FEDERAL COURT OF AUSTRALIA

SZQWK v Minister for Immigration & Citizenship [2013] FCA 343

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is a Fijian citizen who claims to fear persecution by the Fijian authorities for reasons related to his actual or imputed political opinion and/or his religion. A month after he arrived in this country he applied to the Minister for Immigration and Citizenship for a protection visa but a delegate of the Minister refused his application. He sought review of the delegate’s decision in the Refugee Review Tribunal but that application was also unsuccessful. He then applied to the Federal Magistrates Court for judicial review but failed to have the tribunal’s decision set aside. He now appeals from the judgment of the Federal Magistrates Court, contending that the Court fell into error.

2    The appellant’s claims are based on his leadership role within a religious youth group known as the Calvary Temple Youth Alive (apparently affiliated to the Assemblies of God Church) and its connection with a pro-democracy youth group whose philosophy he says he supports. The pro-democracy youth group is the Young People’s Concerned Network/Pacific Concerns Youth Network (“YPCN”), which is opposed to the administration of Prime Minister Bainimarama. The appellant has expressed fears that he would be seriously harmed by the military or the police on account of both his position as president of the youth group and his personal beliefs and values.

3    In order to qualify for a protection visa the appellant had to satisfy first, the Minister and failing that the tribunal of a number of statutory criteria: Migration Act 1958 (Cth), s 65(1). One criterion was that Australia owes him protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol (“Convention”): Migration Act, s 36(2)(a). Those obligations are owed to refugees. A refugee is defined in Art 1A(2) of the Convention as a person who has a well-founded fear of being persecuted on one or more grounds. Those grounds relevantly include religion and political opinion.

4    A person has a well-founded fear of being persecuted if he or she has a genuine fear founded on a real chance that he or she would be persecuted for a Convention reason upon return to his or her country of nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. In other words, the test of whether a person has a well-founded fear of persecution involves both a subjective and an objective element (cf. Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [72]). Additional criteria are imposed by s 91R of the Migration Act. One of those is that the persecution involves serious harm to that person (s 91R(1)(b)).

5    Unless the decision-maker was satisfied as to these matters, the appellant was not entitled to a protection visa.

6    The appellant told the tribunal that he was summoned to military barracks for questioning about the affairs of his group, warned about organising meetings, given guidelines on what could be said in meetings and a message to relay to youth. He reported a particular occasion in April 2010 when he said he had been summoned to the Ministry of Youth and Sports where he was interrogated, warned that “the net was closing on him and that he needed to watch out” and was struck by a firm blow on the back before leaving (giving him a sore shoulder). He also said that he had been followed by a military vehicle to a meeting of youth leaders, and had received threatening phone calls (most recently in the month before coming to Australia) and text messages. The tribunal noted that in his visa application he expressed fears that he would be killed, like other young Fijians, if he were to return to Fiji. It also noted the appellant’s complaints that the restrictions on the media would stifle his freedom of speech and prevent him from leading youth. In addition the tribunal made reference to his concerns that he could face adverse attention from Fijian authorities because of his anti-government contributions to a local internet blog, despite the fact that those contributions had been made anonymously.

7    The tribunal accepted most of the appellant’s claims but it did not accept that he would face a real chance of persecution if he were to return to Fiji.

8    To succeed in the application before the Federal Magistrates Court the appellant had to show that the tribunal fell into jurisdictional error: Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

9    The appellant’s contentions before the federal magistrate were that:

(a)    Although the tribunal purported to apply “a well founded fear test”, it in fact applied a wrong test by asking itself whether the appellant was subject to serious physical harm in Fiji:

(b)    Whether the tribunal failed to consider an issue it was required to consider, namely whether the appellant had a well-founded fear of persecution in the reasonably foreseeable future. On appeal, this was put as a failure to consider whether the appellant held a subjective fear that serious harm would ensue.

10    The federal magistrate held that no such errors had been made. The appellant’s case on appeal is that the federal magistrate erred by not accepting these contentions. There was no issue that, if the tribunal had made the errors attributed to it, they would be jurisdictional in nature.

Did the federal magistrate err in holding that the tribunal did not apply a wrong test?

