FEDERAL COURT OF AUSTRALIA SZALW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1690 SZALW AND ORS v Minister for Immigration and Multicultural and Indigenous Affairs NSD 763 of 2004 ALLSOP J 22 DECEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 763 of 2004 ON APPEAL FROM A JUDGMENT OF A FEDERAL MAGISTRATE BETWEEN: SZALW FIRST APPELLANT SZALX SECOND APPELLANT SZALY THIRD APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 22 DECEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application to amend grounds 1, 2 and 4 of the notice of appeal be allowed. 2. The application to amend ground 3 of the notice of appeal be refused. 3. The appeal be dismissed. 4. The first and second appellants 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 NSD 763 of 2004 ON APPEAL FROM A JUDGMENT OF A FEDERAL MAGISTRATE BETWEEN: SZALW FIRST APPELLANT SZALX SECOND APPELLANT SZALY THIRD APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE: 22 DECEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 11 March 2003 and handed down on 1 April 2003, affirming the decision of a delegate of the Minister not to grant a protection visa to the appellants. 2 Pursuant to the provisions of s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice determined that this appeal be heard and determined by a single Judge. 3 The appellants are husband, wife and son. They are Fijians of Indian ethnicity. At the commencement of the appeal I made an order that the first appellant, the husband and father, undertake the appeal as the next friend of his son who is under 18 years of age. 4 Three grounds of complaint were identified in the amended application before the Federal Magistrate. They were as follows: (1) The Tribunal failed to take into consideration relevant vital country information – some provided by the applicant, one other from Amnesty International's Annual Report for 2002 which is part of the Tribunal's country information. Particulars (a) CB 61 "Indians have bleak Future: Rabuka". (b) CB 62 "Fiji Government Appeals against Court ruling". (c) CB 63 "Fiji Government takes post election row to Supreme Court". (d) Supplementary CB – page 18.10 – Respect for … emergency powers". (2) The Tribunal misinterpreted the meaning of "persecution" in s 91R of the act [sic] and as a result committed jurisdictional error by asking a wrong question in relation to the applicant's claims [sic] to have been persecuted in the past and to fear persecution in the future. (3) The Tribunal was unreasonable to a degree of Wednesbury Unreasonableness when it used the Amnesty International's Annual report for 2002 in a very selective way to present a wrong picture of Fiji within its decision. Particulars Tribunal's summary given on CB 80.30 differes [sic] significantly from the report itself appearing on Supplementary CB 18. 5 The Notice of Appeal in this Court mirrored in large part those grounds. Also, further grounds not argued below were sought to be raised on appeal by a proposed amendment. The first ground of appeal in this Court (grounds 2(a)) was similarly framed to ground 1 in the amended application. In addition to grounds (a) to (d) the following appeared (which amendment I allow): (e) Applicant's letter to the Tribunal CB 54-57, was a submission to the RRT by the Applicant in response to the Delegate's decision and it deals with the country situation in Fiji. In paragraph 6 of the court judgment His honour says [sic] "The articles were not expressly referred to by the presiding member in his reasons for decision but that does not necessarily mean that they were ignored. It was not one but several pieces of country information and further a detailed submission and there being no reference at all, the only conclusion possible is that the Tribunal ignored it and only relied on information it had collected. 6 The second ground of appeal in this Court (ground 2(b)) was relevantly identical to ground 2 in the amended application. 7 The third ground of appeal (ground 2(c)) was relevantly identical to ground 3 in the amended application. 8 The fourth ground of appeal (ground 2(d) in the proposed amended notice of appeal) was in the following terms: The Tribunal made jurisdictional error by breaching its obligations under s 430(1)(b) of the act [sic]. 9 The fifth ground of appeal (ground 3 in the proposed amended notice of appeal) was one of bias expressed in the following terms: The Tribunal was biased or there is reasonable apprehension that it was biased based on how it dealt with the applicant's case in the sense it has a closed mind. 10 The sixth ground of appeal (ground 4 in the proposed amended notice of appeal) was that one of the claims of the appellant was not dealt with by the Tribunal. This was particularised as follows: The Applicant claimed that because of the court battle between the government and Fiji Labor party there is instability and that there is fear of further coup and associated racial violence and persecution against Indo Fijians. This claim was not dealt with. The Tribunal also failed to consider whether the applicants would be persecuted in the foreseeable future, it only looked at the present. 11 By reason of the grounds of appeal it is necessary to commence with the decision of the Tribunal. 12 The Tribunal on pages 4 and 5 of its reasons set out some of the information provided by the appellants about their claim for asylum in the following terms: The Applicants are Fijian nationals. They arrived in Australia in December 2001. They are of Indian ethnic background. They state that they are unwilling to return to Fiji as they fear that they will be harassed and threatened by native Fijians; and that would mean that they would lose the freedom to go out and do things outside the home, a freedom that they enjoy here in Australia. The Applicant husband states that he was a member of the Fiji Labor Party. He organised meetings for the FLP at his home compound and he wrote the letters to the newspaper. All this was known to the local native Fijians. Following the coup the native Fijians harassed and threatened the Applicants. The native Fijians threw stones at the Applicant's house and broke into the Applicant's car. The Applicants stayed in Fiji for eighteen months after the coup, as they had faith in the country, but the situation has not improved. The coup has changed the attitude of the native Fijians. It is now difficult to go to the cinema or to the market because of the harassment. They used to go a local beach for picnics but they stopped as they were worried abut being harassed or beaten or the women being raped by the native Fijians. The Applicant husband states that he told the police but the police said that they could do nothing as nothing had actually happened to the Applicants. The Applicants believe that reporting matters to the police brought additional harassment. The Applicant wife states that they had run a restaurant in Fiji. Before the coup they had a good relationship with the native Fijians, many of whom frequented the business. After the coup the native Fijians would come to the restaurant and behave badly and then not pay. Even some the native Fijian police would not pay. The restaurant had to be sold below cost. The Applicant wife said that in Fiji their home had bars and grills and the children could not go outside to play. It was put to the Applicants that there did not seem to be any evidence that Fiji Labor Party members were at risk of persecution. The Applicant husband said that this was true, though, as he pointed out, many such members had left Fiji. He was worried about what might happen in the future if the High Court upheld the case bought by the Labor Party. 13 The Tribunal then referred to various pieces of country information from the Department of Foreign Affairs and Trade, the US Department of State and Amnesty International. The dates of that information were 2000, 2001 and 2002. In particular the Tribunal referred to information from the Department of Foreign Affairs and Trade in April 2001 which was in the following terms: … 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 crisis. Although such crime has since 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 continued media and NGO attention to this issue – leads us to assess that the risk of significant communal mistreatment of Indo-Fijians is currently low, if not lower, than reported previously. 14 The Tribunal noted that DFAT had confirmed that this advice remained accurate. The Tribunal concluded its review of the country information as follows, first referring to the above quoted DFAT advice of April 2001. DFAT has confirmed that this advice remains accurate. Immediately following the post-coup elections held in August/September 2001, DFAT advised that there had been no significant change in the security situation since earlier reports, within continuing isolated cases of minor harassment, notably theft. The police and military worked very hard in safeguarding public security: CX58065, Fijian asylum seekers in Australia, Country Information Report No. 270/01, 4 October 2001. Amnesty International's Annual Report for 2002 indicates that there has been an improvement in the security situation in Fiji subsequent to the coup. There was no reported violence resulting form political or ethnic tensions. Some Indo-Fijians were threatened with violence when they gave evidence against indigenous Fijians accused of looting or driving them from their homes during the coup. For much of the year police and the military maintained an increased presence in the areas worst affected by violence around the time of the coup. However, some police stations lacked the equipment necessary to allow them to respond to security threats. 15 Under the heading "Findings and Reasons" the Tribunal said as follows: I am satisfied that the Applicants are Fijian citizens. They are ethnically Indian. I note that the Applicants claim that they are unwilling to return to Fiji because they fear that they will be harmed by the native Fijians. I am satisfied that the Applicants fears that if they return to Fiji they will be harassed, threatened, and abused [by] native Fijians. They fear that that [sic] they may be physically harmed. I accept that both before, during and after the coup in Fiji in May 2000, many Indo-Fijians were subjected to verbal abuse, harassment, robbery; assault, the homes of some Indo-Fijians were vandalised; and some houses built on land owned by native Fijians were destroyed. I am satisfied that that [sic] Applicant's were harassed and threatened; their business was harmed by native Fijians behaving badly and not paying. The police did nothing to help them. I am not satisfied that the harm suffered by the Applicants amounts to persecution in the terms of s.91R(1) of the Act. The independent evidence suggests that the law and order situation in Fiji is stable except for some isolated minor harassment, and that democracy is being restored. The DFAT reports referred to indicate that the, 'Fijian authorities had convincingly stabilized the law and order situation' and that, 'the present law and order situation in Fiji is stable'. I am not satisfied that there is a real chance that the Applicant will be subject to persecution in the terms of s 91 of the Act, should they return to Fiji. I am not satisfied that the Applicants have a well-founded fear of persecution. 16 The Tribunal then concluded by saying that having considered the evidence as a whole it was not satisfied that the appellants were persons to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal affirmed the decision not to grant protection visas. 17 The first ground of appeal (ground 1 in the amended application before the Magistrate) reflected a complaint as to the choice of country information relied upon by the Tribunal. The complaint was essentially that material including newspaper articles that was and were provided by the appellants to the Tribunal concerning the situation in 2002 were not referred to by the Tribunal. Particular reference was made on appeal to the letter of the first appellant to the Tribunal in which the court case dealing with the constitutional arguments was identified as likely to raise ethnic tension. It was submitted before the Magistrate that the Tribunal had an obligation to deal with that country information in its reasons. This material was put by the appellants to the Department. It was before the Tribunal. 18 The learned Federal Magistrate dealt with this matter at [4] and following of his reasons. In my view the learned Federal Magistrate made no error. The material referred to by the appellant was plainly before the Tribunal. It was either in the Departmental file or a submission to the Tribunal. The Federal Magistrate concluded that all the elements or integers of the appellants' claims were considered. This was a finding that all the claims as propounded were dealt with by the Tribunal. The complaint really is one that favourable evidence was not expressly the subject of written consideration in the reasons. There is a fundamental underlying difference between the obligation to take into account considerations made compulsorily relevant by the Migration Act 1958 (Cth) (the "Act") and law and evidence probative or relevant to such considerations. In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, in discussing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323I said the following relevant to this matter: Yusuf does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the Court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed "relevant" for this purpose means that the decision-maker is bound by the statute or by law to take this into account. 19 This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29]. 20 There is no basis upon which I can conclude that the Tribunal did not give consideration to all the material before it. It relied in particular for its conclusions on certain country information. That was a decision for the Tribunal within its jurisdictional task. The first ground of the appeal fails. 21 The third ground of the application: "Wednesbury Unreasonableness" (equivalent to the third ground of appeal) was next dealt with by the Federal Magistrate. This ground of the application and of the appeal was centred on the dealing with the Amnesty International Report referred to in [13] above. It was submitted that the conclusions drawn by the Tribunal were simply not there to be drawn in the report. This matter was dealt with in [17] to [21] of the Federal Magistrate's reasons. The Federal Magistrate noted that the Amnesty Report could not easily be seen to reflect what the Tribunal said on page 80 of the court book (page 8 of the reasons) set out at [13] above. The Federal Magistrate said that the Tribunal appeared to have put a "positive spin" on the report which "arguably was a misuse of it". However, the Federal Magistrate rejected the submission on behalf of the appellants that this demonstrated jurisdictional error in some fashion. In particular the Federal Magistrate said the following at paragraph 21 of his Honour's reasons: As a whole, the conclusions reached by the presiding member on page 81 of the court book were reasonably open to him on the material before him. It cannot be said either on a global examination of the reasons or on an examination of the reasons in relation to the Amnesty International report that the assessment was irrational, absurd or perverse. The presiding member placed a positive emphasis on a part of the Amnesty International report arguably taken out of context, but that does not in my view equal irrationality, absurdity or perversity. Neither does it satisfy the test of Wednesbury unreasonableness. 22 Page 81 of the Court Book, page 9 of the reasons, is in large part set out at [14] above from the paragraph commencing "the independent evidence suggests". I agree with the conclusions of the learned Federal Magistrate. What the Federal Magistrate effectively found was that reliance by the Tribunal on the Amnesty Report was to be balanced by its reliance upon other country information. In doing so the Federal Magistrate correctly focused upon the whole of the decision and the reasons for it rather than examining too closely one particular piece of evidence. On one view the mistreatment, if it be such, of the Amnesty Report is the identification of how a factual error arose rather than a foundation for any jurisdictional error. 23 The second ground of the appeal which mirrored the second ground of the application was that the Tribunal had misunderstood the notion of persecution. The issue was correctly identified by the Federal Magistrate as whether the Tribunal had misinterpreted the meaning of persecution and s 91R of the Act. If it had done so it would have misdirected itself in a fundamental way so as to misdirect its enquiry, thus leading to a jurisdictional error. 24 The assertion that the Tribunal misunderstood the notion of persecution within s 91R was put forward on the basis that the evidence was such as to point overwhelmingly to a conclusion that the applicant had been persecuted in the past. The Tribunal in its reasons indicated that it was not satisfied that the harm suffered by the appellants in the past amounted to persecution. Therefore it was said that there must have been a misunderstanding as to the meaning. I do not see from the Tribunal's reasons any basis to conclude that it misunderstood what was required of it by reference to s 91R. Its reasons were brief. The Federal Magistrate was somewhat critical of the lack of elucidation as to why the Tribunal was not satisfied that the harm suffered by the appellants hitherto was persecution. 25 Section 91R of the Act is in the following terms: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 26 Whether or not a given body of facts falls within s 91R(1) is one of fact and degree. The conclusion by the Tribunal that it was not satisfied that the past events amounted to persecution was open on the material, certainly as to the question of seriousness of harm. The appellants had had stones thrown at them, people had refused to pay at their restaurant and behaved badly there, the appellants had suffered discrimination and unpleasant conduct from native Fijians. It is clear that the appellants felt a subjective fear of native Fijians. The events which had occurred in the past were not such as to warrant a view that the Tribunal must have misunderstood the meaning of the relevant statutory provisions (s 91R) to reach the view it did. The Federal Magistrate dealt with this in paragraphs 27 and 28 of his reasons which were in the following terms. The difficulty I have with this aspect of the RRT's reasons, which is a critical aspect, is that the presiding member did not explain why he was not satisfied that the harm suffered by the applicants amounts to persecution in the terms of s.91R(1). Mr Smith submits, and I accept, that it could not have been on the basis of paragraph (a) of the subsection. There was ample evidence to establish a Convention nexus with the harm suffered by the applicants which was accepted by the presiding member. Mr Smith submitted that it was apparent that the presiding member was focusing on paragraph (b) of subsection (1), that the persecution must involve serious harm. However, he agreed with me that it was also possible that the presiding member was having regard to paragraph (c), which requires that the persecution involves systematic and discriminatory conduct. The available evidence indicated that the harm suffered by the applicants was discriminatory. It did not necessarily follow that it was systematic. It may have been regarded by the presiding member as merely random. The presiding member might also have taken the view that the harm was not of sufficient seriousness to satisfy the test in paragraph (b) of subsection (1). I am left to speculate because the presiding member did not explain his finding. This raises some question in my mind whether the presiding member fulfilled the obligation in s.430(1)(b) of the Act to record its decision in a reasoned way. 27 It may be as Mr Silva, solicitor for the appellants, sought to argue that it would be difficult to conclude that there was a lack of systematic conduct to the appellants as Indo-Fijians: cf Minister for Immigration and Ethnic Affairs v Ibrahim (2000) 204 CLR 1 at [15]-[16] per Gaudron J. However, as I have said, on the material put to the Tribunal it was open to conclude that the past conduct was not sufficiently serious to amount to persecution. I see no operative error in the approach of the Federal Magistrate. 28 The fourth and fifth grounds of appeal were not the subject of argument before the Federal Magistrate. It was submitted by Mr Smith, who appeared for the respondent, that it was not in the interest of justice to allow weak points to be raised on appeal. He referred to Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. 29 There is, with respect, much force in this. It is plain since the decision in Yusuf that s 430 does not entitle a Court to conclude that s 430 has been breached because matters which the Court thinks are important were not referred to by the Tribunal. The Tribunal's reasons were brief. It would, perhaps, have been (as the Federal Magistrate said) useful to have somewhat more elucidation as to the question of persecution. However, I do not conclude that there has been breach of any obligation under s 430. Even if there had been this was not a jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; (2000) 168 ALR 407 where McHugh J at [70] rejected the argument that a breach of s 430 was a jurisdictional error. See also for cognate and relevant reasoning: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829; (2003) 201 ALR 327and Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433. I would allow this ground to be the subject of amendment but would reject the ground. 30 The fifth ground is actual or apprehended bias. I reject out of hand the entitlement of the appellants to raise on appeal actual bias. There is simply no basis for such a serious allegation. 31 I also reject the ground of appeal based on apprehended bias. It is true that the Court can conclude that the Tribunal was not prepared to deal with the material with a mind open to persuasion by reference to how it dealt with material. However, here, I seen no basis for that conclusion. I would not conclude in all the circumstances that the Federal Magistrate's comment as to "positive spin" in relation to the Amnesty International Report provides a foundation for apprehended bias. I do not see from all the material a basis to conclude that the Tribunal had a mind not open to persuasion. 32 Nor am I persuaded that the claim based on apprehended bias would not have given rise to some evidence before the Federal Magistrate as to the conduct of this Tribunal in dealing with the appellants' claim. For one thing better evidence of the hearing than the transcript might have been available. I would refuse leave to amend the notice of appeal to raise bias or apprehended bias. 33 The last new ground of appeal for which leave was sought was the asserted failure of the Tribunal to deal with one of the claims put by the appellant. I would allow this new ground to be raised. 34 This claim was said to be based on the existence of the constitutional case pending after the most recent coup attempt. In his letter to the Tribunal the first appellant, after referring to the court case before the Supreme Court: It is sparking fears that the ruling (if in favour of FLP) would reignite political instability and government. 35 It was submitted that this way of putting the claim and the material that supported it was not specifically dealt with. There was, it was said in connection with this issue, no contemplation of the future by the Tribunal. 36 I reject this argument. The Tribunal dealt with the claims made. The claims were based on race and the feared political instability and the affecting thereby of the democratic and political institution of Fiji. This aspect of the affairs of Fiji was one part of the factual conclusion which can be seen to be dealt with on p 9 of the reasons and p 81 of the Court Book (see [15] above). 37 For the above reasons the appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 22 December 2004 Solicitor for the Appellant: Mr T Silva Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Sparke Helmore Date of Hearing: 13 December 2004 Date of Judgment: 22 December 2004