FEDERAL COURT OF AUSTRALIA

Buksh v Minister for Immigration & Multicultural Affairs [2001] FCA 1504

MIGRATION – review of RRT decision affirming Minister’s decision to refuse to grant protection visa – whether RRT decision involved error of law being error involving incorrect application of law to facts as found – whether RRT incorrectly applied law to facts as found by failing to draw inference claimed to have been reasonably open to it from primary facts it had found – where inference claimed to have been reasonably open not inference anterior to but inference comprising or forming part of inference whether or not applicant had well-founded fear of being persecuted for Convention reason – where inference claimed to have been reasonably open inference that there existed real chance refugee claimant would suffer significant economic detriment or disadvantage in relevant country – whether being persecuted for purposes of Refugees Convention equivalent to suffering some significant detriment or disadvantage – whether significant detriment or disadvantage includes significant economic detriment or disadvantage – whether significant economic detriment or disadvantage must be economic discrimination which is at hands of relevant government or which relevant government is unable or unwilling to prevent and which occurs for Convention reason – whether failing to draw inference comprising or forming part of inference whether or not applicant had well-founded fear of being persecuted for Convention reason where inference merely reasonably open can constitute error involving incorrectly applying law to facts as found.

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

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 followed

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 followed

Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585 followed

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 considered

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 considered

Saha v Minister for Immigration & Multicultural Affairs [2001] FCA 520 referred to

Vetter v Lake Macquarie City Council (2001) 178 ALR 1 referred to

Minister for Immigration & Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 referred to

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

AZAAD BUKSH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 933 of 2001

KATZ J

25 OCTOBER 2001

SYDNEY

THE COURT ORDERS THAT:

1                    The application be dismissed.

2                    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     There is before the Court an amended application for review of a decision which was made on 8 May 2001 by the Refugee Review Tribunal (“the RRT”).  That decision, which determined an application for review which had been made to the RRT on 25 October 2000, was one to affirm a decision which had been made on 28 September 2000 by a delegate of the present respondent, the Minister for Immigration & Multicultural Affairs (“the delegate” and “the Minister” respectively).  The delegate’s decision had been one to refuse to grant an application which had been made to the Minister on 14 September 2000 for protection visas for Mr Azaad Buksh (“Mr Buksh”), his wife, Ms Faizun Bibi Buksh, their son, Mr Murad Buksh, and their daughter, Ms Zinaz Neha Buksh.  (I note that Mr Buksh and his wife have two more children, who were not included in the protection visa application made on 14 September 2000.  One is an adult who lives in Fiji and the other is a baby who was born in Australia after the RRT’s hearing of the application to it for review of the delegate’s decision.  I will ignore in what follows in these reasons for judgment the existence of those other two Buksh children.)

2                     Of the members of the Buksh family, only Mr Buksh had based his application for a protection visa on a claim to be a refugee and only Mr Buksh is an applicant in the present proceeding.  That Mr Buksh is the sole applicant before me is to be contrasted with the situation before the RRT, when all of the Buksh family were applicants.  However, the Minister accepted before me that the absence from the record of the rest of Mr Buksh’s family would not prejudice them in any way; if Mr Buksh’s amended application before me were to succeed, then the other members of his family would also necessarily gain the benefit of that success.  (I will ignore in what follows in these reasons for judgment the existence of the members of the Buksh family other than Mr Buksh.)

3                     Mr Buksh is a Fijian national of Indian ethnicity.  It appears that he arrived in Australia on 21 December 1999 with a visitor visa valid for one month and, on 18 January 2000, applied for a visitor visa valid for a long stay.  On 17 May 2000, his application was rejected.  An application which he then made to the Migration Review Tribunal (“the MRT”) for review of the decision which had been made to refuse to grant him the further visitor visa was dismissed by the MRT on 11 August 2000.  It was after the MRT’s adverse decision regarding his application for the further visitor visa that Mr Buksh made his application for a protection visa.

4                     In his amended application for review, filed at the outset of the hearing before me without opposition by the Minister, Mr Buksh stated as follows the grounds of his application:

“(1) The Tribunal made an error of law under s476(1)(e) of the Migration Act in finding that the applicant did not have a well founded fear of persecution should he return to Fiji.

