Chand, Uma v Minister for Immigration & Ethnic Affairs

[1997] FCA 166

CATCHWORDS

CITIZENSHIP AND MIGRATION - refugees - determination as to refugee status - whether "real chance" of persecution for a Convention stipulated reason if applicant returns to Fiji on account of his race, religion or political opinion

Migration Act 1958 (Cth) s475(1), 476(1)(a),(c),(e),(g),

s476(4)

Migration Regulations reg866.221

Acts Interpretation Act 1901 (Cth) s34A

Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Conway v Repatriation Commission (1988) 16 ALD 770

BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246

Minister for Immigration and Ethnic Affairs v Baker (unreported, Full Federal Court, 26 February 1997)

UMA CHAND v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. NG845 of 1995

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 17 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG845 of 1995

GENERAL DIVISION )

BETWEEN: UMA CHAND

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 17 MARCH 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal be affirmed.

2.The applicant is to pay the costs of the respondent to be taxed if not agreed.

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 ) No. NG845 of 1995

GENERAL DIVISION )

BETWEEN: UMA CHAND

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 17 MARCH 1997

REASONS FOR JUDGMENT

THE APPLICATION

By an amended application dated 6 December 1996 the applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") whereby the Tribunal found that the applicant is not a refugee and affirmed the decision of a delegate of the Minister for Immigration and Ethnic Affairs to refuse to grant to the applicant, and the applicant's family members included in the visa application, a protection visa.

LEGISLATIVE BACKGROUND

The decision of the Tribunal is a "judicially reviewable decision" pursuant to s475(1) of the Migration Act 1958 (Cth) ("the Act"). The grounds upon which an application may be made for review of such a decision are those specified by s476 of the Act.

The grounds invoked by the application in this case are as follows:

1.the decision involved an error of law involving an incorrect application of the law to the facts as found by the Tribunal (see s476(1)(e));

2.the procedures required by the Act and the Migration Regulations to be observed in connection with the making of the decision were not observed (see s476(1)(a));

3.the decision was not authorised by the Act or Regulations (see s476(1)(c));

4.there was no evidence or other material to justify the making of the decision (see s476(1)(g)).

The ground of review specified by s476(1)(g) is to be read subject to s476(4) which provides as follows:

"476 (4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

The case as argued departed somewhat from the terms of the application.

In this case the crucial primary criteria for the grant of the protection visa sought by the applicant was that provided for by reg866.221 of the Migration Regulations, namely that "[t]he Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention". The Refugees Convention within the meaning of this regulation is the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"). Under the Convention a person who has a nationality is a refugee if he or she -

"... 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 power or function of the Minister with respect to the criteria established by reg866.221 of the Migration Regulations is one capable of delegation. Section 34A of the Acts Interpretation Act 1901 (Cth) makes it clear that in such circumstances the power or function may be exercised by the delegate upon his or her opinion, belief or state of mind.

THE AUTHORITIES

Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan's Case") established that the definition of refugee involves a mixed subjective and objective test, and that the definition will be satisfied if an applicant shows a genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. In assessing the existence, or otherwise, of such "real chance", the Minister, or his or her delegate, is required to look to the future. In Chan's Case at 413 Gaudron J said:

"Perhaps all that can usefully be said is that a decision-maker should evaluate the mental and emotional state of the applicant and the objective circumstances so far as they are capable of ascertainment, give proper weight to any credible account of those circumstances given by the applicant and reach an honest and reasonable decision by reference to broad principles which are generally accepted within the international community."

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Wu's Case") at 281-282, Brennan CJ, Toohey, McHugh and Gummow JJ said:

"When conflicting information available to the Minister's delegate relates to some past event ... the attribution of greater weight to one piece of information as against another or an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test. The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event. ... When it is a question of personal satisfaction, there can be nothing wrong with the attribution of weight. In that context, the attribution of weight may indicate no more than that some material has assisted the decision-maker more than other material in the ascertainment of whether the requisite satisfaction has been reached."

THE DECISION OF THE TRIBUNAL

The Tribunal noted that the applicant is a Fijian of Indian racial background. It further noted that he arrived in Australia on 6 April 1989, that on arrival he was issued with a temporary entry permit valid for one month and that he has remained thereafter in Australia.

The Tribunal recorded the way in which the applicant's case was put before it as follows:

"The Applicant stated that he fears persecution in Fiji for reasons of his political opinion, of support for the Fiji Labour Party; and for reasons of his race. He also fears that he has been framed for a criminal charge, and that he will be arrested and unfairly dealt with on return to Fiji. The reason that he will be mistreated through arrest for a criminal charge, on fabricated evidence, is that he was formerly a police officer, of Indian racial background, who was disapproved of for his actions against army officers at the time of the coup, and in the post-coup period."

