Menon v Minister for Immigration & Multicultural Affairs [2001] FCA 668

FEDERAL COURT OF AUSTRALIA

Menon v Minister for Immigration & Multicultural Affairs [2001] FCA 668

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – whether error of law – whether in assessing persecution more importance should be attached to motivation of persecutor than to an objective consideration of the persecutory conduct – whether Tribunal erred in not finding there was an onus on respondent to show conditions in country of nationality had changed between time of applicant's flight and time of determination Migration Act 1958 (Cth) s 476(1)(e) Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 DEVI YANACHAWRI MENON v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 183 OF 2001 HEEREY J 30 MAY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 183 OF 2001

BETWEEN: DEVI YANACHAWARI MENON

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 30 MAY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs to be taxed, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 183 OF 2001

BETWEEN: DEVI YANACHAWARI MENON

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 30 MAY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant applies under Pt 8 of the Migration Act 1958 (Cth) (the Act) for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant her a protection visa. 2 The applicant is a 58 year old Fijian citizen of Indo‑Fijian ethnicity. The Convention ground relied on is that of race. She arrived in Australia on 11 August 2000, a few months after the May coup in Fiji. She applied for a protection visa on 9 October 2000. The Tribunal conducted a hearing on 1 February 2001, and its decision was handed down on 23 February 2001. 3 The Tribunal summarised her claims as follows, this summary being accepted by counsel for the applicant as a fair summary of the claims she made both in her written application and in oral evidence before the Tribunal: 4 In an attachment to the protection visa application form the applicant claimed that even before the coup of May 2000 her house was broken into by indigenous Fijians. During the coup stones were thrown at the house. She claimed that she fears being bashed and robbed on return to Fiji and even killed. She outlined the way in which Indo‑Fijians are hard done by in Fiji and how they are discriminated against because they are of Indian ethnicity. 5 At the hearing, the applicant indicated that the house was broken into on a Tuesday. She could not be any clearer as to the date. In any event, this incident happened when she was staying at the house of her sister who lived about a mile away. When she rang her daughter she realised that the house had been broken into. The police were called and they arrived at about 12.30. The police told the occupant not to touch anything as they would dust it for fingerprints. They took a statement but did nothing further. 6 The applicant claimed at the hearing that she fears a return to Fiji because as a 57 year old woman she fears being assaulted and raped. She then added that once she was sleeping in the living room and a plank of wood was thrown at the door and she was badly shaken. She also described an incident when she was taken shopping by her sons and how some Fijians asked them for money; they were lucky to find an Indian taxi driver handy and they escaped. Her sari was torn in this altercation. 7 Under the heading Findings and Reasons, the Tribunal states that: "it is to be understood that the situation which existed in May 2000 during the attempted coup by George Speight no longer obtains." 8 The Tribunal quotes an article from the Australian Financial Review of 29‑30 July 2000 entitled "Fiji Now Cool, Calm and Corrected". The article states inter alia: "Normalisation gathered pace in Fiji on Friday as President Ratu Josefa Iloilo swore in a government to rule the country up for three years ... It appeared Speight's boast that mayhem would follow any attempt to apprehend him has proved hollow. Incidents of revenge against the army's arrest of Speight and 368 supporters were contained to a few centres, chiefly the town of Labasa on Vanua Levu Island. Two New Zealand pilots held at Savustavu airstrip by Speight supporters and taken to the home village of Speight's military adviser Ilisoni Ligairi ‑ also arrested by the army ‑ were released on Friday. Speight's second in command, Ratu Timoci Silatolu, was arrested and the army is moving this weekend to mop up rebel activists, especially a handful of former Counter Revolutionary Warfare soldiers blamed for fomenting violence in Labasa and other centres. The emergence of information about the rebels' ravaging of Parliament, their base for nine weeks, has reinforced growing popular antagonism. The mace was stolen, as were two historic tabua – whale's teeth ‑ central to Fijian culture. Meetings of chiefs and others are taking place in western Viti Levu and on Vanua Levu to consider breakaway moves but they are not expected to threaten Fiji's integrity. …" 9 The Tribunal also quotes a DFAT report of 20 September 2000 which included the following: "From a community perspective, we judge that while there would be no risk of mistreatment to indigenous Fijians, some Indo‑Fijians remain at risk of intimidation and harassment. Isolated Indo‑Fijian communities in the central division were subject to some violent criminal acts at the height of the political crisis. Although such crime has now been brought under control by the military and the police, we continue to hear of isolated cases of minor harassment ‑ mainly in the form of threats and low level theft. Increased police and military presence in potential trouble spots ‑ plus heightened media and NGO attention to this issue ‑ leads us to assess that the risk of significant communal mistreatment of Indo‑Fijians is currently low ... The military, police and the interim civilian government continue to express their public commitment to maintaining security and safety for everyone in the country. Since the end of July ‑ when rebel leader George Speight and his key henchmen were arrested ‑ authorities have convincingly stabilised the law and order situation. Armed checkpoints on parts of the two largest islands (Viti Levu and Vanua Levu) still operate as does the daily curfew on the capital Suva and immediate surrounds (2200 hours to 0500 hours). Good progress has been made in the arrest of rebels and escaped prisoners and the weapons they hold. The RFMF and police have demonstrated a dogged commitment to hunting down the remaining armed rebels and approximately 22 weapons believed to still be at large. Public confidence over security