SZQWK v Minister for Immigration
[2012] FMCA 929
•11 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 929 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal applied the wrong test or failed to consider an issue it was required to consider. |
| Migration Act 1958 (Cth), ss.36, 91R |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 802 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Guoand Another (1997) 191 CLR 559; [1997] HCA 22 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 |
| Applicant: | SZQWK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2671 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 24 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Silva Solicitors |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2671 of 2011
| SZQWK |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 27 October 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Fiji, arrived in Australia in June 2010. He applied for a protection visa in July 2010. The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing. The Tribunal affirmed the delegate’s decision and the applicant sought review in this court on 23 November 2011. He now relies on an amended application filed on 30 January 2012.
The applicant claimed to fear persecution from the Fijian authorities for reasons of his actual or imputed political opinion and/or his religion. The Tribunal recorded that he claimed to have been the leader of a significant youth group associated with the Assemblies of God Church in a populous catchment area of Fiji. He claimed that the group liaised from time to time with the Young People’s Concerned Network (YPCN), an organisation set up to speak for youth and dedicated to democratic ideals that had been banned from participating in government sponsored events and whose president had been taken in for questioning by the military. The applicant claimed he had been summoned to a meeting at the Ministry of Youth and Sports, where a military officer had questioned him about the affairs of his youth group and warned him about activities of the group and things that it could and could not do. At the Tribunal hearing he claimed the military man gave him a “tap” on the back as he left. He also claimed to have received anonymous phone calls and text messages warning him about similar things. He asserted that the military were monitoring him. In particular, he claimed that on one occasion after the YPCN was banned from participating in the 2009 Pacific Youth Festival he was followed to a meeting of youth leaders by a military vehicle and that the meeting dispersed after those present realised that they were under surveillance.
In addition, the applicant claimed that since early 2009 he had made regular contributions to an internet blogging site in which he criticised Fijian government policy on youth issues. He told the delegate that his contributions had been anonymous.
The applicant also claimed that if he returned to Fiji he would continue his leadership role with the youth group and would continue to espouse democratic causes because of his belief in democracy.
The Tribunal Decision
In its findings and reasons the Tribunal summarised the applicant’s claims as a claim to fear persecution from the Fijian authorities for reason of his actual or imputed political opinion and that “he may be persecuted for reasons of his religion as a leader, through his youth group, of the Assemblies of God church”. The Tribunal observed that the applicant had identified factors which “taken together” were said to put him at risk of adverse treatment by the authorities, being his leadership of the youth group, its liaison with the YPCN, the meeting at the Ministry of Youth and Sports, the warnings he received there and warnings he had previously received through anonymous phone calls and text messages.
The Tribunal had regard to country information indicating that the Fijian authorities had monitored and harassed the YPCN and that its president was detained in April 2009 as well as to concerns expressed by Amnesty International about reports of military intelligence monitoring the home of a YPCN activist.
The Tribunal accepted that the applicant had a leadership role with a particular Youth Alive youth group of the Assemblies of God church and that the group liaised from time to time with the YPCN. It accepted that “the applicant was involved in a meeting at the Ministry of Youth and Sports where a military person gave him a warning about activities of the youth group”. The Tribunal also accepted that there was “a climate of fear or at least circumspection in Fiji, with many people unwilling to speak publicly about social conditions or to voice any opinion which might be perceived as critical of the military government lest they be taken in for questioning and mistreatment by the military”.
However the Tribunal found that the applicant did not face a real chance of persecution for reasons of his political opinion, his religion or for any other Convention reason now or in the reasonably foreseeable future. Immediately after making such finding, the Tribunal stated at paragraph [58] of its reasons:
The Tribunal does not accept that what has occurred to the applicant in the past involved serious harm within the meaning of s 91R(1)(b) of the [Migration] Act. While the questioning he was subjected to at the Ministry was no doubt intended to warn him, he was not subjected to significant physical ill-treatment. The Tribunal does not accept that the firm blow on his back he was given as he left the meeting amounts to significant physical ill-treatment or otherwise amounts to serious harm. Nor does the monitoring the applicant has described, including being followed by a military vehicle, and the warning calls he received prior to the meeting at the Ministry amount to serious harm.
