FEDERAL COURT OF AUSTRALIA

SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Order 39.32 of the Federal Court Rules.

REASONS FOR JUDGMENT

1    The appellants are members of a family who claim to fear persecution in Fiji for reasons of race (or nationality) and imputed political opinion. The first appellant is the wife of the second and the mother of the third and fourth appellants. The marriage of the first and second appellants is a mixed-race marriage. She is an indigenous Fijian. Her husband is of Indian ethnicity and Islamic faith.

2    On 5 March 2010 all four members of the family applied to the first respondent (“the Minister”) for protection visas.

3    In their applications the appellants claimed that they were repeatedly threatened, harassed and taunted, their house vandalised, and their pets physically abused. They attributed this conduct in part to the ethnicity of the husband and children (including her husband’s religion), in part to the fact that the first appellant had worked for an Indian member of parliament, and in part to the circumstances of the first appellant’s sister, who had been a magistrate, sacked by the government of Frank Bainimarama after the 2006 coup that saw the abrogation of the Fijian constitution and the removal of the government of Laisenia Qarase.

4    Two sets of criteria for a protection visa are set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”). One (described in paragraph (a) of the subsection) requires proof that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia owes protection obligations under the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the 1967 Refugees Protocol (collectively, “the Convention”). Australia’s obligations under the Convention are owed to refugees. Article 1A(2) relevantly defines a refugee as a person who

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country …

5    The other set of criteria (described in paragraph (b)) is that the applicant is a non-citizen in Australia who is the spouse or a dependent of the person mentioned in paragraph (a) and who holds a protection visa.

6    The first appellant completed an application on the basis that she fulfilled the criteria in paragraph (a). Notwithstanding their claims, which included personal threats and violence attributed to their Indian ethnicity, the remaining appellants applied for visas on the ground that they fulfilled the criteria in paragraph (b).

7    A delegate of the Minister accepted the truth of the first appellant’s claims but rejected them on the basis that her fears were not well-founded because independent country information did not implicate the government. The appellants applied for a review of the delegate’s decision in the Refugee Review Tribunal (“the tribunal”). The tribunal also accepted the truth of a number of the family’s claims, including that they had suffered serious harm at the hands of Fijian youths, although it considered that there was an element of exaggeration. But it was not satisfied that the harm that they had suffered (and therefore feared) was due to a Convention reason. Nor was it satisfied that the police were unwilling or unable to provide protection.

8    The appellants then applied to the Federal Magistrates Court for an order that the respondents show cause why constitutional writs should not issue to quash the tribunal’s decision and require it to reconsider their applications. To succeed, the appellants had to prove that the tribunal fell into jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (“Plaintiff S157”).

9    The application before the federal magistrate in its final amended form nominated two alleged errors. The first was a failure to conduct the review as required by s 414 of the Act, more particularly that, in considering the reasons for persecution, the tribunal failed to consider the appellants’ claims and their supporting evidence to the effect that they were subjected to racial vilification. The second was that the tribunal made no “definitive” findings on State protection applicable to the appellants and failed to address the question it was obliged to address, namely, “whether Fiji provided its citizens with a level of State protection required by international standards”.

10    Despite the forms the appellants completed to describe the nature of their claims, the federal magistrate accepted that all the appellants had made refugee claims in their own right at the time they made their applications. Nonetheless, his Honour considered that on a fair reading of the tribunal’s decision record it addressed those claims. He then dismissed the application, finding no jurisdictional error on the tribunal’s part, and confirmed the tribunal’s orders. This is an appeal from that judgment.

The appellants’ claims

11    The appellants’ claims advanced in various statements and statutory declarations may be summarised as follows:

(a)    They lived in a predominantly Fijian area and had been repeatedly racially abused, harassed and threatened because the husband and children were Indian and the husband also a Muslim.