is now good ‑ there is a general sense that law and order again prevails and that the security situation is under control." The Tribunal then says: "The Tribunal accepts that from time to time Indo‑Fijians have been subjected to harassment and that this flared into some acts of violence during the recent attempted coup. The situation has been brought under control, as the above information indicates and the whole population can rely on the protection of the authorities. The Tribunal accepts the applicant's claims in relation to the break in at her house, it notes however that she was not there at the time and that the police responded to the applicant's family's call. The applicant made new claims at the hearing regarding a plank of wood being thrown at the door, she also claims a minor assault after an extortion attempt; The latter claim was different in substance from the way it was described in the original application and was augmented by claims of having her sari torn. Despite these inconsistencies and the lateness of some of her claims, even though the applicant has had the services of her adviser since the PV application, the Tribunal gives the applicant the benefit of the doubt and accepts these claims. The Tribunal also notes that the applicant has described being able to access the police and the police initiated an investigation in relation to the break‑in. The behaviour of the police as described by the applicant does not give rise to any doubt in the Tribunal's mind that police protection is adequate. The Tribunal finds that the incidents described, although capable of instilling subjective fear in the applicant, are not of the severity which would constitute persecution in terms of the Convention. The Tribunal accepts that the applicant may be subjected to some harassment because of her ethnicity by some elements of Fijian society but is not satisfied that such harassment amounts to Convention persecution. The Tribunal thus finds that there is not a real chance that the applicant will be persecuted for reasons of her ethnicity should she return to Fiji. Considering the applicant's claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well‑founded fear of being persecuted for a Convention reason should she return to Fiji." 10 Counsel for the applicant relied only on the ground contained in s 476(1)(e) of the Act, namely error of law. He further indicated that he relied on the first limb of that ground, namely an error involving an incorrect interpretation of the applicable law. 11 The first error was said to be that the Tribunal misdirected itself as to the meaning of persecution. Counsel referred to the leading authorities and in particular Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Counsel conceded that not every form of harm amounts to persecution. He said, however, that in the present case the Tribunal erred because it placed too much emphasis on the aspect of severity rather than the motivation of the persecutor. He said that motivation should "take priority". He also said that the test of severity applied by the Tribunal was "unduly high". 12 I do not think this argument should be accepted. I am not aware of any authority which requires an artificial segmentation of the concept of persecution in a way that gives the motivation of the persecutor some higher importance as compared with the objective severity of the conduct in question. 13 The circumstances in which the Tribunal is called on to apply the Convention tests of course are infinitely various. Usually, as in the present case, the Tribunal will be looking at past events as part of its function in assessing whether, in looking to the future, there is a real chance of persecution should the asylum-seeker be returned to the country of nationality. This is what the Tribunal did in the present case. 14 Having accepted the applicant's accounts of the events relied on, the Tribunal had to assess those events. Although it is perhaps only implicit, there is little doubt that the Tribunal accepted that there was a Convention‑related persecutory motivation, namely the applicant's race. Nevertheless, the Tribunal also had to assess the seriousness of the conduct and take that into account in assessing whether there is a real chance of conduct of that kind occurring in the future should she return to Fiji and, if so, whether that would amount to persecution. I can detect no error in the Tribunal's approach, particularly in the light of the emphasis it placed on improved conditions in Fiji since the failure of the coup and the restoration of some form of democratic government. 15 That leads me to the second error of law alleged by counsel. It was said that the Tribunal erred by not looking in sufficient detail into the situation in Fiji at the time of the applicant's flight from that country and her application for a protection visa. Counsel conceded that the Tribunal had to apply the Convention test of a real chance of persecution as at the time of its determination. Nevertheless, counsel said, it was for the respondent to persuade the Tribunal that the situation has so changed that there was no longer a well‑founded fear. Counsel at one stage used the term "onus" and then resiled from that, but in substance, as I understand it, that was the effect of his argument. The Tribunal he said, should have assessed the applicant's situation at the time of flight and asylum application and see whether that had changed. Counsel relied on a passage from the judgment of Gaudron J then in Chan at 415 where her Honour said: "If an applicant relies on his past experiences it is in my view incumbent upon a decision‑maker to evaluate whether those experiences produced a well‑founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well‑founded unless it is at least possible to say that the fear of a reasonable person in the position of a claimant would be allayed by knowledge of subsequent changes in the country of nationality." 16 However, that seems to me exactly what the Tribunal did. In the course of its considerations it placed considerable weight on information as to recent changes for the better in Fiji in terms of security. It was not suggested that the material the Tribunal relied on to reach its conclusion about the improved safety for Fijians generally, and Indo‑Fijians in particular, could not form a proper basis for that conclusion. 17 I find, therefore, that the challenges to the Tribunal's decision are not made out and the application will be dismissed. 18 There will be an order that the applicant pay the respondent's costs to be taxed, including reserved costs. 18 I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey