Simpson v Minister for Immigration and Multicultural Affairs [2002] FCA 156

FEDERAL COURT OF AUSTRALIA

Simpson v Minister for Immigration and Multicultural Affairs [2002] FCA 156 Migration Act 1958 (Cth), ss 36(2), 476

SIDNEY VERNON SIMPSON AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1349 OF 2001 GYLES J SYDNEY 26 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1349 OF 2001

BETWEEN: SIDNEY VERNON SIMPSON & ORS APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES

DATE OF ORDER: 26 FEBRUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. 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 1349 OF 2001

BETWEEN: SIDNEY VERNON SIMPSON & ORS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 26 FEBRUARY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application to review the decision of the Refugee Review Tribunal ("the Tribunal") made on 13 August 2001 and notified on 31 August 2001 whereby the Tribunal affirmed the decision of the delegate of the respondent Minister not to grant the applicant, Sidney Vernon Simpson, and members of his family protection visas on the basis that they did not satisfy the criterion set out in 36(2) of the Migration Act 1958 (Cth) ("the Act"). It is convenient to describe Sidney Vernon Simpson as the applicant. 2 Leave was granted to the applicant to further amend his application when this matter came on for hearing before me on 11 December 2001 to raise two grounds of review of the Tribunal's decision. 3 The first ground of the application is: "1. The decision involved an error of law, being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. Particulars The Tribunal misunderstood the meaning of "persecution for reasons of … race" in the definition of a refugee contained in the Convention on the Status of Refugees, or misapplied that meaning to the facts of the case. Specifically, the Tribunal failed to understanding [sic] that the motivation of the assailants in robbing the applicants could have been both "economic" and racial, and that protection under the Convention is not excluded merely be [sic] the existence of other motives for persecution. The Tribunal also failed to place the assaults on the applicants in the context of a general climate of racial intolerance which gave official permission or tolerance to acts of violence perpetrated against certain racial minorities. This misunderstanding led the Tribunal into the error of finding that the first applicant was not credible when he claimed his assailants had accused him of being a "traitor" to the Fijian cause." 4 The second ground is that the Tribunal's decision involved an error of law in that the Tribunal failed to apply the criteria under the Convention. It was alleged that the Tribunal assumed that a general description of the motivations behind violent attacks on ethnic minorities in Fiji must be true of all such attacks, therefore failed to consider whether the particular circumstances as described by the applicant might constitute persecution for the purposes of the Convention. 5 The applicant applied for refugee status in Australia on 14 August 2000 on behalf of himself and his family. The applicant is a Fijian of part European descent known as a Vasu. His wife is a Fijian of part Chinese descent. The applicant, his wife and his children were all born in Fiji and are citizens of that country. The applicant was employed as an Account Manager in Internet Services by Telecom Fiji Limited prior to his leaving Fiji. He has a Diploma in Telecommunication Engineering. 6 The applicant claimed that he had left Fiji because of racial vilification and violence leading up to and immediately following the coup led by George Speight in May 2000. As a consequence, he, his wife and children left Fiji for Australia on 1 July 2000. He returned to Fiji on 30 July 2000, leaving his wife and children in Australia, and commenced work on the following day. He says that he received threats at work, which the Chief Executive Officer of the organisation said that he could do little about. He claims to have received abusive and threatening telephone calls and to have been visited at home with a demand that he vacate his house and was offered violence when he refused to do so. He claims that when he reported this to the police, they said they could do nothing because of a shortage of resources. In those circumstances, the applicant returned to Australia on 5 August 2000, fearing violence if he stayed, and lodged the application for a protection visa on 14 August 2000. 7 The decision of the Tribunal was given on 13 August 2001, virtually a year after the visa application was made. The applicant and his wife were heard by the Tribunal on 26 April 2001. By that time, the situation in Fiji had moved on. Notwithstanding this, in broad terms the applicant said that he fears that he and his family will be targeted for racial vilification and violence by nationalists if they return to Fiji, and that the authorities will not be able to protect him. Law and order had fallen down and the appearance of calm was deceptive. 8 A brief summary of the claims considered by the Tribunal is as follows: · the claims of the applicant and his wife that they were the subject of various robberies, looting and assaults accompanied by comments that he was being targeted because he had/did not support their Fijian sentiments and that he had been targeted by supporters of Speight from within Telecom Fiji and by Fijians who live in his settlement; · the applicant's submission relating to his claim that Fijians are forcibly evicting Indians and other ethnic groups from their land in an attempt at ethnic cleansing, including his own family; · the applicant's claim that authorities in Fiji are not capable of enforcing the law and are incapable of protecting him or his family and that Speight and his group would soon be pardoned or released; · the applicant's claim that he had expressed his political view to other employees at his work and that he was then harassed by other employees for not supporting Speight and using words against him like "traitor" and "half-caste"; · the applicant's then present fears about what might happen to him and his family if they returned to Fiji, including the applicant's opinion regarding the position of law and order in the country and the fate awaiting Speight and his supporters. 