FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration & Multicultural Affairs [2001] FCA 603

IRSHAD ALI AHMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1090 of 2001

SACKVILLE J

SYDNEY

4 DECEMBER 2001

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“RRT”), made on 4 June 2001.  The RRT affirmed the decision of a delegate of the respondent (“the Minister”) not to grant the applicant a protection visa.  The applicant claims that the RRT erred in rejecting his claim to fear persecution in Fiji, his country of citizenship, by reason of his Indian ethnicity. It was common ground that the application for review was to be determined in accordance with the Migration Act 1958 (Cth) (“Migration Act”), as it stood prior to the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and the Migration Legislation Amendment Act (No 1) 2001 (Cth).

2                     The applicant is a citizen of Fiji, who arrived in Australia on 18 November 1994, over seven years ago.  Although born in Fiji, he is of Indian origin and a Muslim.  He gained entry to this country on a visitor’s visa.  After a series of extensions to that visa, the applicant remained in Australia as an unlawful non-citizen until 26 June 2000, when he lodged his application for a protection visa.

the applicant’s claims

3                     The applicant’s claims before the RRT were supported by written submissions prepared by a migration agent.  The applicant’s claims, in summary, were as follows:

(i)                  The applicant and his brothers took over the family fishing business on the death of their father. 

(ii)                Indigenous Fijian fishermen resented the applicant and his brothers, because of their prosperity, youth and, most of all, their Indian heritage.

(iii)               The applicant’s elder brother, Ali, became involved in a dispute with a fisherman and the company’s employees, apparently about prices and work practices.

(iv)              The applicant and his brothers were increasingly the target of threats by reason of the dispute and, in consequence, the company was forced to suspend its employees without pay.

(v)                Ali was severely beaten on the street by a gang of thugs and was hospitalised for some weeks.

(vi)              Shortly afterwards, another brother, Anjum, was bashed and also hospitalised, in this case for several months.  Anjum fled to Australia, where he was granted a protection visa.

(vii)             The company was subjected to an arson attack.  At this point, the family decided to send the applicant to Australia.  In Australia, the applicant lived with his brother.  Although the applicant planned to return to Fiji, his family implored him to remain in Australia because of the threats to his life.

(viii)           The applicant’s fear of persecution was exacerbated following the coup d’etat that left George Speight in power and entrenched anti-Indian sentiment amongst the indigenous Fijian population. 

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.

Associate:

Dated:              4 December 2001