Tuisolomone v Minister for Immigration and Multicultural Affairs

[2001] FCA 574

FEDERAL COURT OF AUSTRALIA

Tuisolomone v Minister for Immigration & Multicultural Affairs [2001] FCA 574

RYAN, CONTI & ALLSOP JJ
SYDNEY
10 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1262 OF 2000

BETWEEN:	SECI TUISOLOMONE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RYAN, CONTI AND ALLSOP JJ
DATE OF ORDER:	10 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Appeal be dismissed.

2.The Appellant pay the costs of the Respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1262 OF 2000

BETWEEN:	SECI TUISOLOMONE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RYAN, CONTI AND ALLSOP JJ
DATE:	10 MAY 2001
PLACE:	SYDNEY

[EX TEMPORE] REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Judge of this Court, on 10 November 2000, dismissing the Appellant’s application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed the decision of a delegate of the Minister not to grant the Appellant a protection visa.

2. The Appellant is a national of Fiji born in April 1958. He is not married nor does he have any children. The Appellant came to Australia on 17 October 1999 on a visitor’s visa which was valid for a period of three months.  On 10 July 2000, he was placed in detention as an unlawful non-citizen, where he has since remained. The Appellant lodged an application for a protection visa on 12 July 2000. On 7 August 2000, the delegate of the Minister refused his Application. That decision was affirmed by the Tribunal on 31 August 2000. 

3. The essence of the Appellant’s claims is and was that he feared persecution in Fiji arising from his failure to support the attempted coup by George Speight and his supporters which occurred in May 2000.

4. In his initial application of July 2000, the Appellant made the following claims:

   (a)He had been a payroll clerk in the Fijian army serving from time to time, until 1999, overseas as part of UN peacekeeping forces in the Middle East.

   (b)As early as May 1999, he had been told by some members of his family of plans for a coup.  His family supported the proposed action.  His uncle, Ilisoni Ligairi, became Speight’s chief security office and a brother acted as a bodyguard for Speight.

   (c)Unlike his family, the Appellant was loyal to the army and did not support the proposed coup.  The Appellant advised his family of this at a meeting in August 1999.  On hearing of his reluctance to support the coup, members of his family became very angry with him.

   (d)He came to Australia in October 1999, under a visitor’s visa, because he feared the consequences of his failure to support the planned coup.  He feared that he would be harassed by his family and the community, may be forced to join Speight’s rebel army or may be killed.

5. The appellant supplemented his claims in a declaration provided to the Tribunal, dated 28 August 2000.  He asserted that it was his belief that, although now imprisoned, Speight continued to command support and his imprisonment would only cause deterioration in the political situation.  The Appellant stated that if he returned to Fiji he feared that he may be killed or at least dealt with harshly by members of his family for disgracing the family through his failure to support the coup.  The Appellant added that he could not relocate within Fiji because his family is well known and he would be persecuted by other Speight supporters.

6. The Tribunal rejected the Appellant’s claims for asylum.

7. Importantly, the Tribunal refused to accept the Appellant as a truthful witness, finding that the Appellant had misled it in a number of respects.

8. First it was found that he gave false evidence about his position in the army, in particular exaggerating his rank and the character of his service.

9. Secondly, it was found that he misled the Tribunal concerning the enmity, or degree of enmity, of his family towards him.

10. Thirdly, it was found that he misled the Tribunal in his evidence that he could not support or protect himself in parts of Fiji other than his own village.

11. Fourthly, it was found that he did not have advance warning of the coup and consequently that he did not receive threats by reason of his being an opponent of an impending (known) coup.

12. These findings laid the foundations for the central finding that the Tribunal was not satisfied that the Appellant was at risk of harm from supporters of the attempted coup in Fiji.

13. As an apparent alternative finding the Tribunal found, in substance, that, if in fact the Appellant’s family did want to harm him and if the Appellant did have the fears which he claimed, any fear of retribution could be dealt with by “protective structures” in Fiji, in this case the army and the availability of legal channels.  We take this to be a finding that the Fijian authorities would be both willing and able to offer him protection.

14. Whether or not there were flaws in, or criticisms capable of being made about, these factual findings, (for example the findings referred to in paragraphs [8], [9], and [11] above, in the light of the letter from the Appellant’s brother, undated but sent to the Respondent Department under cover letter of 25 July 2000 from the Appellant’s then solicitors (which letter was not dealt with by the Tribunal in its reasons)), these flaws or criticisms are not matters that could enliven any ground of review open to this Court under s 476(1) of the Migration Act 1958 (Cth).  The Court cannot undertake a general review of the factual findings.

15. The primary judge reached the conclusion that there was nothing before him or put to him that disclosed a ground of review under s 476(1). We agree with him.

16. The grounds of appeal in the Notice of Appeal are expressed in very general terms not reflective of any ground of review available under s 476(1). Those grounds are expressed as follows:

    “(1)     the Appellant appeals from the whole of the Judgment given on 10 November 2000 at the Federal Court of Australia New South Wales District.

    Grounds

    (2)Humanitarian.”

17. It follows from what we have said that we agree with the learned primary judge that there is nothing disclosed in the Tribunal’s reasons or the Appellant’s claim or the Appellant’s Notice of Appeal which indicates a relevant available ground of review under s. 476(1) of the Migration Act 1958.

18. The appeal should be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Full Court.

Associate:

Dated:             10 May 2001

The Appellant appeared in person, assisted by an interpreter

Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 May 2001
Date of Judgment:	10 May 2001