NABO of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 178 (7 June 2002)

Last Updated: 11 June 2002

FEDERAL COURT OF AUSTRALIA

NABO of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 178

MIGRATION - para 476(1)(e) Migration Act 1958 (Cth) - nature of error of law there referred to - no error of law or otherwise disclosed.

Migration Act 1958 (Cth) para 476(1)(e)

Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309 discussed

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 discussed

NABO of 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1518 of 2001

LINDGREN, FINKELSTEIN & ALLSOP JJ

7 June 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1518 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NABO of 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN, FINKELSTEIN & ALLSOP JJ
DATE OF ORDER:	7 JUNE 2002
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. the appellant have leave to file and rely upon an amended notice of appeal;

2. the appeal be dismissed; and

3. the appellant pay the respondent's costs.

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 1518 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NABO of 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN, FINKELSTEIN & ALLSOP JJ
DATE:	7 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LINDGREN J

1 I have read a draft of the reasons for judgment of Allsop J and agree that the orders proposed by his Honour should be made for the reasons he gives.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1518 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NABO of 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN, FINKELSTEIN & ALLSOP JJ
DATE:	7 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

FINKELSTEIN J:

2 I agree in the reasons of and the proposed orders by Allsop J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1518 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NABO of 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN, FINKELSTEIN & ALLSOP JJ
DATE:	7 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

ALLSOP J

3 The appellant is a Fijian national of Indian ethnicity. He appeals from orders of a Judge of the Court dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of the delegate of the Minister not to grant a protection visa.

4 When the appeal was called on, Mr Jackson, counsel for the appellant, sought leave to amend his notice of appeal. He sought to raise what he said were two matters that were not argued below. He sought to argue these as the only grounds of the appeal. The question of leave was argued as part of the appeal.

5 The first matter upon which Mr Jackson relied was an alleged failure by the Tribunal to direct itself adequately to the question of state protection. He said that the Tribunal concerned itself only with the ability of the Fijian authorities to protect the appellant from harm which would, or may well, be inflicted on him for racial reasons, and not their willingness to provide that protection. It is convenient to set out the relevant paragraph of the Tribunal's reasons:

Relevant to the applicant's claims to fear that he may be bashed again, and whether this indicates a real chance of persecution, is the overall security situation in Fiji and the response of the police to such attacks. The applicant has claimed that people who complain to the police can be further harmed by those reported, that the police can do little to protect Indian Fijians and that a police member had told him this. It is important to state that absolute protection of an individual is not required before a conclusion that adequate State protection is available can be reached. According to Professor Hathaway, protection through refugee law arises when the degree of protection normally to be expected of the government is either lacking or denied. For example, in situations where the quality of internal protection fails to meet basic norms of civil, political and socio-economic human rights, or where internal safety is otherwise illusory or unpredictable, State accountability for the harm is established and Convention protection may be justified (Hathaway, J C The Law of Refugee Status Toronto, Butterworths, 1991, p 134). Factors relevant in this case are whether there is a `reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights' (Prathapan v MIMA (1998) 47 ALD 41 Madgwick J at 48: this judgment was overturned on appeal but this point was not the basis for the appeal). Information from the Department of Foreign Affairs and Trade is that the military and the police have worked to stabilise the law and order situation. I am satisfied that there is in Fiji a reasonable infrastructure of laws and institutions which together provide protection for people such as the applicant from the type of harm he fears.

6 It should be noted that, by this point in its reasons, the Tribunal had accepted that the appellant had been assaulted in the past and that there was, or may well have been, a racial element to the assault or assaults.

7 In my view, the argument referred to in [5] above simply cannot be maintained. On a common sense and fair reading of the whole paragraph, the Tribunal was directing itself, not merely to capacity, but also to willingness. Without parsing and analysing the whole paragraph, it is quite plain, it seems to me, that the verb `provide' in the last sentence is in the present tense and is used as the equivalent to `do provide' or `do in fact provide'.

8 In relation to this ground, I would grant leave to amend the notice of appeal. Whilst the matter was not properly raised before the primary Judge, and whilst I recognise the importance of not treating the trial as a mere way-station along the appellate journey, I think that the potential importance of the matter to the appellant in this case, in all the circumstances, including the lack of any specific prejudice, is such that the disadvantage to the Court in not having the full assistance of reasons of the primary Judge should not prevent leave being granted.

