FEDERAL COURT OF AUSTRALIA

NAPE v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1124

MIGRATION – protection visa – application for judicial review of a decision of the Refugee Review Tribunal – whether logicality a ground of review – whether failure to give reasons a jurisdictional error – whether the Refugee Review Tribunal failed to afford to the applicants natural justice by failing to draw to their attention adverse country information – whether the Refugee Review Tribunal took into consideration a wrong issue or failed to take into account a relevant consideration – whether the Refugee Review Tribunal did not permit the applicants to explain their case and thereby deny to them natural justice.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 36(2), s 48A, s 420, s 474(2), s 476

Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397 cited

High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied

Kioa v West (1985) 159 CLR 550 followed

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 referred to

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2003 [2003] HCA 30 applied

SDAV v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 129 referred to

VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 applied

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 applied

WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188  applied

NAPE & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 557 of 2003

HILL J

21 OCTOBER 2003

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicants pay the respondent Minister’s costs.

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

REASONS FOR JUDGMENT

1                     Before the Court is an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) made relevant to review of decisions inter alia of the Refugee Review Tribunal (‘the Tribunal’) by the provisions of s 476 of the Migration Act 1958 (Cth) (‘the Act’).

2                     The decision under review is a decision of the Refugee Review Tribunal which affirmed the decision of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refusing to grant to the female applicant (‘the wife’) a protection visa.  To understand the issues which arise it is necessary to trace some of the procedural history of the matter. 

3                     The applicants are husband and wife.  They are both citizens of Fiji.  They arrived in Australia on 5 May 2001.

4                     On 5 June 2001 the male applicant (‘the husband’) lodged an application for a protection (class XA) visa with the then Department of Immigration and Multicultural Affairs.  The application was made on the basis that he claimed to be a person to whom Australia owed protection obligations, that being one of the criteria for the grant of a protection visa.  The wife was included in this application as a member of the husband’s family.  The application in accordance with the printed form was signed both by the husband and the wife.  In it the wife answered that she had no claims of her own to be a refugee.

5                     The application was considered by a delegate of the respondent Minster and refused. The husband was notified of the refusal in a letter dated 18 June 2001.  Because the wife had no claim of her own to be a refugee, her claim, as included in his application, was likewise refused.  The husband and wife then sought review of the delegate’s decision in the Tribunal.  However, the application for review was received outside the prescribed time limit.  This arose apparently because no address for service had been given by the applicant and the notice of the delegate’s decision was sent to what was the applicant’s last residential address but was returned unclaimed.  The notice was thereafter sent to the correct address but the application for review was not received by the Tribunal until 9 August 2001, well after the prescribed period had expired.  The Tribunal correctly concluded that there was no valid application for review before it and accordingly that it had no jurisdiction to review the delegate’s decision.  The delegate’s decision on the husband’s application and through the husband, derivatively, the wife’s application thus stood.

6                     A further application for a protection visa was then prepared by the wife who claimed, inconsistently with the previous application of the husband, which she had also signed, that she was a person to whom Australia had protection obligations, that is to say, that she was a person who fell within the definition of refugee in Article 1(A)(2) of the 1951 Convention relating to the Status of Refugees as affected by the 1967 Protocol relating to the Status of Refugees collectively hereafter referred to as ‘the Convention’.  The husband was included in the wife’s application as a family member.  Inconsistently with his original claims the husband stated that he did not have his own claims to be a refugee.

7                     The wife’s application was then rejected by the delegate and the applicants applied to the Tribunal for review of the delegate’s decision. 

8                     The effect of the regulations dealing with protection visas, as indeed reflected in the applications to which reference has been made, was that the issue before the Tribunal was whether the wife fell within the definition of ‘refugee’ within the meaning of Article 1(A)(2) of the Convention and thus entitled to a protection visa.  If that issue was decided favourably to the wife, then derivatively, the husband became entitled to a protection visa by virtue of being a member of the wife’s family unit.  No question of invalidity of the wife’s application arose, having regard to the decision of the Full Court of this Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397. However, it is important to bear in mind that the husband was no longer able to make a claim that he was a person who was a refugee and thus entitled in his own right to a protection visa because such a claim was precluded to him by force of s 48A of the Act.

