High Court Cases 

High Court Wellington CP50/97
11 August 1997; 26 August 1997
Gallen J

Judicial review - State protection - Whether RSAA had failed to deal with issue whether failure of state protection had nexus to a Convention reason

Judicial review - Reasonableness - Challenge to findings of fact

Judicial review - Convention on the Rights of the Child - Position of a child included in a refugee application

Judicial review - Delay - Effect of

 
In 1991 the plaintiff and his family, citizens of Fiji, arrived in New Zealand and applied for residence permits.  When these applications were declined in 1992, the plaintiff applied for refugee status.  His family was included in the application.  When this application was declined, the plaintiff appealed to the Refugee Status Appeals Authority (RSAA). In 1996 the appeal was dismissed, the RSAA holding that although the plaintiff did have a well-founded fear of persecution, there was no Convention reason for such persecution. The plaintiff then sought a rehearing of the appeal, arguing that the 20 month delay between the hearing and the decision meant the RSAA should have sought an update on the plaintiff's circumstances before issuing the decision, that the RSAA had dealt with the issues illogically and that it had erred in dismissing the appeal. The RSAA concluded that it did not have jurisdiction to rehear the appeal, and rejected the plaintiff's arguments. The plaintiff sought judicial review of the first decision of the RSAA.

Held:

1    The 20 month delay between the hearing of the appeal and the issue of the decision was clearly unacceptable. Delay would provide a justification for the intervention of the court where the plaintiff could show that he had sustained prejudice to a sufficient extent. However the onus was on the plaintiff as the person asserting the prejudice to prove such prejudice. There was no obligation on the RSAA, in the absence of an assertion of prejudice, to seek information on whether there had been a change in the plaintiff's circumstances. Delay could  justify intervention where the delay meant that there had effectively been no decision at all, or where the delay was so great that the decision delivered was inaccurate. However the delay in the present case did not rise to this level (see paras [15] to [18]).

Tcherepenine v Chief Executive Department of Labour (High Court, Wellington, AP79/96, 8 October 1996, McGechan J); Raju v Chief Executive Department of Labour (High Court, Wellington, AP307/95, 8 October 1996, McGechan J); Rathod v Minister of Immigration (High Court, Wellington, AP311/94 & CP332/94, 15 July 1997, Goddard J) mentioned.

2    The position of a child included in an application for refugee status needs to be considered in a different light from that of an adult, as a child is more vulnerable and less able to protect itself. However whether the interests of the child were adequately taken into account by the RSAA depended on whether the decision in respect of the plaintiff could be overturned. There was nothing in the material before the RSAA to suggest that the plaintiff's child faced a real chance of persecution in Fiji for reason of his Indian ethnicity (see para [22]).

Mil Mohamed Mohamud v Minister of Immigration [1997] NZAR 223 (Chisholm J) mentioned

3    The RSAA was entitled to conclude that the violence the plaintiff had suffered had been for reasons other than that he was a Fiji Indian. The RSAA was in the best possible position to assess the evidence and draw conclusions, and it was not the role of the Court to usurp this function (see para [26]). 

Wellington  City Council v Woolworths NZ Ltd (No 2) [1996] 2 NZLR 537 (CA) mentioned.

4    The RSAA did not deal specifically with the issue whether any failure of the authorities in Fiji to protect the plaintiff arose because the plaintiff was a Fiji Indian. It could not be assumed that the RSAA had impliedly dealt with this issue. If it did not, this was a flaw in the decision. If it did answer the question by implication, there was some inconsistency between this conclusion and its conclusion  on the issue of persecution. The delay between the hearing and the issue of the decision may have lead to the issue being overlooked (see para [33]).

Rajudeen v Minister of Employment and Immigration (1984) 55 NR 129 mentioned.

Matter remitted to RSAA for rehearing

Other cases mentioned in judgment:

Refugee Appeal No. 308/92 Re UR (28 March 1994)

Counsel
J S Petris for the plaintiff
E D France for the first and second defendants

GALLEN J [1] This is an application for review of a decision of the Refugee Status Appeals Authority determining that the plaintiff is not entitled to refugee status. The first defendant was not represented but abides the decision of the Court.

[2] There is little dispute over the background circumstances. The plaintiff who was born in May 1945 is a Fijian citizen with Fijian Nationality. He is of Indian descent. He is married and has one son born on 13 October 1987. The factual circumstances are set out in some detail in the decision in respect of which review is sought and it is appropriate to repeat that factual summary.

"This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a citizen of Fiji of the Indian race.

THE APPELLANT'S ACCOUNT

The appellant is a 50 year-old married man with one child of eight years of age. The appellent's wife and child are both in New Zealand at this time. The appellant has two brothers aged approximately 48 and 50 years of age, both of whom still reside in Fiji.
 