(2)   On the facts there is a real chance that the applicant will be persecuted if he returns to Fiji and the applicant has fears for his safety that are well founded.”

5                     As to ground (1) just quoted, it will be recalled that par 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”), referred to in that ground, provided at the relevant time, as a ground of review of a decision by (relevantly) the RRT, that that decision “involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.  Mr Buksh made clear during the present proceeding that it was an error of law of the type referred to in the second limb of par 476(1)(e) of the Act on which he was relying, that is to say, an error of law involving an incorrect application of the law to the facts as found.

6                     As to ground (2) quoted at [4] above, I infer that since that ground did not refer to any paragraph of subs 476(1) of the Act, it was intended, not to state an independent ground of the application, but rather to state, in effect, the finding which the RRT had been obliged to make in order to avoid making the error of law under par 476(1)(e) of the Act alleged in ground (1). 

7                     In his amended application for review, Mr Buksh gave particulars as follows of the two grounds of his application which I have quoted at [4] above:

“(1) The applicant has a well founded fear of persecution based on the facts found by the Tribunal.

(2)   To these [sic] facts found and enunciated in its reasons for decision dated 8 May 2001 the Tribunal misapplied the law.

(3)   The Tribunal found inter alia that the kind of harassment that the applicant might be subjected to could not be properly described as persecution within the meaning of the Refugees Convention as it did not involve ‘significant detriment or disadvantage’.

(4)   The finding of the Tribunal was an error of law as the Tribunal misapplied the test in Chan’s case to the facts.

(5)   The Tribunal erred in finding that any hardship the applicant might face would not be a consequence of any discrimination or particular treatment because of a reason in the Refugees Convention.”

8                     As to particular (4) which I have just quoted, I note that the reference in it to “Chan’s case” was a reference to Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. Further, Mr Buksh made clear during the present proceeding that, when referring to “the test” in that case, he was referring only to a particular passage from the reasons for judgment in that case of Mason CJ.  It is convenient now to quote that passage, which I have highlighted in bold, as well as quoting the balance of the paragraph in which that passage appeared.  Mason CJ said (at 388),

“The Convention and the Protocol do not define the words ‘being persecuted’ in Art. 1A(2).  The delegate was no doubt right in thinking that some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution.  When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns.  Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason.  The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.”

9                     As to particulars (3) and (5) which I have quoted at [7] above, each of them reproduced language which had been used by the RRT in its statement of findings and reasons when discussing a particular topic.  It is convenient now to quote what the RRT had said as to each of those two particular topics.

10                  The passage from the RRT’s statement of findings and reasons which was the source of particular (3) quoted at [7] above was 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                  The passage from the RRT’s statement of findings and reasons which was the source of particular (5) quoted at [7] above was as follows:

“It was evident that the applicant feared that he would have difficulty earning a living if he and his family were to return to Fiji.  He said a number of times that they had nothing left there and his brother also indicated that the family would face hardship.  The state of the Fijian economy limits the employment opportunities which are available and even given the applicant’s diverse work skills he may find it difficult to find work.  With a new baby and children nearing the end of their school education, I can understand that this is a matter of considerable concern to the applicant.  However, I do not consider that the circumstances of the applicant indicate that the hardship he and his family might face would be a consequence of any discrimination or particular treatment because of a reason in the Refugees Convention, that is their race, religion, nationality, membership of a particular social group or political opinion.  Unfortunately, very many Fijians of both main ethnic groups are having to readjust their lives according to the changed political and economic environment.”

12                  At the first (and only) directions hearing in the proceeding, I gave, by consent, a direction that the parties file and serve, in advance of the hearing, written outlines of their respective submissions.  In purported compliance with that direction, Mr Buksh filed and served a document.

