Prasad, Samant v Minister for Immigration & Ethnic Affairs

[1997] FCA 296

CATCHWORDS

IMMIGRATION - review of decision of Refugee Review Tribunal - definition of refugee - "persecution" - whether Tribunal found no evidence of persecution and thereby erred in law.

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Chen Ru Mei v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405
Applicant "A" v Minister for Immigration and Ethnic Affairs (1997) 4 Leg Rep 9
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481
Shri Kkrishan Lal v Minister for Immigration and Ethnic Affairs (1996) 42 ALD 535
Naidu v Minister for Immigration and Ethnic Affairs, unreported, Black CJ, Foster and Sackville JJ, 11 October 1995

SAMANT PRASAD -V- MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR

NG 156 of 1996

Burchett J
Sydney
4 April 1997

IN THE FEDERAL COURT OF AUSTRALIA )  
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 156 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:SAMANT PRASAD

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

AND:     CLARE BYRT, MEMBER CONSTITUTING THE   REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM:    Burchett J.
PLACE:    Sydney
DATE:     4 April 1997

MINUTE OF ORDER OF THE COURT

THE COURT ORDERS THAT the application be dismissed.

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 )    NG 156 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:SAMANT PRASAD

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

AND:     CLARE BYRT, MEMBER CONSTITUTING THE   REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM:    Burchett J.
PLACE:    Sydney
DATE:     4 April 1997

REASONS FOR JUDGMENT

BURCHETT J.:

This is an application to review a decision of the Refugee Review Tribunal finding that the applicant was not a refugee.

The argument was confined to a small compass, and an understanding of it requires only that the facts be stated briefly.  The Tribunal found that the applicant and his wife are both ethnic Indians who were born in Fiji and are of Fijian citizenship.  They came to Australia in 1982 on visitor's visas, and have remained here ever since.  Their two children were born here.  They have sought protection visas on

the ground that the applicant is a refugee within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.

A refugee, as defined in the Convention in familiar terms, is a 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 effect of this definition has been discussed in a number of cases, of which it is sufficient to cite Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223 at 250-252; Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565; Chen Ru Mei v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 at 411-412; and Applicant "A" v Minister for Immigration and Ethnic Affairs (1997) 4 Leg Rep 9.  The disapproval of Mok Gek Bouy and Chen Ru Mei in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 does not affect the authority of the exposition in those cases of the meaning of the expression "well-founded fear of being persecuted". The decisions lay down the proposition,
which the very word "persecution" implies, that not every infliction of harm upon a person is an act of persecution of that person:  see Chan at 388, per Mason CJ, 399-400, per Dawson J, 429-431, 433, per McHugh J; Ram at 568; Applicant "A" v Minister at 13, 18, 19.  Persecution is concerned with significant or serious harm, and a well-founded fear of being persecuted involves both the subjective fear and the objective reality of a real chance (which, however, may be much less than a balance of probabilities) of the infliction of sufficient harm in such circumstances as to amount to persecution for one or more of the reasons set out in the definition. 

In the present case, the Tribunal found that the applicant did fear persecution for reasons of race.  It was "various aspects of racial discrimination" that gave rise to his apprehensions.  But the Tribunal held that "the Applicant or his family members do not face a real chance of suffering persecution as a result of their race, membership of a particular social group or for any other Convention reason upon return to Fiji".  Over a number of pages of a carefully considered decision, the Tribunal examined the material that led it to this conclusion.  It referred to the applicant's claims that he would in Fiji "be subject to discrimination in employment; vulnerability to racially motivated crime, not only for himself but for his wife and children; inability to access protection by authorities in Fiji; land ownership discrimination; political discrimination due to the racially discriminatory Constitution; discrimination faced by his children in terms of their living standard and lack of access to superior education; and the possibility that there would be a third military coup in Fiji."

As to the first of these matters, the Tribunal accepted that "there may be some elements of racial discrimination in terms of access to employment by Fijian Indians both in the bureaucracy and generally".  However, in its view, the evidence showed that any such discrimination would have limited effects and that the Fijian Indian community was in fact significantly involved in the Fijian economy.  It did not regard the degree of discrimination in employment which exists as amounting to persecution.  There may, of course, as it recognized, be hardships caused by the poor performance of the Fijian economy, a fact that does not imply persecution.

As regards the suggestion of racially motivated crime, the Tribunal pointed out that "there has been a return to political and social stability in Fiji".  It did "not accept that the current increase in crime in Fiji is racially motivated or that the Applicant or his wife or children, upon return to Fiji, would be particularly vulnerable to racially motivated crime."  It considered the applicant would be able to turn to the police and the judiciary for genuine protection from criminal activities.  Having rejected the idea that current crime in Fiji is racially motivated, the Tribunal gave consideration to the alternative possibility that the applicant could be regarded as a member of a social group of Indians returned from overseas with acquired wealth, who might be for that reason special targets for burglary; but the Tribunal rejected this idea, citing the Full Court decision in Ram (supra).