11    The appellant submitted that the tribunal was bound to apply the test of whether he had a well-founded fear of persecution in the reasonably foreseeable future but, despite articulating this test, it did not do so. Instead, he submitted, it applied a test of whether he was subject to serious physical harm in Fiji. He contended that the tribunal should have followed up that question with another, namely, whether although the harm he had experienced in the past was not serious, he nevertheless had a well-founded fear (based on what had happened to him in the past) that serious harm would occur to him. The appellant’s point was that the blow he was given during questioning was a warning of worse things to come.

12    The appellant further submitted that the tribunal failed to approach the question of serious harm by looking at his various claims cumulatively. He drew attention to the statement by Crennan J in VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 at [53] that “[w]here harassment can be described as minimal or low level, it can be appropriate to ask whether the incidence of such harassment is sufficient to constitute serious harm or “significant detriment” as expressed by Mason CJ in Chan at 389”. The submission does not apparently advance either ground of appeal. The appellant argued, however, that this supposed failing supported the first ground because it was yet another indication that the tribunal had applied the wrong test when determining whether he had a well-founded fear of persecution.

13    These submissions should be rejected.

14    The federal magistrate gave several reasons for concluding that the tribunal did not apply a wrong test.

15    First, her Honour rejected the proposition that the determinative question the tribunal asked was whether the appellant was subject to serious physical harm in the past. She said that the tribunal did not limit itself in this way.

16    Secondly, her Honour said that the tribunal considered the appellant’s claims about what had happened in the past as part of the process of deciding whether the appellant had a well-founded fear of persecution in the reasonably foreseeable future. She pointed out that this approach was consistent with High Court authority.

17    Thirdly, her Honour said that the tribunal did not improperly confine itself to events in the past, nor proceed on the basis that the absence of past persecution denied the existence of a real chance of future persecution. Rather, the tribunal considered the reasonably foreseeable future and referred specifically to the situation in Fiji, both at the time of its decision and in the reasonably foreseeable future.

18    In considering whether the appellant’s fears of persecution were well-founded, her Honour pointed out that the tribunal referred to country information about the risks facing high profile individuals (political leaders, church leaders and trade union officials) but said that the information did not suggest that a person in a role like the appellant’s (as a youth leader or a member of the Assemblies of God Church) faced a real chance of persecution. Her Honour noted that this was the basis for the tribunal’s decision that the appellant did not face a real chance of persecution for religious reasons. She said, in effect, that this did not involve the application of a wrong test.

19    Her Honour also referred to the tribunal’s conclusion (at [63]) that an assessment of all the appellant’s claims, both individually and collectively, led to the finding that the appellant did not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future.

20    There is no discernible error in her Honour’s reasons.

21    The appellant’s complaint is based on what the tribunal said at [58] of its decision record:

The Tribunal finds, however, that the applicant does not face a real chance of persecution for reasons of his political opinion, his religion or any other Convention reason now or in the reasonably foreseeable future. The Tribunal does not accept that what has occurred to the applicant in the past involved serious harm within the meaning of s 91R(1)(b) of the Act. While the questioning he was subjected to at the Ministry was no doubt intended to warn him, he was not subjected to significant physical ill-treatment. The Tribunal does not accept that the firm blow on his back he was given as he left the meeting amounts to significant physical ill-treatment or otherwise amounts to serious harm. Nor does the monitoring the applicant has described, including being followed by a military vehicle, and the warning calls he received prior to the meeting at the Ministry amount to serious harm.

22    These conclusions, however, cannot be read in isolation. They must be read in conjunction with the rest of the tribunal’s reasons. When they are, it is apparent that the tribunal applied the correct test.

23    The tribunal did explore whether what happened to the appellant in the past involved serious harm within the meaning of s 91R(1)(b). But there is no error in so doing. Indeed, it is an entirely orthodox approach. As the plurality said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 in a passage cited by her Honour:

[d]etermining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

24    The tribunal was not, however, focussed only on the past. At [18] it noted that the assessment of whether Australia has protection obligations is to be made on the basis of facts as they exist at the time of the decision but also requires a consideration of the matter in relation to the reasonably foreseeable future.

25    The submission that the tribunal failed to approach the question of serious harm by looking at the claims collectively flies in the face of what the tribunal said it was doing.

26    The appellant relied on SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 (“SZGHS”) where Allsop J observed at [3]:

The Tribunal may be taken to have directed itself in respect of these matters uncontroversially in its template introduction. That does not, however, immunise its reasons from scrutiny or from a conclusion that, notwithstanding assertions in its reasons, its approach demonstrates a failure to employ the correct approach (which it has otherwise correctly stated to bind it).