The appellant is from a family of some considerable financial substance and in 1978 he became the Managing Director of the family's enterprise which comprised an hotel, a timber yard, a sawmill and a hardware outlet.

The appellant had generally experienced little or no difficulty in his relationship with the indigenous Fijian people other than an incident involving a roadblock connected apparently with an argument over certain concessions which had been granted to fell timber on native land.

Amongst the indigenous Fijian people was a local leader by the name of Bogi Bogi. On 24 February 1988, under his leadership, a group of indigenous Fijians commandeered the hotel referred to while it was under the appellant's control. The take-over was by force and the appellant, together with the other staff on the premises, was ejected. The take-over was at least partly as a result of a local resentment to certain police action taken as a result of the appellant or his hotel manager filing complaints with the police about local people drinking on the premises but not subsequently paying for what they had consumed.

Immediately the seizure took place the appellant reported it to his local police station. He received an assurance from the police that they would act. A policeman duly visited the hotel, but the occupiers declined to Ieave. The appellant was present at the hotel with the policeman at that time of the refusal and also observed that Bogi Bogi and his associates were consuming beer which they had taken from the hotel chiller.

The appellant was threatened with violence if he did not keep away. The local policeman also advised the appellant that he thought it was appropriate for him to remain away from the hotel. Accordingly the appellant left the scene and returned to his home, which was Iocated approximately 15 kilometres away in Sigatoka.

That evening, at approximately eight or nine pm there was a bang at the door and upon the appellant's wife opening it, in came Bogi Bogi and some of his supporters. Bogi Bogi was carrying a knife and said that he was going to kill the appellant. The appellant stood up to try and calm the situation down. He was asked why he had reported the occupation of the hotel to the police. Without further ado Bogi Bogi and two of his supporters struck the appellant several times.
 
The appellant responded by picking up an iron bar which happened to be handy and with it he struck Bogi Bogi on the head and shoulders inflicting deep cuts. The appellant also struck one of the other supporters, breaking his leg. He also dispatched the third supporter by breaking his arm with the iron bar. The appellant attributes his success in the altercation to the fact that his assailants were drunk.

The appellant's nephew, who lives next door, also came to his assistance and despite the fact that there were in total 10 or 12 assailants, the remainder of them (excluding the beaten ones who were by then lying on the ground) fled the scene.

Again the appellant telephoned the police and upon their arrival they took Bogi Bogi and one other person away for hospital treatment. The other injured man had by then left of his own accord.

The appellant states that no charges whatsoever were laid against anyone in respect of the incident.

The next morning the appellant went to Suva, fearing for his safety if he remained in his home. That day, while he was in Suva, the son of Bogi Bogi and an associate came and dragged the appellant from his car, punching and kicking him. Fortuitously a police officer arrived and took the two away, advising the appellant that they would be charged in connection with their assault. The appellant understands that no charges were ever laid. The appellant in fact made enquiries at the Sigatoka police station as to why the men had not been charged and he was told not to worry and that the police had told the men that they must not harm him.

The appellant was not happy with the situation in that regard and consulted his solicitor who telephoned the Assistant Commissioner of Police to complain of the matter. The appellant was present when a discussion between his solicitor and the Assistant Commissioner took place and says that his solicitor was told to not worry about the matter. The solicitor counselled the appellant to the effect that matters in Fiji were one-sided and that it was preferable for the appellent to simply remain quiet concerning the affair.

The appellant returned that day to his home in Sigatoka. That night at approximately 10.00 pm a group of indigenous Fijians came to his home by van. They got out of the van and started throwing stones at the appellant'a house. They yelled insults to the appellant and advised him that if he did not leave he would be killed. They then left the scene leaving broken windows and the appellant, his wife, his mother and his child all in a distressed state.

Fearing for the family's safety, the appellant that night took his family to the house of his brother-in-law, approximately 15 kilometres away.

The next day, being 27 February 1988, the appellant returned, to his home for the purpose of affecting repairs. Shortly after his arrival Bogi Bogi and about 20 supporters arrived on the scene and commenced throwing sticks and stones at the house. They yelled to the appellant that they would be back to kill him and then they left the scene. The appellant went back to his brother-in-law's home, but returned to his own home two days later on 29 February (1988 was a leap year). Again the purpose of the visit was to effect repairs to the home. The appellant's nephew, Mr Bicky Ram, was with him. At approximately 10.00 am Bogi Bogi and his supporters arrived at the house. Again they threw sticks and stones. Matters escalated and ultimately both the appellant and his nephew ended up in an armed fight with Bogi Bogi. The appellant inflicted cuts to Bogi Bogi's forehead and shoulder. The appellant's nephew seized Bogi Bogi's knife and mortally wounded him. The appellant then got in his car and went straight to report the matter to the police at Sigatoka. By the time the police arrived on the scene Bogi Bogi had been taken to the hospital. He was, however, dead on arrival.