(b)    Harassment took other forms, too. Their home and the husband’s workshop were vandalised, stones were thrown and their dogs poisoned to death. Employees of the husband were often hassled and robbed of their personal belongings.

(c)    The harassment worsened during the time the first appellant was employed by Mr Vijay Singh, a member of parliament in the Qarase Government, and worked from home.

(d)    Despite the fact that she made numerous complaints to the police, no action was taken to protect the family.

(e)    They all feared for their safety and the children became emotionally disturbed.

12    The conduct appears to have taken place between 2006 and 2009.

13    At the hearing in the tribunal, in answer to a question the tribunal put to her, the first appellant offered as an additional reason someone would wish to harm her that her sister, a former magistrate, had spoken out against the coup that toppled the Qarase government and she and her family had lived in her house. This was a basis for the claim to fear persecution for reason of imputed political opinion. In this Court no complaint is made about the findings on this question, so nothing more need be said about it.

14    The claims were supported by statements confirming the first appellant’s employment with Mr Singh, that acts of violence had occurred at the appellants’ home, and that several reports were made to the police of criminal activity in the period but that no-one was brought to account.

The tribunal’s determination

15    The tribunal summarised the claims made by all the appellants and the documentary evidence in a way that the appellants do not criticise. It also summarised independent country information dealing with the escalating level of violence in Fiji and police responses, as well as discrimination and abuse on religious grounds. And it referred to media reports about Vijay Singh.

16    The tribunal found that the first appellant and her family experienced “some degree of harassment, theft and property damage at the hands of ethnic Fijian youths” after they moved to the first appellant’s sister’s house but that the harm had been exaggerated somewhat and there were some inconsistencies in the information she submitted to the Department that raised “some concerns about the overall reliability of her claim to have suffered harm”. Nevertheless, the tribunal accepted that the children, especially the daughter, may have been significantly distressed by threats made to them by Fijian youths and that the first appellant would have found such threats to her children particularly upsetting. Taking all the information together and giving the first appellant the benefit of the doubt, the tribunal accepted that

she and her family members were subjected to a level of threats, harassment, theft and minor vandalism which, taken together, can be said to have amounted to serious harm in a Convention sense.

17    The tribunal then went on to consider whether the harm was racially motivated and decided that it could not be satisfied that it was. The claim based on imputed political opinion was rejected and so, too, any suggestion that the husband’s Muslim religion might have been a motive.

18    The tribunal also considered what it said was the claim that the police in Fiji were unable or unwilling to protect the first appellant from the harm she suffered. It said it had doubts about the credibility of some aspects of the claims and, despite the suggestion to the contrary in a letter from a police officer submitted in support of them, was not satisfied that the harm the first appellant experienced was tolerated by the Fijian authorities, nor that she was denied protection deliberately or because the police were unable to protect her.

19    The tribunal concluded that the first appellant did not have a well-founded fear of harm for a Convention reason were she to return to Fiji now or in the foreseeable future and therefore that she was not a refugee and does not satisfy the criterion set out in s 36(2)(a) of the Act. Before going on to affirm the decision not to grant the protection visas, the tribunal then said this:

The other Applicants applied as members of the same family unit as the first named Applicant. The fate of their applications depends on the outcome of the first named Applicant’s application. As the first named Applicant does not satisfy the criterion set out in s.36(2)(a), it follows that the other Applicants cannot satisfy the relevant criterion set out in s.36(2)(b) and cannot be granted the visa.

The proceedings before the federal magistrate

20    The first ground of the application before the federal magistrate pleaded that the tribunal failed to review the decision as required by s 414 of the Act. The “major error” the tribunal was said to have made was that it dealt with the claims before it on the basis that the first appellant made the claims to fear persecution and the other appellants only applied as members of the first appellant’s family unit. The first submission was not that the tribunal failed to recognise the claims that were made, but that it did not properly consider this aspect of the claims and the evidence that supported them. The second submission (as the federal magistrate described it) was that in its consideration of whether the persecutors were motivated by race, the tribunal did not consider whether the serious harm that had occurred was motivated by their Indian ethnicity. Thus, it was put, there was no active consideration of whether the second to fourth appellants, “and by extension the first [appellant]”, were persecuted on account of race.

21    The federal magistrate said he was satisfied that the tribunal did consider all the appellants’ claims to fear persecutory harm on the ground of race. He said that in circumstances where the tribunal set out the claims at some length in its decision record, it could not be said that it ignored them, particularly when it did not merely reproduce them but summarised them comprehensively. He said that the tribunal clearly understood that it was important to focus on the motivation of the perpetrators. He defined the question the tribunal had to ask itself as whether those who occasioned the harm were motivated by their perception of the appellants’ race in inflicting the harm. On that subject he said that on a fair reading the tribunal made a number of findings that were reasonably open to it and held that the tribunal did not fail to consider any element going to the motivation of the Fijian youths to inflict the harm. In coming to his decision his Honour did not touch on the failure of the tribunal to refer to the language used to threaten or vilify the appellants when considering the question of motivation. That matter underpins the first ground of the appeal.

22    The second ground depended on the success of the first, as the appellants’ counsel conceded. It was pleaded as an error in the consideration of the issue of State protection. It was particularised as a failure by the tribunal to make definitive findings on the issue “applicable to the [appellants]” and failing to address the question of whether Fiji provided its citizens with a level of State protection required by international standards. The argument was that, in the present case, the country information was that judges and magistrates had been removed from office and the Fijian Constitution abrogated. To meet international standards there must be a judiciary and a constitution. The submission relied, in particular, on the statement of principle in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 (“S152”).

23    His Honour found that this ground was not made out either. He considered that the tribunal’s findings were reasonably open and held that the authorities do not support the proposition that jurisdictional error will result from a failure of the tribunal to identify and specify the content of international standards or to compare them with the law enforcement machinery of the State in question. His Honour then said (at [114]):

In the current case the abrogation of the Constitution, and the removal of some judges, was not at issue. The particular circumstances of the current case required the Tribunal to consider the nature of the harm feared and whether the state tolerated or condoned such harm, and whether it offered some adequate level of protection.

24    He concluded, in effect, by observing that the tribunal’s finding that the protection available was sufficient to remove a real chance of persecution was consistent with the authorities.

The appeal

25    In their notice of appeal the appellants plead that the federal magistrate erred in two respects.

26    First, they claim his Honour was wrong to find that the tribunal addressed the case of racially based persecution that the appellants had raised. In substance, they contend that the tribunal failed to consider that claim when it dealt with the motivation of local youths who inflicted harm on them. They say that this amounts to jurisdictional error in that the tribunal failed to consider a component integer of their claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (“Htun”). The Minister did not dispute that, if this ground is made out, the tribunal would have fallen into jurisdictional error.

27    Secondly, the appellants claim that his Honour was wrong to find that the tribunal “had lawfully addressed the issue of whether the appellants [scil.] could avail themselves of the protection of the Fijian police”. In this Court the argument differed from the way the issue was put to the federal magistrate. The appellants’ complaint focussed on paragraph [82] of the tribunal’s reasons. There the tribunal said it was considering “the Applicant’s claim that the Fiji police are unable to take action against criminals”. It said that independent country information showed that the police force has problems in resourcing and training but still functions within these limits, bringing some criminals to justice. Mr Karp, who appeared for the appellants, submitted that this missed the appellants’ point. He said the appellants’ claim was not merely that the police were unwilling (if not unable) to take action against these particular criminals and the type of criminal activities in which they were engaged. He submitted they were not complaining of “simple criminal harm” but of racially motivated abuse and the tribunal failed to consider whether the police could offer protection from that violence. More particularly, he contended that the tribunal asked itself the wrong question. It should, he argued, have asked whether the police were able or willing to protect the appellants from racially motivated threats and harassment, whereas the tribunal simply asked whether the police were able to take action against criminals.

