Shri Kkrishan Lal v Minister for Immigration and Ethnic Affairs

SHRI KKRISHAN LAL V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

G 924 of 1995

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

CORAM: MADGWICK J

PLACE: SYDNEY

DATE: 24 SEPTEMBER 1996

CATCHWORDS

ADMINISTRATIVE LAW - review of decision of Refugee Review Tribunal - whether evidence to justify decision IMMIGRATION - Refugees - Applicant a Fijian of Indian origin - applicant subjected to minor instances of racial violence on the street and when observing religious practices - inadequate police protection - whether occasional harassment compounded by police inaction amounts to persecution

Migration Act 1958 (Cth): s 475

Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration and Ethnic Affairs v Wu (1996) 136 ALR 481

Nguyen Thanh Trang v Minister for Immigration & Ethnic Affairs (Federal Court of Australia, Merkel J, 2 August 1996, unreported)

Santa Sabina College v Minister for Education (1985) 58 ALR 527

Yesus v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Madgwick J, 9 July 1996, unreported)

THE COURT DECLARES THAT

The decision of the Refugee Review Tribunal constituted an error of law;

THE COURT ORDERS THAT

2.   The matter be remitted to the Refugee Review Tribunal to be decided according to law;

3.   The respondent pay two-thirds of the applicant's costs.

REASONS FOR JUDGMENT

MADGWICK J: The Applicant, Mr Lal, an Indian-Fijian, arrived in Australia from Fiji on 29 November 1991 on a visitor's visa. Since 29 May 1992, when his temporary permit finally expired, he has remained in Australia illegally. On 16 January 1995, a delegate of the Minister for Immigration and Ethnic Affairs denied the applicant refugee status and refused to grant him a protection visa. The Applicant appealed to the Refugee Review Tribunal, but, on 13 November 1995, the Tribunal affirmed the delegate's decision. Mr Lal now makes application to this Court, pursuant to s 475 of the Migration Act 1958 (Cth), for review of the Tribunal's decision. There are two grounds of review:

(1)   that there was no evidence or other material to justify the decision to deny him refugee status and, therefore, to refuse him a protection visa; and

(2)    that the making of the decision constituted an error of law.

General background

The relevant short history and conditions of Fiji, as they appeared from material before the Tribunal, may be summarised in this way. Fiji was a British colony which inherited a system of parliamentary democracy upon its grant of independence in 1970. In 1987 a military regime took power following two bloodless coups. Fiji returned to elected government in 1992. Systemic political inequalities were then forced on ethnic Indians, who are about half the population.

The context is that ethnicity plays and has played a major role in Fiji's politics, economy and society. Indian-Fijians are generally better formally-educated and trained than ethnic Fijians. They dominate commerce and the professions. Ethnic Fijians dominate the military forces and the higher echelons of the civil service. Two of Fiji's major political parties are predominantly Indian-Fijian.

The stated purpose of the 1987 military coups was to ensure the political supremacy of the indigenous Fijians, to protect their traditional way of life and communal control of land. Hence the systemic discrimination in favour of ethnic Fijians and against Indian-Fijians in terms of limiting the latter group's political representation and access to rights over land.

Pursuant to the relevant legislation (outlined by the Tribunal), to obtain a protection visa, Mr Lal needed to satisfy the Minister that he was a refugee within the meaning of the 1951 "Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees" ("the Convention). The Convention defines a refugee as a 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."

The applicant's claim

The only reason, among those given by the applicant for claiming refugee status, which might amount to relevant persecution, was summarised by the Tribunal as follows:

"Indigenous Fijians threw stones at his house any time he was praying at home. Stones were also thrown at the Applicant any time he travelled by bus. The Applicant was hit once by stone. The Applicant reported such incidents to the police but no action was taken."

The material before the Tribunal

A recent US State Department "Country Report" on human rights practices in Fiji, (in evidence before the Tribunal) noted:

"Indo-Fijians are subject to occasional harassment and crime based on race, which is compounded by inadequate police protection. There have been no credible allegations of government involvement in such incidents, and the police have investigated and, where possible, arrested lawbreakers."

The same report notes, as to freedom of religion:

"Freedom of religion is provided for in the Constitution and honored in practice. The preamble to the Constitution declares the importance of Christianity to the Fijian people but guarantees protection for all religions ...

No significant restrictions affect ... typical activities of religious organizations."

On the subjects of order and policing, an Australian diplomatic cable which was before the Tribunal gave this assessment:

"13.     The sharp deterioration in law and order which followed the coups has subsided. The reconvening of Parliament has provided an outlet for political expression, restoring political stability and removing the opportunities for petty criminals to take advantage of a distracted police force.

14. A relatively high level of house breaking and petty larceny remains a problem but it is a function of poverty and urban drift. The houses and businesses of Fiji-Indians and Chinese tend to suffer more because most businesses are owned by Fiji-Indians and Chinese, and because they are generally wealthier than Fijians, rather than for racial reasons. There has also been a rise in the level of armed (cane knife) robberies of commercial establishments, particularly supermarkets, with, in Suva, the perpetrators coming from the squatter camps where 12 per cent of the urban population resides. Other violent crimes can be traced to personal and family disputes and, in the case of many crimes involving Fijians, inter-village rivalries. Alcohol is often a major factor in these.

Police

15. The effectiveness and morale of the police force, which suffered in the wake of the coups, has improved significantly. This had largely been due to the three year appointment of an expatriate (British) Police Commissioner, Philip Arnfield, in mid 1991. He undertook a cleanout of corrupt high-ranking officers and initiated stricter codes of behaviour in a largely successful effort to reduce a number of abuses of position. One officer has so far been tried and convicted - he is on a nine-month suspended sentence and has also been suspended from the police force. He is expected to resign when his suspension has been completed.