9                     It was the wife’s case, in the application she made in her own right in August 2001, that since the time of the coup in Fiji she had received many threatening calls from indigenous Fijians.  She had been ‘physically (sic) sworn and pushed around at together with my husband in towns’ and that the door of her home had been forced while she was alone but those who did that had been frightened away by a neighbour and that her husband had been nearly killed and harassed by the military after the coup.  The fear of persecution she claimed to have was said to have been for racial reasons because she and her husband were Indian.  She claimed that the police made a mockery of the threatening calls and that because she and her husband were Indians they were not taken seriously.  She claimed that she feared for her life and that of her husband and son if she were to be returned to Fiji.  Indeed she claimed that it was the authorities of Fiji who were encouraging or promoting violence and persecution against her and for that reason they would not come to her assistance.  She claimed that she had to flee Fiji leaving a young child behind and presumably still in Fiji. 

The Tribunal’s decision

10                  The Tribunal set out in its reasons the claims not only which the wife had made in her application but those which the husband had made in his.  It set out also in some detail the evidence which the husband had given.  No doubt it was only possible to understand the wife’s claim in the context of the facts which the husband recounted.  On one view of the matter the wife’s admission in the husband’s application that she had no claim of her own to be a refugee when coupled with the husband’s admission in the wife’s application that he had no claim to be a refugee might be thought to be determinative in a practical, if not a legal sense.  However, the admissions were not referred to at all by the Tribunal.  Be that as it may one thing is clear.  The issue before the Tribunal was not whether the husband was a refugee.  It was solely whether the wife was.  The only relevance any persecution of the husband might have could be if that persecution created fear of persecution in the wife or objectively contributed to a well-founded fear of persecution in the wife.  It is far from clear to me that the Tribunal understood this.  Indeed it appears to have proceeded largely on a consideration of whether the husband had a well-founded fear of persecution.  The problem was not raised before me by either party and in the circumstance I would not place weight upon the apparent failure of the Tribunal to consider the real issue before it.

11                  It was the husband’s evidence that he had been manager and director of a fishing company.  His father had the fishing licence and many local investors had contributed the funds to finance the operation.  He claimed that local chiefs wanted a share of the business and in particular that one of the chiefs, Ratu Mara, had intervened to stop the company from operating in order, presumably, to cause the company’s business to be transferred to him. 

12                  The husband said that towards the end of 2000 there had been an incident at the fishery wharf in Suva, which was controlled by the military, where Fijian natives had started punching the husband.  The army had not stopped the fight and when the husband had complained to the police, his complaint was not followed up.  There had also been an incident before that fairly shortly after the coup in 2000 where the Fishery officer at Lautoka, a military man, would not permit a truckload of fish to leave the wharf.  There had been a fight between the Fijians and the military who had been sent to release the fish for export.  Thereafter the husband had been warned of the danger of similar events happening. He had been threatened.  All of this occurred, he said, because ‘people’ were trying to get a share of the business and take control of it. 

13                  Ultimately, the husband and wife left Fiji for Australia.  Shortly thereafter the husband’s father had been forced to sell, at a substantial undervalue, his shares in the fishery company.  The family no longer had an interest in the business.

14                  The Tribunal, after setting out the claims, discussed certain country information before proceeding to detail its findings and reasons.  Particularly, the Tribunal pointed out that such difficulties as had occurred had really only affected the applicant herself on one occasion, that being when some men had come to her house.  On this occasion the wife had called to the neighbours.  Those who had come to the house then disappeared.  There was no suggestion that she was in any way threatened or harmed. 

15                  The Tribunal recorded that it was really the husband’s difficulties upon which the wife relied rather than her own. 

16                  The Tribunal noted that the various incidents to which the husband had referred, were brought about by indigenous Fijians seeking to take from the husband part of the business or its profit.  It was difficult, the Tribunal observed, to see how there could be continuing difficulties for the husband on return to Fiji as the family no longer owned or controlled the business.  Specifically, the Tribunal noted that it did not accept:

‘that the circumstances are such that particular people would now seek to identify and target the Applicant wherever he goes in Fiji or that they would be able to target and harm him with impunity.’

17                  After referring to the incident at Lautoka to which reference has earlier been made and an apparently related and similar incident some months later, the Tribunal noted that the husband had reported that incident to the police but that nothing had been done.  However, the Tribunal noted there was evidence, which it had already cited, ‘as to channels available to complain about misconduct by police.’  The Tribunal continued to say that in any event it was not persuaded that the difficulties which the Tribunal described arose for a Convention reason, rather than because of business circumstances, corruption and greed of others seeking to secure a share of the fishery business or to obtain the benefits of it.

18                  The Tribunal said:

‘The Tribunal has given weight to consistent reports from independent sources that the situation in Fiji has improved significantly since the May 2000 coup and its immediate aftermath.  The evidence indicates that notwithstanding an atmosphere of uncertainty and violence in mid 2000, the situation had been brought under control by the end of 2000 and that any ongoing incidents of violence or disorder reflects a general difficulty for the community stemming from policy ineffectiveness rather than a discriminatory approach to law enforcement or protection from crime. The Tribunal is satisfied that the situation in respect of violence directed against ethnic Fijians is very different now from what it might have been in May/June 2000.

The Tribunal has carefully considered the independent information cited concerning the present situation in Fiji and, in particular, whether the situation is such that (having regard both to the country information and the Applicant’s own particular circumstances), he would face a real chance of persecution for a Convention reason on return to Fiji now or in the reasonably foreseeable future.

Notwithstanding a breakdown of law and order during disturbances in May 2000 and immediately thereafter, the Tribunal is not satisfied that this is a continuing situation which represent a differential response amounting to persecution for a Convention reason.  The country information confirms that the law and order situation in Fiji has improved since 2000.’

19                  The Tribunal said it was not satisfied that Indo-Fijians were denied their basic rights or that persecution or mistreatment of them was permitted or condoned by the security authorities or the Fijian government.  It said that it was satisfied that Indo-Fijians did not face a real chance of persecution by the elected government of Fiji or other authorities.  Nor was the Tribunal satisfied that the wife had been or would be denied protection for a Convention reason.

20                  Under the heading of ‘Humanitarian Consideration’, the Tribunal said;

‘The Tribunal’s role is limited to determining whether the applicants satisfies [sic] the criteria for the grant of protection visas.  A consideration of their circumstances on other grounds is a matter solely within the Minister’s discretion.’

21                  Accordingly, the Tribunal said that it was not satisfied that the applicants were persons to whom Australia had protection obligations.  Particularly they did not satisfy the criterion set out in s 36(2) of the Act relevant to a protection visa.

The Applicants’ submissions.

22                  The solicitor for the applicants submitted that the Tribunal had made at least 12 jurisdictional errors, each of which brought about the result that there was no privative clause decision within the meaning of s 474(2) of the Act and accordingly that the Tribunal’s decision should be set aside: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, SDAV v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 129.  The submissions may be summarised as follows:

• The Tribunal denied to the applicants natural justice in that it based its decision upon material adverse to the applicants’ case, namely Country Information Report No 273/02 14 August 2002, yet it did not give the applicants the opportunity of dealing with that material by drawing their attention to it in the course of the hearing.

• The Tribunal denied to the applicants natural justice in that it based its decision upon material adverse to their case, namely the Sydney Morning Herald, 15 February 2003, yet it did not give the applicants the opportunity of dealing with that material by drawing their attention to it in the course of the hearing.

• The Tribunal denied to the applicants natural justice in that it based its decision upon material adverse to their case, namely the US Department of State ‘Country Reports on Human Rights Practices in 2001’, yet it did not give the applicants the opportunity of dealing with that material by drawing their attention to it in the course of the hearing.

• The Tribunal identified a wrong issue when it asked the husband ‘[d]id the harm happen because of your business?’ rather than the correct issues, namely whether he faced the harm alleged because he was an Indian.

