SZDUN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 963

FEDERAL COURT OF AUSTRALIA

SZDUN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 963

MIGRATION – Appeal from Federal Magistrates Court; application for protection visa refused; alleged "persecution" by way of verbal abuse and failure by the Refugee Review Tribunal to deal with a "critical claim"

Migration Act 1958 (Cth) s 91R

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 cited Craig v The State of South Australia (1995) 184 CLR 163 cited NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 cited SZDUN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR NSD 776/2005 GRAHAM J 14 JULY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 776 OF 2005

BETWEEN: SZDUN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 14 JULY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the Respondents' costs of the appeal. 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 776 OF 2005

BETWEEN: SZDUN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: GRAHAM J

DATE: 14 JULY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By an Amended Notice of Appeal filed in Court on 11 July 2005 the Appellant, known as "SZDUN", has appealed from the judgment of a Federal Magistrate given on 29 April 2005 in respect of a further amended application filed by the Appellant in the Federal Magistrates Court on 4 April 2005 by which the Appellant sought a review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 21 April 2004, which had been notified to the Appellant by post on 18 May 2004. 2 The Appellant arrived in Australia from Fiji on 26 October 2003. On 7 November 2003 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs. In that application the Appellant stated that he had been born in Fiji on 7 July 1971, that he was an "Indian Fijian" and that his religion was "Hindu". He described his occupation before coming to Australia as a "truck driver". 3 In his protection visa application the appellant sought protection in Australia so that he would not have to go back to Fiji. 4 In the relevant application form the Appellant answered questions 40 – 44 as follows:- Q.40 Why did you leave that country? [Fiji] A. THE APPLICANT LEFT HIS COUNTRY TO ESCAPE EVERY DAY'S THREAT THAT COULD HARM HIM PHYSICALLY. ALTHOUG (sic) THE APPLICANT HAS ALREADY SUFFERED VERBAL ABUSE ON SEVERAL OCCASIONS AND FEELS HUMILIATED BY THE ABUSIVE REMARKS TOWARDS HIMSELF. THE APPLICANT FOUND HIMSELF IN SEVERE DISTRESS AND LEFT HIS COUNTRY TO FIND SAVE (sic) PLACE TO LIVE A NORMAL LIFE. Q.41 What do you fear may happen if you go back to that country? A. THE APPLICANT IS AFRAID OF BEING HARMED BOTH PHYSICALLY AND MENTALLY IF HE RETURNS TO HIS COUNTRY. THE APPLICANT IS A YOUNG MALE OF AGE 32 AND GRIVELY (sic) UPSET OF HIS TREATMENT IN HIS OWN COUNTRY. THE APPLICANT FINDS IT VERY HARD TO UNDERSTAND THAT WHY HE IS DENIED A PEACEFUL LIFE IN HIS OWN COUNTRY. THE APPLICANT IS A BORN CITIZEN AND MUST HAVE A RIGHT TO ACCESS PROGRESSIVE OPPORTUNITIES TO LIVE A SUCCESSFUL LIFE. Q.42 Who do you think may harm/mistreat you if you go back? A. THE INDIGENOUS RACIST FIJIANS WILL HARM THE APPLICANT IF HE RETURNS TO HIS COUNTRY. Q.43 Why do you think this will happen to you if you go back? A. MOST OF THE INDIGENOUS FIJIAN ARE RACIST. THE INDIGENOUS FIJIANS WANT TO LIVE AND RULE FIJI JUST BY THEMSELVE (sic). THE INDIAN FIJIANS HAVE BEEN DENIED TO ACCESS TO MANY BASIC RIGHTS OF A CITIZEN. THE INDIGENOUS FIJIANS HAVE BEEN DRIVED (sic) TO RACIAL ACTIVITIES BY THE POWERFUL AND EFFECTIVE PERSONALITIES LIKE 'GEORGE SPEIGHT' ETC. IT IS VERY COMMON IN FIJI THAT THE INDIANS ARE APPROACED (sic) AGGRESSIVELY AND SUFFER. THE APPLICANT BEING THE MEMBER OF INDIAN COMMUNITY IS THE VICTIM OF RACIAL ACTIVITIES. Q.44 Do you think the authorities of that country can and will protect you if you go back? If not, why not? A. THE AUTHORITIES OF THE COUNTRY ARE PARTIAL. MOST OF THE POLICE AND SUCH SERVICES ARE FILLED BY THE INDIGENOUS FIJIANS AND ITS VERY HARD TO REPORT ANY RACIAL AGGRESSION. THE INDIANS ARE SO AFRAID TO GOING TO POLICE AS THE MEMBERS OF INDIAN COMMUNITIES HAVE EXPERIENCED FURTHER HUMILIATION WHILE REPORTING UNSUCCESSFULLY. THERE IS NO PROTECTION FOR THE APPLICANT IN HIS COUNTRY." 5 In the proceedings before the Federal Magistrates Court there were three issues, namely, whether the Tribunal applied the wrong test for "persecution", whether there was an apprehension of bias on the part of the Tribunal and whether the Tribunal failed to deal with some of the critical claims advanced by the Appellant. 6 On the hearing of the appeal no issue has been raised in respect of apprehension of bias and the alleged failure by the Tribunal to deal with matters has been restricted to one only "critical claim advanced by" the Appellant. 7 The Appellant's application for a protection visa was refused by the Minister's Delegate on the basis that the Appellant was not a non-citizen in Australia to whom Australia had protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol. 8 On 4 December 2003 the Appellant sought a review of the decision of the Delegate of the Minister, by the Tribunal. 9 The hearing of the application for review took place before the Tribunal on 14 April 2004 and occupied approximately 40 minutes. 10 Section 35 of the Migration Act 1958 (Cth) ("the Act") provides for a class of visas to be known as protection visas. Section 36(2) relevantly provides:- "36(2)A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …" 11 The decision of the Tribunal of 21 April 2004 was to affirm the decision of the Minister's Delegate not to grant a protection visa to the Appellant. 12 The reasons for decision of the Tribunal included the following:- "… 'Refugees Convention' and 'Refugees Protocol' are defined to mean the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees respectively: s5(1) of the Act. Further criteria for the grant of a protection (class XA) visa are set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994. DEFINITION OF 'REFUGEE' Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Convention relevantly defines a refugee 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293, Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, and Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1. Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve 'serious harm' to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (2.91R(1)(c)). The expression 'serious harm' includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase 'for reasons of' serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act. Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or (countries) of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future." 13 In relation to the question of persecution under Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol s 91R of the Act relevantly provides:- "91R(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." 14 Plainly s 91R(2) is illustrative only. It does not purport to comprehensively define what may constitute "serious harm". 15 The Appellant claims to be a non-citizen in Australia who is entitled to protection obligations under the Refugees Convention as amended by the Refugees Protocol owing to a well-founded fear of being persecuted for reasons of race and, owing to such fear, is unwilling to avail himself of the protection of Fiji. He contends that the persecution which he fears for reasons of race "involves serious harm to the person" within the meaning of s 91R(1)(b) of the Act.