FEDERAL COURT OF AUSTRALIA

B42 of 2003 v Refugee Review Tribunal [2004] FCA 1013

MIGRATION – protection visa – witness to murder in Fiji – whether alleged failure of Refugee Review Tribunal to deliver or explain independent materials constituted denial of natural justice – substance of material brought to applicant’s attention – whether fear of harm was for reasons based on any Convention ground – no practical injustice

Migration Act 1958 (Cth) s 474A

High Court Rules O 16 r 12

Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002)

190 ALR 601  referred to

Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 applied

B42 OF 2003 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No Q 145 of 2003

SPENDER J

BRISBANE

9 AUGUST 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs, to be taxed if not agreed.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     In this application the applicant seeks prerogative relief against the Refugee Review Tribunal (“the RRT”) and the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”).  The matter was remitted to the Federal Court from the High Court as a consequence of orders of Gaudron J on 25 November 2002; and McHugh J on 23 May 2003 and 16 June 2003.

2                     The applicant seeks:

‘1.   A writ of mandamus be issued out of this Court directed to the first respondent requiring the first respondent to hear and determine according to law the applicant’s application to review the decision of the delegate of the second respondent made on 1 April 1999 to refuse the applicant’s application for a protection visa.

2.      A writ of certiorari be issued out of this Court directed to the first respondent to quash the first respondent’s decision (the “Decision”) of 25 February 2000 affirming the decision of the delegate of the second respondent.

3.      A writ of prohibition be issued out of this Court directed to the second respondent from acting on the Decision.’

3                     The applicant is a national of Fiji.  He arrived in Australia on 17 March 1998.  He lodged an application for a protection visa (866) on 12 March 1999.  That application is entitled “Application for an applicant who wishes to submit their own claims to be a refugee”.  On 1 April 1999 the delegate of the Minister refused the application.  On 22 April 1999 the applicant sought review by the RRT of that decision.  In his application for review he advanced, as the reasons why the decision by the delegate should be reviewed:

‘THE DEPARTMENT failed to consider about my Problem on the grounds that when I go back to my Country I will be persecuted by the Criminals, the grounds of my Defence is that I will be Murdered, or Killed by these thugs, I have got a family, my wife and children, I care about them, if I go back they will kill me and it is a possibility that if I am Murdered my family will be Murdered also the Department made ERROR in Law while Making Decision. In fact I was a witness to a Murder and its my life in Danger on the grounds that I am on the Run for the Safety of my Life.

THE REASONS I am Seeking Refugee is that I can be Safe in a foreign country and my wife and children stay safe in Fiji in a Housing with my In-Laws.’   

4                     On 25 February 2000, the RRT affirmed the decision of the delegate of the Minister to refuse to grant a protection visa.  

5                     In answer to the question “Why did you leave [Fiji]?” in his application for a protection visa, he said:

‘I was with my cousin in a service station in October 1997 at midnight, when all of a sudden 4 Fijian men attacked the service station to steal and do robbery.  My cousin Saukat Ali started yelling for help.  They started beating him, I went for his aid but the Fijians chased me with a cane knife, I started yelling, and there was a watchman nearby, he came for our aid, the Fijians grabed a iron rod from the station and hit the watchman on the head, the watchman fell to the ground, and died instantly, then they grabed  my cousin and put the cane knife on his neck.  When I saw this I picked up a telephone and started ringing for police, when they saw that I picked a phone, they chased me with the knife.  I ran as fast as I could and hide my self in the sugar cane fields.

Since then I was a witness to the murder – and I was a marked man, they followed me every where, and told me that if I report the matter to the police, they will kill me, finally they were caught, and put in prison for six months each – after they came out of the prison, they came straight at my house, I was not at home, they attacked my wife and kids, and took off with $100-00 and house hold items.  They told my wife that they will kill me when ever they will find me, and also told my wife not to report the matter to the police.’

In answer to the question “What do you fear may happen to you if you go back to [Fiji?]”, he said:

‘If I go back to that country, they will kill me because I was the one who gave the witness, to the police, I have contacted my relative and friends in Fiji and they told me that they are still looking for me.  Since then my wife and children have fled our place of residence and they are living with my father in law.  They know that I have gone to over seas,.  They are waiting the day I will go back and they will attack me.  All these information has been supplied to me by my friends because they know who are my friends and they keep asking them when I am coming back, also they said to my friends that as soon as they will find out that I am back in Fiji they will find me and kill me.’

