Sharma v Minister for Immigration & Multicultural Affairs [2000] FCA 369

FEDERAL COURT OF AUSTRALIA

Sharma v Minister for Immigration & Multicultural Affairs [2000] FCA 369 MIGRATION – protection visa – application for review of a decision of the Refugee Review Tribunal ('the Tribunal') refusing grant – whether Tribunal observed procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision – whether Tribunal failed to make findings of fact – whether if section 430 of the Migration Act 1958 (Cth) does not specify a procedure required to be observed within section 476(1)(a) relief in the nature of mandamus would be available Migration Act 1958 (Cth), ss 430(1) & 476(1) Migration Reform Act 1992 (Cth), s 39 AJAY KUMAR SHARMA v MINISTER FOR IMMIGRATION AND MULTICULTUAL AFFAIRS

N 1397 OF 1999 EMMETT J 22 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1397 OF 1999

BETWEEN: AJAY KUMAR SHARMA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 22 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1397 OF 1999

BETWEEN: AJAY KUMAR SHARMA

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE: 22 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Fiji who entered Australia on 2 November 1991. On 24 March 1992 he applied for refugee status under the Migration Act 1958 (Cth) ('the Act). On 7 July 1992 a delegate of the Minister refused the application and on 31 July 1992 the applicant applied for review of that decision. By the operation of section 39 of the Migration Reform Act 1992 (Cth)the refugee status application was deemed to be an application for a protection visa. For reasons that are not relevant to the matter before me, no decision was made until 3 November 1999. On that day the Refugee Review Tribunal ('the Tribunal') affirmed the decision not to grant a protection visa. 2 On 1 December 1999 an application for an order of review was filed with this Court. When the matter was called on for hearing today an amended application was filed without opposition. The grounds stated in the amended application are as follows: 1. In determining the applicant's claim to have a well founded fear of persecution if he was returned to Fiji, the Tribunal failed to consider all substantial claims and all relevant available information in support of them, and failed to deal, properly or at all, with material before it. 2. The Tribunal failed to make findings about the applicant's claim that his land was taken from him and occupied by indigenous Fijians in 1989 in violent circumstances, and that the land, to which he remains entitled continues to be occupied by others. 3. The Tribunal failed to make findings about the applicant's claim to have a well-founded fear of the persecution he would provoke or attract if he were now to return to Fiji and reclaim his and his family's land and whether changes in Fiji since 1989 were such as to allay such fears or render them not well founded. 4. The Tribunal failed to make findings about whether the applicant in those circumstances could avail himself of the protection of the Fijian authorities, or of access to a legal system which would provide the just means by which he could enforce his legal rights in relation to the land and be protected from persecutions in Tavua. 5. In doing so the Tribunal failed to fulfil its obligation at law to review the decision of the Minister's delegate as required by section 414 of the Migration Act 1958 (Cth)and failed to make findings on material questions of fact as required by section 430, both failures constituting grounds for review under section 476 1(a), (b), (c) and/or (e). 3 By the amended application the applicant claimed an order that the decision made on 3 November 1999 be set aside and that the matter be remitted to the Tribunal differently constituted to be dealt with according to law. 4 In order to understand the grounds, it is necessary to say something about the legislative framework and the findings made by the Tribunal. Australia will owe an obligation to the applicant if the applicant is a person who, owing to well founded fear of being persecuted for Refugees Convention reasons, is outside Fiji (being the country of his nationality) and is unable, or owing to such fear, is unwilling, to avail himself of the protection of Fiji. 5 In his application for refugee status, the applicant stated that prior to his departure from Fiji he lived in the town of Ba and he worked as a mechanic. He stated that his father and two of his siblings lived in the United States of America and that two other siblings lived in Australia at the time when his application was lodged. The applicant stated that since the 1987 coups in Fiji, ethnic Indians like himself have been treated as low-class citizens and not provided with protection from the government. The Tribunal recorded that at the hearing the applicant stated that he did not wish to return to Fiji because he would be harmed by indigenous Fijians due to his race, political opinion and religion. He stated that he and his brothers owned 300 acres of land which had been taken over by indigenous Fijians after they fled from Fiji in 1991. The applicant stated that if he returned to Fiji and attempted to reclaim his land he would be beaten by the individuals who now occupy that land. The applicant stated to the Tribunal that the adverse conditions for Indian Fijians which existed in Fiji at the time of the 1987 coup continue now. He claimed that ethnic Indians suffer the same circumstances they did during the coup period. He further claimed that if he did return to Fiji and he was harmed by the indigenous Fijians who are occupying his land he would not have access to protection. The applicant also claimed that he would be harmed by indigenous Fijians because, prior to his departure, he was associated with the Labour Party and he is a devout Hindu. 