28    The Minister filed a notice of contention in which he stated that, in the event that the Court finds that the federal magistrate erred, the decision of the tribunal should nonetheless be affirmed on the ground that his Honour ought to have found that the second to fourth appellants did not make any claims before the tribunal to be refugees in their own right. This contention is made on the basis that only the first appellant completed a Form 866C – “application for an applicant who wishes to submit their own claims to be a refugee”. The other members of the family completed Forms 866D – applications for members of the family unit who do not have their own claims to be a refugee.

29    The notice of contention aside, there are therefore two issues: whether the tribunal failed to consider a component integer of the appellants’ claim and whether the tribunal had addressed the issue of whether the appellants could avail themselves of the protection of the Fijian police.

30    The appeal is in the nature of a rehearing: MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [14]. But to succeed the appellants must show error on the part of the federal magistrate: Branir Pty Ltd v Owston Nominees Pty Ltd (No 2) (2001) 117 FCR 424 at [21], [25] per Allsop J (Drummond and Mansfield JJ agreeing).

Did the tribunal fail to consider a component integer of the appellants’ claim?

31    Mr Karp submitted that the federal magistrate erred in finding that the tribunal had not failed to address the claims and the evidence before it. He contended that none of the matters to which the tribunal referred in [71] of its reasons under the sub-heading “Motivation – Race” addressed the evidence of motivation for the particular harm the appellants experienced at the hands of young Fijian males. He submitted that a finding on that subject could only be made by going directly to what the alleged persecutors had not both done and said. He said that by not doing so the tribunal had failed to deal with a component integer of the appellants’ case and therefore amounted to jurisdictional error (Htun at [42]; Sellamuthu v Minister for Immigration (1990) 90 FCR 287 at [19]). Although Mr Knowles, who appeared for the Minister, at first protested that this issue was not apparently raised in the notice of appeal or ventilated in the submissions, he opted to deal with the argument on its merits. In the circumstances it is appropriate for me to do the same.

32    In [71] the tribunal purported to deal with the first appellant’s claims. In considering them it noted that:

•    She agreed at the hearing that, even if it is still uncommon, intermarriage between ethnic Fijians and Fiji Indians has become more frequent in recent years.

•    Independent country information indicates that crime continues to be a general problem in Fiji and that its effects are not confined to any one ethnic group. Ethnic Indians, ethnic Fijians, expatriate Europeans, tourists and others are vulnerable to robbery, physical assault and a variety of other criminal attacks.

•    Her evidence at the hearing when asked why she had not sought to enlist her Fijian neighbours in efforts to modify the behaviour of one of the youths said to be harassing her family was that they were reluctant to do so because they, too, were afraid of him and other ethnic Fijian youths.

•    Her claim that she was perceived as favouring Indians rests partly on her employment by Vijay Singh in his consultancy in which she helped recruit mainly Fiji Indians for positions in New Zealand. Given that she was involved in this position for only a few months I am not satisfied it is at all plausible that it can have motivated people to harm her, even if Vijay Singh did visit the house from time to time to collect documents. The second-named Applicant’s business, conducted from the house, is said to have employed mainly Fiji Indians but I note that he also employed ethnic Fijians and I am not satisfied his employment pattern can plausibly have supplied a reason for anyone to harm the family.

•    To the extent that her sister’s principled refusal to take up another position in the magistracy after April 2009 may have been relevant to any local perceptions of the Applicant herself, it is difficult to understand how this could lead ethnic Fijian youths, to see her as favouring Fiji Indians, as suggested in the advisor’s most recent submission. Information before the Tribunal indicates that it is the current military regime which is seen as supporting the rights of the Fiji Indian community, and if her sister had been seen as opposing the regime she could hardly have been seen on these grounds as supporting Fiji Indians.

33    The first matter arguably pointed to a growing level of tolerance of ethnic Indians in the Fijian community. The second and third support a conclusion that crime including violent crime is prevalent in Fiji and is not confined to one racial group. These circumstances are logically relevant to the question whether the criminal conduct in this case is likely to have been racially motivated. But none of the matters the tribunal considered in [71] dealt with the content of the abuse or threats, although they were made by the same young men allegedly responsible for the other harm of which the appellants complained. Yet, on its face the language the first appellant said that the youths had used to threaten her spoke eloquently of racism:

“You should be ashamed of yourself being married to an Indian”

“Being a Fijian you should help Fijians and all we see coming out of your home are Indians”

“Your family is not wanted here because you are married to an Indian”

“Don’t let those Indian kids out of property or we will physically harm them – beat them up”.

34    This evidence was contained in her statutory declaration of 6 September 2010. In his statutory declaration made the same day the husband asserted that their children were threatened by neighbourhood Fijian boys and stated that the threats were “mainly racially motivated”, listing them (or some of them) as follows:

“Get out of neighbourhood, we don’t want Indians living here”

“We will torture you, you mother fucker”

“You are beautiful, we will, one day, rape you, because you are Indian”.

35    The tribunal did not find that these statements were not made. Nor did it decide that the first appellant or her husband should be disbelieved on this question or that they had exaggerated this aspect of their evidence.

36    Section 414 of the Act requires the tribunal to review the Minister’s decision. Allsop J explained in Htun at [42] (with whom Spender J agreed at [1]):

The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 … It is to be distinguished from errant fact finding.

37    There is a distinction to be drawn, however, between a failure to consider an integer of a refugee claim and a failure to take into account evidence that, if accepted, might have led to a different finding of fact. The former gives rise to jurisdictional error, the latter usually not. See, for example, Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [46]; Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [28], [35]; and Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534 at [24].

38    Lander J observed in SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 at [32]-[33] that whether or not a failure to consider a piece of evidence amounts to a failure to consider an integer of an applicant’s claim to be entitled to a visa depends on whether that evidence was the only or the overwhelming evidence relating to that integer or whether by itself or coupled with other evidence, direct or circumstantial, it would or might have affected the result. The Minister accepted the correctness of this proposition. Here, the evidence concerning the content of the threats was not the only evidence relating to the question of racial motivation, although it might well be thought to be overwhelming evidence on the subject. It was direct evidence of racial antipathy. All the other evidence was circumstantial. By itself or coupled with the other evidence it certainly could have affected the result.

39    The question the tribunal was expressly addressing in [71] was whether the harm the appellant and her family suffered was motivated by the fact that the marriage was an inter-racial one or by the perception that she and her husband were assisting Fijian Indians at the expense of ethnic Fijians. The harm to which the tribunal was referring in [71] is the harm it accepted occurred. That was identified in [69] as “threats, harassment, theft and minor vandalism”. I take it that the reference to “threats” included verbal abuse not strictly amounting to a threat because that is the way it was characterised in the appellants’ various accounts. The tribunal answered that question at [72] where it stated:

Having considered the information before the Tribunal on this issue I am not satisfied that the harm experienced by the Applicant and her family can be said to have been motivated by her inter-racial marriage or the Indian ethnicity of her husband and children.

[Emphasis added.]

40    While the tribunal did not mention the content of the threats in its considerations at [71], it did make several references to the appellants’ evidence of the racist nature of the threats made against them in its summary of the evidence, referring specifically to the documents recording the threats (for example, at [24] (fifth and sixth bullet points), [26] (fifth and penultimate bullet points), [28] (first and second bullet points)). This was part of “the information before the Tribunal on this issue” referred to in its conclusion on racial motivation at [72].

