FEDERAL COURT OF AUSTRALIA Verma v Minister for Immigration & Multicultural Affairs [2002] FCA 324 MIGRATION – refugee status – meaning of persecution – harassment insufficient to constitute persecution - existence of State protection Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 discussed Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 discussed Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 referred to Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 referred to VIBHA SHANTI VERMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 747 of 2001 FINKELSTEIN J MELBOURNE 13 MARCH 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 747 of 2001 BETWEEN: VIBHA SHANTI VERMA Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FINKELSTEIN J DATE OF ORDER: 13 MARCH 2002 WHERE MADE: MELBOURNE 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. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 747 of 2001 BETWEEN: VIBHA SHANTI VERMA Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FINKELSTEIN J DATE: 13 MARCH 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, a young school teacher from Fiji, is of Indian ethnicity and a member of the Bahai religion. She claims to be a Convention refugee, but was denied a protection visa by a delegate of the Minister, a decision that was affirmed by the Refugee Review Tribunal. The applicant now seeks orders quashing the decision of the tribunal, and remitting the matter back to the tribunal for its reconsideration. The power to grant such relief is to be found in s 481(1) of the Migration Act 1958 (Cth). The issue at hand is whether the applicant has established the grounds that would entitle her to that relief. 2 This is the way the applicant put her case to the tribunal. The applicant came to Australia in January 2000 for a holiday. While she was here there was a coup in Fiji and the government of Mr Chaudhry was overthrown and, for a short time, Fiji was under the control of a Mr Speight, an indigenous Fijian supremacist. The coup was followed by significant political turmoil and civil unrest. In particular, Indian Fijians were terrorised by ethnic Fijians and Indian Fijian businesses were looted. 3 The applicant's family in Fiji was caught up in this unrest. Her sister's house was broken into on several occasions, and property was stolen. On one occasion, a bus on which the applicant's sister was travelling was stopped by soldiers and the applicant's sister was harassed, slapped and became very frightened. Complaints to the police did not produce any action. 4 In view of the current situation in Fiji, the applicant says that if she is required to return she will be victimised because of her ethnicity, and will be at risk of being raped or killed. Further, the applicant anticipates that she will not be able to obtain employment in her profession in any place where she would be safe from harm, and it would in any event, be difficult for her to find a position because she is Indian. 5 To assess the applicant's claim, the tribunal obtained information about Fiji which was substantially to the following effect. Until the coup in May 2000 Fiji was governed by a democratically elected government. After the coup there were many acts of violence in the country. Roads were barricaded, public and private property was seized by rebel sympathisers and at least sixteen people were killed. In July the military backed civilian interim administration took over the government and later arrested the rebel leadership, charging them with treason. Despite this, ethnicity remains a dominant factor in Fijian life affecting the country's politics, economy and society. Fiji's population is comprised of approximately 51 per cent indigenous Fijians and 42 per cent Indian Fijians with the remainder being Asians, Caucasians and people from other Pacific Islands. Indian Fijian families largely control most private businesses whilst indigenous Fijians largely head the government ministries and military forces. Without doubt a major problem in Fiji is ethnically based discrimination. There is discrimination at government level, including the hiring practices, education policies and land tenure preferences, where indigenous Fijian interests are favoured. On the other hand, the interim civilian government is fully committed to maintain and protect the equal rights and freedoms of all citizens and groups without distinction. The violent crimes against the Indian Fijian community have been brought under control, though there are still isolated cases of minor harassment against Indian Fijians, mainly in the form of threats and low level theft. Thus, according to the information, "the risk of significant communal mistreatment of Indian Fijians is currently low". As regards the future, the information indicates that the political situation in Fiji remains uncertain and appears likely to continue to be so. Adding to this uncertainty is the ruling of the courts that have declared the interim government illegal, clearing the way for the Parliament to reassemble for a fresh election. But forming a new government will be difficult because Fijians remain bitterly divided, with hardliners in the hierarchy determined to block the country's large ethnic Indian minority from obtaining any meaningful political power. These difficulties have caused the economy to suffer, investment is depressed and the gross domestic product is declining. 