13                  After summarising the procedural background to the application to this Court, Mr Buksh’s claims to be a refugee, the independent information before the RRT regarding Fiji and the RRT’s findings and reasons, Mr Buksh’s document quoted part of the passage from Mason CJ’s reasons for judgment in Chan which I have quoted at [8] above.  A submission was next made that “should the applicant return to Fiji he will suffer some significant detriment or disadvantage”.  The document then concluded, “The decision of the Tribunal of 8 May 2001 is judicially reviewable under s.476(1)(e) Migration Act 1958 being a decision that involved an incorrect application of the law to the facts as found by the Tribunal”.

14                  Mr Buksh’s document failed in substance to achieve the purpose which my direction for the filing and serving, in advance of the hearing, of written outlines of submissions had been intended to achieve, since it left me no better informed on my reading it in advance of the hearing as to the submissions which Mr Buksh intended to put at the hearing than I had been on reading Mr Buksh’s proposed amended application for review (which proposed amended application for review had also been provided to me in advance of the hearing).  I infer from the form of the Minister’s written outline of submissions, also filed in advance of the hearing before me, that the Minister was equally unable to discern from Mr Buksh’s document the submissions which the latter intended to put at the hearing.

15                  Parties who purport to comply with a direction to file, in advance of a hearing, a written outline of their submissions, but who do so by filing a document which does not in truth outline those submissions which they propose to make at the hearing, are, all other things apart, squandering a valuable opportunity to influence in their favour the outcome of the proceeding in which they are involved.

16                  Be that as it may, at the hearing before me, I was made aware for the first time of what Mr Buksh’s submissions in support of his amended application for review were.  I turn to those submissions now.

17                  Mr Buksh began his submissions by drawing attention to the facts that the RRT had stated at the outset of its statement of findings and reasons that one of the key elements contained in the definition of a refugee in the Refugees Convention is that “an applicant must fear persecution” and that the RRT had then elaborated on that key element as follows:

“Not every threat of harm or interference with a person’s rights … constitutes ‘being persecuted’.  In Chan’s case Mason CJ referred to persecution as requiring ‘some serious punishment or penalty or some significant detriment or disadvantage.’ In the same case, McHugh J said that the notion of persecution involves selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights, and measures ‘in disregard’ of human dignity.  In Applicant A’s case [that is, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225], his Honour stated that whether or not conduct constitutes persecution does not depend on the nature of the conduct but on whether it discriminates against a person….  Persecution may be directed against a person as an individual or as a member of a group.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.  Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.”

18                  Mr Buksh then took me to the passage from the reasons of Mason CJ in Chan which I have already quoted at [8] above.  Mr Buksh treated that passage as having defined the notion of “being persecuted” for the purposes of the Refugees Convention as being the equivalent of “suffer[ing] … some significant detriment or disadvantage”. 

19                  In so doing, Mr Buksh omitted to have regard to the fact that the context in which Mason CJ had been discussing the notion of persecution had been of a refugee claimant’s “suffer[ing] … some significant detriment or disadvantage” at the hands of the State of which the refugee claimant was a national.

20                  In any event, Mr Buksh submitted that the notion of “suffer[ing] … some significant detriment or disadvantage” was a wide one, which could include suffering some significant detriment or disadvantage in, among other fields, the economic field.

21                  The submission that the suffering of some significant detriment or disadvantage in the economic field can constitute persecution for the purposes of the Convention can be accepted, but that proposition cannot, of course, encompass the suffering by a person of any economic detriment or disadvantage, even if significant.

22                  In Applicant A, Gummow J pointed out (at 283) that “persons who are outside the country of nationality by reason of such causes as … economic misfortune cannot answer the requirements of” the Convention definition of a refugee.  In Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585, Gummow J further pointed out (at 622, [141]) that “persons fleeing … bad economic conditions are outside the Convention”.  (In Haji Ibrahim, Gleeson CJ (at 586, [1]) expressed his agreement with Gummow J’s reasons for judgment, as did Hayne J (at 641, [203]).)

23                  Further, in his reasons for judgment in Chan, McHugh J had discussed the concept of persecution in the economic field, saying (at 430-31; footnotes omitted),

“In Oyarzo v. Minister of Employment and Immigration the Federal Court of Appeal of Canada held that on the facts of that case loss of employment because of political activities constituted persecution for the purpose of the definition of ‘Convention refugee’ in the Immigration Act 1976 (Can), s 2(1).  The Court rejected the proposition that persecution required deprivation of liberty.  It was correct in doing so, for persecution … has historically taken many forms of … discrimination. Hence, the denial of access to employment[ or] to the professions … may constitute persecution….”