In answer to the question “Who do you think may harm/mistreat you if you go back?”, he said:

‘The Fijians who attacked the service station and killed the watchman will kill me and my family if I go back to Fiji.  If I am killed, I don’t know what will happen to my wife and kids.’

In answer to the question “Why do you think they will harm/mistreat you if you go back?”, he said:

‘Because I was the witness to the murder and through me they were caught and punished, and just because me who saw everything they want to take revenge on me.’

In answer to the question “Do you think the authorities of that country can and will protect you if you go back?  If not, why not?”, he said:

‘No.  The authorities will not be able to protect me because the law and order in Fiji has broken down.  There is a very high rate of crime in Fiji and the authorities won’t have the power and money to protect me.  Why I am say this is because I have been attacked in past by the same group and the police did nothing to protect me.  Most of the police are Fijians and they favour their Fijian friends and do nothing if you report the matter, and if in case the matter goes to court, it doesn’t gets justice because of the corruption.’

6                     The RRT, in its reasons for affirming the decision of the delegate to refuse a protection visa, said at p 4:

‘The Tribunal has before it the Department’s file, which includes the applicant’s protection visa application.  The Tribunal also has before it written submissions in support of the application for review.  The applicant also gave oral evidence to the Tribunal on Thursday, 3 February 2000.’

7                     There were no “written submissions” provided by the applicant to the RRT as such.  I take the reference to the written submissions in the RRT’s reasons to be a reference to the written material in the applicant’s application for a protection visa and in his application for review by the RRT, which written material I have extensively set out above. 

8                     The applicant appeared for himself before the RRT, with the aid of an interpreter. 

9                     The RRT said at pp 6-7 of its reasons:

‘The Tribunal put to the applicant the following country information, concerning the Constitution of Fiji, the office of Prime Minister, law and order and the police force.

Fiji has a new Constitution which came into force on 27 July  1998.  The Age, 28 July 1998, New Constitution for Fiji states: “A new Constitution abolishing discrimination against non-indigenous Fijians came into force today.”  The Constitution reduces the ethnically based factors that abridge the rights of citizens to change their government.  Under its provisions the Prime Minister and President can be of any race.  (US Department of State, Released by the Bureau of Democracy, Human Rights and Labor, 30 January 1998: Fiji Report on Human Rights Practices for 1997).  The Report also states that the Constitution includes a strengthened Bill of Rights and a compact designed to protect the rights of all citizens.

There is a country information that does not support the view of the applicant that the police are Fijians and favour Fijians, but supports his view on the high crime rate, as follows.  All citizens of whatever ethnic background are able to obtain police protection and the police do not refuse to take action against indigenous Fijians as alleged by the applicant.  It is estimated that 80% of the prison population is Fijian.  The level of petty crime in Fiji is high for the size of the population, robbery, theft and assault being the most common crimes: (DFAT CX8936 Number SU448 2 June 1995 Fiji: Law and Order).

The Tribunal also put to the applicant the information on the standing of the police force.  There is balanced representation of both major ethnic communities in the police force and most promotions are based on merit not ethnicity.  The Fiji police force is a professional and well-respected organisation.  The police force is of a high standard and public confidence in the police force is at its highest for many years.  Such confidence is attributed to the efforts of the current Police Commissioner (Isikia Savua) and his immediate predecessor (Philip Arnfield) to restore the neutrality and professionalism of the police force following the 1987 coups: (DFAT CX8936 Number SU448, 2 June 1995, Fiji: Law and Order).  Further, the Fiji Report on Human Rights Practices for 1997 (above) state that  the Ombudsman’s office works with the Police Department’s internal affairs unit in the investigation of complaints about police conduct.’  

10                  The RRT, under the heading “Findings and Reasons”, said at p 7:

‘The applicant fears to return to Fiji because he witnessed an incident in which a man was killed.

The applicant gave inconsistent evidence concerning the alleged incident, in particular concerning the date of the incident, the number of the alleged assailants and the prison sentences.  …’ 

The RRT made reference to other aspects of the applicant’s evidence, and concluded at pp 7-8 of its reasons:

‘…the Tribunal does not accept the applicant’s claims.

Even if the Tribunal were to accept the applicant’s claims, the Tribunal finds that the harm feared is not for reasons of any Convention ground.  The applicant’s alleged situation concerns matters arising from a criminal matter to which the laws of Fiji apply.  On the evidence before the Tribunal, the alleged criminal assailants are not targeting him because of any Convention based reason.

The Tribunal concludes that the applicant’s difficulties are in respect of his individual circumstances, namely, as a witness to criminal incidents.  As Tamberlin J stated in Maningat v MIMA (unreported, Federal Court, Tamberlin J, 30 April 1998), fear of reprisal or being harmed or silenced because a person might be able to give evidence against the perpetrators of a violent or criminal act without more, is not a fear of persecution for a convention based reason.’  

The RRT said at p 8 of its reasons:

‘Viewed in its entirety, and based on the evidence available to the Tribunal, and considering all the circumstances in this case, including cumulatively, the Tribunal decided that there is not a real chance that the applicant would attract the prospect of persecution upon his return to Fiji at the present time or in the foreseeable future for any Convention reason or reasons.  Therefore he does not have a well-founded Convention related fear of persecution.’

11                  The present applicant joined a representative action, within the meaning of O 16 r 12 of the High Court Rules, under the name of Herijanto, Muin and Lie.  The common claim in that action was that the first respondent had access to materials not available to the applicant.  Herijanto subsequently withdrew, and the matter proceeded under the names of Muin and Lie under file numbers S 36 of 1999 and S 89 of 1999 respectively. 

12                  In these proceedings, a Justice of the High Court reserved a number of questions for consideration of the Full Bench of the High Court, which involved whether there was a denial of procedural fairness associated with the material being available to the first respondent and not the applicants.  On 8 August 2002 the High Court found in favour of Muin and Lie for denial of procedural fairness: Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601.

13                  Subsequently, orders were made by the High Court that all applicants in the representative action be required to file an application seeking an order nisi in relation to the applicable decision of the RRT in relation to that individual.  On 25 November 2002, Gaudron J granted leave to persons (which included the applicant) to file an application seeking an order nisi on or before 1 June 2003.  McHugh J on 23 May 2003 ordered that the period of time within which Gaudron J permitted the filing of an application in a case such as the applicant be extended to 20 June 2003.  The applicant filed the present application on 17 June 2003 in the High Court, and the application was remitted to the Federal Court.

14                  In support of his application for prerogative relief, it is contended on behalf of the applicant that he was denied natural justice:

‘(a)   The first respondent had access to certain materials referred to in the decision that were not delivered to nor explained to the applicant prior to the decision being made.

Particulars

(i)            New Constitution for Fiji – Paragraph 4 page 6 – Used to refute the applicant’s claim that his wife and children were attacked and that he was threatened to be killed.

(ii)          DFAT CX 8936 Number U448 2 June 1995 Fiji: Law and Order  - Paragraph 5 page 6 – Authority cited to refute his claim that the authorities in Fiji will not protect him.  (US Department of State, Human Rights Report on Fiji 1996) – Used to refute the applicant’s claim that the National Indian Youth Front (NIYF) existed.

(iii)        Fiji Reports on Human Rights and Practices for 1997 – Paragraph 1 page 7 – Authority cited – Used to refute the applicant’s claim that the police does not listen to the complaints made by persons of Indian origin.

(b)     The Delegate of the second respondent failed to properly take into account the submissions made by the applicant.’  

15                  It was contended on behalf the applicant that his literacy level was very low and he was unrepresented at the hearing of the RRT, but nonetheless would have made efforts to provide evidence, material or submissions that would have caused the RRT to reach a different view, including but not limited to:

(a)     Arranging for further written submissions to be made to the Tribunal;

(b)     Seeking to appear at the oral hearing with a representative or agent to make submissions to the Tribunal with respect to the contents of the Part B documents;

(c)     Seeking to place additional evidence before the Tribunal; and

(d)     Undertaking research and submitting additional information, including decisions of the Tribunal (differently constituted) which had upheld applications for refugee status made by other ethnic Indian nationals of Fiji prior to the decision in the applicant’s case.