9 The Tribunal accepted most, but not all, of the factual matters put forward by the applicant as to their own experiences. It explained why it did not accept those matters which it did not accept. Otherwise, the principal respects in which the Tribunal differed from the applicant's position were: (1) In characterisation of the motives for the threats and violence against the applicant and his wife. Based upon country information, the Tribunal took the view that the applicant and his family would not have been targeted for racial or political reasons, but rather on economic grounds because of their perceived wealth and social standing. It did not accept that part-Fijians, either of European or Chinese descent, suffer persecution as such. (2) The Tribunal found that the civil disorder which prevailed prior to and after the attempted coup by George Speight (and which accounted for some incidents) had been brought under control from July 2000 onwards and that security and safety had been restored well before the time of its decision. In addition to negating the chance of further incidents, the Tribunal was of the opinion that the applicant and his family would have redress according to law if there are any attacks, vilification or harassment, including any attempt to take over his property. 10 The principal submission of the solicitor for the applicant was that the Tribunal misdirected itself in various ways in not finding persecution on the ground of race. The first, and most fundamental, criticism was that the Tribunal fell into error in describing the motivation for the attacks upon the applicant as economic. It was put that if there is persecution of a racial group, the reason why the racial group is persecuted is irrelevant. He illustrated the point by suggesting that Jews were unpopular in Nazi Germany because of perceived wealth. Put another way, it was submitted that persecution of a person because of race and wealth was nonetheless persecution on the ground of race. Reference was made to the judgment of Kirby J in Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293. Counsel for the respondent did not challenge these principles. His answer was that when the reasons of the Tribunal are fairly read, their purport was that some crime was directed against all those considered wealthy, whether they be Vasus, Fijians, Chinese, Europeans or otherwise, and there was no racial aspect to the conduct. 11 In my opinion, the submission for the respondent is correct. The findings of the Tribunal on this point must be considered in a context where the Tribunal found that there was an absence of evidence of racial harassment or discrimination against Vasus in Fiji in the country information, and where the relevant crimes were described as being a result of poverty caused by urban drift and unemployment. 12 The solicitor for the applicant criticised the use made by the Tribunal of the country information relied upon on this point as it was current at 1994. It was submitted that this was so out of date and unrelated to the situation in Fiji in 2000 and 2001 as to be an irrelevant consideration and also caused the claims of the applicant not to be considered. It was also argued that the Tribunal impermissibly generalised from this information. Reference was made to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 75 ALJR 1105, particularly per McHugh, Gummow and Hayne JJ at [84], and the single judge decisions of W124 v Minister for Immigration & Multicultural Affairs [2001] FCA 1387 and L'Hadj v Minister for Immigration & Multicultural Affairs [2001] FCA 1608. 13 In my opinion, as submitted for the respondent, the 1994 information cannot be said to be immaterial or irrelevant, no matter how widely the authorities referred to might be construed (if correct). This is not the occasion to consider those authorities more closely. The use to be made of the 1994 information was a matter for the Tribunal. I do not consider that the Tribunal simply generalised without assessing the specific claims of the applicant. It plainly did consider the claims made by the applicant. The complaint in reality is that the Tribunal should not have characterised the conduct as it did. That is a complaint as to the merits of the decision. In this context, it is also necessary to note (as I pointed out earlier) that the Tribunal did not proceed only from the 1994 material – it relied upon the absence of any country information positively establishing persecution of Vasus. 14 It was also submitted that the Tribunal had misunderstood the significance of the applicant's position as a member of the Vasu ethnic group in circumstances where another Vasu, George Speight, led the attempted coup. This placed, and will place, pressure upon the applicant to "line up" with George Speight and his supporters, and even if George Speight is in custody his supporters are not. I agree with the submission of counsel for the respondent that the Tribunal's reasons reveal that it did not misunderstand the applicant's claim, but rather it did not accept that it had validity in Fiji in the latter half of 2001. That is a factual matter for it. 15 It was submitted for the respondent that, in any event, the Tribunal's finding that, in the circumstances prevailing, effective protection was available from the authorities in Fiji against any conduct which might amount to persecution was a complete answer to this application, no matter what the situation may have been earlier. In my opinion, that submission is substantially correct. 16 For the sake of completeness, I note that, in his written outline, the solicitor for the applicant submitted that the Tribunal had failed to apply the real chance test. I see no room for that argument in the present circumstances. 17 The application is dismissed. In the absence of any special circumstances, the applicant should pay the costs of the respondent. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.