24                  It is to be noted that, like Mason CJ in Chan (see at [19] above), McHugh J was focusing, in discussing persecution for the purpose of the Convention, on conduct by the State of which the refugee claimant is a national, although McHugh J went beyond that, saying (at 430),

“The threat [of harm] need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution….”

25                  I turn now from Mr Buksh’s discussion, in his submissions at the hearing before me, of the passage from the reasons for judgment of Mason CJ in Chan which I have already quoted at [8] above to his discussion in those submissions of another decision of the High Court, namely, Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

26                  So far as Wu was concerned, Mr Buksh again took me to the reasons for judgment of only one of the Justices in the case, Kirby J.  Mr Buksh drew attention to two particular aspects of Kirby J’s reasons for judgment.

27                  The first was his Honour’s insistence on the necessity for an administrator, determining whether a refugee claimant met the Convention definition of a refugee, to do so on the basis of the entirety of the material which had been placed before that administrator.  According to Kirby J (at 293), an administrator was not entitled, “by a process of factual findings on particular elements of the material which is provided”, to “foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material”.

28                  (I note that it is doubtful whether Kirby J’s approach just mentioned is consistent with the approach later taken by Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, especially at 576. However, it is unnecessary for present purposes to explore that matter further, since I did not understand Mr Buksh subsequently in his oral submissions before me to place specific reliance on Kirby J’s approach just mentioned.)

29                  The second particular aspect of Kirby J’s reasons for judgment to which Mr Buksh drew attention was his Honour’s statement that the process of determining whether a refugee claimant met the Convention definition of a refugee involved, not only making findings as to primary facts, but also (at 294),

“… identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying [in the context, ‘applying’ was being used in the sense of ‘subjecting’] those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned….”

I note that the context makes plain that, when his Honour referred in the passage which I have just quoted to “the inferences which may properly be drawn from the primary facts, as so found”, he was referring to inferences of fact anterior to the inference (or finding) whether the refugee claimant had a well-founded fear of being persecuted for a Convention reason if returned to the country of nationality.

30                  Having drawn my attention to the above two aspects of Kirby J’s reasons for judgment in Wu, Mr Buksh then acknowledged that the RRT had been aware, when dealing with his application for review by it of the delegate’s decision, of the correct test to apply when determining whether he had a well-founded fear of being persecuted within the meaning of the Convention if returned to Fiji.  He further stated that he did not cavil, or have any dispute, with the facts which had been found by the RRT.  In the context, that statement was referring to the finding by the RRT of what Kirby J had referred to in Wu as the primary facts.

31                  However, Mr Buksh submitted, the RRT had erred by failing to draw inferences from the primary facts which it had found, which inferences had been reasonably open to be drawn by it.

32                  I note that, in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 419-21, [50]-[59] (McHugh J), a submission in materially identical terms was unsuccessfully made by a disappointed refugee claimant, in reliance on the very same passages from the reasons for judgment of Kirby J in Wu.

33                  There was, however, an important difference between Durairajasingham and the present case.

34                  In Durairajasingham, the refugee claimant, understanding correctly what Kirby J had meant by the notion of inferences which might properly be drawn from the primary facts, had identified before McHugh J those inferences, anterior to the inference (or finding) whether he had a well-founded fear of being persecuted for a Convention reason if returned to his country of nationality, which he submitted could reasonably have been drawn by the RRT from the primary facts which it had found regarding him.

35                  In the present case, Mr Buksh identified before me no such inferences.  Instead, his submissions appear wrongly to have treated Kirby J’s reference to inferences as a reference to the inference (or finding) whether Mr Buksh had a well-founded fear of being persecuted for a Convention reason if he should return to Fiji or at least to an inference (or finding) whether an element of that compound notion existed.