9 The second ground sought to be raised can conveniently be divided into two parts.

10 In the first the appellant referred to an earlier paragraph of the Tribunal's reasons and said that its contents ought have led the Tribunal to conclude that the facts as found therein amounted to persecution, with the consequence that there was, and should have been found to be, a well founded fear of persecution. The paragraph in question is as follows:

Independent information confirms that Indian Fijians can be subjected to harassment from native Fijians such as that which was described by the applicant: stealing and having nasty things said to them. Such behaviour on the part of native Fijians towards Indian Fijians is likely to continue in future. I have considered whether the kind of harassment described by the applicant is of a character which could properly be described as persecution within the meaning of the Refugees Convention, that is involving significant detriment or disadvantage, and I have concluded that it is not. I have no doubt that the treatment described by the applicant would have been annoying and perhaps sometimes frightening and that it could again be so if the family was to return to Fiji but I do not consider that the evidence indicates that the harassment which the applicant or his family experienced, even if seen altogether, was of a kind which interfered to any significant extent with their capacity to go about their lives or that it would do so if they were to return to their country.

11 It was said by the appellant that the failure of the Tribunal to conclude that the matters there found amounted to persecution was an error of the kind set out in para 476(1)(e) of the Migration Act 1958 (Cth) (the Act) as then in force, in particular the second limb of that provision, which was in the following terms:

The decision involved an error of law, being ... an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

12 The first difficulty with this proposition is that the conclusion as to whether the matters referred to in that paragraph amount to persecution is one in respect of which, in my view, minds might reasonably differ. The matters there found do not necessitate a conclusion that persecution was present. In that context I see no error of law in the failure by the Tribunal to conclude that those facts amounted to persecution: Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439, 450-451 at [24] to [28].

13 This conclusion, that the failure of the Tribunal in the above paragraph so to conclude is not an error of law, is fatal to the argument, if para 476(1)(e) requires that the error be one of law by reference to general principles. The appellant argued that the introductory phrase in para (e) is amplified, by what follows it. Thus, it was said that any error in assessing whether facts as found amount to persecution, even if the circumstances raise a question about which reasonable minds might differ, is an error of the type encompassed by the words after `being' in the paragraph, and so, by the force of para (1)(e), an error of law for the purposes of that provision. It was said that the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309 supports that conclusion. In particular, reference was made to pages 325-26 of that decision. It is not clear to me that the Full Court in Hu was directing itself to this precise problem. To the extent it was, and to the extent it can be taken as support for the appellant's contentions, it was obiter. Against this, the following passage in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [84] (per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed), also obiter, would indicate that any error of law contemplated by para (e) is not widened by the balance of the paragraph, but narrowed by it. Their Honours said:

No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. The qualification emphasises that factual error by the Tribunal would not found review.

14 The statutory enactment of the régime of judicial review set out in s 476 was intended to narrow the grounds of administrative review in migration decisions previously available under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The limiting effects of subs 476(2) are plain. It would be a surprising result, in my opinion, if a paragraph expressly dealing with error of law was capable, on its proper construction, of encompassing what would otherwise be an error of fact.

15 It is not necessary to resolve this question, though I would say that I respectfully agree with what their Honours said in Yusuf and, to the extent of any conflict, consider that I should follow Yusuf, not Hu.

16 The matters in the paragraph referred to at [10] above were not considered by the Tribunal to be persecutory. In my view that conclusion was plainly open. This is especially clear when one examines the country information referred to by the Tribunal.

17 Even if the proper construction of para 476(1)(e) is as the appellant suggested, it would still be necessary for there to be error in the approach of the Tribunal. In particular, in the context of an exercise of judicial review, a different view by the reviewing court about a question such as this, affected by opinion and judgment, and in respect of which minds might reasonably differ, does not necessarily lead to a conclusion of error: cf Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 140 ALR 227, 229-30; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [24] to [29]; and TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2002] FCAFC 146 at [16] and [107] to [108] in relation to appeals by way of rehearing. Thus, I am not persuaded that there is any error involved in the paragraph referred to in [10] above and this is an end to the argument, whether or not Hu is authority for the proposition contended for by the appellant.

18 In my view, assuming the Tribunal to have understood the applicable law and thus the meaning of persecution by reference to cases such as Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, 388, 396-7, 399-400, 429-31; Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, 232, 233, 258-9, 284; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, 570; Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at [12] and [24] to [29]; and Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at [14] to [18], [24], [55] to [65] (and no such error reflecting the first limb of para 476(1)(e) was suggested by the appellant) the Tribunal could plainly reach the views it did about the seriousness of the harm, and so about the question of persecution, in the paragraph referred to in [10] above. No error has been displayed in the conclusions reached.

19 In any event, if the conduct did, and should be seen to, amount to conduct of sufficient seriousness as to amount to persecution, it is difficult to see why the Tribunal's conclusion as to state protection earlier referred to (though in terms directed to the claims of bashing) would not provide a basis to conclude that there was no well founded fear of persecution should the appellant return to Fiji.

20 In relation to this matter, I would, for the same reasons as given earlier, grant leave to amend the notice of appeal.