• The Tribunal denied to the applicants natural justice in that it denied the applicants the opportunity of explaining why it was that the applicants believed the harm which they claimed to fear arose because they were Indian.  An alternative way this submission was put was that the Tribunal constructively failed to exercise its jurisdiction by failing to consider the case put by the applicants in statements before the Tribunal that they had a well-founded fear of persecution on grounds of their ethnicity.

• The Tribunal breached either or both of subsections (1) and (2) of s 420 in not giving the applicants a bona fide opportunity to elaborate on their claim that their fear of persecution depended upon their ethnicity and thus did not conduct a hearing that was fair or afforded to the applicants substantial justice.

• The Tribunal constructively failed to exercise its jurisdiction by failing to consider all the claims and issues put forward by the applicants, namely that they had a well-founded fear of persecution on grounds of race.

• The Tribunal failed to take into account a relevant consideration, namely that the transfer of business or share in the business by the father of the husband took place under threat.  This failure contributed to the Tribunal giving a false picture of stability in Fiji.

• The Tribunal denied to the husband the opportunity to speak about issues related to his safety and cut him off while he was giving evidence thus failing to afford to him and through him, presumably his wife, procedural fairness.

• The Tribunal applied the wrong test or alternatively misinformed the applicants of the correct test, namely that the relevant harm was harm to the husband as a person, when the correct test was harm to him as an Indian.

• The Tribunal’s reasoning was irrational and illogical so that it did not perform its function of reviewing the decision of the Respondent Minister, or at all.

• The Tribunal failed to give, as it was required by the Act to do, proper and adequate reasons and thus failed to exercise its jurisdiction.

Discussion of the Submissions - General

23                  It is convenient to group some of these submissions because they raise the same legal issues and some because they overlap.  Generally, however, it can be said that but for the last two, or perhaps three, submissions each would, if accepted involve jurisdictional error.  As the law presently stands, irrationality or illogicality is not generally speaking a matter of jurisdictional error but usually is but a disguise for an argument which goes to the merits of the decision: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2003 [2003] HCA 30.  However, notwithstanding the decision of the High Court cited it may be possible to imagine an extreme case where the reasons are so irrational or illogical that the Tribunal has failed to conduct a review.  With all respect to the solicitor for the applicants the present is far from such a case. 

24                  The gravamen of the submission on illogicallity is what is said to be a misstatement in that the Tribunal noted in its reasons that the applicants had not claimed that they (ie indigenous Fijians) had directly threatened or sought to harm the wife, when the wife had claimed that at one stage the natives had tried to force open the door of the home when she was alone but they had been scared away, as a result of which she had not been raped, murdered or suffered injury.  The wife’s claim is said to be the claim that she was threatened.  Given that the Tribunal had repeated that claim in its reasons it is hard to know exactly what the submission is supposed to mean.  But what is clear is that it does not constitute either irrationality or illogicallity.  Even more importantly, the submission does not involve jurisdictional error.

25                  The final submission that failure to give reasons involves jurisdictional error must necessarily fail.  The submission is that the Tribunal made certain findings of fact, but did not give reasons for the findings.  That failure, if there was one, is likewise not a jurisdictional error.  If it were, then the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 would have been wrongly decided, since that case held that the failure to make findings on material questions of fact did not itself involve an error of law.  It can be said that while every jurisdictional error will involve legal error (and that includes failure to afford procedural fairness) not every legal error will involve jurisdictional error.  There being no error of law in Yusuf it follows a fortiori that there could not have been jurisdictional error in that case.

26                  In any event the matters raised in this submission overlap with matters raised in other submissions, so that it is not necessary to deal specifically with the submission that the Tribunal had failed to give reasons for making factual findings.

Submissions one to three.

27                  Each of these submissions is grounded upon an alleged failure on the part of the Tribunal to afford the applicants natural justice by failing to draw the applicants’ attention to material which was adverse to the applicants’ case, but upon which the Tribunal relied in its reasons.

28                  It can be said that ordinarily, at least, an applicant will be denied procedural fairness where the Tribunal has relied on country information in the course of dismissing the applicant’s claims without advising the applicant that it intends to rely on that material and without offering the applicant an opportunity to comment upon it: WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188.  In VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [27], in a passage cited in WAEJ, the Full Court said:

‘It is well established that the rules of natural justice require that a decision-maker bring to an applicant’s attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it.’

