Res, R. v Minister for Immigration, Local Government & Ethnic Affairs
[1993] FCA 617
•03 SEPTEMBER 1993
RAM RES v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G858 of 1992
FED No. 617
Number of pages - 6
Immigration Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LOCKHART J
CATCHWORDS
Immigration Law - review of a decision of a delegate of the Minister to adopt recommendation of Refugee Status Review Committee - whether Indian Fijian has a well-founded fear of being persecuted for reasons of race, religion, membership of a political social group or political opinion - whether Indian Fijian is a refugee.
Administrative Decisions (Judicial Review) Act 1977
United Nations Convention on the Status of Refugees 1951
United Nations Protocol on the Status of Refugees 1967
Constitution (1990) Fiji
HEARING
SYDNEY, 25 August 1993
#DATE 3:9:1993
Counsel for the Applicant: Mr D de Pinna
Solicitors for the Applicant: Michael J Rose and Co
Counsel for the Respondent: B Skinner
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the costs of the respondent of the proceeding, including reserved costs if any.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
LOCKHART J This is an application for review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The applicant is Ram Res, an Indian Fijian citizen who seeks to review the decision of the delegate of the respondent, the Minister for Immigration, Local Government and Ethnic Affairs, that the applicant is not a refugee within the meaning of the 1951 United Nations Convention and the 1967 Protocol relating to the status of refugees. The delegate's decision was made after he had considered a recommendation by the Refugee Status Review Committee that a determination be made that the applicant is not a refugee. For convenience I shall refer to "the respondent" to encompass the delegate of the Minister and, where necessary, the Minister himself.
The applicant was born on 10 February 1953 (he is now 40 years of age) in Fiji. He is a Fijian citizen and of Indian extraction. He is married with two children, who were born on 22 March 1984 (now 9) and 18 April 1987 (now 6). The applicant and his wife were married in Fiji and their children were born there. The applicant, his wife and family are of the Hindu-Indian religion.
The applicant arrived in Australia on 9 May 1989 and was issued with a visitor's visa. On 28 July 1989 (it appears after the visitor's visa had expired) the applicant applied for permanent resident status which was refused. On 22 December 1989 the applicant applied to the respondent for refugee status. The Refugee Status Review Committee recommended that he not be granted such status; and on 18 March 1993 the respondent found that the applicant was not a refugee. It is that decision which the applicant seeks to have reviewed by the Court under the ADJR Act.
In addition to his wife and children who travelled with him to Australia in 1989, the applicant has a mother and five brothers who reside in Fiji, one sister in New Zealand, one sister in Canada and one sister in Australia.
The evidence in the case is rather sparse and to some extent my recital of facts is taken from statements of fact made by counsel for either the applicant or the respondent and agreed in by the other.
The material before the respondent, when making the decision under review, included the following:-
. the applicant's application for refugee status dated 22 December 1989;
. the UNHCR handbook on procedures and criteria for determining refugee status under the 1951 Convention and the 1967 Protocol relating to the status of refugees, dated January 1988; . the relevant departmental file;
. two cables from the Department of Foreign Affairs and Trade to the respondent;
. the United States State Department reports on human rights practices for 1991, dated February 1992.
The material before the respondent when he made his decision contained a summary of claims submitted by the applicant and certain additional material furnished by him. This material contained the following statements:-
. during the first military coup in Fiji the applicant was recognized as a strong supporter of the Coalition party; . a group of Fijian youths vandalized his house and threatened his wife. He reported this to the police who arrived two hours later and took a statement from him and his wife. During the night he was harassed by soldiers who claimed that he was planning to take actions against the military to free Dr Bavadra; . he would like to live in Australia because he has his own flat and household goods. His wife's family have Australian citizenship and have settled here;
. he fears that he will be arrested if he returns to Fiji and fears for his personal safety should he return there; . the discrimination which he fears is real and ongoing; . he disputes that the political situation in Fiji has now become stable;
. to return him to "the abhorrent aspects of the 1990 Fijian constitution would be to accept the legitimacy of such unconscionable discrimination".
The respondent was, of course, aware of the definition of a refugee as defined in the Convention of 1951 and Protocol of 1967 as a person who:
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political 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 respondent accepted that the applicant did not wish to avail himself of the protection of Fiji; he then embarked upon the exercise of assessing whether this was because the applicant had a well-founded fear of persecution in relation to a Convention reason.
The respondent considered the claim by the applicant that there was discrimination against him and his family as a result of his race. The respondent accepted that there was ongoing racial tension in Fiji between ethnic Fijians and ethnic Indians. He accepted also that there was often a racial dimension to the actions of youthful gangs who engaged in petty crime and intimidation. He did not accept, however, that the current situation in Fiji (ie. 18 March 1993) was comparable with the situation that prevailed immediately after the 1987 coups as there had been a return to normal standards of law and order. Reliance was placed upon one of the cables from the Department of Foreign Affairs and Trade to support this view. The respondent did not accept that persons who had experienced such incidents at the time of the 1987 coups in Fiji could reasonably claim that there is the likelihood of a repetition of those circumstances on return. He therefore found that the current situation in Fiji did not give rise to a real chance of persecution.
The respondent accepted that acts of petty crime and harassment continue to occur; but he gave weight to advice from the Department of Foreign Affairs and Trade by one of the two cables mentioned earlier that the performance of the police in Fiji has improved since the restoration of political stability and the clearer definition of their traditional functions. He also gave weight to advice from the Department of Foreign Affairs and Trade that the judiciary in Fiji has maintained a reasonable record of impartiality, integrity and independence since 1987 and that normal criminal and civil cases are dealt with in a professional manner without interference. He considered that in respect of serious manifestations of violence against property or person there are effective avenues of redress and protection through the legal process and that the judiciary remains independent under the new constitution. He said that rights of due process are similar to those found under English common law. The right to public trial is guaranteed and defendants have the right to counsel. The respondent thus found that any fear of persecution that the applicant may have in this regard is not well founded.