The Tribunal also had regard to the fact that the applicant had not produced “anything he had published which might be regarded as the public expression of opposition to or criticism of the Bainimarama regime such as might cause him to be subjected to harm”. It found that the blog site he referred to contained “a range of information, much of it of a social nature”, and that in any event his evidence was that he had not submitted any material to the site under his own name.
The Tribunal continued at [60]:
As to the situation at present or in the reasonably foreseeable future, the Tribunal does not accept that the applicant’s status as a leader of the [specified] Youth Alive youth group or the group’s association from time to time with events organised by the YPCN is such as to cause the applicant to be persecuted. He may be subjected to the same kind of treatment and activity he has experienced from the authorities in the past but, as mentioned above, that treatment and activity does not amount to persecution. He is a youth leader and has described himself as one of the top 5 youth leaders in Fiji but, on the evidence before the Tribunal, his role is a relatively minor one. The Tribunal notes in that regard the evidence he gave the Tribunal that he reports in his role to the pastor of [a particular] Church of the Assemblies of God. While country of origin information indicates that high profile political leaders, church leaders and trade union officials may be persecuted by the authorities, the information does not suggest that a person having a role like the applicant’s faces a real chance of persecution.
The Tribunal also had regard to the absence of any information before it to suggest that persons who were members of the Assemblies of God Church or persons such as the applicant who had a lay leadership position within the Church faced a real chance of persecution for reasons of religion. It found that the applicant did not face a real chance of persecution for reasons of religion.
The Tribunal addressed the applicant’s claim that a Media Decree (under which publications were to be vetted by the Ministry of Information) would “restrict his freedom of speech and prevent him from leading youth”. However the Tribunal did not accept that any enforcement of the Media Decree would give rise to a real chance of persecution of the applicant, having regard to the fact that “[t]he provisions of the Media Decree are concerned with media organisations in relation to their publication of newspapers or magazines or their radio or television broadcasts” and did “not restrict the applicant’s activities in leading his youth group or publishing material to the group”.
The Tribunal found that on its assessment of all the applicant’s claims, both individually and collectively, he did not have a well-founded fear of Convention-related persecution now or in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. It affirmed the decision of the delegate.
There are two grounds in the amended application. Each ground contains relatively lengthy particulars which set out extracts from the Tribunal decision.
Did the Tribunal apply the wrong test?
Ground one is that the Tribunal made a jurisdictional error in that, although it “claimed to be applying a well-founded fear test it applied a wrong test”. The particulars to this ground are that:
The Tribunal was bound to apply the test “Does the applicant have a well founded fear of persecution”. However although the Tribunal referred to well founded fear of persecution in fact the Tribunal applied the test “was the applicant subject to serious physical harm in Fiji”.
The particulars then set out paragraph [58] of the Tribunal decision reproduced above and also that part of paragraph [60] in which the Tribunal found that the applicant “may be subjected to the same kind of treatment and activity he has experienced from the authorities in the past but, as mentioned above, that treatment and activity does not amount to persecution”.
The particulars continue:
The Tribunal asked – “Was the applicant subject to serious physical harm in the past?”, as the determinative question. In the sense requiring as a condition that he should have encountered serious harm, which is, not required in law (sic). It may have been a correct question to start with but it could not have been the determinative question. The tribunal should have followed that up with the next question which is “Although at that stage the harm experienced has not amounted to serious harm as yet did the applicant nevertheless have a well-founded fear that serious harm will occur to him based on what has already happened to him in the past”.
This is critical in the context of the Tribunal accepting that he may be subjected to the same kind of treatment if the applicant returns to Fiji. If the applicant had fear of serious harm in Fiji then most likely he would have fear of serious harm now as he will find himself in the same situation as before.