Having held that the authorities, that is to say, the police and the judiciary, would provide protection against crime without discrimination, or at any rate without significant discrimination, the Tribunal then moved to the applicant's complaint about land ownership discrimination.  It accepted that there may be racially motivated discrimination in relation to the ability to purchase land in Fiji, but it did not consider that a particular restriction of this kind on the ownership of a form of property "is of such a serious nature and extent to give rise to a well-founded fear of persecution".  Elsewhere in the Tribunal's reasons, it is made clear that the ownership of other species of property is by no means denied to ethnic Indians in Fiji.

As to the remaining matters of which the applicant complained, the Tribunal considered that the particular difficulties that his family might encounter would arise from their personal circumstances and from the general conditions existing in the Fijian economy, matters which "have not arisen for any of the Convention reasons". The Tribunal did not accept any claim of "general racial hatred" as a factor to be feared in Fiji. It considered that conditions had changed markedly since the coups of 1987, and that - "despite ethnically based political discrimination contained within the Constitution, there was no Government interference with political activities during the last election, political organisations were allowed to operate and issue public statements, and they did so repeatedly and openly throughout the year ... . Further, the elections of [19]92 and [19]94 were considered by observers and participants to have been conducted in a fair and free manner and that, with the reconvening of Parliament which has provided for an outlet for political expression, there has been a restoration of political stability ... . In these circumstances the Tribunal finds there is no real chance of a third coup in the foreseeable future."

The Tribunal then drew the threads of its various conclusions together:

"The Tribunal finds that the Applicant has a subjective fear of return to Fiji as a result of the ethnically based discrimination within Fiji.  However, the Tribunal does not accept there is objective evidence to indicate that the Applicant would face any real chance of persecution if returned to Fiji.  He may face some acts of discrimination, in terms of access to employment, access to land and his ability to vote in elections without restriction based on his race.  However, the Tribunal does not consider that these matters, when weighed either separately or cumulatively, are of such a serious nature or so significant that they could be considered to give rise to a well-founded fear of persecution for the Applicant or his family members."

The single point upon which the applicant's argument fastened was the Tribunal's use, in the passage last cited, of the expression "the Tribunal does not accept there is objective evidence".  This was said to reveal error, and the error was said to be an error of law, on the basis that whether there is any evidence to sustain a finding, as distinct from whether the finding should actually be made, is always a question of law.  But the argument does less than justice to the Tribunal's reasons.  The whole discussion I have summarised is concerned, not with whether it could be said there was no evidence of a real chance of persecution, but with whether the evidence that was proffered raised matters sufficiently serious and of such a character as to lead the Tribunal to the finding of fact sought by the applicant.  After the detailed consideration given to the evidence, a consideration which included references to the possibility of "some elements of racial discrimination" and to the question whether difficulties are "of such a serious nature [as] to give rise to any well-founded fear of persecution", the passage on which the argument fastens cannot fairly be understood as asserting there was no relevant evidence.  Rather the passage must be read to its end, when it becomes apparent that what the Tribunal considered to be absent was evidence "to indicate" a real chance of persecution, that is, sufficient to indicate that.  Indeed, the next sentence goes on to refer to the fact that the applicant "may face some acts of discrimination" in various
respects, an observation which can only be based on the Tribunal's appreciation of the effect of the evidence.

Accordingly, it seems to me that the applicant's reliance on the decision of Madgwick J in Shri Kkrishan Lal v Minister for Immigration and Ethnic Affairs (1996) 42 ALD 535 is misconceived. Lal was a case involving an error of law "as to the kinds of maltreatment which could amount to 'persecution'", so as to raise a question whether there was any evidence to sustain a real chance of persecution.  The present, on the other hand, is a case where, there being evidence on the question, as the Tribunal acknowledged, it nevertheless concluded that this evidence did not, as a matter of fact, satisfy it of the existence of a real chance of persecution.  Accordingly, the words of Black CJ in Naidu v Minister for Immigration and Ethnic Affairs (unreported, Black CJ, Foster and Sackville JJ, 11 October 1995) are apposite:

"I am not persuaded that this was a 'no evidence' situation, or indeed that it approaches such a situation.  In my view, the findings were clearly open to the decision-maker.  Whether or not we, or others, would agree with those findings is, of course, quite beside the point in an application for judicial review, the purpose of which is not to review the merits of the decision, but to consider whether or not the decision has been made according to law."

For these reasons, the application must be dismissed.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:
     Date: 4 April 1997

Solicitor for the Applicant:     Mr M.P. Newman of Newman & Ass.

Counsel for the Respondent:      Mr R.T. Beech-Jones

Solicitor for the Respondent:        Australian Government      Solicitor

Date of hearing:                 12 December 1996