41    For these reasons, the Minister argued, the tribunal did consider whether the threats were racially motivated.

42    I accept that the reference to harm to the first appellant and her family in [72] indicates that the tribunal did look at the harm to each of the appellants. I also accept, as the federal magistrate said, that there was no need for the tribunal to repeat each item of evidence and to ask itself whether, in each instance, the claimed oppressors were motivated by racial elements.

43    But merely because the tribunal referred to the racist nature of the threats at an earlier point in the decision record does not necessarily mean it had regard to them when considering the motivation for the harm as a whole. With respect to the federal magistrate, adverting to it earlier in its reasons, even taking it into account for the purpose of fact-finding, as the tribunal did, does not necessarily mean that the tribunal had regard to it when deciding the key issue of racial motivation. Whilst a failure to refer to relevant evidence may not vitiate a tribunal decision (see Applicant WAEE at [46]), a failure to consider relevant material can amount to jurisdictional error (Craig v South Australia (1995) 184 CLR 163 (“Craig”) at 179). Saying that it considered the information before it on the issue indicates the tribunal purported to conduct the review required of it, the question, however, is whether it actually did so. As Kirby J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595, it is the reality and not the appearance, that matters. Where, as here, the statute requires an applicant to be given an opportunity to appear before it and give evidence, the Minister has accepted that there is an implication that that evidence is to be given proper, genuine and realistic consideration: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [37] and [171]; Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122 at [29].

44    Contrary to the federal magistrate’s conclusion (at [76]), the tribunal did not look at each of the elements put forward by the appellants. It ignored the only direct evidence on the point.

45    The tribunal’s reasons, of course, are not to be finely scrutinised with an eye keenly focussed on the perception of error (see, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)) and one would be loath to find that the tribunal did not do something it said it was doing. I am conscious, too, of the need to avoid sliding into impermissible merits review. But the principle in Wu Shan Liang should not be overstated. As Stone J observed in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26], a “beneficial” approach to the tribunal’s reasons does not require the Court to assume that any ambiguity in the tribunal’s reasons should be resolved in the tribunal’s favour.

46    As I observed earlier, whilst the tribunal thought that some aspects of the first appellant’s claims were exaggerated, it accepted that she and her family were threatened and did not find that any of the threats the appellants said they had received were not made. Much of the abuse and two of the threats were overtly racist. The people involved were the same people responsible for the other conduct complained of. It is difficult to see how the tribunal could conclude that the harm was not racially motivated without addressing what the perpetrators themselves said. In these circumstances, I think it is highly unlikely that the tribunal did have regard to the content of the threats in determining that the harm was not racially motivated. The failure to even mention the racist language in the context of setting out its reasons is in my view significant. The statement the tribunal made at [72] concerning the information it had considered on this issue should not therefore be taken as including the evidence in the statutory declarations relating to what the perpetrators actually said to the appellants; rather, it should be taken as a reference to the “information” listed in [71].

47    If this error affected the exercise or purported exercise of the tribunal’s power, the tribunal will have fallen into jurisdictional error (Craig at 179). As the appellants submitted, a finding on the motivation for the harm could not be reached without attending to what the assailants said. That was a critical omission. In my opinion, regardless of how it is best characterised, it was an omission that affected the exercise or purported exercise of its power and therefore amounts to jurisdictional error. By failing to address this matter the tribunal failed to conduct the review required of it by s 414 of the Act.

Did the tribunal correctly address the issue of State protection?

48    A person may have a fear of being persecuted for a Convention reason, yet may not be a refugee because of an inability to satisfy the objective test of whether that fear is “well-founded”. That is not simply a question of whether the person should be believed. Where the alleged persecutor is a non-State agent, whether the fear is well-founded will also depend on whether they can avail themselves of internal State protection from the persecution they fear: see Horvath v Secretary of State for the Home Department [2001] 1 AC 489 (“Horvath”) at 495-497; S152 at [21]-[23] per Gleeson CJ, Hayne and Heydon JJ; [75]-[76] per McHugh J; and [101] per Kirby J where the majority view in Horvath was approved. As the plurality explained in S152 at [23],

