Chand v Minister for Immigration and Multicultural Affairs [2001] FCA 1285

FEDERAL COURT OF AUSTRALIA

Chand v Minister for Immigration and Multicultural Affairs [2001] FCA 1285

Migration Act 1958 (Cth) s 476 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1, applied AMI CHAND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 931 of 2001 BRANSON J SYDNEY 29 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 931 of 2001

BETWEEN: AMI CHAND

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 29 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 931 of 2001

BETWEEN: AMI CHAND

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 29 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review by this Court of a judicially reviewable decision, namely the decision of the Refugee Review Tribunal ("the Tribunal") to refuse to grant to the applicant, his wife and children, protection visas. 2 The entitlement of the applicant to a protection visa is dependant upon his being 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." 3 The applicant is a citizen of Fiji of ethnic Indian descent. He has lived on a particular piece of farmland, which he has now inherited from his mother, for most of his life. He has no other land. The lease of the farmland will expire in 2004 and will not be renewed, apparently by reason of the applicant being of Indian descent. The applicant asserts that when he loses the land he will lose his means of livelihood. 4 The applicant and his immediate family arrived in Australia on 9 January 2000. On 23 February 2000, they lodged an application for protection visas. On 15 March 2000 a delegate of the respondent refused to grant the protection visas sought. By a decision dated 30 April 2001 the Tribunal affirmed the decision not to grant the protection visas sought by the applicant and his family. 5 For the reasons set out below I have concluded that the decision of the Tribunal should be affirmed. 6 Before this Court, the applicant has contended that the Tribunal: (a) erred under s 476(1)(e) of the Act in finding that the termination of a land lease in a properly constituted contractual situation cannot be considered to fall within the ambit of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Refugees Convention"); and (b) erred under s 476(1)(b) or (e) of the Act in finding that the situation for the applicant at the expiration of the land lease would not be so serious as to constitute Convention persecution. Counsel for the applicant acknowledged that the applicant must succeed on both contentions in order to succeed on his application for review. 7 I turn to consider the first contention. The Tribunal in its written reasons for decision said: "The Tribunal is cognisant of the situation in terms of land leases for Indo-Fijians and is sympathetic to the economic hardship and social difficulties which the issue is causing, however, the termination of a lease in a properly constituted contractual situation cannot be considered to fall within the ambit of the Refugees Convention. It was clear from the hearing that the applicant has not suffered any harm in the past which could be construed as constituting persecution in terms of the Convention. It was equally clear that the applicant's main fear in terms of return to Fiji was his economic and social situation which would see him and his family encountering difficulties in gaining their livelihood at the expiration of the lease in 2004. Even if the Tribunal were to accept that the non-renewal of the lease would be effected for the Convention reason of ethnicity, the political situation at the expiration of the lease, the applicant's own capacity to change his circumstances with regard to his livelihood even without the lease are questions which are not seen by the Tribunal in the realm of the reasonably foreseeable future. The Tribunal is not satisfied that the situation for the applicant at the expiration of the lease would be so serious as to constitute Convention persecution." 8 I see no reason to conclude that the Tribunal took the view, as the applicant in his written submissions suggested that it did, that the termination of the applicant's lease could not, as a matter of law, constitute discrimination on the ground of the applicant's race. The first two paragraphs from the above extract from the Tribunal's reasons seem to me to indicate that the Tribunal took the view that the termination of a lease in a properly constituted contractual situation would not constitute harm sufficiently serious to constitute persecution. 9 I do not understand the Tribunal to have made a finding as to whether the motivation of the person with the authority to extend or not extend the lease had anything to do with the applicant's race. That is, whether the non-extension would be for reasons of the applicant's race within the meaning of the Refugees Convention. The third paragraph from the above extract confirms, in my view, that the approach which the Tribunal adopted was to go directly to the issue of whether it was satisfied that the harm which the applicant feared was sufficiently serious to amount to persecution. Not being so satisfied, the Tribunal did not find it necessary to determine whether the non-renewal would be "effected for the Convention reason of ethnicity" by which I understand the Tribunal to mean race. 10 The applicant's second contention addressed the issue of the seriousness of the harm which the applicant fears. Although paragraph 3 of the passage extracted from the Tribunal's written reasons for decision might, with the benefit of hindsight, have been expressed more clearly, its meaning is, I think, tolerably clear. 11 The Tribunal is to be understood, in my view, as saying that at this distance in time from the proposed failure to renew the lease, it is not satisfied that harm of a sufficiently serious nature will be experienced by the applicant because of the non-renewal; there are too many relevant variables which include the political situation in Fiji and the applicant's own capacity to change his economic circumstances. 12 In other words, as I understand the Tribunal, it regarded the applicant's application for a protection visa as premature in that it could not be satisfied in April 2001 of the political and economic circumstances which the applicant would face upon the non-renewal of his lease some time in 2004. It seems to me to be impossible to say that it was not open to the Tribunal not to be satisfied in 2001 as to the seriousness of the consequences which the applicant will face in 2004 upon the non-renewal of his lease. 13 I am certainly not satisfied that the Tribunal fell into jurisdictional error by not making a positive finding, as the applicant suggests it was obliged to do, as to the seriousness of the consequences that the applicant will face when his lease is not renewed in 2004. In the language of the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1 at [82], I do not consider that the Tribunal, by taking the view that the economic future of the applicant in Fiji in and after 2004 was, at the time of its decision, unclear, identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material in a way that affected its exercise of power with the consequence that the Tribunal did not have the authority to make the decision that it did. 14 Moreover, in my view, in the absence of any suggestion by the applicant that he would not be able to leave Fiji at a time nearer to the termination of his lease, it seems to me that the applicant is simply not within the class of persons to whom the Refugees Convention is intended to provide protection. In my view, nothing in the Act or the Migration Regulations 1994 (Cth) or in the Refugees Convention itself suggests that a person who is not presently unable or, owing to a fear of persecution, unwilling to avail himself or herself of the protection of his or her country but who might become unable or unwilling to do so in approximately 3 years' time, and who would be free to leave that country at about that time, is presently a refugee. 15 The application will be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.