NAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 71 (11 February 2004)

Last Updated: 11 February 2004

FEDERAL COURT OF AUSTRALIA

NAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 71

NAXN AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1839 OF 2003

ALLSOP J
11 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1839 of 2003

BETWEEN:	NAXN FIRST APPLICANT NAXO SECOND APPLICANT NAXP THIRD APPLICANT NAXQ FOURTH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	11 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The matter stand over to 25 February 2004 to allow the parties to consider their position in relation to the question arising under or involving the interpretation the Constitution.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1839 of 2003

BETWEEN:	NAXN FIRST APPLICANT NAXO SECOND APPLICANT NAXP THIRD APPLICANT NAXQ FOURTH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	11 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) in which a decision of a delegate of the respondent Minister to refuse the applicants protection visas under the Migration Act 1958 (Cth) (the Act) was affirmed.

2 The applicants are a family (husband, wife and two children) who are Fijian nationals of Indo-Fijian ethnicity.

3 The claims of the applicants were set out by the Tribunal on pages 4 and 5 of its reasons as follows:

The Tribunal has before it the Department’s file, which includes the protection visa application and the delegate’s decision record.

The Applicant husband and wife attended a hearing and gave evidence. They stated that they are Fijian citizens. They are of Indian ethnicity. They arrived in Australia in July 2002. They claim that they are unwilling to return to Fiji as they fear that they will be persecuted because of their race.

The Applicant husband was born in 1964. He states that he fears that if they return to Fiji they may be assaulted by native Fijians. He says that if they complain to the police the police will write a report but do nothing to protect the applicants. He says that 90% of the police are native Fijians and so they won’t take action against their fellows. The Applicant states that there is also corruption in the police.

It was put to the Applicant husband that there was evidence that the police were taking action against native Fijians, even against coup leaders themselves. The Applicant husband agreed that this was so, but said that if the police had taken action in the first place there would have been no problem. Instead the native Fijians went about assaulting people and burning temples.

The Applicant husband had had a good job in Fiji. He had been shipping manager for Burns Philp, the big trading house. After the coup Burns Philp Shipping had closed its doors. The Applicant husband had managed to get a job as a customs clerk which was a big step down for him. He is a licensed customs broker and is qualified to handle dangerous goods. He worries that he might not find employment suitable for his qualifications if he returns to Fiji.

The Applicant wife fears that there is so much discrimination against Indians in Fiji. There are preference schemes which restrict some jobs to native Fijians. There is a preference scheme which promotes the admission of native Fijians to university. This discriminates against Indian children as they need higher marks to obtain a place.

Land is taken from Indians even though they have built their homes on it. They are not allowed to take anything with them when they are evicted. She feels the native Fijians refuse to renew leases on some land so they can get the benefit of the expensive improvements made to it by the Indians who have leased it.

The Applicant wife worked hard as a travel consultant but now there is no job for her. She feels there is no future for their children in Fiji.

The Applicant wife also feels insecure in Fiji. She worries about physical and verbal attacks by the native Fijians. She is concerned about the children going to school or on outings. She says that parents have to take their children everywhere. There are fights and stones thrown at houses. She knows of an Indian woman who suicided after being dragged from her home and raped in front of her husband and family.

The Applicant wife states that the recent coup was worse than the 1987 coup. In 1987 she was in school, now she has a family.

She believes that the situation in Fijis [sic: Fiji] is much worse than depicted on the news.

4 The Tribunal then set out in detail extracts from six pieces of country information, over seventeen pages.

5 The Tribunal then set out its findings and reasons. It accepted the truthfulness of the applicants. After setting out some general principles by way of approach to the assessment of evidence of applicants in cases such as this the Tribunal came to its findings. It stated the following:

I am satisfied that the Applicants are citizens of Fiji. They are of Indian ethnicity. They claim to be unwilling to return to Fiji as they fear that they will be persecuted because of their race.

Specifically they claim to fear that they will be the victims of physical and verbal attacks, theft, rape and assaults committed against Indian Fijians by indigenous Fijians and they will suffer discrimination by reasons of policies designed to give preference to native Fijians

I am satisfied that they are unwilling to return to Fiji as they have a genuine fear of persecution.

I accept that the applicant parents have lost good jobs following the most recent coup. It is probable that they will be unable to find comparable in Fiji, at least until the Fijian economy returns to pre-coup levels. I note that the Applicant husband was able to find alternative employment, even if it was a big step down from his old job.

I do not accept that the Applicants will suffer significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial would threaten the Applicants [sic] capacity to subsist.

