Nand v Minister for Immigration and Multicultural Affairs [2002] FCA 1521

FEDERAL COURT OF AUSTRALIA

Nand v Minister for Immigration and Multicultural Affairs [2002] FCA 1521 MIGRATION – review of decision of Refugee Review Tribunal – refusal to grant applicant protection (class XA) visa – where applicant failed to attend at the hearing of the application – whether reviewable error – time for determining whether visa applicant has a well-founded fear of persecution – whether there was no evidence or other material to justify the making of the decision

Migration Act 1958, s 476(1) Federal Court Rules, Order 32 Rule 2

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 followed Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 cited SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1389 cited Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 applied

NAJNESHWAR NAND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 248 of 2001 KENNY J MELBOURNE 9 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 248 OF 2001

BETWEEN: NAJNESHWAR NAND

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: KENNY J

DATE OF ORDER: 9 DECEMBER 2002

WHERE MADE: MELBOURNE

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

VICTORIA DISTRICT REGISTRY V 248 OF 2001

BETWEEN: NAJNESHWAR NAND

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: KENNY J

DATE: 9 DECEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application under s 476(1) of the Migration Act 1958 ("the Act") for review by this Court of a decision of the Refugee Review Tribunal ("the Tribunal") made on 15 February 2001, affirming a decision of the respondent, by his delegate, to refuse the grant of a protection (class XA) visa to the applicant. The law to be applied is that which existed prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 2 By a motion, notice of which was filed 29 November 2002, the respondent seeks an order that the application be dismissed with costs. The motion was supported by an affidavit affirmed by the solicitor who has the conduct of the proceeding on the respondent's behalf. 3 The applicant did not appear at the hearing today. His former solicitors have filed a notice that they have ceased to act for him. They have been granted leave to do so. Mr Henry Magistrado, who formerly had the care and conduct of the proceeding for the applicant, has sworn an affidavit in which he states that he has sought, and not received, instructions from the applicant since August this year. He deposes that he has written letters to the applicant, which were addressed to him at his last known address, and that, since August this year, these letters have been returned with the notation "Return to sender". A real estate agent has advised Mr Magistrado that the applicant is no longer a tenant of property at his former address, and it appears that the applicant's former telephone number is no longer connected. 4 By letter dated 18 November 2002, which was sent by registered mail, the Court sought to advise the applicant of the hearing today. It appears that notice of the letter was delivered at the only address for the applicant contained in the Court file, and that the letter remains uncollected at the post office. The affidavit filed in support of the respondent's motion detailed the efforts made, or caused to be made, by the respondent to notify the applicant of the respondent's motion today. I am satisfied that the respondent has taken all reasonable steps to bring the matter to the applicant's attention. 5 The respondent submits that the proceeding should be dismissed pursuant to O 32 r 2(1)(c) or (d) of the Federal Court Rules ("the Rules"). Order 32 r 2 provides: (1) If, when a proceeding is called on for trial, any party is absent, the Court may: (a)order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court may direct; (b)adjourn the trial; (c) if the party absent is an applicant or cross-claimant dismiss the action or the cross-claim; or (d) proceed with the trial generally or so far as concerns any claim for relief in the proceeding. (2) Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial an order is made, the Court, on motion by that party, may set aside or vary the order, and may give directions for the further conduct of the proceeding. (3) Subrule (2) does not enable the Court to vary the verdict, finding or assessment of a jury at a trial except with the consent of each interested party present at the trial. 6 In all the circumstances, it seems to me that the appropriate course is to deal with the matter on its merits. This I may do, since the amended application for review is in proper form, and the parties have prepared and filed written submissions that enable me readily to ascertain whether the grounds of review are made out. Counsel for the respondent also addressed me briefly today on the parties' written submissions. background facts 7 The applicant, Najneshwar Nand, was born on 22 December 1976. He is a citizen of Fiji, of Indian ethnicity and of Hindu religion. Mr Nand entered Australia on 29 April 2000, after having visited New Zealand briefly prior to his arrival. At the time of his arrival, he held a visitor's visa which was valid until 29 July 2000. Mr Nand lodged an application for a protection visa with the respondent's department on 13 June 2000. On 17 October 2000, a delegate of the respondent refused that application. As noted, the Tribunal subsequently affirmed that decision. 8 The decision under review in this proceeding is the Tribunal's decision that it is not satisfied that Mr Nand has a well-founded fear of being persecuted in Fiji by reason of his Indian ethnicity. Mr Nand claims that he has a well-founded fear of persecution should he be returned to Fiji because he is Indian. This fear arose as a result of events which occurred in Fiji subsequent to George Speight taking over the Fijian Parliament. This occurred while Mr Nand was visiting Australia. legislative framework 9 Section 36 of the Act provides: (1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 10 Section 5(1) of the Act defines the Refugees Convention as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Refugees Protocol as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 11 Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas. Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. Protection obligations may arise in relation to a person who falls within the definition of "refugee" in the Refugees Convention as amended by the Refugees Protocol (collectively, "the Convention"). A refugee is defined in Article 1A(2) of the Convention as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … . the tribunal's reasons for decision 12 After considering the relevant legislation and policy, the Tribunal turned its attention to Mr Nand's specific claims and the evidence before it. It identified several factors as the source of Mr Nand's claimed fear of persecution. The Tribunal first referred to Mr Nand's claim that his employment was detrimentally affected due to his Indian ethnicity. It noted his claims that he had been overlooked for job promotions; had experienced difficulties at work, including instances of intimidation by ethnic Fijians; and that, were he to return to Fiji, he would not receive employment commensurate with his training and experience. The Tribunal also noted Mr Nand's claim that the situation in Fiji after the attempted coup by Mr Speight was worsening. It noted his reference to increased attacks upon ethnic Indians, the lack of police intervention and a general belief among ethnic Fijians that it was "all right" to attack Indians. The Tribunal referred to Mr Nand's evidence that his father had been verbally attacked by ethnic Fijians; that his father had been stopped at a roadblock recently and the car he was driving "stoned"; and that his father had told him in a telephone conversation about one month prior to the hearing that taxi drivers had been beaten and violent incidents were not uncommon. The Tribunal also referred to Mr Nand's claimed fear of being confronted by his former managers (who are ethnic Fijians) upon his return to Fiji. This fear arose because Mr Nand (and other employees) provided information to an investigation conducted into the activities of his former employer when the Chaudry government came to power. The Tribunal noted that this claim had not been made prior to the Tribunal hearing. The Tribunal also referred to Mr Nand's family home, independent country information concerning positive employment prospects in Fiji, and other general country information tending to show that Fiji was safe. 13 The Tribunal found that Mr Nand had not suffered persecution or discrimination prior to his arrival in Australia. In relation to Mr Nand's claims concerning his employment, the Tribunal could find no independent evidence to indicate that Indo-Fijians were now being denied education or jobs, and found that he "would not be denied a return to his former employment for reasons of his ethnicity or for any reason other than the necessity … to update" his skills. The Tribunal rejected as "speculative" Mr Nand's claim that he feared that he would not gain employment in accordance with his training and experience upon his return to Fiji. It accepted independent country information showing that there are many vacancies in Fiji in professional and trade occupations. The Tribunal also accepted that there had been a downturn in the Fijian economy as a result of Mr Speight's attempted coup, but found that any disadvantage Mr Nand (and other community members) might suffer as a result of this downturn was not a matter of persecution for a Convention reason. 14 The Tribunal accepted, as "a sound assessment of the situation in Fiji", advice from the Department of Foreign Affairs and Trade contained in Fijians Seeking Asylum in Australia (CX45150) 20 September 2000). This advice indicated that the interim civilian government was committed to the protection of equal rights and that, from a governmental perspective, "there should be no risk of institutionalised mistreatment by authorities of returning Fijians, whether ethnic-Fijian or Indo-Fijian". At a community level, the advice indicated that: [S]ome 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 crises. Although such crimes 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 present 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. 15 The advice described a general commitment of the interim government to maintaining security and safety for all, and in re-building the economic situation. The Tribunal accepted that Mr Nand's father had been verbally abused and that stones may have been thrown at a car that his father was driving, but concluded that these incidents did not amount to persecution. They were incidents that were not uncommon at the time. They were not the result of any animus against, or indirect threat of persecution of, Mr Nand. 16 The Tribunal found that Mr Nand's claim of intimidation in connection with the former government's investigation into his employer was not plausible, given that he and his fellow employees might have sought the protection of the authorities at the time if they had been subjected to intimidation. The Tribunal also noted that the claim was raised for the first time at the Tribunal hearing. 17 Finally, the Tribunal referred to other country information (Reuters Business Briefing 7 November 2000 "Fiji media reports details of bloody failed mutiny" Cisnet CX46637) and concluded that it was not satisfied that Mr Nand's fear of persecution for reasons of his Indian ethnicity were objectively well-founded. It was satisfied that there was not a real chance that Mr Nand would suffer persecution for any Convention reason if he were to return to Fiji. grounds of review 18 By his amended application for an order of review, Mr Nand relied upon two grounds. The first ground was that the Tribunal's decision involved an error of law within s 476(1)(e) of the Act. The alleged error was said to arise in "its approach to whether or not [Mr Nand] held a well-founded fear of persecution by determining that such fear was not well-founded at the time of determination without regard to that fear being well-founded at the time of application for protection". In his written contentions filed with the Court, Mr Nand accepted that the determination of whether there is a well-founded fear of persecution must ordinarily be made at the time of determining an applicant's refugee status, but contended that, in his case, the Tribunal ought to have approached the determination differently. In written submissions filed on his behalf, it was said: … In assessing whether or not the Applicant held a well-founded fear of persecution at the time of the determination of his application given that there has been a change in the circumstances of Fiji, the Tribunal should have first examined whether the Applicant held a well-founded fear at the time of his application. If that were found, based on his past experiences and knowledge of the situation in Fiji during the coup, then that fear ought to be presumed to be well-founded also at the time of determination unless it could be shown that the fear could be allayed by the recent changes in Fiji. … This argument is founded upon the judgment of Gaudron J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 414-415 ("Chan"). As counsel for the respondent submitted, the applicant's submission sought to put a construction on the decision in Chan that subsequent authorities had rejected. 