SKFB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 142

FEDERAL COURT OF AUSTRALIA

SKFB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 142 SKFB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 1 of 2004 BRANSON, FINN & FINKELSTEIN JJ MELBOURNE (HEARD IN ADELAIDE) 25 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 1 of 2004

On Appeal from a Judge of the Federal Court of Australia

BETWEEN: SKFB, SKGB & SKHB

Appellants

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: BRANSON, FINN & FINKELSTEIN JJ

DATE OF ORDER: 25 MAY 2004

WHERE MADE: MELBOURNE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 1 of 2004

On Appeal from a Judge of the Federal Court of Australia

BETWEEN: SKFB, SKGB & SKHB

Appellants

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: BRANSON, FINN & FINKELSTEIN JJ

DATE: 25 MAY 2004

PLACE: MELBOURNE (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT 1 The first appellant is an ethnic Indian and citizen of Fiji. He and his family (his wife and 22 year old son, the second and third appellants respectively) arrived in Australia on 22 December 2001; the year following the armed nationalist revolution where insurgents stormed parliament and seized control of Fiji after the election of Fiji's first ethnically Indian Prime Minister. There has been longstanding tension between indigenous Fijians and Indo - Fijians. The appellant (it will be convenient to refer to the first appellant in this way as he is the only appellant who challenges the tribunal's decision) claims to be a victim of the animosity that indigenous Fijians bear against those of Indian ethnicity. The nature of the mistreatment he says he suffered will be explained in a moment. 2 On 15 January 2002 the appellant applied for a protection visa claiming to be a Convention refugee. A delegate of the Minister refused to grant the visa. The Refugee Review Tribunal affirmed the delegate's decision. An application for review of the tribunal's decision to a single judge was unsuccessful; the judge found no error of law in the tribunal's reasons. The appellant now appeals from that decision. 3 Before dealing with the legal issues raised by this appeal we should set out the case the appellant put to the tribunal and explain why the tribunal rejected his claim. The appellant said that he was a sugar cane farmer in the Nasedi area of the Ba Province. He conducted his farming operations on land leased from indigenous Fijians. The appellant said that he had been subject to threats from the owners of the farm who forced him off the land in August 2000. Upon leaving the farm, the indigenous owners continued to make threats against him and stole property from his new home. The appellant explained that although he was no longer on the farm, the owners did not want to see him in the area. The threats continued even though the appellant and his family had moved about a mile away from the farm. The appellant said that this was because the lease had not expired and the owners were afraid that he might take steps to resume possession of the farm. When the matter was heard by the tribunal the lease had expired. The appellant, however, said that the threats would continue because he was an Indo-Fijian. In due course the appellant fled Fiji, taking his wife and son with him. 4 The tribunal considered the position of Indo-Fijians by reference to the country information that was before the tribunal. This information disclosed that although there was a relatively free and fair election in August – September 2001, and security forces were working to restore confidence in public safety, Indo-Fijians were still subject to "low level theft and violence, due to a low police presence and continuance of post-coup ethnic tensions between indigenous Fijians and Indo Fijians." The tribunal noted that crime levels in urban areas were generally higher than rural areas and that Indo-Fijians and Asians were often targets of burglary due to "a general expectation that they are more likely to keep jewellery and cash on their home premises." 5 In the end, however, the tribunal rejected the appellant's claim for refugee status. It did so for essentially three reasons. First, the tribunal member accepted that the appellant had suffered harassment at the hands of the indigenous owners of the farm which was motivated by the desire to recover their farm. However, the tribunal member found that once the lease expired "[i]t follow[ed] that the owner of the land now ha[d] nothing to gain by threatening him". That is to say, the tribunal formed the view that while the appellant may have had a subjective fear of persecution (a finding which the tribunal did not make expressly but by implication), this was not a well-founded fear because he faced no real chance of persecution if he returned to Fiji. 6 The second reason was because the threats came from the owner or owners of the farm-land in Ba province. The tribunal noted that "[t]hey occurred no more than about a mile from the farm, and [the tribunal could] see no logical reason why relatives of the landowners might be motivated to locate and harm [the appellant] wherever he lives in Fiji." Accordingly the tribunal was satisfied that "the harm [the appellant] fears is confined to a small area around the farm". The tribunal also said that the appellant "has no reason to return to live in Ba Province at all" as he had "no relatives there and owns no property". On that basis the tribunal was satisfied that "it would be reasonable for him to settle in some other part of the country." 7 This second reason was based on what is sometimes referred to as the relocation principle or the internal flight alternative. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 the Full Court decided (at 440) that although the Convention definition of refugee does not refer to part or regions of a country, "that provides no warrant for construing the definition so it would give refugee status to those who, although having a well founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of the country of nationality elsewhere within that country". As the Chief Justice (who delivered the leading judgment) said (at 441): "If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders." 8 The final reason for rejecting the appellant's claim related to his suggestion that all Indo-Fijians were at risk of persecution. Here the tribunal relied upon the country information to find that since the 2000 revolution "law and order has largely been restored, [and] that while some Fiji Indians are the target of racially-motivated crime in rural areas, in urban areas such crime as occurs is not for reason of the victim's race." Accordingly it found that the appellant "could return to Fiji and settle in an urban area where the chance of him being subjected to treatment amounting to persecution would be remote." 9 Before the trial judge, the appellant alleged that the tribunal had fallen into jurisdictional error because it failed to take into account a relevant consideration. He said that the tribunal failed to have regard to the appellant's evidence that he could not safely move to some other part of Fiji because of his ethnicity. The judge rejected this claim. He examined the tribunal's reasons and formed the view that the tribunal did have regard to that consideration. The judge pointed out that the tribunal accepted the appellant had been subjected to adverse treatment by indigenous Fijians because of his ethnicity. On the other hand, as the judge noted, the tribunal regarded the harm which he feared as being confined to the local area of farmlands in the Ba province. 10 In the appeal before us the tribunal's decision is challenged on different grounds. The focus of the attack is on the tribunal's application of the relocation principle. The attack is founded on the High Court's recent decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180. That case involved a claim for asylum by two homosexual men from Bangladesh. The tribunal accepted that homosexuality is not acceptable in Bangladesh and that homosexual men are liable to be persecuted. The appellants, however, had lived together for over four years without experiencing anything more than "minor problems": cited at (2003) 78 ALJR 180, 183. This caused the tribunal to find that the appellants "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home": cited at (2003) 78 ALJR 180, 183. For that reason they were denied a protection visa. 11 In the High Court the appellants argued that the tribunal had fallen into error by finding that a person could not be a refugee if he were able to avoid adverse consequences by hiding or being "discreet" about beliefs or conduct which would otherwise be the subject of persecutory attack for a Convention reason. The High Court accepted this contention. McHugh and Kirby JJ (at 188) said: "History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention." Similar views were expressed by Gummow and Hayne JJ (at 194-195): "But to say that an applicant for protection is 'expected' to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. … Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning … leads to error. It distracts attention from the fundamental question. It leads to confining the examination undertaken … merely 'to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality] disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result. That narrow inquiry would be relevant to whether an applicant had a well-founded fear of persecution for a Convention reason only if the description given to what the applicant would do on return was not only comprehensive but exhaustively described the circumstances relevant to the fear that the applicant alleged." 12 The appellant seeks to apply this reasoning to his case. In effect the argument is that to require a person to live in a safe part of his country, even when it is reasonable for him to do so to avoid persecution, avoids addressing the fundamental question that the tribunal must consider namely, whether the appellant has a well founded fear of persecution. 13 We do not believe that the relocation principle require a person to modify their beliefs or opinions or to hide the fact that they are of a certain racial or national origin or member of a particular social group. The question is whether there is a real risk that the applicant for asylum would be persecuted for a Convention reason if required to return to his country of nationality. The question is concerned principally with the protection which can be given to the putative refugee by his own country: Minister for Immigration and Multicultural Affairs v Respondents v S152/2003 [2004] HCA 18. The application of the relocation principle enquiries whether the appellant is able to obtain that protection. That is to say, if the principle is applied that only means that the putative refugee is not at risk of persecution in his country of nationality. Nothing said by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180 cuts across this principle. 14 The tribunal's decision was challenged in two other respects, each of which amounted to a complaint about the tribunal's findings of fact. We have examined the tribunal's reasons and are satisfied that the material that was before it in one way or another supports each of its findings. On that basis its decision is beyond challenge. 15 It is for these reasons that the appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Branson, Finn and Finkelstein JJ.