NAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 394

FEDERAL COURT OF AUSTRALIA

NAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 394 NAAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N9 OF 2002

WILCOX J 28 MARCH 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N9 OF 2002

BETWEEN: NAAJ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 28 MARCH 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent. 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 N9 OF 2002

BETWEEN: NAAJ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 28 MARCH 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

WILCOX J: 1 This is an application to review a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse the grant of a protection visa. 2 The decision of the Tribunal was made on 16 November 2001 and the application for review was filed on 3 January 2002. It follows that the provisions inserted into the Migration Act 1958, operative from 2 October 2001, apply to this case. Those provisions include the new s 474, which is generally referred to as the "privative clause" and further reduces the Court's power to review decisions of the Tribunal. In the present case it is not necessary for me to consider the effect of the new provisions. I am satisfied that, even under the old law, the Court would not be able to grant relief to the applicant. 3 The applicant is a citizen of Tonga. He claims to fear persecution if he were returned to that country because of a serious falling out with the Minister of Police in the Tongan Government, in whose department he had formally been employed. I need not go into detail. However, I should say the Tribunal made inquiries about the position from the Department of Foreign Affairs and Trade. The Tribunal obtained a report, dated 30 August 2001, which is set out in the Tribunal's reasons for decision. That report indicates the applicant is known, at least by repute, to the author, who is apparently an officer of the Australian High Commission in Tonga. The report includes the following statement: "We do not consider that (the applicant) will be subject to 'persecution' under the law, by way of arbitrary arrest and detention, unlawful penalties, summary injustice, loss of liberty, or unusual harassment, for his association with persons critical of the minister of police. He could however be subject to considerable harassment from authorities." 4 The author goes on to predict what might happen if the applicant returned to Tonga. The prediction includes that he would be unlikely to be re-engaged in his former position. The author quotes a statement made by the Minister of Police that, if the applicant returns to Tonga, he will be subject to an inquiry for activities undertaken by him during his employment by the department. The author also mentions the possibility of an appearance before a judge. The report contains the following paragraph: "By way of background, you should be aware that the minister of police has been subject to public disquiet in the media, including in the 'Times of Tonga' article of October 2000 referred to in reftel, and a public petition to the King. Given the small size of the Nuku'alofa community, (the applicant) would certainly be associated with the group with grievances against the Minister. We understand that some persons associated with the petition, and others including court officials, have been subject to harassment by the police, including demotion, blocking of career paths, and breaking and entering of homes to obtain documents. Other officials who have accused the Minister of wrong-doings, and been suspended and penalised as a result, have later been fully exonerated, received back- pay and re-employed after appeal." 5 The author also mentioned that the issue was discussed in Parliament at some date prior to 20 October 2000. However the author was unable to provide a copy of the text of the Parliamentary discussion. 6 Notwithstanding this information, the Tribunal member rejected the applicant's claim to have a well founded fear of persecution if he were returned to Tonga. 7 The applicant apparently put to the Tribunal that he was a member of a particular social group, as that term is used in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees. The Tribunal did not accept this view of the matter. After referring to the possibility of criminal charges, and noting this would be for a breach of a general law and therefore not persecution, the Tribunal member said: "In relation to harm that he may encounter at the hands of the Minister, or under his instruction, I have carefully considered the potential of the applicant being harmed by anyone in Tonga, and note DFAT advice that he may face serious harassment. I accept that this may occur. I have carefully considered the motivation for anyone who may harm him. I accept that people may have various reasons for harming someone. In the applicant's circumstances I consider that the motivation of the Minister would be revenge of the applicant having come forward with his accusations. I do not accept that it has anything to do with political opinion, imputed or actual, nor do I accept that it has anything to do with any other Convention ground." 8 Accordingly, the Tribunal found the applicant does not have a well founded fear of persecution. It affirmed the delegate's decision. 