this on the fact that I received many verbal threats including:
‘You should be ashamed of yourself being married to an Indian’,
‘Being a Fijian you should help Fijians and all we see coming out of your home are Indians’,
‘Your family is not wanted here because you are married to an Indian’,
‘We will kill your husband’,
‘Don’t let those Indian kids out of property or we will physically harm them – beat them up’.
9. I was also aware that my children were stoned on at least one occasion as well as being verbally threatened.”
6)The second applicant’s further statutory declaration provided to the Tribunal (CB 115):
“3. The threats were mainly racially motivated:
‘Get our of neighbourhood, we don’t want Indians living here’,
‘We will torture you, you mother fucker’,
‘You are beautiful, we will, one day, rape you, because you are Indian’.
…
6. My workshop was ransacked twice during the night, damaging my cabinets and stealing my tools – drills, jigsaw, rotor, hammers, sledge hammer, crowbar, punchbar and bolt cutter.”
7)The third applicant’s further statutory declaration provided to the Tribunal (CB 117):
“6. On another occasion while at the local shops I was surrounded by a group of Fijian boys who used an umbrella to poke under my dress in a threatening manner with the implication that they were wanting to scare me into thinking they were going to rape me.
…
9. One of my friends, also Indian, was beaten up after just leaving our home and retreated back to our house for safety reasons.”
8)The fourth applicant confirmed his sister’s accounts (CB 119).
In short, that the first applicant made claims that she and her family had a well-founded fear of persecution on racial grounds. This applied to each of the four applicants. The second and third applicants also made that claim on their own and the rest of the family’s behalf.
Mr Karp agreed that, in its summary of the written claims, the Tribunal identified and recorded the claim that racist threats were made to the family:
“• On 9 July 2009 the Applicant and her family moved out of the house, after many racist threats to her children and husband and damage to the home. The property was sold leading them to lose their home, their business and other sources of income. After five months of struggle, with no luck, she left Fiji with her daughter, later to be joined by her husband and son.”
Further, it recorded that the first applicant had said that the family had received “continuous racist threats” because her children and husband are Indians, that the second applicant had said “he and his children were threatened because of their race”, and that the third applicant had said that she and her brother had been abused and threatened by a particular “boy” on the basis of their Indian ethnicity and that they were living in a Fijian family home. Even further, the Tribunal noted that the threats made were racist.
The applicants’ attack now on the Tribunal’s decision is not that the Tribunal failed to recognise the claims made, but that it did not properly consider this aspect of the claims and the evidence in support.
The complaint is that the Tribunal made a finding, albeit with some reservations, that these events, which it accepted had happened, amounted to “serious harm” for the purposes of s.91R and therefore were relevant to the meaning of “persecution”. Therefore, this is a finding which the Tribunal itself has described as having amounted to “serious harm in a Convention sense” ([69] at CB 161).

Mr Karp’s submission was that, in its consideration of the persecutor’s motivation in relation to race ([71] at CB 161 to CB 162), the Tribunal did not consider whether the serious harm that had occurred was motivated by their Indian ethnicity.
Specifically, that at key parts of its analysis the Tribunal failed to address their Indian ethnicity in the context of the claim made:
1)While the Tribunal acknowledged the claim that the harm suffered was motivated by the fact of the inter-racial marriage and the perception that they were assisting Fijian Indians at the expense of ethnic Fijians, there was no consideration as to whether the harm suffered was because they were Indian.
2)The Tribunal’s notation that, while uncommon, inter-racial marriages were becoming more frequent, did not go to the question of motivation.
3)In noting country information that crime continues to be a problem in Fiji, the Tribunal did not address the evidence of racial threats and harassment.
4)Its noting of the first applicant’s evidence that she had not sought to enlist the help of Fijian neighbours because they were afraid of one of the youths and “other ethnic Fijian youths” did not address the threats made or their nature.
5)The Tribunal’s notation of the first applicant’s claim that she was perceived as favouring Indians partly because of her employment by a former politician or her sister’s refusal to take another position in the magistracy did not address the element of Indian ethnicity.
In light of this, the submission was that, at the paragraph concluding the Tribunal’s analysis of “Motivation – Race” ([71] at CB 161 to CB 162, see also [72] at CB 162), there was no active consideration of whether the second to fourth applicants, and by extension the first applicant, were persecuted because of their race.
Paragraphs 71 and 72 of the Tribunal’s decision record are in the following terms:
“[71] The Applicant claims that the harm she and her family suffered was motivated by the fact that theirs was an inter-racial marriage, together with a perception that she and her husband were assisting Fiji Indians at the expense of ethnic Fijians. In considering this claim I note that:
• She agreed at the hearing that, even if it is still uncommon, intermarriage between ethnic Fijians and Fiji Indians has become more frequent in recent years.
• Independent country information indicates that crime continues to be a general problem in Fiji and that its effects are not confined to any one ethnic group. Ethnic Indians, ethnic Fijians, expatriate Europeans, tourists and others are vulnerable to robbery, physical assault and a variety of other criminal attacks.
• Her evidence at the hearing when asked why she had no sought to enlist her Fijian neighbours in efforts to modify the behaviour of one of the youths said to be harassing her family was that they were reluctant to do so because they, too, were afraid of him and other ethnic Fijian youths.
• Her claim that she was perceived as favouring Indians rests partly on her employment by Vijay Singh in his consultancy in which she helped recruit mainly Fiji Indians for positions in New Zealand. Given that she was involved in this position for only a few months I am not satisfied it is at all plausible that it can have motivated people to harm her, even if Vijay Singh did visit the house from time to time to collect documents. The second-named Applicant’s business, conducted from the house, is said to have employed mainly Fiji Indians but I note that he also employed ethnic Fijians and I am not satisfied his employment pattern can plausibly have supplied a reason for anyone to harm the family.
• To the extent that her sister’s principled refusal to take up another position in the magistracy after April 2009 may have been relevant to any local perceptions of the Applicant herself, it is difficult to understand how this could lead ethnic Fijian youths to see her as favouring Fiji Indians, as suggested in the advisor’s most recent submission. Information before the Tribunal indicates that it is the current military regime which is seen as supporting the rights of the Fiji Indian community, and if her sister had been seen as opposing the regime she could hardly have been seen on these grounds as supporting Fiji Indians.”
[72] Having considered the information before the Tribunal on this issue I am not satisfied that the harm experienced by the Applicant and her family can be said to have been motivated by her inter-racial marriage or the Indian ethnicity of her husband and children.”
The applicants relied on the following authorities in support of ground one:
1)Sellamuthu at [18] – [19] (per Wilcox and Madgewick JJ. Justice Hill agreeing at [59]) for the proposition that s.414, in requiring the Tribunal to review the delegate’s decision, requires it to consider all the substantial claims and information put forward, including any written arguments.
2)Htun at [42] (per Allsop J) for the proposition that s.414 requires the Tribunal to consider all claims of an applicant. Failing to do so is jurisdictional error.
3)Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 at [31] and particularly [44] (per Wilcox and Marshall JJ) that, in this case, by analogy, the Tribunal failed to consider what the applicant’s assailants actually said and how it went to their motivation.
4)WAFP v Minister for Immigration and Multiculturalism and Indigenous Affairs [2003] FCAFC 319, with reference in particular to [16] – [19], for the proposition, applicable by analogy to the current case, that failure to have regard to important relevant material, going to a central consideration arising in the matter, reveals legal error.
The Minister put two responses to the applicants’ attack.
The first is that only the first applicant made claims to be a refugee in respect of race. The argument was that what was put forward on behalf of the second to fourth applicants was not relevant to the Tribunal’s inquiry beyond the consideration of the first applicant’s claims.
Specifically, only the first applicant completed “Part C” of the protection visa application form, and therefore it is only her claim to be a refugee that was required to be considered. The second to fourth applicants did not complete “Part C”, they completed “Part D”, and therefore their claims to a protection visa depended on the success of the first applicant, and whether they were in fact members of her family unit. The Tribunal found she was not successful in her claims.
The Minister relied on SZLGF v Minister for Immigration & Citizenship [2008] FCA 1369 (“SZLGF”) (on appeal from this Court: SZLGF & Anor v Minister for Immigration & Anor [2008] FMCA 254) at [43] – [44], SZJKO v Minister for Immigration & Citizenship [2008] FMCA 370 (“SZJKO”) at [77] – [79] and NAEA of 2002 v Minister for Immigration & Multiculturalism & Indigenous Affairs [2003] FCA 341 at [14].