The Tribunal gave consideration to the claims for refugee status contained in the applicant's application for a protection visa. The Tribunal recorded that the applicant stated in that application that he was a member of the Fiji Labour Party and that he was threatened by a senior Fiji police officer and army officers because of this membership and because he arrested army and naval officers for disorderly behaviour He further stated that he was frightened to pray as usual (the applicant is Hindu) and that he was asked by the army and native Fijians not to attend religious services. Also that members of his family suffered as a result of their ethnicity "after the coup all the time". The Tribunal gave consideration to a number of documents attached to the initial application.

The Tribunal had regard to a statement dated 20 March 1991 made by the applicant. In that statement the applicant alleged that he had been discriminated against by army officers and, in essence, harassed in his religious observances and with respect to his political affiliation with the Fiji Labour Party and subjected to ill-treatment. As a particular instance of discrimination and ill-treatment the applicant referred in this statement to an incident in which he arrested a naval officer for criminal conduct and later found himself the subject of an investigation and the subject of threats, unwarranted interrogations and abuse from the then Deputy Commissioner of Police.

The Tribunal also referred in its reasons for decision to the applicant's case, both written and oral, as presented to the Department at interview. It then gave careful consideration in its reasons to the applicant's case as presented before it.

The applicant gave evidence before the Tribunal as did his wife. The applicant's wife supported the applicant's allegation of ill-treatment by army officers. She further made allegations that she had on two separate occasions been subjected to multiple rape in front of her children by army officers who came to her home whilst her husband was at work on night duty. The applicant's son, who was 10 or 11 years old at the time that army officers came to his home, supported his mother's evidence of such visits and of ill-treatment but he did not support the allegation of rape in front of him. He recalled that an officer had his mother in the bedroom.

The Tribunal did not attach significance to the differences in the accounts given by the applicant's wife and her son as to the details of the rape incidents. The Tribunal considered the significance of this aspect of the evidence before it in the following passage from its reasons:

"[I]nformation indicates that raping of women by the military at the time of the coups, and in the immediate post-coup period was common ['Fiji, Politics of Illusion, The Military Coups in Fiji' by Deryck Scarr, 1988, New South Wales University Press, page 97] and the Tribunal therefore considers that this may have occurred to the Applicant's wife at this time. However, the Tribunal finds that this occurred at a time when there was a breakdown in law and order in Fiji, and when army officers were abusing their power. This is no longer the situation in Fiji. The army have returned to barracks and the country is governed by an elected government. The police force, and civil service are accountable and the judiciary are independent. Rule of law operates in Fiji to protect Fijian citizens from abuses by authorities in Fiji [DFAT cable SU62724 of 17 March 1994; DFAT cable SU212 of 29 March 1995; DFAT cable SU488 of 2 June 1994]. The Tribunal considers that this information indicates that the chance that the Applicant's family members (his wife and children) would suffer similar mistreatment, as they suffered at the hands of the army in the post-coup period, if returned to Fiji, is remote."

The Tribunal also heard evidence from two relatives of the applicant, each of whom was an Australian resident. Each of them spoke of being approached when visiting Fiji by persons in police uniform or plain clothes who queried him or her as to where the applicant lived and when he was returning to Fiji. The Tribunal rejected the evidence of these two witnesses having concluded that there were contradictions in their respective evidence. Mr Churches, counsel for the applicant, demonstrated that the Tribunal was probably in error in concluding that such contradictions existed. As to such evidence, however, the Tribunal said:

"... even if the Tribunal were to accept the evidence of these two witnesses, the Tribunal considers that this evidence indicates that questions were asked about the Applicant's whereabouts but it does not indicate why such questions [were] asked. In the context of the evidence in the Applicant's case overall ... and the Tribunal's findings about the meaning of this evidence ... the Tribunal considers that the evidence of these two witnesses that inquiries were made about the Applicant does not indicate that the Applicant faces a real chance of being harmed on return to Fiji for a Convention reason."

The Tribunal concluded that "there is no real chance that the Applicant will be persecuted on return to Fiji for reasons of his political opinion". It took the view that the applicant's evidence did not indicate that he had suffered any form of mistreatment which could be treated as persecution because of his support of the Fiji Labour Party. The Tribunal referred to available information concerning Fiji which indicated that there was no real chance that the applicant would be persecuted on return to Fiji by reason of his political opinion of support for the Fiji Labour Party.