29                  Reference may, especially, be made to the seminal decision of Mason J in Kioa v West (1985) 159 CLR 550 at 587.  The requirement that an adverse matter be drawn to the attention of an applicant is but an application of the broader rule that fairness requires that a person be given an opportunity to be heard and it is for that reason that the law attaches importance to the need for adverse matters to be brought to the person’s attention so that he or she has the opportunity to deal with them.  There are some qualifications that must, however, be made to the general statement of principle.  What procedural fairness requires is a matter which must be determined by reference to the particular circumstances of a case.  Underlying the so-called natural justice rule is the notion of ‘fairness’ (see per Mason J in Kiao v West at 582 and Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699).  It will be the particular circumstances which will make it clear whether fairness has or has not been afforded to an applicant.  So, there would be no reason for a Tribunal to draw to a person’s attention material not adverse to his or her case.  As was said by the Full Court in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [46]:

Generally where it is clear that factual matters are in dispute it will not be necessary for the decision maker to indicate to the person affected that the decision maker is likely to reach an adverse conclusion.’

This is, after all, only a matter of common sense as are the other matters referred to in the next paragraph.

30                  Nor would there be a reason for a Tribunal to draw to a person’s attention matters of which the person would be clearly aware.  Nor will there be a need for material to be drawn to a person’s attention where the material is really not relied upon by the Tribunal in reaching its decision.  This was pithily dealt with in the judgment of Mason J in Kioa v West where his Honour stated the rule in terms that the need to draw the applicant’s attention to material applies and it may be said, only applies, where the material concerns ‘the critical issue or factor’.

31                  The first of the materials not brought to the applicants’ attention was a passage in Country Information Report No 273/02 dealing with complaints against the police.  In its reasons the Tribunal noted that there was evidence which it had already cited (presumably Report No 273/02) ‘as to channels available to complain about misconduct by police.’  The Tribunal made this comment in connection with the claim that the male applicant had been assaulted in Suva and had reported the incident to the police but they had not acted.

32                  However, it is clear that this is not the real reason for the Tribunal’s conclusion.  The real reason for the Tribunal’s conclusion that the wife did not fall within the definition of ‘refugee’, having regard to matters which had happened to the husband, was that those things which had happened to him did not constitute persecution for a reason to be found in the Convention definition such as ‘race’.  The real reason the Tribunal rejected the applicant’s claim, so far as it related to what had happened to the husband, was that the harm he suffered was, so the Tribunal found, associated with the fishery business rather than his ethnicity.  Hence once the business had passed from the family he was no longer at risk.  That the matter of police response to complaints was not a critical issue or factor in the Tribunal’s decision is made clear by the Tribunal in the paragraph immediate following the passage referring to channels of complaint against the police, where the Tribunal says:

‘In any event, the Tribunal is not persuaded that the difficulties described occurred essentially or significantly for a Convention reason rather than simply because of the business circumstances and the corruption and greed of others seeking to secure a share of the business or to obtain benefits from the business.’

33                  It is also the case that in the course of the hearing the Tribunal, while not referring to the sentence in the Country Information Report, did comment ‘that there were mechanisms for example for lodging complaints against the police.’  In other words, even if the matter were significant, it was referred to by the Tribunal in the course of the hearing and neither applicant chose to comment upon it.

34                  The second document which it was said procedural fairness required should be made available to the applicants was a very short paragraph in a column from the Sydney Morning Herald of 15 February 2003.  In that paragraph it is noted that a Fijian tribal chief and a cabinet minister (both are named) had been charged with involvement in an army mutiny in November 2000.  In its reasons discussing events in Fiji after the coup of May 2000 the Tribunal noted that:

‘Speight has been tried, convicted and imprisoned and as recently as a few days ago a Fijian Government Minister was arrested and charged with involvement in a subsequent army mutiny in November 2000….  There appears to be no credible issue of impunity.’

35                  Apparently in the sentence cited the Tribunal was intending to convey the view that even those high up in Fiji were punished if they disobeyed the law.  They would not get away with it.