In reply, Mr Karp submitted that these cases did not decide this issue. He relied on the reasoning of the majority in SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487; (2008) 247 ALR 467; (2008) 102 ALD 31 (“SZGME”) at [55] – [94] and especially [73], [79] and [93].

Consideration: Ground One

I agree with Mr Karp to the extent that SZLGF (before this Court) and SZJKO dealt with a different circumstance. In the current case the second to fourth applicants did make claims in their own right at the time of the making of their application for a protection visa (see [37] – [38] above).
Nor does SZLGF (on appeal) assist the Minister. The relevant circumstance as found there was that the “sole matter that was personal” (to a spouse who had applied as the family member of a person who made refugee claims) “… was whether or not she was the spouse of the first appellant” (see at [43]).
The relevant reasoning of the majority in SZGME does allow that, even if an application is made for a protection visa on the basis of being a member of the family unit: “… it is difficult to see why SZGME could not, before the Tribunal, change the basis for her claim to such a visa for being a member of a family unit to her own fears of persecution” (at [73]).
The distinction therefore between SZLGF (on appeal) and SZGME is that in SZLGF the “sole” reason was always the family member claim, in SZGME there was no reason that the original basis for the application could not be changed to a claim to refugee protection in the applicant’s own right.
Thus the declarations subsequently provided to the Tribunal by the second to fourth applicants would fall into that category.
But in my view the circumstances of the current case provided a different, third situation. Here the second to fourth applicants did make “refugee” claims at the time of the making of the protection visa application.
While the relevant statements in their declarations at that time were inconsistent with the relevant forms completed (“Form D”), what remains is that “refugee claims” were made at the time of the application. It is in that circumstance that Mr Karp’s submission that they should not be penalised for completing the “wrong” form can be understood.
In any event, this is not determinative in the current case. This is because I agree with Mr Hughes (on a fair reading of the Tribunal’s decision record) that the Tribunal did address those claims.
Before explaining this, it is important to note the Tribunals’ reference earlier ([69] at CB 161) to its acceptance that the threats and harassment to which “she and her family members were

subjected… can be said to have amounted to serious harm in a Convention sense”.
The reference to “Convention sense” is problematic, particularly in light of what follows. The result of the Tribunal’s consideration of motivation under the three subsequent headings, including “race”, is that the harm suffered was not for a Convention reason.
The test of “serious harm” introduced by s.91R of the Act is a statutory test which sought to qualify or further explain the term “persecution” in Article 1A(2) of the UN Refugees Convention (introduced by the Migration Legislation Amendment Act (No.6) 2001 (No 131 of 2001). It commenced on 1 October 2001).
But the term “persecution” is not defined in the UN Refugees Convention. The meaning attributed to that term up to 1 October 2001 was derived from domestic law. (See for example Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412; (1989) 63 ALJR 561 (“Chan Yee Kin”), Applicant A & Anor v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225; (1997) 142 ALR 331; (1997) 71 ALJR 381 (“Applicant A”), Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 170 ALR 553; (2000) 74 ALJR 775; (2000) 58 ALD 321 and Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1; (2000) 175 ALR 585; (2000) 74 ALJR 1556; (2000) 62 ALD 1 (“Haji Ibrahim”).)
The statutory concept of “serious harm” therefore introduced in 2001 was a qualification of the term “persecution” as it appears in Article 1A(2), but as it had been understood according to domestic, Australian, law.
The proposition that “persecution” involves some element of motivation for the infliction of harm predates the introduction of the statutory test of “serious harm”. (See for example Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565; (1995) 130 ALR 314 and Applicant A.)
As against this background, it could be said that the Tribunal’s reference to “serious harm” and “Convention sense” ([69] at CB 161) is inconsistent with the subsequent finding ([85] at CB 164) that the “Applicant” did not have a well-founded fear of harm for a Convention reason should she return to Fiji.
On a fair and holistic reading, however, I accept that what the Tribunal meant at [69] was that the harm suffered relating to race, which it accepted had occurred, did amount to “serious harm” for the purposes of the statutory test (s.91R of the Act). But did not otherwise amount to Convention related harm because the necessary motivational element relevant to the concept of “persecution” was not made out.
That is, the Tribunal at [69] was considering the seriousness of the harm suffered, not the motivation for that harm. Absent satisfaction on the element of motivation, “persecution” under Article 1A(2) is not made out. That is, the Tribunal could not be satisfied that the applicants suffered “persecution” for the Convention reason of race.