19 There is a clear line of authority in this country which indicates that the question of whether or not a person is a "refugee" for the purposes of the Convention is to be determined having regard to the circumstances existing in the country of nationality at the time when the determination is made(see Chan at 386-387 per Mason CJ, at 398-399 per Dawson J, at 405-406 per Toohey J and at 432-433 per McHugh J; and Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 at 293 per Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ.) For a recent case on point, see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1389 per Tamberlin J at [24]-[26]. This is not to say that the circumstances prevailing in the country of nationality at the time an applicant left his or her country of nationality are necessarily irrelevant. For example, these circumstances may constitute the starting point for the decision-maker's inquiry. Chan demonstrates the relevance of circumstances at the time of departure from the country of nationality (see, e.g., at 387 per Mason CJ, at 399 per Dawson J, at 406 per Toohey J and at 432 per McHugh J). This was not, however, the approach that was advocated by Mr Nand in his written submissions. As noted, his submissions contended that the Tribunal's error was its failure to consider the circumstances in Fiji "at the time of application for protection". The Tribunal was not required to consider these circumstances and no error is shown in its failure to do so. Further, there was ample evidence of the then current conditions in Fiji upon which the Tribunal could base its finding that Mr Nand did not face a real chance of persecution for reasons of his ethnicity were he to be returned to Fiji. There is no error of law of the kind for which Mr Nand contends, and the first ground is not made out. 20 The second ground of review was based upon ss 476(1)(g) and 476(4)(b) of the Act. That is, it was submitted in Mr Nand's written submissions that there was no evidence or other material to justify the making of the decision because it was based upon a particular fact and that fact did not exist. The fact that was said not to exist was that Mr Nand had made no claims that he had suffered persecution prior to his arrival in Australia. Mr Nand contended that this "fact" did not exist because, in his original application form, he claimed that, because of his ethnicity, he "did not get job promotions and had difficulties at work", and that this amounted to a claim of persecution. Reliance was placed upon the judgment of McHugh J in Chan at 429-431. 21 I am not satisfied that this ground has been made out for several reasons. First, notwithstanding the Tribunal's statement that "the applicant has made no claims that he had suffered persecution prior to coming to Australia", an analysis of the Tribunal's reasons for decision discloses that it was fully aware of Mr Nand's claims in relation to past discrimination and other harassment at work. In particular, the Tribunal referred to and considered Mr Nand's account of the discrimination and harassment said to have been suffered by him prior to his departure from Fiji and did not accept that Mr Nand had been the subject of discrimination on the grounds of ethnicity in relation to job promotions. Under the heading "Findings and Reasons", the Tribunal stated: The Tribunal finds that the applicant had not suffered persecution or discrimination prior to coming to Australia. The applicant was able to receive approximately 16 years of education in Fiji, and receive professional training as an air traffic controller. Until he left Fiji in April 2000 for a visit to New Zealand and Australia, he was in employment in a career in which he exercised his qualifications as a licensed air traffic controller. … The Tribunal has found that the applicant has not suffered persecution or discrimination in the past. 22 I accept that, as the respondent stated in written submissions: The statement made by the Tribunal … that the applicant has made no claims that he had suffered persecution prior to coming to Australia should be construed in the light of its findings that the claimed discrimination and harassment at work did not amount to persecution for a Convention reason. The Tribunal was clearly aware of the claims made by the applicant. In making the statement referred to above, the Tribunal was merely attempting to reiterate that the primary motivation for the protection visa application arose from the situation in Fiji after the attempted coup by George Speight, rather than from any past experiences of persecution. 23 Secondly, even if the Tribunal's statement were incorrect, it does not come within the "no evidence" ground of review provided for by ss 476(1)(g) and 476(4)(b) of the Act. The Tribunal's reasons clearly indicate that its decision was not based on the relevant finding of fact (ie the finding that Mr Nand did not make claims of persecution for reasons of ethnicity prior to his arrival in Australia), for the purposes of s 476(4)(b) of the Act: see Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402, at [56]-[58] per Gaudron and McHugh JJ; also [26], [42] per Gleeson CJ and [154]-[161] per Callinan J. This finding was not critical to the Tribunal's decision that Mr Nand was not entitled to a protection visa; and the Tribunal's reasons indicate that there was other evidence or other material which justified its decision in respect of Mr Nand's application. 24 For these reasons, no reviewable error is shown. I would dismiss the application with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.