16                  In an affidavit originally filed on 17 June 2003 in the High Court, the applicant said:

‘6.   In the Tribunal’s Decision there were certain materials referred to that were not delivered to me nor explained to me prior to the decision being made.  These materials were:

       (a)   Fiji Constitution;

(b)   US Department of State Report, Released by the Bureau of Democracy, Human Rights and Labor, 30 January 1998: Fiji Report on Human Rights Practice for 1997); and

(c)      DFAT CX8936 Number SU448 2 June 1995 Fiji: Law and Order.

…

8.    My grounds for complaint are that I have been denied procedural fairness in that the Tribunal had access to materials to which I was neither given access nor an opportunity to address.’

17                  I reject the contention that the applicant was denied procedural fairness because he was not given an opportunity to respond to material said to be behind the RRT’s decision.

18                  On 2 February 2004, the solicitors for the respondent by affidavit provided to the Court a transcript of the audio-taped proceedings before the RRT.  That transcript reveals that the applicant told the RRT:

‘I ran from Fiji because my life was in great danger.  There was fighting going on at the service station.  I had gone to meet my cousin. … A group of Kavites came, they are Fijian people. … They started beating up my cousin and a watchman and the watchman died. … I got scared and I ran away from them.  Because I seen the boy die so they were looking for me.  They went to my home and they beat my wife. … Two weeks after the incident.  I told my mom that I am passing through this difficulty, then I came here.  I left my wife at my in-laws.  Those people were jailed but now they have been released.  They have gone back to my place twice.  They feel that I reported the murder to the police, but I haven’t done that.  I was scared as it is. …’

19                  He was asked, ‘Did you report the fact that they tried to kill you to the police?’, to which he replied, ‘No, I didn’t report it because I was very afraid of them.’  

20                  At the conclusion of the hearing the RRT said to the applicant:

‘… I want to put to you some independent information:

The Constitution in Fiji has changed so the prime minister can be of any race.  And the Constitution has a Bill of Rights to protect all citizens of whatever ethnic background.

And as well, the law and order situation in Fiji is much better than what you have been telling us.  There is a lot of petty crime according to DFAT on law and order but also it says that the police force is of a high standard, public confidence in the police force is at the highest for years, and also that there is an Ombudsman’s Office there now that you can complain to if the police are not acting towards you in a professional manner.  So, I am really puzzled as to why you or your wife never spoke to the police about your problems.’

The applicant was asked ‘Would you like to comment on that information?’, to which he said, ‘When I saw them killing a person so that’s the reason I was really scared of them.  The RRT replied, ‘So you were scared.  Okay.  Well, thank you very much. …’

21                  In my view, that evidence shows that the substance of the material about which the applicant complains was drawn to his attention by the RRT, and he was given the opportunity to respond to it. 

22                  Each of the country reports of which he complains was in general terms, and was not directed to the applicant’s specific circumstances.  Notwithstanding the length of time since the applicant has complained of an inability to respond to this material, he has made no attempt to set out what response he might have made to that material had he been given the opportunity, and how that might have altered the decision of the RRT.  Section 424A of the Migration Act 1958 (Cth) (“the Act”) does not have application to independent country information where the information was not ‘specifically about the applicant or another person.’  It therefore has no application in this case. 

23                  I also accept that the material in the matters of complaint was not an ‘important plank in the RRT’s reasons’ using the phrase adopted by Ryan, Heerey and Allsop JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 at par 17.  The RRT found that the applicant did not fear harm for reasons based on any Convention ground.  His concern related to a criminal matter to which the laws of Fiji applied, and there was nothing in the material before the RRT to suggest that any person or persons in Fiji were targeting him for any Convention reason. 

24                  It follows, in my view, that even if, contrary to my conclusion there had been no breach of natural justice in respect of a failure to give to the applicant an opportunity to respond to the specified reports, that breach had no practical significance to the outcome of the proceedings before the RRT.  As a matter of practical reality, there has been no injustice. 

25                  Finally, while it is not in the application for prerogative relief, it was contended for the applicant in his Statement of Contentions of Relevant Facts and Law that the Minister’s delegate failed properly to take into account the submissions made by the applicant.  That allegation was not further particularised.  The position is that the matter was considered afresh by the RRT, and in detail.  It follows that any failure on the part of the delegate of the Minister to take into account submissions (should that in fact have occurred), is irrelevant to the question of whether prerogative relief should issue.

26                  For the above reasons the application is dismissed with costs.

Associate:

Dated:              9 August 2004