When read in this way, and in context, I accept Mr Hughes submission that the Tribunal’s analysis at [71] – [72] (at CB 161 to CB 162) of its decision record did consider all of the applicants’ claims to fear persecutory harm on the basis of race.
First, the Tribunal accepted that all of the applicants (“she and her family members” – [69] at CB 61) had been subject to harm which amounted to “serious harm”. This harm was plainly said to emanate from “Fijian youths” ([69]). The Tribunal accepted that the third applicant in particular may have been “particularly distressed” by threats of a sexual nature ([69]).
Second, the applicants’ attack that the Tribunal did not specifically address each piece of evidence, particularly, and for example, what the applicants said were the threatening words used by these youths, does not assist them now. The Tribunal plainly accepted that the harm had occurred and was of a “serious” nature.
In circumstances where the Tribunal set out the claims at some length, including all those parts referred to before the Court, in its decision record, it cannot be said that the Tribunal ignored the claims. This is particularly so where the Tribunal did not just reproduce the claims verbatim, but drafted comprehensive summaries.
I accept, however, that the applicants’ attack before the Court was directed to what was said to be the failure of the Tribunal to address each piece of relevant evidence in that part of its decision record headed “Motivation – Race”.
The difficulty for the applicants, however, is that once having accepted that all of the harm claimed had in fact occurred, and further was “serious harm”, there was no need for the Tribunal to repeat each of the items of evidence under this heading and to ask itself whether the claimed oppressors were motivated by racial elements in respect of each and every item.
The Tribunal clearly understood that what was important was to focus on the motivation of the oppressors (Haji Ibrahim per McHugh J at [70] and [102]). Here it is not the individual incidents of harm that need to be re-examined, but what motivated the Fijian youths to perpetrate the harm.
Once it is understood that, for the purposes of the Convention, persecution may be established by the visiting of harm on the basis of race, or of perceived race (amongst other grounds) (Chan Yee Kin at 416 per Gaudron J and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 570 – 571) then the question for the Tribunal became to ask itself whether those who occasioned the harm were motivated by their perception of the applicants’ race in inflicting that harm.
In my view, on at least a fair reading of [71] – [72] (CB 162 to CB 162) of its decision record, and when read holistically in context of the entire record, the Tribunal sought to answer that question. It looked at each of the elements put forward by the applicants, or arising from the circumstances presented, as to what may have motivated the “Fijian youths” in the inflicting of the harm suffered.
On a fair reading, in relation to motivation, the Tribunal found:
1)The motivation was not for reason of the inter-marriage between an ethnic Fijian and a Fijian Indian.
2)That crime was a “general” problem in Fiji and that the acts perpetrated against the applicants could not be said in this circumstance to emanate from a perception of their race.
3)To the extent that much of the harm was occasioned through or because of one youth, the first applicant’s failure to engage her ethnic Fijian neighbours for assistance was explained by her as being because they too were afraid of “ethnic Fijian youths”. This suggested that the applicants were in no different position to their ethnic Fijian neighbours.
4)Nor for reason of any perception that the first applicant had in the past worked to assist Fijian Indians either through her work with the former MP, or that the second applicant employed mainly Fijian Indians.
5)That it was difficult to see how ethnic Fijian youths could be motivated to harm the applicants because of the first applicant’s sister and her refusal to take up another position as a magistrate or opposing the Fijian regime.
While of course some other Tribunal member may have come to a different view, it was reasonably open to the Tribunal to conclude that the motivation of those who inflicted the harm could not be said to arise from the inter-racial marriage or the Indian ethnicity of the second to fourth applicants ([72] at CB 162). In coming to this conclusion, I cannot see that the Tribunal failed to consider any element arising from the circumstances presented going to the motivation of the Fijian youths to inflict the harm.
The applicants’ authorities in support of ground one, by and large, went to the issue that legal error is revealed in a failure to deal with important elements or aspects of any applicant’s claims. In essence, the motivation of the Fijian youths was said, by the applicants, to emanate from the Indian ethnicity of the second to fourth applicants and the fact of the inter-racial marriage. The Tribunal dealt with all the relevant elements. Ground one is not made out.