The applicant contended that although the Tribunal had determined that the applicant had not encountered serious harm in the past, it was nonetheless obliged to consider whether he had a well-founded fear that serious harm would occur to him based on what had already happened to him in the past.
In other words, it was submitted that the Tribunal had not engaged in any analysis of the applicant’s situation in the reasonably foreseeable future and that its focus was solely on whether what had happened up to that point was serious harm. This was said to be apparent from the Tribunal’s approach in paragraph [58] of its findings and reasons. Its findings in paragraph [60] were said not to remedy the situation, as that paragraph referred to the applicant’s status as a youth leader and whether that would bring harm to him in the reasonably foreseeable future. It was submitted that such findings did not deal with the issue of whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future by virtue of his imputed political opinion.
The applicant also submitted that as the Tribunal had “accepted that the same kinds of harm will be faced by the applicant” it then had to ask “whether that was capable of causing well founded fear of serious harm in the applicant”. The applicant’s submissions appear to rely on the applicant’s claimed fear of serious harm in the past in support of the proposition that he would “most likely” have a fear of serious harm now as he would find himself in the same position.
In written submissions the applicant referred to authorities in relation to what was said to be the requirement for the Tribunal to consider circumstances in the reasonably foreseeable future (see in particular Minister for Immigration and Ethnic Affairs v Guoand Another (1997) 191 CLR 559 at 574 – 575; [1997] HCA 22). Such authorities were not discussed further in oral submissions. Reliance was placed in both written and oral submissions on the remarks of Allsop J in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [28] as follows:
Critically, however, looking at all of the reasons of the Tribunal, there was a failure to address the reasonably foreseeable future in the context of the claims made. The dealing with the three incidents was based on immediate facts – no elections looming and the character of the present government. This reflected a focus on immediacy which was no real assessment of whether in the future, with elections looming, with the first appellant campaigning for the FLP, he would face a similar beating for the same reasons, or threats from elements of the Taukei Movement who had already targeted him. The Tribunal’s paragraph dealing with the three incidents was not just a body of introductory remarks; they were the encapsulated rejection of one body of the appellants’ claims. The Tribunal failed, it seems to me, to deal with the fears of the first appellant based on the beating in April/May 1999 by reference to the reasonably foreseeable future and on the assumption that the first appellant will continue to support the FLP.
It was acknowledged that the circumstances in this case were not on all fours with those considered in SZGHS. However the applicant submitted that what was said by Allsop J, in upholding an appeal on the basis that the Tribunal had failed to address the reasonably foreseeable future in the context of the claims made, was relevant because in this case the Tribunal had focused on what had happened in the past and had failed to deal with the fears that the applicant held, in particular about whether the warning given to him “would be made good”, whether in the future he would be “followed in a military vehicle and harmed” or whether he would be “threatened and harmed in the future in relation to meetings”.
The applicant submitted that, as in SZGHS, the Tribunal in this case failed to address the reasonably foreseeable future and to determine whether the applicant had a subjective fear that was objectively justified and hence constituted a well-founded fear in the reasonably foreseeable future about the events of which he complained.
In oral submissions, the applicant relied on the statement of principles by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 at [72] – [75]. Their Honours stated:
It is well established that the Convention definition of “refugee” has subjective and objective elements. Does the applicant fear persecution for a Convention reason (the subjective element)? Is that fear well founded (the objective element)? The fear will be well founded if there is a real chance that the applicant would face persecution for a Convention reason if the applicant returns to the country of nationality…
The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
The applicant submitted that although the Tribunal had correctly summarised the test of whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future, in fact it applied the test: “was the applicant subject to serious physical harm in Fiji”. It was submitted that the Tribunal did not consider whether the applicant feared serious harm in the reasonably foreseeable future if he returned to Fiji and hence that it failed to consider whether, on an objective basis, the applicant had a well-founded fear of persecution in the reasonably foreseeable future.
Reference was also made to the fact that at the Tribunal hearing (the transcript of which is in evidence before the court) the applicant gave evidence of what occurred in the past and his adviser suggested that based on what had occurred to the applicant in the past, he had a well-founded fear of serious harm in the future. It was submitted that the issue of a fear of serious harm in the future had been brought to the attention of the Tribunal and that it was necessary for the Tribunal to consider such an issue, whether or not it found that the past events constituted serious harm within the meaning of s.91R of the Migration Act 1958 (Cth).
The first respondent submitted that the Tribunal did not restrict itself to a consideration of whether the applicant had been subjected to serious physical harm in Fiji and did not improperly confine itself to events in the past, but rather had regard to the future and applied the correct test. It was also pointed out that the Tribunal did not accept that the past events constituted serious harm amounting to persecution.
Consideration
First, insofar as the applicant’s contention is that the determinative question that the Tribunal asked was whether he was subject to serious physical harm in the past, this claim is not made out. The Tribunal did not restrict itself to the issue of whether the applicant had suffered harm, whether physical or otherwise, or indeed, whether he had suffered serious harm in the past.
As pointed out in submissions for the Minister, in Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, stated at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
The Tribunal considered the applicant’s claims about past events as part of the process of making a determination as to whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future, consistent with Guo and with Appellant S395/2002. In Appellant S395/2002 Gummow and Hayne JJ pointed out the potential relevance of past persecution for a Convention reason to whether an applicant had a well-founded fear in the reasonably foreseeable future (at [74]). In this case while the Tribunal proceeded on the basis that the claimed past events had occurred, it did not accept that what had occurred to the applicant in the past involved serious harm within the meaning of s.91R of the Migration Act. This was a step in its reasoning process.
However, the Tribunal did not “improperly confine” itself to events in the past. Nor did it proceed on the basis that the absence of past persecution denied that there was a real chance of future persecution (see Appellant S395/2002 at [74]).
Moreover, contrary to the applicant’s submission, the Tribunal did have regard to the reasonably foreseeable future (see Minister for Immigration v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6) and not simply either the past or the immediate present.
In assessing whether the applicant faced a real chance of persecution for a Convention reason in the reasonably foreseeable future, in addition to having regard to its finding that the past events did not involve serious harm within s.91R(1)(b) of the Act, the Tribunal had regard to the absence of any publications evidencing “public expression of opposition to or criticism of the Bainimarama regime [by the applicant] such as might cause him to be subjected to harm”. It referred specifically to the situation in Fiji at the time of its decision and in the reasonably foreseeable future. In that context the Tribunal accepted that the applicant had a leadership role with a particular Youth Alive youth group of the Assemblies of God Church and that this group liaised from time to time with the YPCN and his claims about the meeting at the Ministry of Youth and Sports. The Tribunal also accepted that there was a “climate of fear or at least circumspection in Fiji, with many people unwilling to speak publicly about social conditions or to voice any opinion which might be perceived as critical of the military government lest they be taken in for questioning and mistreatment by the military”.
As pointed out in Appellant S395/2002, the Convention definition has “subjective and objective elements” (at [72]). The Tribunal was not satisfied that any fear of persecution was well-founded. The Tribunal did “not accept that the applicant’s status as a leader of the [particular] Youth Alive youth group or the group’s association from time to time with events organised by the YPCN [wa]s such as to cause the applicant to be persecuted”. It accepted in that context that the applicant “may be subjected to the same kind of treatment and activity he ha[d] experienced from the authorities in the past”, but found that such past treatment and activity did not amount to persecution.
The Tribunal also considered the applicant’s claim that he was one of the top five youth leaders in Fiji. While it accepted that he was a youth leader, on the evidence before it the Tribunal found that his role was a “relatively minor one”. It noted in that regard his evidence that he reported in his role to a pastor of a particular church, before finding that while country information indicated that “high profile political leaders, church leaders and trade union officials may be persecuted by the authorities, the information [did] not suggest that a person having a role like the applicant’s face[d] a real chance of persecution”. In considering whether the applicant’s fear was well-founded the Tribunal also referred to the absence of information to suggest that members of the Assemblies of God Church or persons such as the applicant with lay leadership positions faced a real chance of persecution.