27    But this was not a case in which the tribunal said one thing and did another. It did not confine itself to a consideration of past events. At [54], for example, it referred to the factors that the appellant identified as collectively putting him “at risk of adverse treatment by the authorities”. At [55] it noted his claim that he would continue in his leadership role with the youth group if he returns to Fiji and would continue to espouse democratic causes. More importantly, at [60] it expressly adverted to “the situation at present or in the reasonably foreseeable future”. Furthermore, I am not persuaded that when the tribunal said in [63] that it had assessed all the claims on both an individual and a collective basis, it did not in fact do so. The appellant pointed to the sequential consideration of the alleged harm in [58], but these remarks cannot be read in isolation. Ultimately, the submissions amount to an attack on the factual findings, dressed up as a complaint about jurisdictional error.

28    Her Honour correctly distinguished SZGHS on the facts, observing (at [40]) that in that case the tribunal confined its assessment of the future to the immediate future in which no elections were looming and having regard to the character of the then government, notwithstanding that an election was said to be likely. In contrast, in this case, her Honour said, the appellant had not established “that the Tribunal failed to consider all the material before it from the perspective of the reasonably foreseeable future, or that it failed to address all the appellant’s claims in that context having regard to the material placed before it (cf SZGHS at [29])”. I respectfully agree.

29    It is true that the tribunal did say (at [60]) that the appellant “may be subjected to the same kind of treatment and activity he has experienced in the past”. That finding is open to two interpretations: either that the tribunal did not consider whether he might be subjected to greater harm in the foreseeable future than he had suffered in the past, or that it did consider whether he might be subjected to greater harm in the future than in the past but determined that he would only suffer the same kind of harm he had previously experienced. When the reasons are read as a whole, there is no reason to assume that the tribunal took the first, rather than the second course. One cannot simply ignore the reference at the start of the paragraph to the present and the foreseeable future.

30    The appellant contended that it was necessary for the tribunal to consider whether there was a real chance that he could be harmed after being followed by a military vehicle and that the telephone threats could be realised. He complained that the tribunal did not say that although he was being followed he would not have been harmed “for whatever reason” or that there was no intention to carry out the threats. This was another indication, according to the appellant, that the tribunal was confining itself to the past, despite what it purported to be doing.

31    I reject these submissions.

32    As her Honour pointed out, the tribunal took the view, based on the minor nature of the appellant’s role and independent country information, that someone in his position did not face a real chance of persecution. That signifies that the tribunal was not satisfied that if he were to return to Fiji there was a real chance that he would be subjected to harm of the kind he feared.

33    The appellant submitted that (from his perspective) the firm blow to his back that he had received after one interrogation was intended as a message that serious physical harm was a real possibility. On a fair reading of its reasons, however, the tribunal decided that it was not.

34    I would therefore dismiss this ground of appeal.

Did the federal magistrate err in finding that the tribunal did not fail to consider the appellant’s subjective fear?

35    The appellant submitted that the tribunal failed to explore his subjective fear and then to decide whether it was objectively justified.

36    There is no substance to this submission.

37    The federal magistrate observed:

It was not necessary for the Tribunal to refer expressly to whether the applicant had a subjective fear of future serious harm. It accepted that the past incidents had occurred, but found that they did not amount to serious harm constituting persecution. Hence, even if the applicant feared recurrence of such events that clearly would not, on the Tribunal’s reasoning, amount to a subjective fear of serious harm amounting to persecution.

38    The appellant is critical of this passage, submitting that his fears were not confined to a recurrence of past events but were correctly described in her Honour’s reasons as:

whether the warning given to him “would be made good”, whether in the future he would be “followed in a military vehicle and harmed” or whether he would be “threatened and harmed in the future in relation to meetings”.

In other words, the appellant feared that worst was yet to come.

39    The tribunal implicitly accepted as much. It proceeded on the basis that the appellant’s fears were genuinely held. It certainly made no adverse credit findings. In other words it proceeded on the basis that the subjective element of the test had been met. What it did not accept, however, was that the appellant’s fears were well-founded. Thus, contrary to the appellant’s submissions, it was not necessary for the tribunal to have “explored’ his subjective fear.

40    This ground of appeal should also be dismissed.

Conclusion

41    It follows that the appeal must be dismissed. The appellant should pay the Minister’s costs. There will be orders accordingly.

Associate:

Dated:    15 April 2013