36                  I note that, if Mr Buksh had identified before me inferences in the sense in which that notion had been used by Kirby J in Wu, which inferences Mr Buksh had submitted could reasonably have been drawn from the primary facts found by the RRT, but had not been drawn by it, I am unable to see how any acceptance by me of such a submission could have been translated into the sole ground of judicially-reviewable error on which he was relying before me, namely, error of law of the type amounting to an incorrect application of the law to the facts as found by the RRT.  Instead, such a failure to draw reasonably open inferences would, it appears to me, merely have been an error in fact-finding by the RRT.  I note that, for two reasons, McHugh J’s reasons for judgment in Durairajasingham throw no light on that matter.  First, McHugh J was not concerned with par 476(1)(e) of the Act, but rather with judicial review at common law; and, secondly, McHugh J held that the inferences relied on by Durairajasingham in his submissions before the High Court had not been reasonably open to be drawn by the RRT.  However, in the circumstances, the matter need not be explored further.

37                  Having made the submission that the RRT had erred by failing to draw inferences from the primary facts which it had found, which inferences had been reasonably open to be drawn by it, Mr Buksh then, as the only example of such failure on which he relied during his oral submissions, drew my attention to a passage from the RRT’s statement of findings and reasons, which passage he plainly treated for the purpose of his submissions as having been a finding of primary fact by the RRT.  That passage was:

“The country’s economy has suffered as a consequence of the political turmoil: investment is depressed and the GDP has declined (Country reports on human rights practices - 2000: Fiji, … Introduction).  The employment situation is improving ‘but things are far from what they were prior to May 2000’ (Fijian asylum seekers in Australia: Country information report No 104/01 …).”

38                  I note that, in the passage just quoted, the RRT had not been, strictly speaking, setting out a finding of fact which it had made, but had instead been reciting relevant independent information available to it about Fiji.  However, I am prepared to proceed herein on the basis that the RRT accepted the correctness of the information in that passage and may therefore be said to have found as primary facts the information stated therein.

39                  Having drawn my attention to that passage, Mr Buksh then submitted that the RRT could reasonably have drawn the inference from that passage that there existed a real chance that Mr Buksh would suffer some significant detriment or disadvantage in the economic field if he were to return to Fiji, from which it followed both that the RRT could reasonably have drawn the inference from that passage that there existed a real chance that Mr Buksh would be persecuted if he were to return to Fiji and that the RRT had, by failing to draw that inference, incorrectly applied the law to the facts as found.

40                  I am unable to accept the submission which I have just recorded.

41                  First, the mere fact that there existed a real chance that Mr Buksh would suffer some significant detriment or disadvantage in the economic field if he were to return to Fiji would not necessarily mean that there existed a real chance that Mr Buksh would be persecuted in Fiji within the meaning of the Convention if he were to return there.

42                  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 Mr Buksh relied for the purpose of making his submission was silent on those crucial questions. 

43                  Secondly and ignoring the first difficulty with Mr Buksh’s submission, the fact that an inference could reasonably have been drawn that there existed a real chance that Mr Buksh would be persecuted if he were to return to Fiji would not mean that the RRT, in failing to draw that inference, had incorrectly applied the law to the facts as found.  It would only have done so if it had been bound to draw the inference that there existed a real chance that Mr Buksh would be persecuted if he were to return to Fiji.  To put the matter in another way, one does not incorrectly apply the law to the facts as found if it is merely reasonably open to draw an ultimate inference from the facts as found and one chooses not to do so.

44                  I have already mentioned at [37] above that, in the course of his oral submissions before me, the only respect in which, as I understood it, Mr Buksh submitted that the RRT had incorrectly applied the law to the facts as found by it related to the RRT’s failure to act on certain country information regarding economic conditions in Fiji.  That submission appears to have been related to particular (5) in his amended application for review, which particular, in turn, appears to have been based on a passage from the RRT’s statement of findings and reasons which I have already quoted at [11] above.

45                  I note that, although in the particulars which he had given of the grounds of his amended application for review, Mr Buksh had also included a particular (particular (2)) which appeared to have been based on another passage from the RRT’s statement of findings and reasons which I have also already quoted above (at [10]), Mr Buksh did not, as I understood his oral submissions before me, make any submission in them to the effect that that other passage revealed that the RRT had incorrectly applied the law to the facts as found by it.