It was on this basis that it found that the applicant did not face a real chance of persecution for reasons of religion. In so doing the Tribunal did not err in the manner contended for by the applicant.
The Tribunal also addressed the possible impact of the Media Decree on the applicant but, having regard to his claims about his activities, did “not accept that any enforcement of the Media Decree [gave] rise to a real chance of persecution of the applicant”.
Moreover the Tribunal concluded that an assessment of all the applicant’s claims, both individually and collectively, led to the finding that the applicant did not have a well-founded fear of Convention-related persecution now or in the reasonably foreseeable future. It was not necessary in these circumstances for the Tribunal to address specifically whether the applicant had a subjective fear of future persecution, whether based on past events or otherwise, given its finding that he did not have a well-founded fear of persecution in the absence of a real chance that he would face persecution for a Convention reason (see Appellant S395/2002 at [72]).
The decision in SZGHS is not on all fours with the circumstances of this case. In SZGHS the reasons of the Tribunal demonstrated that it had failed to assess the visa applicant’s claims to have a well-founded fear of persecution by reference to his claims about the possibility of future persecution in the reasonably foreseeable future and not merely the immediate future. The Tribunal in that case proceeded on the basis that there had been serious harm in the past but confined its assessment of the future to the immediate future in which no elections were looming and having regard to the character of the then government, notwithstanding that an election was said to be likely to be held. In contrast, in this case the Tribunal did not accept that there had been serious harm to the applicant in the past, but also did not disregard the nature of the Fijian regime on the material before it at the time of its decision. It has not been established that the Tribunal failed to consider all the material before it from the perspective of the reasonably foreseeable future, or that it failed to address all the applicant’s claims in that context having regard to the material placed before it (cf SZGHS at [29]).
Further, contrary to the applicant’s submission, the Tribunal addressed not only the applicant’s claims to fear persecution for reasons of religion, but also his claim to fear persecution for reason of actual or imputed political opinion. The Tribunal considered his claims that he would continue in his leadership role and also espouse democratic causes but in that context had regard to the absence of any evidence of any public expression of opposition to or criticism of the Bainimarama regime such as might cause him to be subjected to harm, the fact that he had not submitted any material to the blog site under his own name, the relevance of the Media Decree and the nature of the applicant’s role and status as a youth leader.
Ground one is not made out.
Did the Tribunal fail to consider an issue it was required to consider?
Ground two in the amended application is that the Tribunal “made a jurisdictional error in that it failed to consider an issue it was required to consider”.
The particulars to this ground commence:
Although the Tribunal found that various forms of harm that the applicant was subject to until he left Fiji did not amount to serious harm as per s 91R, the Tribunal did not consider whether the applicant had a well-founded fear of serious harm while in Fiji as a result of the various forms of harm he suffered in Fiji.
As stated below, the Tribunal relevantly held at different paragraphs of it (sic) decision that:
The particulars set out paragraphs [38], [41] and [47] of the Tribunal decision in which the Tribunal summarised what occurred at the Tribunal hearing. It was contended that “[t]he incidents were all capable of giving well-founded fear of serious harm and the Tribunal was bound to consider that issue”.
In written submissions the applicant referred to the remarks of the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641; [2003] FCAFC 184 at [47] as follows:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
It was contended that nothing in paragraphs [58] and [60] of the Tribunal decision could be said to be findings at such a level of generality that they addressed the applicant’s claim that he had a well-founded fear of persecution in the reasonably foreseeable future and that none of the Tribunal’s findings dealt with the fears that the applicant held.
In oral submissions the solicitor for the applicant conceded that no issue was taken with the conduct of the Tribunal hearing and that the applicant’s concern was that the Tribunal had failed to take into account a relevant consideration in the sense considered in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 (per Mason J at 39). It was acknowledged that paragraphs [38], [41] and [47] of the Tribunal decision were not findings.