Consideration: Ground Two

Before the Court Mr Karp conceded that the applicants could not succeed only by showing jurisdictional error on the basis of ground two. The logic of this is clear. The Tribunal’s finding was that the applicant’s claims, said to arise from imputed political opinion and religion, were not made out. While some “serious harm” was suffered, this was not motivated by any Convention related reason. If there is no jurisdictional error in this, then there was no need for the Tribunal to proceed to consider the question of state protection. That it did so, in the circumstances, does not of itself reveal jurisdictional error.
But even if some error were to be found in its analysis, this would not assist the applicants because the Tribunal’s decision would stand independently in light of its earlier conclusions.
Nonetheless I cannot see error in the way asserted by the applicants now in this regard.
The Tribunal set out its relevant consideration under the heading: “State protection” ([78] – [82] at CB 163). The applicants now assert a number of deficiencies in the Tribunal’s analysis. These were said to be illustrated when regard is had to a number of authorities.
Mr Karp took the Court to Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 205 ALR 487; (2004) 77 ALD 296; (2004) 78 ALJR 678 (“S152”) at [26]:
“… The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.”
The argument was that, in the current case, the country information was that the judges and magistrates had been removed from office and the Fijian Constitution abrogated. These circumstances distinguished the current case from the situation in S152.

The argument was developed by drawing from S152 that, for a state to provide “effective” state protection, the situation had to meet the standards of protection as measured against “international standards”, and that these would require the existence of a judiciary and a constitution.
A second limb of the argument was that the Tribunal failed to consider whether those international standards were met in the circumstances of the current case.
Mr Karp also referred the Court to AZAAR v Minister for Immigration and Citizenship [2009] FCA 912; (2009) 111 ALD 390 per Finn J for a general summary of the effect of S152 at [6] – [10]. In particular, at [8]:
“(iii) There must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence: Respondents S152/2003 at [21]; Hovatt, at 511; and this may necessitate examining how State agents act at a ‘local level’ regardless of the State’s ‘leaders’ good intention’: see SZAIX at [37].”
Further, to SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; (2006) 150 FCR 448 (“SZAIX”) per Madgewick J at [37] and [48] to similar effect.
First, I note what was said in MZ RAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1261 (“MZ RAJ”) per Heerey J at [26]:
“The ratio decidendi of S152/2003 does not include the proposition that, in considering a claimed fear of persecution by non-state agents where the issue of effective protection arises, there will be jurisdictional error unless the Tribunal identifies, and specifies the content of, "international standards" of protection and matches the law enforcement machinery of the state in question against those standards. Plainly the Tribunal in S152/2003 did not do that yet its decision was found to be free from jurisdictional error. Moreover, as the majority said (at [28]), it was not necessary in that case to consider what those standards might require or how they would be ascertained. There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards. In other words, their Honours were saying that the applicant had not, as part of his case, put forward some international standards of state protection with which Ukraine failed to comply. But this is not to say that failure by a Tribunal in a non-state agent case to consider international standards of protection necessarily involves jurisdictional error, whether or not that issue is raised by a claimant.”
This was followed in SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 264 (“SZBBE”) per Jacobson J at [46]:
“It was not suggested either before the Federal Magistrate or on appeal that there was evidence put before the RRT of a failure to adhere to international standards which the RRT should have taken into account. As Heerey J said in MZ RAJ at [26], the ratio of S152 does not include the proposition that there will be jurisdictional error unless the RRT identifies and specifies the content of "international standards" of protection and matches the law enforcement machinery of the state against those standards. It is for an applicant to put forward international standards of protection with which the state failed to comply.”
In the current case the Tribunal understood the applicants’ claims to be that, in context, the first applicant and her family were faced with a situation where the Fijian authorities had been unwilling or unable to protect them from the harm suffered. That is, the harm from the Fijian youths.
The reasons advanced for this were that the first applicant had an elevated “profile” in Fiji and that an adverse political opinion had been attributed to her emanating from her work for the MP, and because of her sister. Therefore the Fijian authorities would not move to assist and protect her and her family.
I cannot see that the Tribunal misunderstood the applicants’ claims in this regard. Nor was any attack really made on the Tribunal’s understanding in this regard by the applicants before the Court.
The Tribunal rejected the applicants’ relevant claims. It found on the information before it that there was no indication that members of the military regime in Fiji (the state) regarded the former MP, or the first applicant’s sister, as being in any way opposed to them. It did not accept that the first applicant was viewed adversely by the regime because of any such association.
The Tribunal therefore rejected the contention that protection by the authorities had been denied because of any political imputation to the first applicant.