9 The applicant has not been represented by a lawyer before me. However, he has had the benefit of representation by Mr Ofeina Sikahele. Mr Sikahele forwarded to the Court a submission which sets out the points the applicant wishes the Court to consider. The submission is in the following terms: "1. The RRT found that that [sic] in the applicant's circumstances, the motive for the Minister (and 'people') wanting to harm the applicant, 'would be revenge'. 2. The RRT failed to take into account relevant circumstances. The RRT failed to consider whether or not the applicant was the member of a social group constituted of persons with grievances against the Tongan Police Minister. 3. The reason that the applicant would be harmed if he returned to Tonga by the Minister and 'people' was for being a member of a recognized social group in Tonga. The Department of Foreign Affairs and Trade (DFAT) said of the applicant, 'Given the small size of the Nuku'alofa community, [the applicant] would certainly be associated with the group with grievances against the Minister …' 4. The reasons that lie behind the harm the Applicant may face was for a Convention reason. 5. This matter is 'exceptional', and lends support to the purported policy intention of Privative Clauses explained by the Respondent in Paragraph 21 of their submission. The ensuing paragraphs are also consistent with the present application." 10 The applicant appeared with Mr Sikahele at the hearing today. They were assisted by an interpreter. A discussion ensued regarding the submission and I was informed that neither Mr Sikahele nor the applicant wished to add to it. 11 I do not usually comment about factual findings in Tribunal decisions. The reason for this is that the Act is structured on the basis that is for the Tribunal to make the findings of fact; the Court has no jurisdiction to review or overturn those findings. However, in the present case I have to say I find the Tribunal's finding curious. The Tribunal had before it material emanating from an officer of the Australian High Commission in Tonga, who was obviously well informed about the background to the applicant's claim, involving incidents which apparently have achieved a degree of notoriety in Tongan political life. That person predicted "considerable harassment from authorities" if the applicant was returned to Tonga. The author also referred to persons associated with the petition, who apparently include the applicant, having been subject to various forms of harassment, including demotion, blocking of career paths and breaking and entering of their homes in order to obtain documents. The author seems plainly to be saying that those who have been associated with the petition that criticised the Minister have been subjected to not inconsiderable harassment. Whether that degree of harassment should be regarded as persecution is perhaps a matter for judgment. However, when the Tribunal analysed the facts of the case it treated the likelihood of harassment as mere revenge directed to the applicant as an individual. I find this a curious approach. 12 The problem, from the applicant's point of view, as I pointed out to the applicant and to Mr Sikahele during discussion, is that these are all matters of fact. The Tribunal member rejected the claim that the likely harassment had anything to do with political opinion, imputed or actual. This is perhaps understandable. It does not seem to have been put to the Tribunal that the applicant's criticism of the Minister was based on any party political or ideological ground; rather it was concerned with the Minister's behaviour. 13 However, the Tribunal member did not stop at negativing the ground of political opinion. The member refused to accept that the harassment had anything to do with any other Convention ground. This negatives the view that the possibility of harassment is related to membership of a particular social group. 14 The submission put to the Court by Mr Sikahele, on behalf of the applicant, is that the Tribunal failed to consider whether or not the applicant was a member of a social group constituted of persons with grievances against the Tongan Police Minister. I can understand the dissatisfaction of the applicant and his advisers about the Tribunal's view on this matter, but I cannot uphold a submission that the Tribunal failed to consider that issue. The issue was negatived by the Tribunal member's statement rejecting the proposition that the likely persecution has anything to do with any other Convention ground. 15 Under these circumstances, I have no option other than to dismiss the application for review. I do so with regret. I feel the Tribunal's main finding of fact is vulnerable to serious criticism. There appears to be a significant possibility, if not a probability, that the applicant will be subjected to harassment, and possibly worse, if he is returned to Tonga. 16 That is a matter that may be taken into account by anybody else whose task it is to consider the case before any action is taken to return the applicant. However, it is not a matter within the jurisdiction of the Court. I believe I have no option other than to dismiss the application and I think the usual order should be made in respect of costs. Accordingly, the order of this Court is that the application be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.