It was contended that the Tribunal had erred in failing to have regard to whether the applicant had a well-founded fear on a subjective basis and also to whether such fear was objectively justified, because such a requirement of fear was part of the definition of refugee in the Refugees Convention (see s.36 of the Migration Act). It was submitted that as it was a requirement dictated by statute the applicant’s fear had to be taken into account.
Consideration
Contrary to the applicant’s apparent contention in ground two the Tribunal made no findings in paragraphs [38], [41] and [47] of its decision. Those paragraphs are part of the Tribunal’s summary of what occurred at the Tribunal hearing. Thus the Tribunal recounted that it put to the applicant that it seemed that the past events he complained of did not amount to persecution within the meaning of the Convention. The applicant said “he realised that the military man was trying to instil fear of harm into him” (paragraph [38]). In paragraph [41] the Tribunal recounted the applicant’s explanation for his claim in his protection visa application that he had been “constantly threatened by the authorities claiming to be working with military censorship personnel”. In reply, the applicant referred to a church file held by the Ministry of Youth and Sports, anonymous phone calls and text messages indicating the authorities were monitoring the youth group and a phone call from a major about what had occurred at a seminar. He told the Tribunal that in the last anonymous call he received (in May 2010) “the caller warned [him] he had not been doing what the government wanted him to do and that he would not be given another warning”.
According to the Tribunal’s account of the hearing, after it had been put to the applicant that country information “did not suggest that relatively low profile persons like [him] would be targeted” and information about the enforcement of the media decree, the applicant claimed that the military were monitoring and following him. This claim is described in paragraph [47] of the Tribunal decision. The applicant described an occasion in 2009 in which he was followed by a military vehicle to a meeting of youth leaders.
As the first respondent submitted, in its findings and reasons the Tribunal sufficiently considered whether the applicant faced a well-founded fear of persecution in Fiji in the reasonably foreseeable future. It plainly considered the claims described by the applicant at the Tribunal hearing. As set out above in relation to ground one, it was not necessary for the Tribunal to refer expressly to whether the applicant had a subjective fear of future serious harm. It accepted that the past incidents had occurred, but found that they did not amount to serious harm constituting persecution. Hence, even if the applicant feared recurrence of such events that clearly would not, on the Tribunal’s reasoning, amount to a subjective fear of serious harm amounting to persecution. The Tribunal also considered the other factors relied on by the applicant as the basis for his claim that he had a well-founded fear of persecution for a Convention reason, but found that on its assessment of all his claims, both individually and collectively (including the claims made at the hearing about past events which it accepted had occurred), he did not have a “well-founded fear” of Convention-related persecution now or in the reasonably foreseeable future.
In reaching this finding the Tribunal did not fail to consider an issue in the sense considered in WAEE at [47]. What was in issue in WAEE was whether the Tribunal had failed to consider a contention that the applicant feared persecution for a particular reason which, if accepted, would justify a conclusion that he satisfied the criterion that he had a well-founded fear of persecution for a Convention reason. In this case it cannot be inferred that the Tribunal failed to consider the applicant’s claim based on religious belief or actual or imputed political opinion. As set out above, the Tribunal considered whether the applicant faced persecution in Fiji now or in the reasonably foreseeable future not only as a result of the various forms of harm he had suffered in the past, but also more generally on the basis of all his claims. It did not restrict itself to past events. Nor did it regard past events as determinative, although it properly had regard to such events in the course of considering the future. The Tribunal considered all of the applicant’s claims about past events, not only in the context of determining whether he had experienced persecution in the past, but also in the context of assessing whether his fear of future harm was a well-founded fear of persecution.
It has not been established that the Tribunal failed to consider an issue it was required to consider in a manner constituting jurisdictional error or that it failed to have regard to a relevant consideration in the sense considered in Peko-Wallsend Limited, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 or Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 802.
Ground two is not made out.
As neither of the grounds relied on by the applicant has been established the application must be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 11 October 2012
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