6 The tribunal then looked at the applicant's claim in the light of this material. First, the tribunal accepted the applicant's evidence about the problems that her family had faced in Fiji. Although the tribunal did not say so in terms, it seems to have proceeded on the basis that the applicant had a genuine fear of persecution if she were required to return to Fiji. 7 The question then was whether the applicant's fear of persecution was well founded. It would be well founded if, as the tribunal said, there was a "real chance" that the applicant would be persecuted for a Convention reason. In this connection the tribunal made two important findings. The first concerned the level of harassment the applicant was likely to be subjected to if she returned to Fiji and the second concerned whether the treatment she was likely to encounter amounted to "persecution". The tribunal member said: "I note that independent information confirms that Indian Fijians can be subjected to harassment (including behaviour such as verbal abuse and demands for money) from native Fijians. Such behaviour on the part of native Fijians towards Indian Fijians is likely to continue in future and it is therefore possible that she may experience harassment of this kind if she were to return to Fiji. I have considered whether this kind of harassment is of a character which could properly be described as persecution within the meaning of the Refugees Convention, that is involving significant detriment or disadvantage, and I have concluded that, generally speaking, it is not. I have no doubt that such treatment would be annoying and perhaps sometimes frightening but I do not consider it of a kind which interferes to any significant extent with an individual's capacity to go about their life." 8 I should make a few points about these statements. To satisfy the test for a Convention refugee an applicant must demonstrate a well founded fear of persecution. Sometimes there will be difficulty in showing that acts that are likely to occur are relevantly persecutory. In this regard, a distinction must be drawn between, on the one hand, acts of harassment which do not amount to persecution and, on the other hand, harassment which is sufficiently serious to constitute persecution. The difference lies in the seriousness of the prejudice that will be suffered. As the authorities to which I will now refer demonstrate, it will often be difficult to draw a line between the two types of harassment. 9 The High Court has considered what constitutes persecution on a number of occasions. First, in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 this issue was considered by both Mason CJ and McHugh J. In that case the former Chief Justice (at 388) said: "When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason." McHugh J described persecution in the following terms (at 429-430): "The term 'persecuted' is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes 'being persecuted'. The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be 'persecuted' because he or she is a member of a group which is the subject of systematic harassment …Nor is it a necessary element of 'persecution' that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention." Reference should also be made to Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 where six members of the High Court approved the passage cited from the judgment of Mason CJ in Chan stating (at 570) that persecution required "some serious punishment or penalty or some significant detriment or disadvantage". See also Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at par [29] where four justices of the High Court described persecution in terms of a "significant departure from the standards of the civilised world". 10 Whether particular treatment that is likely to be accorded to a person upon return to his or her country of nationality amounts to persecution for the purposes of the Convention, is a question of fact. It is the tribunal, as the trier of fact, that is in the best position to assess the evidence and determine whether, based on that evidence, a well-founded fear of persecution has been established on the specific facts of the case. So, if it appears that the tribunal considered and weighed all the evidence, and that the reasons reveal an understanding of the issues and a fair assessment of the evidence, then there is no basis upon which to review the decision. Conversely, if a reasonable finder of fact would have been compelled to treat conduct as amounting to persecution, but the tribunal did not do so, that is likely to indicate that there has been an error of law, namely a misunderstanding of the meaning of persecution. 11 However, persecution under the Convention does not focus solely on conduct directed towards an individual. It is also concerned with the State's ability to protect that person against mistreatment. Thus in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Brennan CJ said (at 233): "Thus the definition of 'refugee' must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality." In the same case McHugh J said (at 257-258): "The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution." 12 This aspect of the notion of persecution was taken up by the tribunal. It noted that absolute protection of an individual is not required before it could be concluded that adequate State protection is available. The tribunal cited Professor Hathaway as authority for that proposition. The tribunal went on to note that it was necessary to decide whether there is a "reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights", citing Prathapan v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 41, 48 per Madgwick J. On the evidence before it the tribunal expressed its satisfaction that "there is in Fiji a reasonable infrastructure of laws and institutions which together provide protection for people such as the applicant from the type of harm she fears." 13 The tribunal found that the treatment which the applicant might face would be "annoying and perhaps sometimes frightening", but that this did not constitute persecution. This finding does not demonstrate error of law. The tribunal also found that Indian Fijians can expect a reasonable level of protection from mistreatment by the State. This finding also cannot be challenged on the evidence. Therefore, on the material before it, the tribunal correctly found that the applicant was not a Convention refugee. 14 It follows that the present application should be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 21 March 2002 Applicant appeared in person. Counsel for the Respondent: Ms M Kennedy Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 February and 13 March 2002 Date of Judgment: 13 March 2002