I accept that the educational and employment policies which give preference to native Fijians discriminate against Indian Fijians. I do not accept that the Applicants will be denied the opportunity to earn a living or to obtain an education by reason of these policies.

I am not satisfied that the existence of these policies would cause Applicants such harm as to amount to persecution.

I accept that the Applicants fear harassment and assault from native Fijians.

The country information, including the latest US DOS Human Rights report and the DFAT reports since October 2001 indicates that law and order has been restored in Fiji and that the general situation in Fiji is stable. There is at present no evidence of any significant mistreatment of Indian Fijians other than localised low level harassment and theft. I note that even senior figures in the coup have now been brought to justice.

While I am prepared to accept that there are shortcomings in the Fijian police and they do suffer from a lack of resources, I am not satisfied that the protection which is available to all Fijians through their police force is so ineffective that it could be said to give rise, of itself, to a real chance that the Applicants would suffer Convention based persecution.

I am satisfied that, generally speaking, the Indian community in Fiji is protected by the existing laws of Fiji which include a sophisticated criminal justice system and I am further satisfied that the same protection is available to all Fijian citizens, particularly in or near the major centres. I do not accept that the sort of low level theft and harassment would cause the Applicants such harm as to amount to persecution.

I note that there is a high level of sexual assault and domestic violence in Fiji. Rape cases are most often dealt with in magistrates courts and sentences seem manifestly low. It does not follow from that the sexual assault of women or of Indian women or of single Indian women is tolerated or accepted by the Fijian authorities. I note that the Fijian government is making efforts to promote better treatment of women.

I am not satisfied that the evidence justifies a conclusion that there is a failure of the Fijian state to protect women, or Indian women, or single Indian women from sexual assault. That is not to say the Fijian government, any more than other governments is able to provide guarantees against such criminal attacks. Generally speaking, the Convention is not directed against the failure of a country to protect its citizens against random criminal behaviour.

I am not satisfied that there is a real chance that the Applicants will be persecuted should they return to Fiji.

I am not satisfied that they have a well founded fear of persecution.

CONCLUSION

Having considered the evidence as a whole the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa. In these circumstances they cannot satisfy the alternative criterion set out in s 36(2)(b) of the Act and cannot be granted protection visas.

6 The applicants make four complaints as to the approach of the Tribunal to found their claims in the application for statutory writs and orders.

7 The first ground is a complaint as to the denial of natural justice. It was put in the following terms:

1. The Tribunal used critical adverse information obtained after the delegate’s decision which was neither provided to the Applicant before the hearing nor put to the applicant properly during the hearing – MUIN
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
WAEJ v Minister for Immigration & Indigenous Affairs [2003] FCAFC 161

8 The particulars to the country information were the six pieces of country information quoted at length by the Tribunal.

9 At the hearing before me on Thursday 5 February 2004, Mr Silva, the solicitor for the applicants, accepted that if s 422B was constitutionally valid, it otherwise applied, which meant that the first ground of the application must fail. Section 422B is in the following terms:

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

10 The above assumption raises a constitutional question, if the assumption were to be challenged. No notices under s 78B of the Judiciary Act had been issued as of 5 February 2004, when I heard the matter. Thus, I do not deal with this issue. It may arise. It depends upon whether the applicants wish to press this constitutional question.

11 The second ground identified in the application was in the following terms:

2. In spite of the fact the Applicant was not represented, during the hearing the Tribunal failed in its duty, by not asking for the adverse newspaper reports about Fijian police which the applicant Husband had, from him. Then it made a finding saying police provide effective protection.

12 This complaint had two aspects. The first aspect was one based in natural justice. Mr Silva accepted that this way of putting the matter could not succeed if s 422B was constitutionally valid. Thus, as in relation to ground 1, this point was not argued before me in this respect.

13 Another way of putting paragraph 2 was based on the assertion that the evidence disclosed that the Tribunal member was aware at the hearing that the applicants, in particular the husband applicant, had newspaper articles in their and his possession which would assist their and his case. It was said that the Tribunal had a duty to call for and examine those matters both as an incident of its duty of fairness and by way of statutory duty to ensure that it examined all relevant information. I reject this latter way of putting it. The structure of the Act is not such as to require the Tribunal to ensure that applicants who have relevant material in their possession while appearing before the Tribunal provide that material to the Tribunal. Prior to the hearing, the applicants were sent a letter in standard form, which requested that the applicants provide to the Tribunal all relevant material they wished to put forward. The letter stated as follows:

Send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator.

