Chand v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (ex tempore) Introduction 1 The applicant ("Mr Chand") applies under 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 2 September 1998, affirming a decision of a delegate of the respondent ("the Minister") not to grant a protection visa. 2 Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under 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 (compendiously, "the Convention"). 3 Article 1A(2) of the Convention provides that a refugee is any 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." Mr Chand's case is that he is outside the country of his nationality, Fiji, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of race and political opinion (imputed). Procedural background 4 Mr Chand arrived in Australia on 12 May 1996. On 4 April 1997 he applied for a protection visa (visa sub-class 866). A delegate of the respondent ("the Minister") refused the application on 26 June 1997. On 30 June 1997 Mr Chand applied to the RRT for review of that decision. The RRT conducted a hearing on 1 September 1998. As noted above, on 2 September 1998 the RRT affirmed the delegate's decision. Mr Chand filed his present application in this Court on 17 September 1998. The decision of the RRT 5 The RRT commenced its reasons for decision by referring to the procedural background of the case. It then turned to Mr Chand's claims. His claims were set out in his protection visa application and in his oral evidence before the RRT. In addition, the RRT referred to information from independent sources and to media reports submitted by Mr Chand to the Department of Immigration and Multicultural Affairs ("the Department"). Due to concerns expressed by Mr Chand about his adviser, the RRT's summary of his claim was drawn solely from his oral evidence. 6 Mr Chand is a single man in his mid 20s. He claims that he and his family were the subject of harassment by ethnic Fijians due to his father's membership of the Fiji Labor Party ("FLP"). The FLP along with its coalition partner, the National Federation Party ("NFP") won the 1987 elections. This precipitated a military coup which overthrew the elected government. From that time, Mr Chand and his family feared for their lives, according to his claims, resulting in his leaving Fiji for Australia. 7 Mr Chand asserted that in 1987 his father was arrested and held for one day in relation to allegations of arms dealing and that the family home was searched at gunpoint by the military. He further claimed that around Christmas or New Year 1995 to 1996, a few months before he left Fiji, he was beaten and robbed by a group of ethnic Fijian youths who identified him as the son of his father. Although the incident was reported to the police who took a statement and said they would investigate, no action was taken. The incident was also reported to the chief of the boys' village. 8 In the period from 1987 to 1996 Mr Chand claimed to have suffered further problems. Although he gained entry to university, he was denied a scholarship resulting in his paying his own fees. He referred to employment problems stemming from the majority of government jobs being given to ethnic Fijians, who, he claimed, are incompetent. In addition, he asserted that financial mismanagement of the National Provident Fund had caused many people to lose their retirement benefits. As identified by the RRT and communicated to Mr Chand, none of these reasons constitute persecution for a Convention reason. 9 Mr Chand then identified problems he had personally suffered in the above period. He repeated the claims relating to his father's arrest and the search at gunpoint of the family home and added that on a few occasions, village boys had stoned the family's house at night and attempted to break in. Again, Mr Chand complained of inaction on the part of the police. He fears that conditions in Fiji have not changed and is afraid to return. While he has been in Australia there has been an attempt to break into his parents' house. 10 Mr Chand referred to a further incident in which an Indo-Fijian owner of a "beautiful house" was told to give it to an ethnic Fijian. However, Mr Chand conceded that the home owner would have had recourse to civil action. 11 The RRT proceeded to discuss the legal framework and the law relating to the Convention definition of a refugee, before turning to independent background information about Fiji. 12 The RRT confirmed that in the April 1987 election, a coalition of the FLP and the NFP defeated the ethnic Fijian Alliance Party. On 14 May 1987, Lieutenant Colonel Rabuka led a coup whose stated aim was to defend the interests of ethnic Fijians against a government perceived to be dominated by Indians. A second coup led by Rabuka took place in September 1987. However, in July 1990 a new Constitution was promulgated which was the product of an interim government appointed in 1990. Free and fair elections were held in 1992 and 1994, with Rabuka remaining as Prime Minister. Interestingly, since the 1992 elections, this has been with the support of the FLP which, along with other opposition groups, is represented in the Parliament. 13 Importantly, a new Constitution has been drafted which seeks to redress the political position of Indo-Fijians as against ethnic Fijians. This draft has been approved by the Parliament and the Great Council of Chiefs. Further, since the recommendations of the Constitutional Review Commission were released in September 1996, there have been no reports of political turmoil or racial violence and Rabuka has shown support for the Commission and its reform proposals. Independent evidence shows that since the return of a democratically elected government, politically and racially motivated attacks on Indo-Fijians have declined. 14 The RRT concluded that Mr Chand had failed to prove that he or his family had suffered harm of sufficient gravity to constitute persecution for a Convention reason. Rather, incidents such as the occasional "break and enter" constituted "minor harassment and random criminal activity". 15 The arrest of Mr Chand's father occurred more than ten years ago during a military coup and was one of many such incidents at the time. Independent evidence and Mr Chand's own testimony indicated that such incidents no longer occur. The RRT doubted the veracity of the alleged racially or politically motivated attack to which Mr Chand says he was subjected in 1996. Even if the incident occurred, it would not, in the opinion of the RRT, constitute a "systematic course of persecutory conduct" as required by the Convention. 16 As to Mr Chand's subjective fear of being the victim of crime, the RRT did not dispute material evidencing an increase in crime in Fiji. However, it was unable to find the high rate of crime to be racially motivated. Rather, the high crime rate is of general concern in Fiji and largely stems from economic and social causes, with Indo-Fijians being the targets of crime in so far as they are perceived, as small business people, to be wealthy. 17 Finally, in relation to Mr Chand's account of the Indo-Fijian forced to relinquish his home, the RRT did not believe that such an incident amounted to persecution, nor that Mr Chand or his family would be affected in any similar way amounting to persecution. Reasoning on the appeal 18 Mr Chand has been self-represented on the hearing before me. I have read carefully the reasons for decision of the RRT and can see no ground of review of a kind specified in s 476 of the Act. The RRT's assessment of Mr Chand's past experiences in Fiji raised issues of fact and degree which were within the province of the RRT. It made the finding that in so far as Mr Chand feared criminal activity, this was a fear not of persecution for a Convention reason, but of harm arising from a perception in criminal elements that Indo-Fijians such as Mr Chand were better off financially than ethnic Fijians. In other words, the true characterisation was that of criminal elements targeting individuals perceived by them to be wealthy, not persecution for a Convention reason. 19 The RRT also found that there was no evidence that there was inadequate state protection. This is not, of course, to say that state protection is a guarantee that a person will not suffer from crime or be the victim of crime, but it is to say that state protection is equally available to Mr Chand as it is to persons of other races or political views. On this ground as well, the RRT decided, as it was open to it to do, that Mr Chand did not have the status of a refugee. 20 As I said at the outset, and after having read the RRT's reasons for decision carefully, I see no ground of review of any of the kinds provided for in s 476 of the Act. Conclusion 21 For the above reasons, the Court orders that: