FEDERAL COURT OF AUSTRALIA

WZARI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 788

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to 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. He arrived in Australia with his family in 1990 at the age of 13 years. The appellant’s most recent visa was a Partner (Class BS subclass 801) visa, granted on 26 May 2004. The appellant has three children and several family members in Australia.

2    On 24 March 2005, the appellant was convicted of aggravated sexual penetration without consent, unlawful detention, threats to kill and breach of a violence restraining order and sentenced to 7 years and 3 months imprisonment.

3    On 10 March 2010, the Minister for Immigration and Citizenship (the Minister) cancelled the appellant’s visa on character grounds under s 501 of the Migration Act 1958 (Cth).

4    The appellant, whilst still in prison, lodged an application for review of the Minister’s visa cancellation decision with the Administrative Appeals Tribunal (the AAT). However, on 12 April 2010, the appellant’s application was dismissed on the basis that the AAT lacked jurisdiction.

5    Upon his release from prison in May 2012, the appellant was immediately placed in immigration detention.

6    On 13 June 2012, the applicant applied for a Protection Visa (Class XA). In his initial protection visa application the appellant claimed to fear persecution in Fiji due to his and his family’s opposition to the country’s various military regimes. The appellant further claimed that he was owed protection obligations by Australia due to the rights of his children to have their father remain in Australia and the psychological harm his removal from Australia would cause him and his children. The appellant also claimed to fear suffering harm if removed to Fiji due to its low employment rate and the fact that he would be considered a foreigner, having spent the past 22 years living in Australia.

7    On 9 August 2012, a delegate of the Minister refused the appellant’s protection visa application. The delegate found that the appellant did not have a well-founded fear of persecution for a Convention reason. Accordingly, the delegate found that Australia did not owe any protection obligations to the appellant under the Convention. The delegate further found that Australia did not have any protection obligations to the appellant under the complementary protection provisions in s 36(2)(aa) of the Migration Act as there was not substantial grounds for believing that the appellant would suffer significant harm if returned to Fiji.

the refugee review tribunal

8    The appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. The Tribunal was not satisfied that there is a real chance that the appellant would suffer harm in Fiji because of his political opinion. The Tribunal found that the appellant would not, in fact, criticise the regime if he were returned to Fiji, not due to a fear of harm, but simply because it was not his practice to express his political opinion in public. The Tribunal made this finding on the basis that the appellant had never taken any steps to express his political opinion against the Fiji military regime in public, despite his freedom to do so in Australia. The Tribunal found it implausible that the appellant genuinely supported his father’s opposition to the Fijian regime due to his lack of knowledge of his father’s activities. Accordingly, the Tribunal was not satisfied that the appellant would suffer harm because of his actual political opinion.

9    Nor was the Tribunal satisfied that the appellant would suffer harm due to the Fijian regime imputing to the appellant an adverse political opinion based on his father’s opposition to the regime. The Tribunal accepted the appellant’s father was involved in a 2009 protest rally against the Fijian regime in Canberra. However, the Tribunal was not satisfied that the appellant’s father had ever come to the adverse attention of the Fijian military regime in any way, and in coming to this conclusion, noted that the appellant’s father had travelled to and from Fiji in 2010, without incident.

10    The Tribunal was also not satisfied that the appellant would suffer harm as a result of being a deportee who had sought protection in Australia. The Tribunal noted that the available country information indicated that people are not harmed in Fiji because they have sought protection in Australia unless they also are high profile critics or opponents of the regime. The Tribunal also rejected the appellant’s contention that the harm he would suffer as a deported applicant for a protection visa would be exacerbated because people would know he had been imprisoned in Australia and would know the nature of his offences. While the Tribunal acknowledged that those privy to this knowledge may form a critical or negative view of the appellant, this could not reasonably be said to constitute serious harm to the appellant amounting to persecution.

11    The Tribunal also addressed the appellant’s claim that he would suffer economic hardship if returned to Fiji. While noting the significant challenges the appellant would likely face in Fiji, the Tribunal did not accept that these difficulties would constitute serious harm, would have a discriminatory character, or would constitute persecution.

12    The Tribunal also addressed concerns raised by the appellant about a number of other matters relevant to his possible return to Fiji, including his desire to remain with his children and other members of his family in Australia and his determination to start life afresh in Australia. The Tribunal acknowledged the significance of these considerations to the appellant and his family, however, the Tribunal found these matters to be outside the terms of the Tribunal’s consideration of the appellant’s claim for a protection visa

13    The Tribunal found that given its findings it was not satisfied that the appellant would suffer serious harm if returned to Fiji. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason, should he return to Fiji. The Tribunal, therefore, found that the appellant did not satisfy the criterion for a protection visa under s 36(2)(a) of the Migration Act. For the same reasons, the appellant, also, did not satisfy the alternative criterion for protection under the complementary protection provisions of s 36(2)(aa) of the Migration Act.

the federal circuit court

14    The appellant then applied to the Federal Circuit Court of Australia (formerly the Federal Magistrates Court of Australia) on 27 September 2012 for judicial review of the Tribunal’s decision. The grounds of review relied upon were the following:

1.    The Tribunal made a legal error in determining my claims for protection.

2.    The Tribunal failed to apply the correct test for degrading treatment.

15    The Federal Circuit Court rejected the appellant’s application for judicial review.

16    As to the first ground of review, the primary judge found that the Tribunal’s elucidation of the relevant law could not be subject to any proper criticism. The primary judge went on to assess the Tribunal’s various findings of fact and found them to be wholly open to it on the material before it. Accordingly, the primary judge found that the first ground of review was not made out.

17    The second ground of review was also dismissed. This ground of review related to the complementary protection provisions under s 36(2)(aa) of the Migration Act. The primary judge found:

[T]he Tribunal was well aware of the terms of s 36(2)(aa) and it is clear that the Tribunal separately considered the question of complementary protection. To the extent that the question of degrading treatment is, so to speak, in issue it is clear that the terms of the legislation were well in the Tribunal’s mind and that the Tribunal did not overlook this issue.

18    The appellant also made various submissions orally and in writing to the primary judge outside of the nominated grounds of review. The primary judge found that none of these submissions “revealed any error sufficient to grant the orders that the applicant seeks”. In coming to this conclusion, the primary judge made the following observations:

21.    …The applicant in his oral submissions confirmed the sincerity of his application and the views expressed in his written and other materials. He emphasised the fact that the [sic] sees his future in Australia with his children and needs to remain here with them. There can be no question for a moment that these are very sincerely held views and I have no doubt whatever that he desperately wishes to remain here with his family. His written materials filed in Court include a letter to the Court from his partner, the mother of his children and documents from the children themselves. They all wish him to stay and that is perfectly natural. However, for the reasons already given that was a matter for consideration at the time when the applicant’s visa was being cancelled.

22.    It is not relevant to whether or not he is a refugee and/or would suffer treatment within the complementary provisions in s 36(2)(aa)…

23.    Insofar as the applicant seeks to raise issues going to relevant or irrelevant materials and as to unreasonableness, I accept counsel’s submissions that the Tribunal findings were well open to it on the materials. Much of what the applicant puts in play really amounts to submissions on the merits. So far as the applicant refers to his father’s trip to Fiji I accept counsel’s submission that no error of fact is shown and refer to paragraph 63 of the Tribunal’s reasoning.

24.    Insofar as the applicant at pages 8 to 9 makes a complaint about the nature of the hearing, I accept counsel’s submission that while the hearing by video link over a great distance is by no means ideal, in the circumstances of the case there is no suggestion that the applicant was denied procedural fairness and denied the opportunity to have a hearing within the meaning of the legislation as is required by s 426 of the Act.

the federal court

19    On 24 May 2013, the appellant appealed to this Court. The grounds of appeal were expressed as follows:

1.    Political Prosecution: There is a political prosecution in Fiji as Per The Australian Government and the International Community available information.