16. Another factor in the improved performance of the police has been the restoration of political stability and the clearer definition of their traditional functions. The police are responsible to the Minister for Home Affairs, Rabuka, who recently announced in Parliament his intention not to terminate Arnfield's contract before its scheduled expiry. The number of police officers is again at normal establishment levels and the overall crime solution rate is between 40 and 50 per cent. One area of deficiency which continues to hamper the effectiveness of police, however, is the shortage of vehicles.

17. Much also remains to be done in terms of training and equipment if the police force is to become truly effective and professional and middle management expertise is particularly lacking.

18. The police force has traditionally comprised numbers of Fijians and Fiji-Indians, roughly proportionate to their ratio of the population. The proportion of Fiji-Indians in the police has declined from 48 per cent in 1987 to 38 per cent in 1992. Arnfield has sought to restore the traditional balance but the force lost many able Fiji- Indian officers to emigration after the coups. He will find it difficult because Fiji-Indians do not share the Fijian inclination to join the disciplined services. Fiji-Indians continue to be promoted to senior levels although the proportion of Fijians in the senior ranks has increased markedly in recent years. Again this is largely due to emigration and there is no deliberate policy to promote one ethnic group at the expense of the other.

19. Police-interrogation techniques are open to criticism, as they are in most countries. In part this also reflects the lack of forensic expertise and proper training. Beatings of prisoners are reported from time to time, attracting criticism from Amnesty International, although again the situation has improved under Arnfield. These beatings are possibly racially-motivated sometimes, but it impossible to be conclusive on this.

20. Whether Arnfield's contract will be extended is too early to say, as is whether the improvements he has wrought will become institutionalised and remain in place after his departure."

The Tribunal's approach

In the light of this, it would be impossible to say that the Tribunal had erred in law if its substantial conclusion had been that the applicant was not "a victim of persecution stipulated by the Convention" because what was involved was a few relatively minor incidents of racist violence, compounded by a few displays of low- level police racism. However distressing and seriously wrong such behaviour might be, it could well be regarded as falling short of "a course of systematic conduct" against the applicant as an ethnic Indian. Systematic maltreatment is inherent in the idea of persecution, as McHugh J pointed out in Chan Yee Kim v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 430. Unsystematic racism simply flourishes where it can, including in our own society.

But that was neither the Tribunal's conclusion, nor its reasoning. The Tribunal concluded "There is no evidence before the Tribunal that the Applicant was a victim of persecution as stipulated by the Convention". If available and beneficial inferences from the Tribunal's own summary of the applicant's complaints were drawn, and no reason for not drawing them was given by the Tribunal, there certainly was, in my opinion, evidence from which a conclusion that the applicant had suffered Convention-sufficient persecution could be drawn. If there was systematic police failure to investigate complaints of violence by members of a particular social group, such could quite clearly, in my view, amount to "a course of selective harassment" (per Mason CJ in Chan at 388) or subjecting a person to serious harm "in disregard of human dignity" (per McHugh J, ibid at 430). The Tribunal's conclusion that the applicant never was a victim of persecution seems to have depended on a view that such maltreatment could not amount to "persecution". This was so, notwithstanding that the Tribunal clearly and concisely extracted the relevant passages from the judgment of Mason CJ and McHugh J in Chan as to the meaning of persecution and the sufficiency of a "substantial chance" of such persecution. Of course, that there was some evidence from the applicant which might have sufficed did not, for the reasons I have indicated above, mean that the Tribunal was bound to accept it.

Likewise, had the Tribunal adverted to the significance of a primary possible finding that the Applicant had indeed been a refugee, and the requirement for cogent evidence of a sufficient change in circumstances (cf. Chan at 390-391, and see my discussion of the point in Yesus v Minister for Immigration & Ethnic Affairs (Federal Court of Australia, Madgwick J, 9 July 1996, unreported)), it would have been impossible to say that the Tribunal had erred in law if it had concluded, as a matter of fact, that there was such evidence: there was material that could support such a finding. But the Tribunal did not advert to those legal principles and there is no other indication that it acted in accordance with them.

Conclusions

It is in this state of affairs that this court must act or not act. The limits of the occasions for judicial intervention were recently re-stated in Minister for Immigration and Ethnic Affairs v Wu (1996) 136 ALR 481; I recited the most pungent statements of principle in Yesus. But here it appears that a legal error was made by the Tribunal, namely as to the kinds of maltreatment which could amount to "persecution". There is also the real difficulty of not knowing what principle of law the Tribunal did purport to apply, in the other respect mentioned, as to the necessary degree of change. On the other hand, although the correctness of the Tribunal's factual conclusions is not the business of the court, it does seem that the applicant did not have a promising case. One suspects that to remit the matter to the Tribunal will avail the applicant nought.

Nevertheless, he has and had the right to have his case clearly and carefully considered according to law. While it may be unlikely that a different result would ensue under such circumstances, I cannot say that it is not "possible", cf. Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 546 per Beaumont J, and Nguyen Thanh Trang v Minister for Immigration (Federal Court of Australia, Merkel J, 2 August 1996, unreported). Accordingly the matter should be remitted for rehearing by the Tribunal, differently constituted, according to law.

As to costs, two issues were raised by the applicant, the one based on s 475 of the Migration Act, on which he has succeeded, and the other based on the alleged availability to him of a remedy under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The latter was abandoned at trial. Counsel for the respondent prepared both issues. The respondent should pay two-thirds of the applicant's costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of His Honour Justice Madgwick.

Associate:

Dated: 24 September 1996

APPEARANCES

Counsel for the Applicant: J Therry-Ward

Counsel for the Respondent: N Abadee

Solicitor for the Respondent: Australian Government Solicitor

Date of hearing: 19 August 1996