The Tribunal further found that "there is no real chance that the Applicant will suffer serious harm, amounting to persecution, in Fiji for reasons of his race". It concluded that the "mistreatment" of the applicant and his family of which it had heard evidence was consequent upon the applicant being a police officer and his involvement in the naval officer incident. The reasons of the Tribunal go on -

"However, even if the mistreatment of the Applicant's wife and children was for reason of their race, and not due to the Applicant's role as a police officer in Fiji, then the Tribunal considers that there is no real chance that the Applicant's family members, and the Applicant, would suffer similar mistreatment on return to Fiji. The mistreatment of the Applicant's wife and children, in their home, by members of the armed forces, occurred in the post-coup period which was the time when law and order broke down in Fiji and the army were in control, so it was difficult for the police to protect people from abuse. Law and order has now been restored and the police are committed to protecting people from abuse. The police are accountable to parliament and the judiciary is independent, and the citizens of Fiji can seek police protection from violence and abuse."

The Tribunal made reference to a number of cables of the Department of Foreign Affairs and Trade.

The Tribunal accepted the applicant's evidence that he had been abused and humiliated on the ground of his race. However, it concluded that "there is no real chance that the Applicant will be similarly abused, for reason of his race, if returned to Fiji" and that "there is no real chance that the Applicant will suffer persecution if returned to Fiji on account of his race".

The Tribunal considered the evidence before it relating to the "naval officer incident" and rejected the applicant's evidence that the Fiji police are seeking to blame him for the death of the naval officer. It went on -

"The Tribunal considers that the Applicant's evidence viewed at its highest by the Tribunal, supports a finding that the Applicant may face a charge of assaulting the naval officer whilst in custody.

However, the Tribunal considers that the chance that the Applicant is facing such a charge is remote. The Tribunal so finds on the basis of the Applicant's evidence. ...

Information indicates that the Applicant could rely on the judiciary and legal system of Fiji to make available to him the opportunity to present a defence to such a case, including the opportunity to challenge any fabricated evidence. ...

The Tribunal therefore finds that the chance that the Applicant would be persecuted, for reason of the incident over the naval officer which occurred before he left Fiji, is remote."

The reasons of the Tribunal conclude as follows:

"The Tribunal finds that there is not a real chance that the Applicant, or the Applicant's wife and children included in the application, will suffer persecution for a Convention reason on return to Fiji. The Tribunal therefore finds that the Applicant's fear of persecution is not well founded. As the Applicant's fear of persecution is not well founded, then the Applicant is not a refugee as defined in the Refugees Convention. As the Applicant, and the Applicant's wife and children, are not persons to whom Australia has protection obligations under the Refugees Convention, as required by s36 of the Act and r866.221 of the Regulations, it follows that the Applicant does not satisfy the criteria for the grant of a protection visa, and that such a visa must be refused."

CONTENTIONS OF THE APPLICANT

The submissions of the appellant in this case were said to "principally revolve on the proposition that the incorrect approach in law [was] taken by the Tribunal as decision maker" and to raise the question "has the Tribunal gone about this the right way in approaching the prospect of a 'real chance'?" Mr Churches argued that the Tribunal took "an improper global approach" and failed to give consideration "item by item" to the evidence before it. He submitted -

"The Tribunal has put all the evidence in a big bag and shaken it up and said: well, there you are, on a global approach looking at all the evidence not itemising it piece by piece other than, we say, on the instances exclude improperly, but having shaken all the evidence up together we come - and this is my submission, your Honour, that there has been a de facto weighing up."

The principal difficulty with this submission, so far as I understand it, is that, as the decision of the High Court in Wu's Case makes clear, there is nothing wrong with a decision-maker, who is required to be satisfied as to certain matters, gaining greater assistance from some aspects of the evidence and less from other aspects of the evidence, and in this sense attributing different degrees of weight to different aspects of such evidence. Nothing that was said by the High Court in either Chan's Case or Wu's Case seems to me to place any impediment in the way of the Tribunal assessing, on proper bases, issues of credibility and giving more or less weight, or indeed no weight at all, to certain aspects of the evidence before it by reasons of its findings of credibility. In the passage from the reasons for judgment of Gaudron J in Chan's Case set out above it may be noted that her Honour spoke explicitly to the giving of "proper weight to any credible account" of relevant circumstances.

So far as the Tribunal expressed its conclusions in a "global" way, speaking, for example, in terms of "[i]n the context of all the evidence in the Applicant's case", this is not, in my view, indicative of any error of approach. Such expressions in the Tribunal's reasons for decisions follow a detailed examination by the Tribunal of individual aspects of the applicant's case. Indeed, the applicant's written submissions in this case criticise the Tribunal for failing to take "a global approach to finding if there is evidence to support [the] hypothesis of a 'real chance' of persecution". Such submissions contend that the Tribunal approached the evidence "in a most cheese paring fashion, item by item being excluded from [the] hypothesis" with the result that "items of evidence are excluded from calculation, which taken together, would form the basis of a global approach".

The criticism of a "cheese paring" approach is, in my view, also without foundation. The Tribunal, properly in my view, reviewed the evidence before it topic by topic. It made certain findings of credibility with respect to such evidence. It reached conclusions as to whether the evidence on any topic was such as to satisfy it that there was a real chance that the applicant or his family will suffer persecution on a Convention ground on return to Fiji. It then considered the same issue "in the context of all the evidence in the Applicant's case, and the information available to the Tribunal about the situation in Fiji". In my view this two staged approach is not contrary to authority and did not lead the Tribunal into error in its consideration of whether it was satisfied that there was a "real chance" that the applicant or his family would suffer persecution on a Convention ground if returned to Fiji. I see no reason to conclude that the Tribunal did other than give proper weight to all credible accounts of the relevant objective circumstances and reach an honest and reasonable decision by reference to broad principles which are generally accepted within the international community (see Chan's Case per Gaudron J at 413).

The applicant sought to place weight on the apparent error made by the Tribunal in its criticisms of the evidence given by the two relatives of the applicant. As to this it is plain from the reasons for decision of the Tribunal that these criticisms had no bearing on its ultimate conclusion. An immaterial error will not vitiate a decision of the Tribunal (Conway v Repatriation Commission (1988) 16 ALD 770; BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 256; Minister for Immigration and Ethnic Affairs v Baker (unreported, Full Federal Court, 26 February 1997)). For this reason it is unnecessary for me to determine whether this ground of complaint can be brought within s476(1)(g) of the Act.

The applicant also sought to place weight on what may be described as democratic deficiencies in the Constitution of Fiji. The written submissions of the applicant include the following paragraphs:

"(d)The Tribunal does not refer to any stage in its findings to the evidence submitted on behalf of the Applicant ... that the present Fijian Constitution was a 'tragedy' in which Fijian Indians were permanently sidelined from having complete democratic representation without reference to their race. The Tribunal quotes only from the ameliorative summary of the DFAT cable to which it refers ... which cable is replete with comments on the inherent racial unfairness of the 1990 Constitution and the Parliament.

(e)The Tribunal failed to refer to that evidence, and consequently to speculate as to the possibility that the Applicant and his family, as Fijian-Indians would not receive the full protection of the machinery of government, in which their racial group was specifically discounted in representation and power. The mere fact that the Constitution specifically referred to racial differentiation in the electoral process should have rung an alarm in this respect."

It is easy to feel sympathy for Fijian-Indians who do not enjoy the ability to aspire to lead their country and to constitute a majority in their Parliament. However, many groups in many countries experience as a matter of fact limited democratic power. In considering a claim that a person is a refugee within the meaning of the Convention, the constitutional circumstances of his or her country of nationality may well assume significance as part of the objective circumstances to be evaluated. However, the inability of an individual by reasons of race to aspire to lead his or her country or to have persons of his or her race constitute a majority in the national Parliament is not of itself sufficient to bring that person within the terms of the Convention. In this case, the Tribunal expressly gave consideration to the guarantee of freedom of religion and the outlawing of discrimination on the basis of race in the Fiji Constitution of 1990, to the independence of the Fiji judiciary, to the accountability of Fiji police and civil service to parliament, to the operation of the rule of law in Fiji and to the ability of citizens of Fiji to seek and obtain police protection from violence and abuse. I do not accept that the Tribunal did not give proper consideration to the possibility that the applicant and his family would not receive "the full protection of the machinery of government". It is thus unnecessary for me to determine whether this ground of complaint can be brought within s476(1) of the Act.

None of the grounds of review relied upon in this case has been made out. The decision of the Tribunal is affirmed.

I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for judgment of the Honourable Justice Branson.

Associate:

Date:

Counsel for the applicant: Mr S.C. Churches

Solicitors for the applicant: M.S. Nair & Co.

Counsel for the respondent: Mr N.J. Williams

Solicitor for the respondent: Australian Government

Solicitor

Hearing day: 18 December 1996