6 In addition the applicant submitted to the Tribunal a statutory declaration by his sister. In that declaration the applicant's sister claimed that she was assaulted and harassed during 1987 and that she was unable to obtain protection from the authorities at that time. However, she also claimed that she has subsequently been targeted because she was the sister of the applicant. She also said that (quoting from the reasons of the Tribunal): "'last month a strange native Fijian' was asking about the applicant and that person 'threatened to kill' the applicant if he could find him." 7 The Tribunal recorded in its reasons that in response to the applicant's claims the Tribunal discussed with him relevant information from external sources relating to Fiji. The Tribunal noted that following the 1987 coups in Fiji the country experienced a period of civil unrest and political instability. However, the Tribunal concluded from all reports cited that the coup has effectively ended and that the political instability and civil unrest of that period has also ended. In particular it cited a US State Department report of 1999 in the following terms: "The principal human rights problem, while significantly addressed in the revised Constitution, remains ethnically based discrimination. Although the new constitutional provisions reduce the factors that abridge the right of citizens to change their government, there is continuing protection for indigenous Fijian interests through government hiring practices, education policies, land tenure preferences, and constitutional safeguards. Other human rights problems include occasional police brutality, informal constraints on the freedom of the press, efforts to restrict public comments by the diplomatic corps, discrimination and cases of violence against women, and instances of abuse of children." 8 The Tribunal considered that recent political developments in Fiji have improved the circumstances of Indian Fijians. The Tribunal noted that despite a recent election and a change in government there is no indication that political instability or civil unrest was imminent. Furthermore, the Tribunal found no evidence to support the claim by the applicant that the government of Fiji favoured the interest of indigenous Fijians. 9 Specifically the Tribunal addressed the question of the police force in Fiji. It noted advice of the Department of Foreign Affairs and Trade ('DFAT') that indicated that the 1987 military coups in Fiji led to turmoil and confusion and that the effectiveness and morale of the police force dropped sharply. However, the Tribunal noted that DFAT had later commented that the effectiveness of the police force in Fiji had improved substantially since the civil unrest in 1987. 10 The Tribunal quoted from an overview in the following terms: "The Fiji Police Force is a professional and well-respected organisation. There is now a much clearer sense of a separation of powers between the executive, the judiciary and the police than was the case after the 1987 coups. Accusations of police brutality are rare and investigated seriously…it is generally acknowledged in Fiji that the Police Force itself is of a high standard. The Tribunal observed that DFAT had indicated that "the Police Department's internal affairs unit investigates complaints of police brutality, whilst links to the Ombudsman's office guarantee impartial investigations of complaints." DFAT indicated that there was no evidence to suggest that police brutality is a characteristic of law enforcement in Fiji. The Tribunal observed that by 1994 approximately 39 per cent of officers in the police force were ethnic Indians. 11 The Tribunal asked the applicant if any action had been taken by himself or members of his family to reclaim their land in Fiji. He responded that he had fled from his property in 1989 and did not return there. He stated that he remained in Ba from 1989 until he came to Australia in 1991. The applicant indicated that the family had not made any attempt to regain their land. He stated that if he returns to reclaim his land the indigenous Fijians who have lived on the land since 1989 will attempt to harm him or possibly kill him. He further claimed that Fiji is a small place and even if he does not return to his property, the people occupying the land will seek, find and harm him wherever he settles. 12 In giving its specific reasons for finding that the applicant was not at risk in Fiji, the Tribunal observed that the 1987 coups had led to turmoil and confusion in Fiji and that basic protection mechanisms failed during that period. The Tribunal referred to the applicant's claims that he was beaten in 1988 and that he was forced to leave his farm and relocate to the town of Ba in 1990. The Tribunal also referred to the applicant's indication that in Ba he continued to be fearful that, due to his race, religion and political opinion, he would be attacked by indigenous Fijians. The Tribunal accepted that the applicant was the victim of violence during the coup period. However it was not satisfied from the information provided by the applicant that in 1991, when he departed Fiji, he was suffering circumstances amounting to persecution for a Convention reason. 13 In dealing with the present circumstances in Fiji, the Tribunal noted that information from external sources indicated that despite the ethnic tensions between the Indian and indigenous communities in Fiji, Indian Fijians are not commonly subjected to persecution due to their race, political opinion, religion or any other Convention reason. The Tribunal accepted that discrimination against Indian Fijians continues in Fiji. However, the Tribunal concluded that the discrimination is not of such a nature or extent as to constitute persecution. 14 The Tribunal observed that widespread support has recently been demonstrated for a new constitution and a new government which will further reduce discrimination against Indian Fijians. The Tribunal observed that the new government is led by Indian Fijians which will further promote the interests of the Indian community. The Tribunal also satisfied itself from information from external sources that the applicant will be able to practice his religion in Fiji. Those conclusions are, of course, of a general nature. The complaint by the applicant concerns the specific findings or absence of findings relating to the circumstances of the applicant himself. 15 In that regard the Tribunal again referred to the applicant's claims that the civil and political unrest which motivated him to leave Fiji in 1991 was continuing and that he was fearful that individuals such as himself, being ethnic Indians who are devout Hindus and supporters of the Labour Party, are vulnerable to attack by indigenous Fijians. He asserted that in Fiji he would not have access to protection if he was attacked. The Tribunal in its reasons rejected those claims saying they were not supported by information from external sources. The Tribunal then went on to say: "The information cited above clearly indicates that since the 1987 coups in Fiji there has been a gradual return to stable government culminating in the new Constitution and the recent elections. The civil unrest which characterised the 1987 coup period has effectively ended and the police force is once again a professional and well-respected organisation. The Tribunal is not satisfied on the available information that the applicant will be differentially treated by the police force in Fiji, for a Convention reason, or that he will be denied access to the protection mechanisms commonly available to the citizens of that country. The Tribunal noted that the applicant's sister has recently told him that a 'strange native Fijian' has threatened to harm him. However, the applicant's sister did not provide many details regarding this claim. She did not explain under which circumstances that individual would carry out his threat against the applicant and she did not indicate if the matter was reported to the authorities. Nevertheless, irrespective of answers to these questions, the Tribunal is satisfied that if the applicant finds himself at risk of harm in Fiji he will have access to police services and other protection mechanisms commonly available to citizens of that country." 16 The thrust of the first complaint by the applicant is first that there was no unequivocal finding by the Tribunal as to whether or not the applicant did in fact own land in Fiji and whether or not he was dispossessed of that land in the circumstances alleged. It may be that on a fair reading of the Tribunal's reasons, there is no express finding one way or the other as to those matters. However that is of no great moment if, in fact, the Tribunal has found that the applicant has no well founded fear of persecution in Fiji today. 17 Emphasis was placed by the applicant on the language used in the passage from the reasons that I have just cited (paragraph 15 above). Counsel for the applicant accepted that there was a finding by the Tribunal that, so far as the police force is concerned, there is no discrimination. However, the applicant asserted that he has a fear of persecution by ethnic Fijians in the locality of the land of his family. There is no finding that he will not be subjected to conduct that might constitute persecution by those persons. Nor, so it was said, is there any finding by the Tribunal in its reasons, that the applicant would in fact have adequate protection from the police force in Fiji. 18 The Tribunal found expressly that the applicant would not be differentially treated by the police force in Fiji for a Convention reason. The complaint is that there was no express finding that the police force would, in fact, have the capacity to protect him from the conduct feared. The same expression appears twice in the passage cited above, namely "the protection mechanisms commonly available to the citizens of that country". The applicant contends that the finding made in the passage cited is no more than a statement that the applicant would receive the same protection as any other citizen of Fiji and that there is no finding that that protection is adequate. 