Raqio v Minister for Immigration and Multicultural Affairs

[2000] FCA 237

FEDERAL COURT OF AUSTRALIA

Raqio v Minister for Immigration & Multicultural Affairs [2000] FCA 237

MIGRATION – protection visa – application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) – whether applicant has a well-founded fear of persecution

Migration Act 1958 (Cth), ss 36(2), 420, 476(1)(a)

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, referred to
Minister for Immigration & Multicultural Affairs v Eshetu [2000] HCA 21, followed

KAMINIELI RAQIO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 65 OF 2000

EMMETT J
28 FEBRUARY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 65 OF 2000

BETWEEN:	KAMINIELI RAQIO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	28 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant 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	N 65 OF 2000

BETWEEN:	KAMINIELI RAQIO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	28 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Fiji and arrived in Australia on 10 January 1998.  On 23 September 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 6 November 1999 a delegate of the Minister refused to grant a protection visa.  On 9 December 1999 the applicant applied for a review of that decision.  On 18 January 2000 the Tribunal affirmed the decision not to grant a protection visa.

2. From that decision the applicant now appeals to this Court by way of application for an order of review.  The grounds specified in the application are as follows:

   “That procedures were required by the Migration Act 1958 or regulations to be observed in Connection with the making of the decisions were not observed, and I am sure that that [sic] (I will put reasons). 

   The Tribunal has failed to act in accordance with Substantial Justice and the Merits of the Case, in accordance with section 420 of the Act.”

3. In so far as that ground relies on section 476(1)(a) of the Migration Act1958 (Cth) (“the Act”) it is misconceived. In the Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 the High Court confirmed that failure to comply with section 420 was not a matter that falls within section 476(1)(a) of the Act.

4. The applicant, when invited to make any further submissions as to grounds within section 476, was unable to make any further submission.  The Tribunal in its reasons considered that if the applicant returns to Fiji he will not face a real chance of persecution on the ground of political opinion and found that the applicant does not have any well founded fear of persecution for a Convention reason.  It is desirable to say something briefly about the findings of the Tribunal that led to that conclusion.

5. The applicant is an indigenous Fijian.  His religion is Assemblies of God and, in his primary application, his claims were of an general nature about politics in Fiji and the impact of an Indo-Fijian prime minister, violence in Fiji and the racial and religious minded political parties being advocated that could divide the nation.

6. In the hearing before the Tribunal, the applicant's evidence was that he left Fiji because his parents could not afford the school fees for him to repeat year 5 of high school.  He could not get a job after leaving school because he had no higher education.  This, combined with the family’s small allocation of land in the village, meant he could not make the expected financial contribution to his home village.

7. The applicant stated at the hearing that he had not been a member of any political party in Fiji.  He had not experienced any problems on the ground of religion, race or nationality.  He had not been questioned or detained by the authorities in Fiji.  Rather, he said that his only problems in Fiji were financial, connected with his failure to complete high school and his family's small allocation of land in the village.

8. The Tribunal found that the reason why the applicant could not work was not Convention related.  Rather, the applicant said the reason he could not get work was because he had not completed high school.  The reason he could not complete high school was not Convention related.  Rather, it was financial, because his family was not able to pay for the applicant to repeat year 5.

9. The reason why his family's allocation of land in the village was so small and therefore placed his family in a position where they could not afford to send him to year 5 was not Convention related.  Rather, it was because his father was the youngest son in a family of many sons.  The Tribunal found that the applicant's reasons for leaving Fiji and for not wanting to return to Fiji are economic reasons.

10. A person whose sole reason for migration is the desire to leave generalised difficult economic conditions or to achieve a better economic standard of living are generally excluded from protection under the Refugees Convention - see Applicant A v Ministerfor Immigration & Ethnic Affairs (1997) 190 CLR 225 at 283.

11. The Tribunal found that the applicant did not have a subjective fear of persecution if he returns to Fiji because of any Convention reason. Accordingly, the Tribunal was not satisfied that the criterion set out in section 36(2) of the Act for the grant of a protection visa was satisfied. In those circumstances, there is no alternative for me but to dismiss the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             8 March 2000

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 February 2000
Date of Judgment:	28 February 2000