Rattan v Minister for Immigration and Multicultural Affairs

[2001] FCA 1102

FEDERAL COURT OF AUSTRALIA

Rattan v Minister for Immigration & Multicultural Affairs [2001] FCA 1102

RAJNESH HARISH RATTAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 367 OF 2001

HILL J
23 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N367 OF 2001

BETWEEN:	RAJNESH HARISH RATTAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	23 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent Minister’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	N367 OF 2001

BETWEEN:	RAJNESH HARISH RATTAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	23 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Rajnesh Harish Rattan, a citizen of Fiji applies to the Court for judicial review under s 476(1) of the Migration Act 1958 (Cth) (the “Act”), of a decision of the Refugee Review Tribunal (the “Tribunal”) affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs not to grant to him a protection visa.

2. Mr Rattan came to Australia on 11 July 1999 on a student visa intending to study for a degree in Australia.  While here he formed a relationship with an Australian citizen, also a citizen of Portugal.  At the time he had an alcohol and violence problem and assaulted his friend.  In the result, and in particular because he breached the bail conditions of an apprehended violence order imposed upon him, he was arrested and sentenced to a short term of imprisonment.

3. During that time, he says, he became a Christian.  He also continued the relationship with his friend and, at least at the time of the Tribunal hearing, they intended to marry.  A consequence of his imprisonment was that he failed to comply with the conditions of his student visa.  On 30 January 2001, he lodged an application for a protection (class XA) visa. 

4. His application was refused by a delegate of the Minister and in consequence he applied to the Tribunal for review of the decision.  It is a criteria for the grant of a protection visa that an applicant be a person whom the decision maker, be that the delegate or, in place of the delegate, the Tribunal, is satisfied is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees (the “Convention”).  Protection obligations exist under the Convention where a person is a “refugee” as defined.

5. The Convention defines a refugee to be a person who:

   “owing to a 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...”

6. In his original application for a protection visa Mr Rattan said he was of Indian ethnic background.  He claimed to fear being returned to Fiji because he said he would be detained, tortured and persecuted with no-one to protect him.  He claimed that he had suffered whilst he had been in Fiji and left because of the trouble Indian people were facing from supporters of Mr George Speight who led a movement which overturned the democratically elected government of the then Prime Minister Mahendra Chaudhry.  That, the Tribunal held, could not have been true if only because Mr Rattan was in Australia at the time of the events in Fiji involving Mr Speight. 

7. At the hearing before the Tribunal Mr Rattan made a different case.  He said that he feared return to Fiji because he had a problem with the local people in his area.  He spoke of two incidents that are dealt with in the Tribunal's reasons.  The first concerned an incident when he and other Indian friends were playing soccer and their game was interrupted by three ethnic Fijians who were rough and abusive.  They asserted afterwards to him that Fiji was for the Fijians.  The second incident, that rose apparently out of the fact that Mr Rattan's brother was buying and using marijuana, involved his reporting the dealers who were ethnic Fijian to the police.  He said he feared that these people, who were subsequently arrested, charged and convicted, would have a grudge against him.  He accepted that the police in Fiji would act if they had evidence but without evidence they would be unable to assist him. 

8. He said also that his fear of returning in part related to the fact that his family was Hindu and he had become a Christian.  He spoke of other problems such as the fact that farm leases to people of Indian descent were not being renewed in Fiji. 

9. Mr Rattan had at some stage moved for a short time to Nadi and stayed with an aunt because he said he feared harm. Nothing had happened to him during that time.  He referred also to having written while at school some articles about the economic history of Fiji and the role of Indians in the economy, in support, it would seem, of the rights of people of Indian descent in Fiji.

10. The Tribunal set out in some detail country material concerning the position in Fiji both historical and up to at least December 2000.  It  accepted the various matters that Mr Rattan had raised in the hearing, notwithstanding the obvious untruths in the original application.  The Tribunal, however, did not accept that the incidents to which reference has been made were of the seriousness which Mr Rattan had said they were. 

11. The Tribunal accepted that he made complaints to the police about people selling drugs and feared that those against whom he had complaints might hold a grudge but referred also to the fact that the police would act if it became necessary and, in any event, did not accept that such fear as he had was Convention related.  The drug dealers, the Tribunal thought, would be motivated by a desire for revenge which would apply whether or not Mr Rattan was Indian. 

12. So far as the soccer match incident was concerned, the Tribunal was of the view that it was not such as could constitute persecution as that expression is used in the Convention.  Ultimately the Tribunal concluded that none of the claims, whether alone or together, were of sufficient seriousness as to amount to persecution and that Mr Rattan did not have a well-founded fear of persecution on a Convention ground. 

13. The Tribunal's decision was given on 4 April 2001.  On 6 April 2001, Mr Rattan filed with the Court an application for an order of review.  The application contained no ground of review at all but stated merely that “details [would] be sent in (sic) a later date”.

14. The matter came first before me on 27 April 2001, on which day Mr Rattan was not represented.  On that day I explained to him, as best I could, the limited nature of the Court’s power to review a decision of the Tribunal and the importance of his obtaining, if he could, legal representation.  I should say that at that time, and indeed at all times until last Friday, Mr Rattan was in detention at Villawood.  Mr Rattan was given a list of the various sources of legal aid which could be available to him.  The matter was listed for hearing on Friday, 20 July 2001 at 2.15pm. 

15. The Tribunal's reasons suggest that before the Tribunal Mr Rattan appeared in person without the assistance of an interpreter.  As it is normal in such cases, an applicant before the Tribunal is asked whether an interpreter is required.  The response to that question which appears in the court papers was that no interpreter was required.  The Tribunal noted in its reasons that Mr Rattan was educated and intelligent, wished to continue his education and to undertake a degree in this country.  There is certainly nothing in the Tribunal's reasons that suggested that he had any need for an interpreter before the Tribunal.

16. In this Court initially, Mr Rattan likewise did not suggest he needed an interpreter. (There is a document in the file dated 12 April 2000 signed by him which said that he did not need an interpreter and spoke English.) However, somewhat late in the piece a request was made for an interpreter. When the matter was called before me on Friday, unfortunately a Fijian interpreter was provided and not an interpreter in the Hindi language. Mr Rattan asked that the matter be adjourned until today so that an interpreter could be obtained. Today Mr Rattan is likewise not legally represented although now at least he has the assistance of a Hindi interpreter. He is unable to put before me any ground of review available under s 476(1) of the Act. Without the assistance of a lawyer this is hardly surprising.

17. The only matter he sought to put before me was that the Tribunal's decision was wrong and that he and his girlfriend/wife would be in danger if returned to Fiji.  I have explained to him that the factual correctness of material contained in the Tribunal's reasons is not a matter with which I can be concerned in judicial review.

18. I have carefully read the Tribunal's reasons which I have summarised at least in part. I have done so perhaps more carefully than normal because Mr Rattan is not represented. I can, however, see no error in the Tribunal's reasons which would found a ground of review under s 476(1) of the Act. In the circumstances, I can do nothing other than dismiss the application.

19. It may be that some other avenue is open to Mr Rattan having regard to his relationship with his girlfriend/wife, but that is not a matter which I can consider in these proceedings.

20. Accordingly, I will dismiss the application and order the applicant to pay the respondent Minister’s costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             11 August 2001

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	K Sant
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 July 2001
Date of Judgment:	23 July 2001