As to religion the respondent noted that the applicant claimed persecution for reason of religion; but in the absence of any details to support the claim and given that freedom of religious practice was guaranteed in the Constitution promulgated in July 1990 (a reference to it appears in s. 12 of the Constitution), he found that there is not a real chance of the applicant being persecuted on the grounds of religion should he return to Fiji.
The respondent considered that the applicant's claim regarding his support of the Coalition party, the accusations made against him and his resultant fears were matters to be considered by him which he did consider. He took into account and gave weight also to the following:-
. advice from the Department of Foreign Affairs and Trade by cable that opposition groups now operate legally in Fiji and are free to voice their opposition to the Government; . the general election held between 23 and 30 May 1992 was conducted in a fair and free manner. A new Cabinet was named on 3 June 1992 and the appointment of Major General Rabuka was made after the leader of the FLP personally informed the President of his party's support for Major General Rabuka who as Prime Minister had stated "No longer am I promoting the aspirations of 1987; now it is for all races in Fiji" (followed by a reference to the Canberra Times report of 3 June 1992);
. prominent Opposition figures have departed and re-entered Fiji without experiencing difficulties;
. several new parties were created in 1991 including those of the deposed Coalition parties. Political organizations are allowed to operate and issue public statements. They have done so repeatedly and openly throughout 1991.
Having assessed the applicant's claimed fear of persecution because of his support of the Coalition party, the respondent concluded that it was not objectively well founded.
The respondent found that even when considered cumulatively, the treatment of which the applicant complained did not amount to persecution and his claims did not establish a well founded fear of persecution for Convention reasons. The expression "well-founded" fear requires an objective examination of the facts to determine whether the fear is justified and it has not been established that the respondent engaged in this exercise incorrectly.
The respondent considered other matters, including the claims of the applicant relating to his current situation in Australia, and found that the applicant was not a refugee.
I have not found it easy to follow the precise grounds on which the applicant challenged the decision under review. They are set out in the amended application for an order of review filed on 26 March 1993 and, speaking generally, counsel for the applicant followed the same course in argument as did the draftsman of the amended application. There are numerous grounds of challenge to the respondent's decision reflecting the grounds of review set out in s. 5 of the ADJR Act. They are rather prolix and repetitive. I have done the best I can to follow them to ensure that justice is done to the applicant.
The central point in the applicant's case is that it was not open in law to the respondent (or if open in law, nevertheless an unreasonable exercise of the power) to conclude that any fears of the applicant of persecution on the grounds of race, religion, membership of a particular social group or political opinion (no claims were advanced by the applicant in relation to persecution for reasons of nationality) were not well founded.
The applicant's evidence consisted of his own affidavits and an affidavit of his solicitor. He gave no oral evidence. The respondent called no evidence.
It is for the applicant to establish his case as to why the respondent erred in his decision-making process or in reaching the conclusion which he did. I have taken a liberal view of the evidence in favour of the applicant because it seemed to me in all the circumstances to be the just thing to do. However, I am unable to discern from the material before the Court any ground of error on the part of the respondent in making his decision. In my view the respondent took into account all materially relevant matters and did not ignore relevant matters. It has not been shown that the matters which the respondent took into account were wrong in fact or law.
There is no evidence one way or the other as to whether the respondent interviewed the applicant personally with respect to his application for refugee status. Certainly there was a written application signed by the applicant which was before the respondent. I was informed by counsel for the applicant that his client, though able to speak English to some extent, cannot read or write it (which explains an affidavit read by an accredited interpreter).
There was some evidence given by the applicant to the effect that his form of application for refugee status was completed by a Peter Sundar without being properly understood by the applicant and that Mr Sundar has been arrested. It is difficult to determine the relevance of this evidence about Mr Sundar; but putting it at its highest for the applicant it means that he retained Mr Sundar (for a not insubstantial fee) to process his application and look after his interests in making the application for refugee status and that Mr Sundar misled the applicant as to the prospects of success of his application for refugee status. On no view of the facts could it be said that Mr Sundar acted or was held out as having authority to act as agent or representative of the respondent.
Part of the applicant's case was, as I understood it, that the respondent could not have concluded that there was no foundation for the applicant's assertion that he had a well founded fear of being persecuted for reasons of race or religion because the Constitution of Fiji denied such freedoms to Indian Fijians. Reference was made to various sections of the Constitution, in particular, ss. 12, 13 and 21.
I am not persuaded that it was incumbent upon the respondent to examine the Constitution of Fiji or any part of it to determine the applicant's application for refugee status, although it is apparent that the respondent did examine certain provisions of the Constitution in reaching his conclusions. It is not necessary that this Court express any views on the arguments advanced with respect to the Constitution of Fiji and in the circumstances it would be inappropriate for the Court to do so.
I have considered the question of the correctness of the respondent's decision on the basis that whether or not a person has refugee status is to be determined upon the facts as they existed at the time such status was sought. I have also considered that question at the time of the determination by the decision maker: see Chan Yee Kin v Minister for Immigration, Local Government and Ethnic Affairs (1989) 169 CLR 379.
In reaching my decision I have considered the relevant cases including Chan and Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290.
The Court orders that the application is dismissed with costs.
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