19 The language of the Tribunal's reasons must be considered in the light of the whole of its contents. I have referred already to the observations made by the Tribunal on the basis of reports from DFAT. When the Tribunal refers to the fact that the police force is once again a professional and well respected organisation, that is clearly a reference to the overview from DFAT in which it was also stated that it is generally acknowledged in Fiji that the police force itself is of a high standard. 20 I shall set out again the critical sentence in the reasons: "The Tribunal is not satisfied on the available information that the applicant will be differentially treated by the police force in Fiji, for a Convention reason, or that he will be denied access to the protection mechanisms commonly available to the citizens of that country." There are two propositions to be found in that sentence. The first concerns differential treatment. The second, which is repeated as I have indicated above, concerns the availability of access to the protection mechanisms commonly available to the citizens of Fiji. If all that second proposition was concerned with was differential treatment, it would be otiose. I consider that, on a fair reading of the reasons, the Tribunal was saying that the applicant will not be denied access to the protection mechanisms, being those protection mechanisms that are available to citizens of Fiji. 21 The characterisation of the police force as professional and well respected is, in my view, tantamount to a finding that the police force has the capacity to afford the applicant the protection to which he is entitled against persecution. Those observations are made in the same paragraph as the Tribunal observes the assertion by the applicant that he "would not have access to protection if he was attacked". In other words, the Tribunal in dealing with that claim, must be taken to be saying that it rejects the claim that the applicant would not have access to protection, having regard to the present status of the police force. 22 I consider that on a fair reading, the Tribunal has found that the present circumstances in Fiji are such that the police force will provide adequate protection to the applicant from conduct such as that which he says he fears. It follows in my view that the conclusion of the Tribunal cannot be impugned on the grounds complained of in the amended application. 23 The remedy sought in the application is an order that the decision be set aside on the ground of the failure to make findings on material questions of fact, as required by section 430 of the Act. Section 430(1) provides that where the Tribunal makes its decision on a review, it must prepare a written statement that: "(a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." As I have said, I consider that a fair reading of the Tribunal's reasons is that it confirmed the decision because it found that if the applicant returns to Fiji, he would have adequate protection from the police force against conduct by ethnic Fijians of the type which he claims he fears. 24 It may well be that the applicant has indeed been deprived of his family lands. Whether the legal system of Fiji would enable him to reclaim those lands is not necessarily to the point in the question before me. The question is whether, if the applicant returns to Fiji, he will be subjected to persecution for Convention reasons. I am satisfied that the findings of the Tribunal are that he will not be subjected to persecution for Convention reasons. It follows in my view that the application should be dismissed. 25 There is presently within the court a difference of opinion as to the extent to which failure to comply with section 430 of the Act gives rise to a ground within section 476(1) of the Act. That question is currently reserved before the Full Court in Baljit Singh v Minister for Immigration & Multicultural Affairs (N 980 of 1999). It is not appropriate for me to express any view on the outcome of that appeal. If the view that prevails is that section 430 does not specify a procedure within the meaning of section 476(1)(a), a question will arise as to whether any relief would be available to the applicant in these circumstances if a different view were reached as to the adequacy of the Tribunal's reasons. 26 In the course of argument I raised with counsel for both parties the question of whether such a remedy would be available. Counsel for the applicant indicated that, in the alternative to the relief sought in the amended application, he would seek an order in the nature of Mandamus, requiring the Tribunal to comply with its statutory duty under section 430. In the light of the conclusion that I have reached, that question does not arise. However, had I reached a different conclusion as to the adequacy of the reasons I would have granted leave to the applicant to amend the application to seek relief of that nature. 27 The entitlement to such relief in the circumstances of such a case was not the subject of full argument. Counsel for the Minister indicated that he was not in a position to deal with argument on that question. I therefore indicated that I would consider the matter for a short time and that if I had concluded that there had been a failure to comply with section 430 I would hear further argument on the nature of the relief that would be appropriate in those circumstances. However, for the reasons I have indicated above, the question does not arise and accordingly I express no view at present as to the availability of such relief.