21 The further matter which was sought to be raised by the appellant in argument also involved an assertion of error under para 476(1)(e). It was asserted by the appellant that the Tribunal implicitly adopted relevant country information, including extracts from the United States Department of State Country Reports on Human Rights Practices - 2000; Fiji (Washington DC, February 2001), which states, amongst other things, that:

A major human rights problem remains ethnically based discrimination. A number of government polices, including hiring practices, education policies and land tenure preferences continue to provide protection for indigenous Fijian interests... Ethnically motivated societal violence led to abuses, including looting and destruction of property.

22 This was not found within the section of the Tribunal's reasons dealing with its findings and reasons. It was a recounted piece of country information in the recitation of the evidence. Its context should be noted. It was part of a review of various pieces of country information, including information from the Department of Foreign Affairs and Trade (`DFAT'), which was also set out. It was recounting, admittedly in a broader context, the tumultuous political events which occurred in Fiji in the year 2000 and the effects in that year of those events.

23 The Tribunal's decision was dated 8 May 2001 (and was handed down on 25 May 2001). The Tribunal sought and obtained country information reports about Fiji on two occasions from DFAT. The first DFAT report was prepared on 3 October 2000 and apparently entered in the Tribunal's records on 9 October 2000. On 13 March 2001 the Tribunal requested an updated report and one prepared on 5 April 2001 was apparently entered by the Tribunal in its records on 6 April 2001.

24 In the `Findings and Reasons' section of its reasons, the Tribunal referred to its having had regard to advice from DFAT. Moreover, the terms of some of its findings in relation to the general political and social situation in Fiji clearly reflect the terms of the advice received from DFAT.

25 The passage from the United States Department of State Country Report does not express a `fact as found' by the Tribunal as to the political and social situation in Fiji as at the time of the Tribunal's decision. It reflects a piece of historical material apparently superseded by other information.

26 Thus, since this material was not a `fact as found', para 476(1)(e) has no application. However, even if it were a `fact as found', there is a more fundamental objection to allowing what is sought to be put, by way of argument. The appellant seeks, on appeal, to complain that the Tribunal failed to conclude that persecution existed by reference to evidence concerning general governmental discrimination against Indian Fijians. This matter was not argued before the primary Judge who said at [42] of his reasons:

As I have already made plain at [21]-[23] above, the mere fact that a person would be the victim of bad economic conditions in that person's country of nationality does not of itself mean that that person would be persecuted in that country within the Convention notion of persecution. A question would arise whether that person would suffer, not merely from bad economic conditions, but from economic discrimination, either at the hands of the government of the person's country of nationality or at the hands of others, in circumstances in which that government was either unwilling or unable to prevent such economic discrimination by those others. (There would, of course, also be the further question whether such persecution, assuming it occurred, would be for one of the Convention reasons.) The passage from the RRT's statement of findings and reasons on which [the present appellant] relied for the purpose of making his submission was silent on those crucial questions. [emphasis added]

27 However, more important than the conduct of the application before the primary Judge is the conduct of the hearing before the Tribunal. Before the Tribunal this matter had apparently been limited in the appellant's claims to the effect on the appellant of the land tenure arrangements which disadvantage Indian Fijians. The Tribunal dealt with this specific claim in a way that is not complained of. The wider use of this country information to found a claim of general governmental discrimination against Indians was not part of the appellant's claims before the Tribunal and was not dealt with in that way by the Tribunal. There were other matters put before the Tribunal to which I have not hitherto made reference: for example, the appellant's participation in the Fijian Labour Party. No complaint was made by the appellant before us about how these other matters were dealt with. Whilst it is one thing to raise matters which were not raised before the primary Judge, it is quite another to raise matters on appeal which were not properly agitated or claimed before the Tribunal. It is not appropriate to allow fresh claims of this kind, not squarely dealt with by the Tribunal and not being matters with which it is, or can be, said that the Tribunal was otherwise obliged to deal, to be argued on appeal.

28 This does not lead to the conclusion that the amendment sought to the notice of appeal should not be allowed for the reasons expressed earlier, since the amendment does not precisely illuminate this argument which was exposed in submissions. What it does do, however, is prevent this argument being raised under the rubric of any amendment which is allowed. If the amendment sought were to have precisely identified this matter (as perhaps it should have) I would not have allowed the amendment to be made for the reasons in [27] above.

29 In the light of the above the orders which, in my view, ought be made are that:

a) leave be granted to file and rely upon an amended notice of appeal;

b) the appeal be dismissed; and

c) the appellant pay the respondent's costs.

I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:

Counsel for the Applicant:	Mr C Jackson
Solicitor for the Applicant:	Mr M H Kazi
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 May 2002
Date of Judgment:	7 June 2002