Ahmed v Minister for Immigration & Multicultural Affairs

The rrt's decision 4 The RRT referred in some detail to country information relating to Fiji and, in particular, developments that have occurred since the coup led by George Speight. The RRT noted that Indian Fijians accounted for around 45% of the population of Fiji in 1996. 5 The RRT made the following findings: (i) The applicant had not lived in Fiji for "many years". (ii) The applicant and his brothers had experienced problems in the past "as a result of their Indian ethnicity". These problems "seem[ed] to have arisen out of disputes concerning the family fishing business". (iii) The applicant had worked as a cook in Australia and most probably would seek employment in this industry in Fiji. In consequence, the RRT did not accept that there was any real chance that the applicant would experience the problems his family had encountered in relation to the fishing business. (iv) The country information indicated that the government of Fiji, together with the authorities, had "moved to secure the law and order situation after the coup". The assessment of the Department of Foreign Affairs and Trade ("DFAT") was that the risk to ethnic Indians in Fiji was low. (v) The Fijian authorities, since the coup, had stabilised the situation. The RRT, while accepting that discrimination against Indian Fijians would continue, did not consider that there was any real chance that the discrimination against the applicant would be serious enough to amount to persecution. The RRT was satisfied that the applicant could return to Suva, find accommodation and look for employment without facing a real chance of persecution for a reason available under the Convention relating to the Status of Refugees ("the Convention"). (vi) The RRT accepted that the forthcoming elections would lead to further tensions, but such matters would not create a real chance of the applicant facing persecution by reason of his ethnicity. (vii) The RRT concluded that there was no real chance that the applicant would face persecution for a Convention reason should he return to Fiji.

the applicant's submissions 6 In the applicant's written submissions, it was contended that the RRT had erred in two respects. 7 One error was said to be that there had been no evidence or other material to justify the making of the decision (Migration Act, s 476(1)(g). The submission was that there was no evidence to support the RRT's finding that the difficulties experienced by the applicant and his family apparently arose out of disputes connected with the fishing business. In oral argument, Mr Burwood, who appeared for the applicant, conceded (in my opinion, properly) that there was some evidence to support the RRT's finding, not least the statements made by the applicant himself. In these circumstances, Mr Burwood did not press the point. I therefore do not address it. 8 The applicant's second argument was that the RRT had failed to consider a material issue, namely the circumstances in which the applicant's brother, Anjum, had been granted a protection visa. Mr Burwood submitted that this failure constituted a ground of review under s 476(1)(a) of the Migration Act, which establishes the following ground: "(a) That procedures that were required by this Act…to be observed in connection with the making of the decision were not observed." It is not entirely clear why s 476(1)(a) would be attracted by the RRT's failure to address a material issue, as distinct from s 476(1)(b) (jurisdictional error) or s 476(1)(e) (error of law): see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, at 21-22, per McHugh, Gummow and Hayne JJ. 9 Be that as it may, the substance of the submission was that the RRT could have used its resources to make inquiries about the circumstances in which the applicant's brother obtained a protection visa. Despite the applicant not adducing evidence in support of this submission (indeed it is not clear whether the decision to grant the visa was made by a delegate or by the RRT), it was said that the inquiries might have revealed that the family's difficulties were more directly associated with their ethnicity than the RRT's findings suggested.

REASONING 10 The applicant did not request the RRT to call his brother as a witness in support of his (the applicant's) application for a protection visa. Nor did the brother make a statement or provide any other material to the RRT. As Mr Kennett, who appeared for the Minister, submitted, nothing was put before the RRT that showed the circumstances in which the brother was granted a protection visa. It would appear, however, from the applicant's submissions and statements to the delegate and to the RRT, that the brother's protection visa was granted either before or shortly after the applicant left Fiji for Australia. Mr Burwood accepted that this was the correct inference from the material. 11 The task of the RRT, in dealing with the applicant's claim for a protection visa, was to determine whether it was satisfied that he met the relevant criteria for the grant of such a visa. The criteria included the requirement that the applicant be a non-citizen in Australia, to whom Australia had protection obligations under the Migration Act: s 36(2). If so satisfied, the RRT was to grant the protection visa: s 65(1)(a). If not so satisfied, it was to refuse to grant the visa: s 65(1)(b). The RRT was to review the delegate's decision, exercising all the powers and discretions conferred on the delegate by the Migration Act:ss 414(1), 415. 12 In carrying out its task, the RRT had to take into account the material before it. Like the decision-maker who determined brother's application, the RRT had to determine the applicant's claim for a protection visa in light of the facts and circumstances at the time of the decision: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288. An earlier decision of the delegate or the RRT granting the applicant's brother a protection visa was in no sense binding upon the RRT. Nor was it a matter the RRT was bound to take into account (as, indeed, Mr Burwood seemed to acknowledge). Furthermore, there was no material either before the RRT or this Court to show the basis upon which the applicant's brother had been granted a protection visa. The decision may have been made on grounds entirely different from those relied on by the applicant. If the decision was based on material concerning the position of ethnic Indians in Fiji, on the RRT's findings in the present case a great deal has changed in Fiji during the period since the decision to grant the brother a protection visa was made. The circumstances of the applicant at the time of the RRT's decision would inevitably have been different from those affecting his brother at the time his application was determined. 13 The applicant was represented before the RRT. It was not suggested that any impediment had been placed in his path in adducing material supportive of his claims. There is no warrant for imposing a duty on the RRT to attempt to formulate or make out the applicant's case for him: Luu v Renevier (1989) 91 ALR 39 at 45, per curiam. This is enough to dispose of the applicant's submissions. 14 In any event, as Mr Kennett pointed out, there is a further difficulty in the applicant's path. The applicant's own statements to the RRT indicate (as the RRT found) that, whether or not the family's difficulties in Fiji were associated with their ethnicity, the occasions which gave rise to the difficulties were clearly associated with the conduct of the family's fishing business. The RRT specifically found that the applicant, if he were to return to Fiji, would not be involved in the business. This finding, which could not be and was not challenged, taken in conjunction with the RRT's findings on the limited extent of discrimination against ethnic Indians in Fiji, provided an independent basis for the RRT's conclusion that the applicant was not at risk of persecution in Fiji by reason of his ethnic origins.

CONCLUSION 15 The application must be dismissed, with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 4 December 2001 Counsel for the Applicant: Mr D Burwood

Solicitor for the Respondent: Blake Dawson Waldron