NAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 221

FEDERAL COURT OF AUSTRALIA

NAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 221

MIGRATION – application for protection visa – newspaper articles referred to by applicant in course of Tribunal hearing – articles not provided to Tribunal – whether Tribunal under legal duty to call for articles in such circumstances

NAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 71 affirmed Abebe v Commonwealth (1999) 197 CLR 510 followed Gomez v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 190 ALR 543 cited Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 applied NAXN, NAXO, NAXP and NAXQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 381 OF 2004 FINN, MANSFIELD and GYLES JJ 4 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 381 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAXN, NAXO, NAXP and NAXQ

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, MANSFIELD and GYLES JJ

DATE OF ORDER: 4 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants 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 N 381 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAXN, NAXO, NAXP and NAXQ

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, MANSFIELD and GYLES JJ

DATE: 4 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

FINN j: 1 I agree with the reasons and with the order as proposed by Gyles J. The reasoning of the primary Judge, in my view, discloses no appealable error. I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 12 August 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 381 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAXN, NAXO, NAXP and NAXQ

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, MANSFIELD and GYLES JJ

DATE: 4 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

MANSFIELD J: 2 I also agree with the reasons for judgment given by Gyles J and that the appeal should be dismissed with costs. I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 9 August 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 381 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAXN, NAXO, NAXP and NAXQ

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, MANSFIELD and GYLES JJ

DATE: 4 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

GYLES j: 3 This is an appeal against orders made by Allsop J on 5 March last dismissing an application for judicial review by the appellants pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) which had affirmed a decision of a delegate of the respondent Minister to refuse protection visas to the appellants. Those orders followed the delivery of reasons on 11 February last (NAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 71) and 5 March last (NAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 162. For present purposes the reasons for judgment of 5 March 2004 may be put to one side. 4 The appellants are a family (husband, wife and two children) who are Fijian nationals of Indo-Fijian ethnicity. The appellants' case was that they feared persecution upon return to Fiji because of their race. It was claimed that they feared that they would be victims of physical and verbal attacks, theft, rape and assaults committed against Indian Fijians by indigenous Fijians and that they would suffer discrimination by reason of policies designed to give preference to native Fijians. 5 Two grounds of appeal are pursued in relation to the judgment of the primary Judge. The first is that his Honour erred in not holding that the Tribunal failed to take into account a relevant consideration that was central to the matter. The particular was that the attitude of the very top political leaders of the government including the Prime Minister was very important on the issue of State protection. The argument before the primary Judge, and this appeal, turns upon the following passage from a US State Department Country Report, which was quoted in the reasons for the decision of the Tribunal: 'In July human rights groups strongly criticized Minister of Women, Culture and Social Welfare Asenaca Caucau comparing Indo-Fijians to "wild grass taking up space" in the country. Despite pressure, Caucau refused to apologize, and the Prime Minister failed to discipline Caucau for the remark. Senators appointed by the Prime Minister have made numerous racial slurs directed against Indo-Fijians.'

It was submitted that, as the Tribunal had accepted that the appellants held the subjective fear that they asserted, it was therefore necessary for the Tribunal fully to consider all information available to see whether that fear was well-founded on an objective basis. It was submitted that the material that was referred to by the Tribunal was of critical importance in weighing that objective information but that, apart from referring to it, there was no further or greater consideration of the impact of it.

6 The difficulty facing the appellants is that the Tribunal, having considered a body of information including that to which reference has been made, concluded: 'I am not satisfied that the evidence justifies a conclusion that there is a failure of the Fijian state to protect women, or Indian women, or single Indian women from sexual assault. That is not to say the Fijian government, any more than other governments is able to provide guarantees against such criminal attacks. Generally speaking, the Convention is not directed against the failure of a country to protect its citizens against random criminal behaviour.'

7 In relation to this point, the primary Judge said: 'The Tribunal had material available to it, to weigh as it did, apparently, in making this determination of state protection. There was material before the Tribunal upon which it could found the conclusion that it reached concerning the lack of satisfaction that there was a real chance that the applicants would be persecuted when they returned to Fiji. In my view, these grounds fail.'

8 The appellants refer to passages from the judgment of Finkelstein J in Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 and from the judgment of Madgwick J in Hunyh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 436 as indicating that the Tribunal's failure to take into account a relevant fact or circumstance was a jurisdictional error. It was submitted that this was such a fact or circumstance and so was a relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. 9 I can detect no error in the manner in which the primary Judge dealt with that issue. It is not possible to conclude that the Tribunal did not take the circumstance into consideration. It was one of a number of circumstances expressly referred to and was referred to in its wider context. Simply because the Tribunal did not refer to part of a document again is no evidence that it was not taken into consideration in the relevant sense. It is therefore not necessary to go on and consider whether, even if part of the document had not been considered, that would have constituted failure to take into account a relevant consideration in the necessary sense. 10 The second ground is that his Honour erred in holding that the Tribunal did not have a duty to ask for newspaper clippings the appellants talked about and had with them during the hearing. 11 This is founded upon the fact that during the course of the hearing by the Tribunal, one of the appellants, in relation to an allegation that the native Fijian Police would not act upon complaints by Indian Fijians about actions against them by native Fijians, said: 'According to the newspapers I have collected over here since I came here there is connection between the police and the natives.' This was clarified to mean native Fijians. 12 The primary Judge was prepared to accept for the purposes of argument that the newspapers were present and visible at the hearing but were not tendered on behalf of the appellants or called for by the Tribunal. It was submitted that, as the Tribunal was an inquisitorial body, it should have sought that information. 13 The primary Judge dealt with the matter in the following way (at [13]–[19]): 'Another way of putting paragraph 2 was based on the assertion that the evidence disclosed that the Tribunal member was aware at the hearing that the applicants, in particular the husband applicant, had newspaper articles in their and his possession which would assist their and his case. It was said that the Tribunal had a duty to call for and examine those matters both as an incident of its duty of fairness and by way of statutory duty to ensure that it examined all relevant information. I reject this latter way of putting it. The structure of the Act is not such as to require the Tribunal to ensure that applicants who have relevant material in their possession while appearing before the Tribunal provide that material to the Tribunal. Prior to the hearing, the applicants were sent a letter in standard form, which requested that the applicants provide to the Tribunal all relevant material they wished to put forward. The letter stated as follows: Send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator. In Abebe v Commonwealth (1999) 197 CLR 510 Gummow J and Hayne J said the following at 576 [187]: The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. Also, see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134/2002 [2003] 195 ALR 1, 8 [31]. Further, the structure and terms of ss 424, 425 and 427 are such as to empower the Tribunal to do various things, not oblige it. See also Minister for Immigration and Multicultural and Indigenous Affairs v Anthonypillai (2001) 106 FCR 426. The Migration Act does not oblige the Tribunal to extract from the applicant any material which may help substantiate the submission he or she is putting, in circumstances where the applicant does not him or herself put material forward, in particular in the light of the letter containing material referred to at [13] above sent before the Tribunal undertakes the procedure of a hearing. Mr Jordan, who appeared for the respondent, submitted that the applicants had not proved that the newspaper articles were before the Tribunal. The evidence relied upon by the applicants to this effect was the text of the transcript before the Tribunal which was in the following terms: Trib: If you decide to complain to the police – the police could do what?" Jan: They will just write a report and do nothing about it because according to the newspapers I have collected over here since I came here there is connection between the police and the natives. [emphasis added] I am prepared to proceed on the basis that if the applicant had the newspaper articles before him they were in all likelihood visible and available. Certainly if they were not and thus the Tribunal was not expressly put on notice of the presence of relevant documents the Tribunal should not be fixed with some form of constructive or imputed notice as to the presence and availability of relevant material: cf. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134/2002. On the assumption that the Tribunal was aware from what had been said to it and what was before that the newspaper articles were present before it, there is no reason to conclude that, if the applicants did not see fit to put the material before the Tribunal, there was any apparent need specifically to call for the articles exemplifying the general point being made by the husband applicant in the above cited extract of the transcript.'

14 On appeal, reference was also made to s 420 as setting the standard of outcome expected. Reliance upon s 420 in that way is misplaced as that section does not create substantive rights upon which the appellants can rely (Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [56]). In my opinion, there is no error established in relation to the manner in which the primary Judge dealt with this ground. As was said by Gummow and Hayne JJ in the passage referred to by the primary Judge from Abebe v Commonwealth (1999) 197 CLR 510: 'It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.' (See also Gomez v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 190 ALR 543 at [26]). 15 In any event, the fact that the Tribunal did not call for the newspapers most naturally indicates that it accepted the summary of the contents of them which was put forward on behalf of the appellants. The Tribunal is not a court bound by the rules of evidence. It was entitled to take on board that summary of the newspaper articles as part of the general information it received and considered on the topic. 16 I would dismiss the appeal and order that the appellants pay the costs of the respondent. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 17 August 2004 Solicitor for the Applicant: T Silva of Silva Solicitors

Counsel for the Respondent: T Reilly

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 4 August 2004

Date of Judgment: 4 August 2004