VJAG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 928

FEDERAL COURT OF AUSTRALIA

VJAG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 928 Judiciary Act 1903 (Cth) s 39B Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 referred to VJAG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENEOUS AFFAIRS V732 of 2002 WEINBERG J 2 SEPTEMBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V732 OF 2002

BETWEEN: VJAG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENEOUS AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE OF ORDER: 2 SEPTEMBER 2003

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 V732 OF 2002

BETWEEN: VJAG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENEOUS AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE: 2 SEPTEMBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application, under s 39B of the Judiciary Act 1903 (Cth), to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 29 August 2002. By that decision, the Tribunal affirmed a decision by a delegate of the respondent Minister not to grant the applicant, his wife, and their two children protection visas. The application to this Court is brought by the applicant alone.

Factual background 2 The applicant is a Fiji citizen of Indian ethnicity, and Hindu faith. On 1 September 2001 he arrived in Australia, together with his family. Ten days later, on 11 September, he lodged an application for a Protection (class XA) visa. On 11 December 2001, the Minister's delegate refused that application. Thereafter, the applicant applied to the Tribunal for review of that decision. As indicated earlier, the Tribunal affirmed the decision, concluding that the applicant was not a person to whom Australia owed protection obligations. 3 The applicant has applied for an order quashing, or setting aside, the Tribunal's decision. When the application was filed with the Court, he was legally represented. However, he did not have legal representation when he appeared before me this morning. 4 In a written submission filed on his behalf by his former legal representatives, the substance of the applicant's claim was that the Tribunal had acted in bad faith. The submission was expressed in that way because at the time that it was filed the High Court had not yet delivered its judgment in Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24. 5 The basis upon which it was contended that the Tribunal had acted in bad faith was that it had based its decision entirely on country information which was general, unreliable and inaccurate. It was also contended that the Tribunal had failed to take into account relevant considerations, and erred in its interpretation of the meaning of "persecution". 6 When the matter came on for hearing this morning, the applicant indicated that he no longer wished to rely upon the written submission, but instead desired to present a fresh argument. 7 The principal matter raised by the applicant concerned a property upon which he and his family had lived prior to their departure from Fiji. The lease of that property was in his father's name. When the lease expired, the owners refused to renew it, and took possession of the land. His father had been forced to live with his daughter. The lease over her property had been renewed. The applicant claimed that, under Fijian law, he was entitled to compensation. He maintained, however, that by reason of his ethnic background, he would be denied such compensation. 8 The applicant also referred to a series of specific incidents which he claimed had occurred shortly before his family left Fiji. He claimed that members of his family had been subject to assaults, stone throwing, and general harassment. He also claimed that the temple at which he worshipped had been looted, and that a Hindu marking on his forehead had been forcibly removed. He said that the police had declined to take any action in relation to his complaints. He also made a more general claim that members of the Fijian Indian community were regularly harassed, and subjected to assault, and even rape. 9 In addition, the applicant claimed that if he was required to return to Fiji, he would be unable to find either employment or housing. He said that his children, who were doing well in school in Australia, would be subjected to discrimination, and that they would be unable to receive a proper eduction. 10 Finally, the applicant claimed that the country information upon which the Tribunal had relied was inaccurate. He maintained that conditions in Fiji for members of the Indian community were far worse than portrayed by those documents. 11 The respondent submitted that the applicant's claims could be divided into four categories. They were, economic, coup related, general harassment, and those arising out of the non-renewal of the lease. 12 In relation to the claims described as "economic", the respondent submitted that they had all been considered by the Tribunal, and been properly evaluated. These claims were evaluated against the background of the relevant country information. The Tribunal noted that a recent DFAT assessment had confirmed that education was freely available to the applicant's children in Fiji. That assessment also confirmed that although employment opportunities in some industries were limited, prospects were much better for those with professional, and skilled trade qualifications. The applicant had a long employment history, indicating that he was a satisfactory employee, and skills as a salesman / costing clerk. His wife had certificates in business accounting, and computer training. The country information suggested that anyone with qualifications such as these should have no difficulty in finding employment. The same country information confirmed that rental accommodation was generally available. 13 With regard to the claims arising out of the attempted coup, the Tribunal concluded: "At the time the applicants lodged their applications for a protection visa (11 September 2001) the security and safety of all citizens of Fiji was well under control and had been so for over one year, that is, after the arrest of Speight, the coup leader, as the following independent country information from a variety of sources confirms." 14 The Tribunal then set out various extracts from DFAT reports, and other documents. These suggested that the security situation in Fiji had improved greatly after the attempted coup had been brought to an end. Later advice from DFAT confirmed that law and order had been largely restored. Importantly, this view was supported by the Human Rights Commission. 15 In relation to the claims of harassment, the Tribunal accepted the applicant's claim that, following the attempted coup, Indians in Lautoka were subject to abuse and racist swearing, and theft in the streets, and from homes. It also accepted his claim that there had been looting, harassment, violence and assaults, including sexual assaults, perpetrated upon members of the Indian community. 16 In relation to the applicant's more specific claims, the Tribunal accepted that his house had been looted, and that he and his family had been attacked in July 2000 by indigenous Fijians. It noted, however, that he had been unable to identify those responsible, and that the police had informed him that they could not, therefore, take action. 17 The Tribunal accepted that the family members had been subjected to "stone throwing, harassment and unpleasantness", as the applicant claimed. However, it found that these incidents did not amount to persecution. The same was true of his complaint that ethnic Fijian boys had regularly stolen his children's lunches. This behaviour was said to be "annoying" but not "persecution". 18 Finally, the respondent noted that the Tribunal had dealt comprehensively with the issue of land tenure in Fiji. The country information demonstrated that this was a "sensitive issue", and that steps were being taken to address it. Indeed, the matter was being discussed by the Prime Minister of Fiji, and the Fijian Labour Party leader, Mahendra Chaudhry, with a view to its urgent resolution. 19 In the case of the applicant's property, the fact was that the lease had expired, and the owners had decided not to renew it. Not all owners had adopted that course. For example, the applicant's sister's lease had been renewed. The fact that the applicant's father had been required to move out of the house, and give vacant possession, was "unfortunate" for him, and for the applicant and his family. However, it did not amount to persecution. 20 In relation to the country information, the respondent submitted that it demonstrated that the situation in Fiji had stabilised since the attempted coup, and that there was "no risk of institutionalised mistreatment of returning Fijians, whether ethnic Fijians, or Indo-Fijians". It also indicated that the applicants could seek the protection of the police who were neither unwilling, nor unable, to protect all Fijian citizens. Accordingly, so it was submitted, the Tribunal had correctly concluded that the applicant's fear of harm or mistreatment, based upon his Indian ethnicity, was not objectively well-founded.