[i]n a case where the harm feared by a putative refugee is harm inflicted by the State, or agents of the State, in the country of nationality, the significance for the application of Art 1A(2) of the complicity of the State in the harm inflicted is clear. Assuming the harm to be sufficiently serious, and the reason for it to be a Convention reason, the fear of harm will be well-founded (because of its source); it may readily be characterised as persecution, and identified as the reason the person in question is outside the country of nationality; the external protection, which may involve being sent back, is illusory; and the unwillingness to seek such protection may be explained and justified by the fear of persecution. … Even where the harm feared is harm not inflicted by the State, or agents of the State, but where the State is complicit in the sense that it encourages, condones or tolerates the harm, the same process of reasoning applies. The attitude of the State is relevant to a decision whether the fear of harm is well-founded; it is consistent with the possibility that there is persecution; it is consistent with the person being outside the country of nationality because of a well-founded fear of persecution; and it supports a conclusion of unwillingness to seek (external) protection based on a fear of persecution because of the State’s encouragement, condonation or tolerance of the persecution.

49    So the question for the tribunal was whether the State encouraged, condoned or tolerated the harm the appellants feared. It is true that a State may not encourage, condone or tolerate criminal behaviour generally but act differently when it comes to criminal behaviour against certain groups or individuals on account of a Convention reason. If the State failed to provide adequate protection from the harm the appellants suffered because they were identified as Indian (or in the first appellant’s case married to an Indian), that would go to show that their fears are well-founded. This, I infer, is the point the appellants make.

50    It is not immediately apparent from the tribunal’s reasons whether it asked the right question on this issue. But here, the cautionary words of Wu Shan Liang are apposite. It would be overzealous to draw an inference from the looseness of the tribunal’s language that it failed to consider whether the State encouraged, condoned or tolerated criminal behaviour against them or people like them because of their Indian ethnicity or connections. At [80] of its reasons the tribunal referred to the first appellant’s claims that she complained to local police on a number of occasions about “the harm she and members of her family were experiencing at the hands of ethnic Fijian youths”. By this point, it had disposed of the contentions that the failure to afford her protection was due to her imputed political opinion. The reference to ethnic Fijian youths suggests that the tribunal was looking at the question of State protection from ethnic (or racially motivated) violence. The tribunal found that, although they recorded the first appellant’s complaints, they took no further action except for one occasion in circumstances the tribunal found (at [81]) were implausible. It then went on to say at [82]:

As to the Applicant’s claim that the Fiji police are unable to take action against criminals, I note that the evidence before the Tribunal is that the other offender identified by her, Sunny, was jailed for a considerable period, apparently for robbery. The independent country information indicates that the police force has problems of resourcing and training but that it does function within these limits and that its record of success in bringing criminals to justice is not negligible. The letter she has submitted from the Crime Officer at Valelevu Police Station indicates that her complaints were investigated but that, simply, the evidence did not support prosecution. Notwithstanding the suggestion in the letter from Usa Vakaloloma that the complaints were not regarded seriously, I am not satisfied that the harm experienced by the Applicant was tolerated by the Fijian authorities or that she [was] denied protection deliberately or because the police were unable to do so.

[Emphasis added.]

51    Despite the opening words of the paragraph, having regard to the emboldened passage, it cannot be said that the tribunal asked itself the wrong question. Indeed, the opening words reflect the way the appellants put their case. The first appellant said in her statutory declaration of 6 September 2010 that she had received little effective support from the local police but she attributed that, not to an unwillingness to do so because of a Convention reason, but to a lack of resources. Similarly, in his statutory declaration of the same date, her husband simply said he had received no support from third parties including the police.