14 In Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Gummow J and Hayne J said the following at 576 [187]:

The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

15 Also, see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134/2002 [2003] HCA 1; [2003] 195 ALR 1, 8 [31].

16 Further, the structure and terms of ss 424, 425 and 427 are such as to empower the Tribunal to do various things, not oblige it. See also Minister for Immigration and Multicultural and Indigenous Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426. The Migration Act does not oblige the Tribunal to extract from the applicant any material which may help substantiate the submission he or she is putting, in circumstances where the applicant does not him or herself put material forward, in particular in the light of the letter containing material referred to at [13] above sent before the Tribunal undertakes the procedure of a hearing.

17 Mr Jordan, who appeared for the respondent, submitted that the applicants had not proved that the newspaper articles were before the Tribunal. The evidence relied upon by the applicants to this effect was the text of the transcript before the Tribunal which was in the following terms:

Trib: If you decide to complain to the police – the police could do what?"

Jan: They will just write a report and do nothing about it because according to the newspapers I have collected over here since I came here there is connection between the police and the natives.

[emphasis added]

18 I am prepared to proceed on the basis that if the applicant had the newspaper articles before him they were in all likelihood visible and available. Certainly if they were not and thus the Tribunal was not expressly put on notice of the presence of relevant documents the Tribunal should not be fixed with some form of constructive or imputed notice as to the presence and availability of relevant material: cf. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134/2002.

19 On the assumption that the Tribunal was aware from what had been said to it and what was before that the newspaper articles were present before it, there is no reason to conclude that, if the applicants did not see fit to put the material before the Tribunal, there was any apparent need specifically to call for the articles exemplifying the general point being made by the husband applicant in the above cited extract of the transcript.

20 The third and fourth grounds of the application were argued together. They were in the following terms:

3. The Tribunal used wrong test to evaluate "real harm".

Particulars

The Tribunal held on page 25 of its decision that "I am not satisfied that there is a real chance that the Applicants will be persecuted should they return to Fiji."

On an objective basis the Applicant wife feels real harm because she knew of the woman who was raped in front of her family.

4. The Tribunal made a jurisdictional error in not holding that the serious discrimination that the applicant and other Indians suffered does not constitute persecution.

Particulars

The Applicant wife especially has a right to feel terrified of returning to Fiji for the following reasons.

On page 11 of the Tribunal’s decision it says referring to country information: "... In July human rights groups strongly criticized Minister of Women, Culture and social [sic] Welfare Asenaca Caucau comparing Indo-Fijians to "wild grass taking up space" in the country. Despite pressure, Caucau refused to apologize and the Prime Minister failed to discipline Caucau for the remark. Senators appointed by the Prime Minister have made numerous racial slurs directed against Indo-Fijians."

On an objective basis the Applicant wife does not feel that the Government will provide protection if it can not get the Minister in charge of Women’s Affairs to apologise for her extremely racist comments.

21 The essence of the claim was that though the Tribunal had referred to the statements of the Minister of Women, Culture and Social Welfare in which the Minister compared Indo-Fijians to "wild grass taking up space in the country"; and though the Tribunal had at the same point referred to the Prime Minister refusing to discipline that Minister for that remark, such references did not amount to an apparent serious consideration of this matter. One of the pieces of country information cited by the Tribunal recorded this remark by the Minister and the lack of action by the Prime Minister. Mr Silva, on behalf of the applicant, said that this was such a weighty and central consideration in ascertaining and weighing the approach of Fijian society, the Fijian state and state protection that notwithstanding the fact that the country information referring to it was cited by the Tribunal the Court should conclude that there was no real consideration given to this matter. The matter was said to be so central that it was a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 to which no real reference was made. Thus, one could infer, so it was said, that the Tribunal misunderstood the task of the evaluation of real harm, well-founded fear of persecution and state protection.

22 I cannot agree. The Tribunal had material available to it, to weigh as it did, apparently, in making this determination of state protection. There was material before the Tribunal upon which it could found the conclusion that it reached concerning the lack of satisfaction that there was a real chance that the applicants would be persecuted when they returned to Fiji. In my view, these grounds fail.

23 My conclusions do not necessarily lead to the dismissal of the application. I have in effect heard the application on the hypothesis that s 422B is valid. The applicants sought some further time to consider their position in relation to this constitutional question.

24 For now, I will merely order that the matter stand over for two weeks to allow the applicants to consider their position on the constitution question. If the constitutional question is not to be pursued I will dismiss the application. If it is to be pursued I will make an order for the determination of separate issues, conclude this hearing on the issues dealt with and have the balance of the application heard.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Associate:

Dated: 11 February 2004

Solicitor for the Applicant:	Mr T Silva
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 February 2004
Date of Judgment:	11 February 2004