36                  It must be said that the particular quote has hardly any real relevance to the Tribunal’s reasons.  It does not bear on the question whether such persecution as the applicants may have suffered in the past, such that it might be projected to happen in the future should the applicants be returned to Fiji, arose because of matters of race.  There is also in my mind some question whether it is necessary for the Tribunal to refer to matters of which there would be common knowledge amongst people in Fiji.  An example is the question of Mr Speight’s punishment.  That is so notorious that it might be said that the Court should take judicial notice of it.  That may not be the case where the written material concerns punishment meted out to cabinet ministers as a result of participation in an army coup, although it would be hard to believe that such a matter would be other than notorious in Fiji.

37                  The third report not referred to by the Tribunal in the course of the proceeding was a US State Department Country Report. 

38                  Again the material is historical.  In its reasons the Tribunal says:

‘The country information confirms that the law and order situation in Fiji has improved since 2000.  The US Department of State… reports… that the harassment of Indo-Fijians and destruction of their property during 2000 did not continue during 2001.  The independent country information indicates that the present elected Fijian Government is fully committed to protecting all citizens regardless of ethnicity and that the security forces have warned against violence and are in control of the country and are committed to protecting the population.’

39                  The Report is a lengthy report which notes that tensions between ethnic Fijians and Indo-Fijians had been a long-standing problem.  The history of the coup of 2000 is set out and it can, perhaps be said that the cautious tone of the report is that there has been some improvement since the coup.

40                  The material does not go to the real ground of the Tribunal’s decision, which is that the reasons which existed for persecution of the husband in the past were no longer there because they were associated, not with matters of race, but with matters of business and greed. 

41                  It may also be said that the Tribunal in the course of the hearing did refer to the coup of 2000 and that there had been changes in the meantime.  Perhaps, if the matter had really been critical to the Tribunal’s finding it could be argued that there was a need to refer the applicants to the critical passages in the report if there really was one.  On the other hand I have some doubt whether it would be necessary to draw to the applicants’ attention the fact that country information showed that there had been a coup (that at least is a matter that is notorious) and that there had thereafter been an improvement for Indo-Fijians.  However, that is not a matter I have to decide in this case.

42                  It might be remarked here that an officer of the Department of Immigration and Multicultural Affairs wrote to the wife shortly prior to the making of a decision by a delegate refusing her application setting out extracts from country information sources and indicating that the matter in those extracts would be taken into account by a delegate of the Minister.  The extracts contained information to the same effect as that in the American material, namely that since the coup the situation had improved and was stable, although there were isolated incidents of harassment.  It can be said, therefore, that the applicants were on notice of the general existence of this kind of material, even if they were not given notice of the specific documents ultimately relied upon and further that they were aware that the information was adverse to them and that it would be taken into account unless they addressed the issues with which the documents were concerned.  They did not at any time seek to do so before the Tribunal.

Submission 4 – A wrong issue?

43                  It is submitted that the Tribunal concentrated upon a wrong issue, that being whether the harm suffered in the past by the husband was a result of his business, when the real issue was whether the harm arose to him because he was Indo-Fijian.

44                  The submission is, with respect, nonsense.  On the assumption that the claim being considered was whether the husband had a well-founded fear of persecution on account of his race, or whether the wife’s fear of harm happening to her husband and herself arose because of race, the issue for determination is whether any so-called fear of persecution arose ‘by reason of’ race.  The questioning as to whether the fear of harm arose because of the husband’s business activity is but the other side of the issue of whether it arose because of race.  If it did arise out of the business activity, then it was not a Convention ground and the claim must fail, as it did.  It would also be unlikely once the business had ceased to be under the control of the husband that the harm would be repeated.  There is hardly any error, jurisdictional or otherwise, to be found in a question whether the harm arose out of the husband’s business activities.

45                  That the Tribunal clearly understood what the real issue was is evident from the following extract taken from the transcript referred to in response to Submission 5:

‘What I have to consider really though it is clear from what you said that there was a commercial dispute involving quite possibly a corrupt interest by Ratu Mara, the question is whether that amounts to persecution or is for conventional (sic) reason and that’s one of the issues I will have to consider and look at the facts.’