52    In any case, taken in context, the tribunal’s statement that it was not satisfied that the first appellant was denied protection “deliberately” is another way of saying that it was not satisfied that the authorities treated her differently because of her marriage to an Indian (or that, by parity of reasoning, the family was targeted because of its Indian ethnicity). A major problem for the appellants was that the material they relied on included a statement from a police officer that the complaints were investigated but failed for lack of evidence. If the tribunal was right to infer that the complaints (including of racially-motivated threats) were sufficiently investigated, it was entitled to rely on that statement to conclude that the appellants were able to avail themselves of the protection of the State. If the tribunal was wrong that would be an error within jurisdiction, which this Court is not entitled to review.

53    The tribunal’s task was not to hold Fijian authorities to a standard of absolute protection. As the plurality said in S152 at [26]:

No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. … The … state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.

54    Here, the tribunal was not satisfied on the evidence that the police force was not reasonably effective or impartial. Right or wrong, this was a conclusion open to the tribunal.

What follows from these conclusions?

55    The next question is what follows from these conclusions. The High Court has held that a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all (Minister for Immigration and Ethnic Affairs v Bhardwaj (2003) 209 CLR 597 (“Bhardwaj”) at [51] per Gaudron and Gummow JJ, McHugh J agreeing at [63]) or one without legal consequences (Bhardwaj at [152]-[153] per Hayne J; Plaintiff S157/2002 at [76]). But there is no universal rule that jurisdictional error on the part of a decision-maker will have this effect: see Jadwan v Secretary, Department of Health and Aged Care (2003) 204 ALR 55 at [42] and [64]; and Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27]. The fact that the constitutional writs are regarded as discretionary would tend to support this view.

56    It is common ground that the Court may refuse relief if the tribunal has found an independent reason for affirming the decision under review that is untainted by jurisdictional error. There is authority in support of this position. See, for example, VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33]; SZGXS v Minister for Immigration and Citizenship [2007] FCA 398 at [11].

57    The appellants submit that the tribunal’s finding on State protection is not “truly independent” of the error affecting the first finding. The reason, they say, is that a failure to lawfully consider the reason for harm suffered or feared by a person infects any finding that the State is able and willing to protect that person against harm for that reason. If the appellants are wrong about this, then the parties agree the appeal must be dismissed.

58    I am not persuaded that the jurisdictional error involved in the decision as to racial motivation tainted the finding as to State protection. The latter finding can stand on its own. Even if the appellants satisfied the tribunal that the threats and abuse were racially motivated, they could not have succeeded unless the tribunal was also satisfied that the State encouraged, condoned or tolerated the harm it accepted they had suffered. The tribunal was not so satisfied. Its findings on this question therefore amount to an independent reason for rejecting the appellants’ claims.

59    Although it did not say so, it is implicit that the tribunal was considering the question of State protection as a separate or alternative basis for refusing their applications.

60    Consequently, the appeal must be dismissed. There is no reason why the appellants should not pay the Minister’s costs.

The notice of contention

61    In the circumstances, it is not necessary for me to deal with the notice of contention but I do wish to indicate why I consider it is unsound.

62    The Minister accepted that applicants do not need to complete 866C forms in order to have their refugee claims considered. He also accepted that applicants who complete 866D forms may change the bases of their applications before the tribunal: see SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [73]-[93]. But the Minister contended that the federal magistrate erred when he found (at [56]) that the second, third and fourth appellants made their own claims for protection. He submitted that there was nothing to indicate that they expressly indicated that they wished to make claims in their own right and the declaration that formed part of their visa applications suggested otherwise. He conceded that “to some extent” the statutory declarations they made detailed incidences of harm perpetrated by local youth (upon them) but he submitted that they are properly viewed as evidence in support of the first appellant’s claims rather than evidence of a separate claim for protection.

63    I reject the contention. In my view it is based on a preference for form over substance. Each of the appellants claimed that he or she feared persecution for a Convention reason. The tribunal was bound to consider their claims: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] and the cases referred to there.

Associate:

Dated: 19 December 2011