2.    Point 16 & point 20 of the Reasons Breach of International and Domestic Laws: The issue here is not only the sincerity of the matter, it is placing Australia in breach of it’s international and domestic obligations organizing the reight of a family as an important social unit, His Honour erred in this point for consider it a point of merit review and not a point of law.

3.    Point 17 of the Reasons Misinterpretation of the Law: As there is no definition in the Act of “serious harm” His Honour Misinterpreted the law in this point as the issue is wether a “serious harm” will occur or no.

4.    Point 19 of the Reasons Misinterpretation of the Law: As there is no definition in the Act of “degrading treatment” His Honour Misinterpreted the law in this point as the issue is wether a “degrading treatment” will occur or no.

5.    Point 21 of the Reasons Importance and significant of protection: His Honour erred in taking into account the significant of a person asking for protection from his own Country, the application should also assessed as Political Assylum.

6.    Point 23 Fair hearing: His Honour Misinterpreted s 426 of the Act as per this section a person should be given the opportunity to be present during a Tribunal’s hearing in person.

20    The appellant filed lengthy written submissions and made oral submissions during the course of the hearing. Based on both the oral and written submissions, I have construed the substance of the appellant’s complaint in each of the grounds of appeal referred to above to be as follows.

Grounds of appeal 1 and 5

21    Grounds 1 and 5 relate to the findings made by the primary judge in respect of the appellant’s claim that he feared persecution on the basis of his political opinion or his imputed political opinion.

22    The primary judge found that the factual findings made by the Tribunal in relation to this claim made by the appellant were open to the Tribunal and the Tribunal had not fallen into jurisdictional error.

23    The appellant expressed his disagreement with the Tribunal’s finding that it was not satisfied that the appellant’s father had ever come to the adverse attention of the Fijian authorities. One of the matters which the Tribunal took into account in reaching that conclusion was that the appellant’s father was able to travel to and from Fiji, en route to Los Angeles, without any adverse consequences. In his written submissions the appellant took issue with that finding, claiming that his father was not able to attend a wedding in Fiji and that his father had travelled to and from Fiji before he joined the Fiji Democracy and Freedom Movement.

24    These submissions attack the factual findings made by the Tribunal. As has been stated many times, the fact finding process is par excellence within the jurisdiction of the Tribunal. However, even if the Tribunal was mistaken, such an error does not amount to jurisdictional error by the Tribunal. The appellant’s submissions did not demonstrate jurisdictional error by the Tribunal, nor any error by the primary judge in declining to find jurisdictional error by the Tribunal. In any event, I agree with the primary judge that there was a sufficient basis for the Tribunal to make the impugned factual finding.

25    Accordingly, I dismiss grounds of appeal 1 and 5.

Grounds of appeal 2, 3 and 4

26    These grounds of appeal address the primary judge’s finding that the Tribunal did not fall into jurisdictional error in finding that the appellant’s concerns about the distress, pain and anxiety that he and his family would suffer by reason of his separation from them were not matters that arose for consideration in relation to his claim for a protection visa under s 36 of the Migration Act.

27    The appellant contended, in effect, that the primary judge had erred in not finding that the Tribunal had committed jurisdictional error by finding that the fear of the psychological harm he would suffer by reason of the separation from his family was not a fear of “serious harm” within the meaning of s 91R(1) of the Migration Act for the purpose of s 36(2)(a) of the Migration Act.

28    Likewise, said the appellant, the Tribunal and primary judge had erred in not finding that by being subjected to the stress and pain of being separated from his family, he would, if returned to Fiji, be at real risk of suffering “degrading treatment” under s 36(2A)(e) of the Migration Act; and would, therefore, be at real risk of suffering “significant harm” for the purpose of s 36(2)(aa) of the Migration Act.

29    Those sections read as follows:

36(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

36(2A)    A non-citizen will suffer significant harm if:

…

(e)    the non-citizen will be subjected to degrading treatment or punishment. (Original emphasis.)