The Tribunal then considered the actual circumstances surrounding the harm suffered by the applicants and the role of local police.
The Tribunal found that it was difficult to accept the first applicant’s claims, given concerns about credibility and plausibility in this regard, as to the relevant conduct of one of the youths who was said to have harmed the family once a police officer had returned with the first applicant to her home after she had complained to him ([81] at CB 163).
The Tribunal rejected the claim that the Fiji police were: “… unable to take action against criminals…” ([82] at CB 163). It noted that one offender named by the first applicant was in fact gaoled for a considerable period.
Further, it had regard to country information that, while the police force had resource and training problems, it did function effectively and that its record in “bringing criminals to justice is not negligible” ([82] at CB 163).
The Tribunal noted that, even on the first applicant’s own evidence, her complaints were investigated. The Tribunal was not satisfied that the harm suffered was tolerated by the Fijian authorities or that she was deliberately denied protection, or that the police were unable to do so ([82] at CB 163).
As Mr Hughes submitted, in the circumstances the harm claimed to have been suffered, and found by the Tribunal, was harm at the hands of private individuals and not the state.
In this regard, Mr Hughes referred the Court to all of [26] of S152. The part relied on by the applicants in that paragraph (see [84] above) must be understood in context of the entire paragraph:
“No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.”
The Court was also referred to Applicant A at 354[1]:
“… The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.”
[1] Australian Law Reports
I agree with Mr Hughes that, relevantly, what is required is that the state was unwilling or unable to provide protection. In the current case, the Tribunal addressed the relevant circumstances in that regard and found this not to be the case. This was a finding reasonably open to the Tribunal on what was before it.
I also agree with Mr Hughes that there is no necessity for the Tribunal to make a generalised finding on the state’s capacity to protect all of its citizens from all harm. This arises plainly from what McHugh J said in Applicant A at 354.
What is required is that the Tribunal consider the sufficiency, efficacy or adequacy (for these latter see, for example, VFAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1018 at [16] per Merkel J) of the protection available in light of the harm claimed.
As was said in S152 (at [117] per Kirby J), the required system of protection is one of reasonable efficiency, not a perfect system. There is no requirement for a guarantee of safety (S152 at [23], [26] per Gleeson CJ, Hayne and Heydon JJ).
In this sense, it is the case that each matter turns on the facts presented. The obligation on the Tribunal in this regard is to address the particular circumstances of the applicants and the particular harm feared (see S152 at [116] per Kirby J, Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 per Kiefel J, SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857, and the case otherwise relied on by the applicant: SZAIX).
As is set out above, this is precisely what the Tribunal did. The harm feared, and accepted by the Tribunal, was said to emanate from “Fijian youths”. In considering the relevant circumstances the Tribunal did not accept the first applicant’s claims as to why they were motivated to harm her and the other applicants.
Further, given its earlier finding, which was open to it on what was before it, that the harm suffered was motivated by crime and was not ethnic specific (at [71] at CB 161 to CB 162), the Tribunal rejected some aspects of the applicants’ claim as to the response of the police, and found that the complaints were investigated.
It is the case that the joint judgment in S152 does give support to the view of using “international standards” as a benchmark of what constitutes adequate protection (see the reference at [27] to Osman v United Kingdom (1998) 29 EHRR 245).
But as was said in MZ RAJ and SZBBE, there is no support for the proposition that jurisdictional error will result if the Tribunal fails to identify and specify the content of “international standards” and compares these to the particular law enforcement machinery of the state in question.
In the current case the abrogation of the Constitution, and the removal of some judges, was not at issue. The particular circumstances of the current case required the Tribunal to consider the nature of the harm feared and whether the state tolerated or condoned such harm, and whether it offered some adequate level of protection.
The Tribunal found, as was reasonably open to it on what was before it, that the state did not tolerate or condone such harm, and that local police offered an adequate level of protection.
The Tribunal’s finding that the protection available was sufficient to remove a real chance of persecution does not offend what the majority said in S152. This is particularly confirmed when understood in light of MZ RAJ and SZBBE.
Ground two is therefore not made out.

Conclusion

With the benefit of legal representation the applicants have put two grounds before the Court. Their inability to make out ground one is sufficient to refuse the relief sought. In any event, ground two is also not made out. I will make an order dismissing the application as further amended.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 1 June 2011