Ersad Ali v. Minister for Immigration and Ethnic Affairs


No. NG28 of 1995 FED No. 1003/95 Citizenship and Migration




SYDNEY, 13 July 1995

#DATE 13:12:1995

#ADD 19:1:1996

Counsel for the applicant: D.J. De Pinna

Solicitors for the applicant: Marsdens

Counsel for the respondent: R.T. Beech-Jones

Solicitor for the respondent: Australian Government Solicitor


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 FederalCourt Rules.


WHITLAM J On 1 September 1994 a delegate of the respondent determined thatthe applicant was not a refugee. This is an application under the Administrative Decisions (Judicial Review) Act 1977 to review that decision.

2.   The decision was made under s 22AA of the Migration Act 1958. That Actprovided that the term "refugee" had the same meaning as in the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967 ("the Convention"). Under the Convention a refugee is a person who "owing to a 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 Fijian citizen of Indian ethnic origin. He claimed a fear of being persecuted for reasons of race and political opinion. The delegate summarized the applicant's claims as follows:

"(1)            The applicant's father was a member of the National Federation Party and entered (sic) the Labour Party prior to the 1987 elections. His father was actively involved in politics at the regional level, along with his other brothers.

(2)   Following the coup in 1987 his father also joined the Cane Growers Union which actively campaigned against the harvesting of sugar. As a result the military government began to persecute his father and others who were involved in the Union.

(3)   His family were subjected to harassment following the two military coups. Native Fijians threatened his father and threw stones at the family home. While the applicant was in Australia, his father telephoned him to warn him not to return to Fiji. As a result of the harassment, his family moved to New Zealand.

(4)   His sisters had difficulties obtaining employment in Fiji because of the policies of the Interim Government which favour ethnic Fijians. The Constitution discriminates against Indians.

(5)   He has heard of reports that a radical group of Fijians has attacked Indians and Muslims at their place of worship.

(6)   He has no family remaining in Fiji. Due to physical and emotional persecution, many Indian families have already fled from Fiji. The Interim Government has imposed a Constitution which takes away the rights of Indians to have a say in government. The Constitution favours ethnic Fijians in employment. To prevent interference in these policies, the Interim Government has expelled the Indian Embassy from Fiji. "Counsel for the applicant does not quibble with this summary of his client's claims.

4.   The delegate rejected the claims for both Convention reasons. However, only the rejection of the claims relating to fear of racial persecution appears relevant in the present proceeding. The delegate identified these claims as being those summarized in paragraphs (3), (4), (5) and (6), in respect of which he made the following assessment:

"Although the present Fiji government has continued a policy of promoting the interests of ethnic Fijians, it does not endorse active discrimination against people from other ethnic backgrounds. Whilst the Constitution favours Fijians in the electoral system and promotes affirmative action in their favour as well, it does not deny Fiji Indians any rights. (1990 Constitution Ch.2 (s)16). I acknowledge that the disadvantages which may be experienced by non-ethnic Fijians may be viewed as discrimination, however, not to such an extent as to constitute persecution. The Constitution provides for the protection of a wide range of human rights, including freedom of speech, assembly, religion and conscience. I find that the applicant's fear of persecution for reasons of race is not well-founded."

5.   The material before the delegate when he made his decision comprised the departmental file relating to the applicant, a report from the United States Department of State, and a copy of the 1990 Fiji Constitution. However, not all that material is before the Court. The applicant tendered only ss 16, 21 and 156 of the Fiji Constitution. The respondent tendered the State Department report. This was a report on human rights practices in Fiji during 1993. Section 5 of the report dealt with discrimination based on race. Under the heading "National/Racial/Ethnic Minorities" it stated:

"The stated purpose of the 1987 military coups was to ensure the political supremacy of the indigenous Fijian people and to protect their traditional way of life and communal control of land. To this end a number of measures have been taken that favor the Fijian community over the other ethnic groups. The most obvious are the apportionment of seats in Parliament to guarantee a preponderance of ethnic Fijians and constitutional provisions ensuring selection of an ethnic Fijian President and Prime Minister. The Government is also committed to raising the proportion of ethnic Fijians and Rotumans in the public service to 50 percent or more at all levels. This is reflected in current promotion and hiring policies in the public service favoring ethnic Fijians. It has resulted in some Indo-Fijians complaining of a "glass ceiling" whereby, despite their experience and higher educational achievements, they are not promoted beyond middle management. Control of land is a highly sensitive issue in Fiji. About 83 percent of the land is held communally by indigenous Fijians. Most cash crop farmers are Indo-Fijians, who lease their land from the Fijian landowners through the Native Lands Trust Board. The present land ownership arrangements were instituted by the British to protect the interests of the indigenous Fijians. Freehold land title is not an indigenous concept; lands owned currently by the State (8 percent) and by individuals (9 percent) were transferred from customary owners during the colonial period. Many Indo-Fijians, particularly farmers, believe that the absence of secure land tenure discriminates against them. Between 1997 and 2000, the majority of the current leases will expire. A review of the current land tenure/leasing arrangements is under way. 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."

6.   I have not found it easy to follow the precise grounds on which the applicant challenges the delegate's decision. The application was amended at the hearing. Yet the stated grounds remain prolix, repetitive and confusing. The central point appears to be that the delegate either failed to take into account or misconstrued the provisions of the Fiji Constitution, especially s21. It is said that these provisions manifest a policy of denial of employment to Fijian nationals of Indian ethnic origin amounting to persecution.

7.   The delegate plainly had regard to the provisions of the Fiji Constitution. He said so in his assessment. There is no reason to doubt that statement. The delegate did not mention s 21. He did refer to s 16, which provides for protection from discrimination on the grounds of race. That provision is evidently contained in Chapter II of the Constitution. Section 16 is expressed to operate subject to the provisions of the Constitution and contains many qualifications. In particular, subs 16(9) provides that nothing contained in or done under the authority of Chapter III of the Constitution shall be held to be inconsistent with or in contravention of s 16.

8.   Section 21 is located in Chapter III of the Constitution. It provides:

"21 (1)       Notwithstanding anything contained in Chapter II of this Constitution Parliament shall, with the object of promoting and safeguarding the economic, social, educational, cultural, traditional and other interests of the Fijian and Rotuman people, enact laws for those objects and shall direct the Government to adopt any programme or activity for the attainment of the said objects and the Government shall duly comply with such directions.

(2)   In carrying out any direction given under subsection (1) of this section, the Government through the Cabinet may

(a)    give directions to any department of Government, Commission or authority for the reservation of such proportions as it may deem reasonable of scholarships, training privileges or other special facilities provided by Government;

(b)   when any permit or licence for the operation of any trade or business is required by law, give such direction as may be required for the purpose of assisting Fijians and Rotumans to venture into business; and

(c)    may give directions to any department of Government, Commission or authority for the purpose of the attainment of any of the objects specified under subsection (1) of this section; and the department or the Commission or the authority to which any direction under paragraph (a), (b) or (c) of this subsection is given shall comply with such directions."

9.   Section 156 defines the meaning of "Fijian", "Rotuman" and "Indian" for the purposes of the Constitution. (Rotumans are, according to the State Department report, culturally distinct Polynesians who are accorded one of the 70 seats in Fiji's elected lower house of Parliament.)

10. The delegate said that the Constitution "promotes affirmative action in(the Fijians') favour". In my opinion, that is a fair description of the objects stated in s 21(1). The delegate does not appear to have had before him details of any laws enacted or directions given under s 21 beyond the statement in the State Department report about promotion and hiring policies in the public service. Taken with the applicant's claims about his sisters' employment "difficulties", the delegate's findings were well open to him on the material before him.

11. In Chen Ru Mei v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 a Full Court had to consider a claim that a denial of access to employment might amount to persecution for reasons of political opinion. The Court said (at 411):

"The term 'persecution' is not defined in the Convention. What amounts to persecution will be a matter of degree as perceived by the signatory State called upon to consider it. Certainly, threat to life or freedom for a Convention reason is persecution: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Dawson J at 399; Gaudron J at 416. Whether it may have a broader meaning to include, where such actions are undertaken for a Convention reason, measures in disregard of human dignity, the imposition of serious economic disadvantage, denial of access to employment or education, denial of rights enjoyed by compatriots and, perhaps, denial of freedoms fundamental to the existence of a democratic society, is undecided: Chan per Mason CJ at 388; Dawson J at 399-400; Gaudron J at 416; McHugh J at 430-1. See also Goodwin-Gill, The Refugee in International Law (Oxford, Clarendon, 1983), pp 38-9."

12. Nonetheless, their Honours went on to hold (at 412):

"Having regard to the guidance provided by the judgments in Chan, it should be concluded that the denial of access to employment, if that denial is arbitrary and indefinite and part of a process of harassment by authorities for the purpose of suppressing political dissent, may involve detriment or disadvantage of such a magnitude as to constitute harm amounting to persecution for a Convention reason: Chan per Mason CJ at 388, McHugh J at 430."

13. In the present case, however, under whatever rubric of judicial review the applicant's case is presented, it is faced with an insuperable obstacle. That is that the delegate obviously took the view that discrimination in employment might amount to persecution. The "protection and enhancement of Fijian and Rotuman interests" (as they are described in the heading to s 21)mandated by the Fiji Constitution do not compel a conclusion that those who are regarded as Indians will suffer persecution by denial of employment. As I have already mentioned, the delegate had regard to a policy of what he called "affirmative action" under the Constitution. But he concluded that the magnitude of any disadvantage under that policy did not constitute persecution. So far as the applicant here is concerned, there is nothing in the evidence adduced to suggest that the material before the delegate required a finding that the applicant was denied access to any employment in Fiji, let alone (to adopt the language of Chen) that such a denial was "arbitrary and indefinite and part of a process of harassment by authorities for the purposes of suppressing" Indians as a race.

14. The application for an order of review in this case was lodged out of time. However, as it cannot succeed, it is unnecessary to consider whether further time for lodging should be now allowed. The application will be dismissed with costs.


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