30    In my view, the primary judge did not err.

31    The appellant’s complaint misconceives the operation of s 36(2)(a) and s 36(2)(aa) of the Migration Act. The fear of “serious harm” which is referred to in s 91R(1) of the Migration Act describes the kind of harm which is capable of sustaining a claim to hold a well-founded fear of persecution if the visa applicant was returned to the receiving country in question. However, in order to invoke Australia’s protection obligations, the feared harm must be harm which the visa applicant fears will be visited upon him or her by the government authorities of the receiving country for a Convention reason, or by reason of the government authorities failing to protect that person from others inflicting that harm on him or her for a Convention reason. The same reasoning applies in relation to the risk of suffering the “significant harm” referred to in s 36(2)(aa) of the Migration Act.

32    In this case, the separation anxiety and distress which the appellant fears he and his family will suffer if he is returned to Fiji, is not a fear attributable to the conduct of the Fijian government or its agencies, or their failure to provide protection from others inflicting such harm on the appellant. The fear, therefore, falls outside the ambit of s 36(2)(a) and s 36(2)(aa) of the Migration Act.

33    The appellant’s concern about his separation from his family, if he were to be returned to Fiji, was at the forefront of his submissions. It is a matter of earnest concern to the appellant. However, this is a matter which was relevant to the Minister’s decision to cancel the appellant’s permanent residency visa, and not to his application for a protection visa. For the reasons given above, neither the Tribunal nor the primary judge erred in determining that this matter was not relevant to the appellant’s claim for a protection visa.

34    Further, the appellant argued, in effect, that the primary judge had erred in failing to find that the Tribunal had fallen into jurisdictional error in rejecting his claim that there was a real risk that he would suffer “degrading treatment” within the meaning of s 36(2A)(e) of the Migration Act if he was returned to Fiji because he would be unemployed and suffer economic hardship in that country.

35    In my view, the Tribunal did not fall into jurisdictional error in the manner in which it considered and determined that claim. The Tribunal acknowledged that it was likely that the appellant, having lived in Australia for 22 years, would have to go through a process of adjustment when he “might well experience economic hardship”. However, the Tribunal said:

As I put to him at the hearing however, such difficulties would reflect the realities of life in a small and depressed island economy and there is nothing to suggest that he would experience them because of any form of discriminatory behaviour by the authorities or other members of the society.

36    Later in its reasons, the Tribunal also relied upon those findings to find that the appellant had not demonstrated that there was a real risk that he would suffer “significant harm” for the purposes of s 36(2)(aa) if he were returned to Fiji.

37    Section 36(2B) of the Migration Act states specifically that:

There is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

…

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

38    In my view, contrary to the appellant’s contention, the Tribunal did not err in its interpretation of “degrading treatment” and “significant harm” in considering the appellant’s claim that he would face a real risk of being unemployed and suffering economic hardship if he was returned to Fiji. It is apparent from the finding of the Tribunal set out at [35] above, that it applied s 36(2)(aa) and s 36(2B)(c) to the circumstances of the appellant’s claim in respect of his facing the risk of economic hardship.

39    It follows that the primary judge did not err in finding that the Tribunal had not fallen into jurisdictional error. Accordingly, grounds of appeal 2, 3 and 4 are dismissed.

Ground of appeal 6

40    In this ground, the appellant complained that the Tribunal fell into jurisdictional error by holding a hearing at which he attended by way of a videolink. The appellant, in effect, contended that, for this reason, on the proper construction of s 425 and s 426 of the Migration Act, he was denied a lawful hearing.

41    There is authority to the effect that the mere fact that an applicant for review is not physically present, and attends the hearing by videolink, does not in itself result in a failure to accord an applicant a hearing under s 425 and s 426 of the Migration Act (SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712; SZNNE v Minister for Immigration and Citizenship (2010) 114 ALD 138).

42    Further, the appellant did not point to any evidence which demonstrated that by reason of his attending the hearing by videolink, he was deprived of the opportunity to give evidence and make submissions, or that there was any event or circumstance which resulted in a denial of procedural fairness, arising from the manner in which the proceeding was conducted.

43    It follows, therefore, that the primary judge did not err in rejecting this ground of review.

44    This ground of appeal is dismissed.

45    It also follows that the appeal is dismissed with costs.

Associate:

Dated:    9 August 2013