46                  That the Tribunal asked the correct question is also clear from yet another passage towards the end of the hearing when the Tribunal member said to the husband:

‘… but I am just putting to you because it is an obvious consideration I have to think about as to whether problems of this sort with corrupt officials and so on, whether that amounts to persecution of you and whether it’s persecution on a convention reason, or whether it is simply people pursuing corrupt practices for the motivation essentially of making money for themselves, whether it’s out of you, or whether its out of their own people who as you say have been disadvantaged by what they have done.  And the motivation seems to be very much about looking after themselves regardless of anybody else.’

47                  The husband acquiesced in it being ‘looking after themselves.’

Submission 5 – failure to permit the applicants to explain their case.

48                  Clearly if the Tribunal did stop the applicants making out their case that would be a failure to give procedural fairness of the grossest kind warranting the setting aside of the Tribunal’s decision. 

49                  A transcription of the tape recorded interview was tendered and, with a minor exception, it was agreed that it was accurate, notwithstanding that the transcription may not have been properly proved.  At the commencement of the proceedings the Tribunal member explained that the hearing would be conducted by the member asking a series of questions.  He noted that there would be an opportunity at the end of the hearing for the applicants to make additional comments.  The Tribunal member then explained the general terms of the definition of ‘refugee’ in Article 1(A)(2) of the Convention.  The husband sought explanation of the meaning of ‘persecution’.  The only relevance of pointing this out is that the husband was able to speak at the hearing if he wished to.  The Tribunal member also said that the hearing was only intended to be supplementary to the written material which had been lodged with it.  The applicants had lodged submissions.  Further the wife’s statement attached to her application for a protection visa made it clear that her case was that if she was returned to Fiji she would be subjected to persecution, even murdered, or at any rate harmed and mistreated ‘by police, military and the natives on racial grounds because of my race.’

50                  There followed a series of the questions which the Tribunal had foreshadowed.   First the wife was asked why she felt she would be unable to return to Fiji.  At the end of the questioning which followed the Tribunal asked the wife whether there was anything else relevant she would like to tell.  She answered in the negative.  The husband was then questioned and asked to tell the Tribunal member any personal experiences or circumstances which he had which he thought made him unable to return to Fiji.  The husband then asked if he could give the reason why he had come to Australia from Fiji.  After the Tribunal had assented the husband then commenced to ‘tell’ his ‘story’ and give details of what he had experienced.  He spoke of the fish business and of what had happened with it, and the problems that had arisen.  Among those incidents was a confrontation with ‘Fijian people’ and the military at Muaniwalu Wharf when he had had to jump into the water to save his life.  He made it clear, in answer to the Tribunal’s question, that it was a group of Fijian people who had attacked him.  That was the incident he had reported to the police to no avail.  The husband noted that he had been accused by an officer ‘because I am an Indian’. 

51                  The Tribunal more than once commented that the issue was whether the harm the husband feared came about because of a commercial dispute or whether it was persecution for a Convention reason.  The member said that he would have to go away and think about that question.  After obtaining an assent from the husband to the fact that the problems in Fiji all arose ‘in connection to this business’, that is to say, the fishery business the Tribunal member asked whether there was anything he had not mentioned that was relevant to the claim.

52                  After many more questions the Tribunal member told the applicants that he had come to the end of the questions he wished to discuss.  He then said:

‘…so if there is anything at all that either of you would like to say while you have the opportunity before we conclude this hearing I’d be happy to listen to you.’

53                  The husband then continued talking for some time.

54                  It is clear from the transcript that at no time was either applicant cut off from saying anything.  At no time was either applicant denied the opportunity to explain why it was that that applicant believed the harm he or she feared arose because he or she was Indian.  To say, as the submission says that the Tribunal never directly put the question whether the harm arose because the applicants were Indian does not disclose any error.