46                  I note that if he had, such a submission would have raised a number of issues for consideration. I set out below some only of those issues.

47                  First, the passage which I have quoted at [10] above was discussing non-governmental conduct, so that, even if the RRT had taken a different view of that conduct from that which it did, the RRT would also have found it necessary, in determining whether that conduct would lead to persecution within the meaning of the Convention, to consider whether the Fijian authorities would be either unwilling or unable to prevent its recurrence on Mr Buksh’s return to Fiji.  I note that, in the context of a discussion by the RRT specifically about a claimed fear by Mr Buksh of physical violence on his return to Fiji, the RRT expressed satisfaction in its statement of findings and reasons 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”.  A question would have arisen whether that finding should be treated as having been intended by the RRT to be applicable as well to Mr Buksh’s claimed fear of the conduct presently under discussion. The approach to the judicial reading of administrators’ reasons for decision taken in Wu by the members of the court other than Kirby J, namely, Brennan CJ and Toohey, McHugh and Gummow JJ, in a well known passage (at 272) from their joint reasons for judgment would strongly suggest that that finding should be so treated.

48                  Secondly and on the assumption that the RRT had proceeded on the basis that the Fijian authorities would be either unable or unwilling to prevent the conduct under discussion, a question would have arisen whether the effect of the second limb of par 476(1)(e) of the Act was to require this Court to decide for itself whether that conduct would constitute persecution within the meaning of the Convention or whether this Court had a more limited role in that respect.

49                  I note in that connection that, in Saha v Minister for Immigration & Multicultural Affairs [2001] FCA 520 (27 April 2001, unreported), Beaumont J dealt (at [57]-[59]) with a submission that the RRT had erred in law “when it considered that being beaten and badly injured, or being shot at was not serious enough to constitute persecution”.  His Honour referred, in dealing with that submission, to the decision of the High Court in Vetter v Lake Macquarie City Council (2001) 178 ALR 1 and quoted the following passage from the joint reasons for judgment of Gleeson CJ and Gummow and Callinan JJ in that case (at 8; footnotes omitted):

“[24] Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law.  To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law.  However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only.  Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation.  That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in Australian Gas Light Co v Valuer-General:

‘[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law …’

[25] In his speech in Edwards (Inspector of Taxes) v Bairstow Lord Radcliffeidentified an error of law as arising if ‘the true and only reasonable conclusion contradicts the determination’.”

50                  Having quoted that passage, Beaumont J then said,

“Applying that test to the present case, I do not think it can necessarily be said that the facts of an attack and being injured or the fact of being shot at, are necessarily either within or outside the description used in the Convention, in its definition of  persecution, for that purpose.  It is simply not possible to generalise in this area in a way that will throw up necessarily a question of law.”

51                  The application to the present case of the approach taken by Beaumont J in Saha would presumably have required me merely to decide whether the conduct concerned was necessarily within the notion of persecution as used in the Convention.  If it was not, then I would not have disturbed the RRT’s conclusion on the question. It appears to me that it would have been very difficult for me to conclude that the conduct concerned was necessarily within the notion of persecution as used in the Convention.

52                  A further question would, however, also have arisen, namely, whether Beaumont J’s approach in Saha was consistent with the approach earlier taken by a Full Court of this Court (Heerey, Sundberg and Merkel JJ) in Minister for Immigration & Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184: see at 199, [53], noting, however, that that case was not concerned with whether particular conduct would constitute persecution for the purpose of the Convention and noting also Merkel J’s use at [53] of the word “reasonably”. See also Minister for Immigration & Multicultural Affairs v Hu (1997) 79 FCR 309 at 324-26, in which a Full Court of this Court (von Doussa, Moore and Sackville JJ) discussed in obiter the operation of the second limb of par 476(1)(e) of the Act.

53                  In the result, given the way in which Mr Buksh presented his case before me, it has been unnecessary for me to consider the various issues to which I have been referring in the preceding six paragraphs of these reasons for judgment.  The amended application for review will be dismissed with costs.

Associate:

Dated:              25 October 2001