55                  Because it was a matter emphasised in the course of oral submissions it is convenient here to deal with a related matter.  The Tribunal asked questions about the ultimate sale of the fishery business by the husband’s father.  In his findings the learned member notes that the father had ‘sold his share in the business’ after the husband had left Fiji.  The solicitor for the applicant emphasised that this was a forced sale, one that the father had been coerced into making and that the coercive nature of the sale was tied up with the discrimination against the applicants because of their race.  However, the failure to mention in its reasons that the sale by the husband’s father of the latter’s interest in the fishing business was a forced sale is not a jurisdictional error.  On its own the fact of the sale did not do much, if anything, to advance the case of the applicants.  It did have the problem that it was able to be seen by the Tribunal as actually detracting from the case and was so seen.  The significance of the sale, as seen by the Tribunal, was that the applicants no longer had any interest in the fishery business so that such persecution as had happened in the past to the husband came about as a result of others coveting the fishery business would no longer be repeated.

Submissions 6 - s 420.

56                  I have read the transcript to which reference has been made.  There is nothing at all in it which leads to the conclusion that the review process was not fair or that the Tribunal had failed to afford substantial justice to the applicants.  There is no substance in the submission.

Submission 7 - Failure to consider the claims advanced.

57                  It may be accepted that where the Tribunal simply fails to consider the case advanced by an applicant there is a constructive or, in a particular case an actual, failure to exercise jurisdiction and the Tribunal’s decision would be set aside.

58                  It is submitted that the whole of the applicants’ claims were dismissed in a single sentence so that the written claims were dismissed, presumably, without any or any real consideration.  The relevant sentence in the Tribunal’s reasons was as follows:

‘… There may well have been other aspects to the difficulties with the business, or other reasons for difficulties with fisheries officers and/or local chiefs (apparently including non-compliance with license conditions concerning affirmative action for native Fijians), but these did not emerge in the Applicant’s evidence before the Tribunal.’

59                  With respect to what is thereafter said on behalf of the applicants in a written submission this does not at all signify that the race issue did not emerge in the hearing.  Nor does it signify that the Tribunal failed to give any consideration to the question whether any fear of persecution the applicants might have arose because of race.  The problem for the applicants is that the Tribunal formed the view, and on the oral evidence which the husband gave, that the husband’s problems were commercial and did not arise on grounds of race.  That was a conclusion open to the Tribunal on the evidence.  The Tribunal’s conclusions are stated in the passage set out in paragraph [32] above.

Submission 8 – Failure to take into account a relevant consideration.

60                  The submission made is that the Tribunal failed to take into account as a relevant consideration, namely, the fact that the husband’s father was forced to sell the business or his share in it and that this was not a free and voluntary sale.

61                  Reference has already been made to the significance of the sale as the Tribunal saw it.  In that context the fact that the sale was forced was not a directly relevant matter.  What the Tribunal saw as relevant was that the business no longer was owned by the applicants and their family and in the result there was no longer any reason for the husband and through him, the wife, to fear persecution.  In my view there was no failure on the part of the Tribunal to take into account the forced sale by the father.

Submission 9 – Misapplication of the test or misinformation about the test.

62                  In the course of the proceedings the Tribunal said:

‘The question is whether that is a conventional motivation in relation to meet yourself.  That is to say, they are not saying well there’s Mr (husband’s name) I want to harm him because I don’t like Mr (husband’s name), they are saying this is something I want to get for myself, and if Mr (husband’s name) gets in the way then we are going to deal with him.  It’s a question of motivation and I have to go away and think about that and see how that hangs together…

63                  This passage, which can’t be read in isolation, was part of the musings of the Tribunal member as to the issue he had to resolve, namely whether the harm the husband feared arose for a Convention reason, that is to say, on account of race, or whether it was business motivated.  Reading the transcript as a whole there can be no case advanced either that the Tribunal failed to apply the correct test as to who was a refugee, or misinformed the applicants as to what the test he was required to apply really was.  No jurisdictional error is demonstrated.

Conclusion.

64                  The applicants have not succeeded in showing any jurisdictional error on the part of the Tribunal.  As each had admitted in the other’s application that he or she had no claim to be a refugee it is perhaps not surprising that the Tribunal reached the same result. 

65                  The application must be dismissed with costs.

Associate:

Dated:              21 October 2003