The police charged both the appellant's nephew (Bicky Ram) and his brother (Mani Ram) with murder. A trial subsequently took place in June 1989 and it resulted in the acquittal of both accused on self-defence or related grounds.

Reverting to the sequence of events at the time, later that evening a group of about 100 indigenous Fijians went to the appellant's home. The purpose of their visit was apparently to exact revenge for the death of Bogi Bogi. The appellant says that he had indeed earlier that night been threatened that he would be killed as a result of the earlier incident.

The appellant was absent but the attackers did a considerable amount of damage to the property of the appellant's family business and they burned down several houses. They also destroyed trucks, boats and the sawmill referred to earlier.

As the appellant had been told earlier in the evening that he and his family were going to be killed, they had fled to Ba about 100 kilometres away. There they stayed at the home of the appellent's father-in-law.

Having heard about the attack on the property, the appellant returned to the property in the early hours of the next morning. The purpose of the visit being to survey the damage. Having carried out that exercise the appellant returned to his father-in-law's place. The family remained there uneventfully until 11 March 1988 when a group of four indigenous Fijians arrived at the house in a van. Two of them were wearing ordinary clothes and two of them were wearing military uniforms and carrying guns. The appellant recognised two of them as being relatives of Bogi Bogi. One of the men, who was dressed in a military uniform, came inside the house, pointed a gun at the appellant and told him to accompany them. The appellant complied with this request, but asked where he was being taken. He was told that he did not need to know. He was transported in the back of the van and after some distance, the vehicle stopped and he was told to remove his suit.

The appellant was shown a newspaper cutting about the death of Bogi Bogi and told that it was because of him that Bogi Bogi had died. They pointed out that the newspaper article referred to another person as having received a broken Ieg and that the appellant's name appeared in the article. The appellant was then punched repeatedly.

The journey then resumed and they went to Queen Elizabeth Barracks at Nabua. The appellant was taken to see a senior officer. The officer said words to him to the effect that they knew that he was involved in the death of Bogi Bogi. The appellant responded that he was not the one involved and that although he had injured him, Bogi Bogi's death had been caused by his nephew. He was told that the whole affair had started at the hotel at the time that he was the manager and that his life would be taken just as had the life of Bogi Bogi been taken. The appellant was then punched by one of those present resulting in his unconsciousness for a period of approximately 15-20 minutes.

Upon regaining consciousness the appellant was taken into another room and told to wait. Sometime thereafter he was removed from the room and locked up in a cell for a period of one day and one night. He was stripped of all clothing during his incarceration. He was also beaten and punched approximately half-hourly during the period of incarceration. The appellant also states that his captors spat inside his mouth and made him swallow.

In the early afternoon of the following day the appellant was released and a taxi was ordered to transport him back to his father-in-law's house.

The appellant was in an injured state at that time and steps were taken to call his solicitor. The solicitor arrived the next morning (being 15 March 1988) and upon observing the appellant's injuries comprising cuts, black eyes, chest and shoulder injuries, the solicitor took the step of taking the appellant to the government hospital where he was treated.

The solicitor issued forthwith a writ citing unlawful detention and torture. The defendant was Colonel Rebuka. The writ has apparently not been pursued by the appellant on the basis that in his assessment, pursuing it might have exposed him to further problems.

However the issuing of the writ resulted in military people detaining the lawyer as well. This occurred a few days after filing on 15 March 1988. A further consequence of the filing of the writ was that the military people came looking for the appellant several times. He had left the house of his father-in-law at Ba and had stayed in a rental flat in the same town. He learned of the visits by military people from his brother-in-law who visited him every night. The brother-in-law also used to do the shopping for the appellant because the appellant was scared to venture out of his flat.

By this time the appellant's wife and child had been sent to Rakiraki, approximately 60 kilometres away. It was considered that it was safe for them there. They availed themselves of the hospitality of the appellant's brother-in-law in that village.

In September 1988 after a period of approximately six months of living in this fashion, the family commenced living together again in Lautoka. They stayed together there for a period of approximately three or four months and suffered no problems by way of hostile visitors until one day the appellant was recognised by a man who was a friend of Bogi Bogi. At the time he was recognised the appellant was standing at the back of the flat in which they lived. The man who recognised him entered upon the rear of the section and told the appellant that he recognised him and that he would kill him. The appellant understood this man to be the brother-in-law of Bogi Bogi. The very next day the family shifted away to Ba.

While in Ba they lived in a flat and were financially supported for a period of time by the appellant's father-in-law.

The appellant had by this point in time made enquiries about leaving Fiji and indeed had obtained a passport on 5 April 1989. Immediately after that event he had applied to travel to both Australia and New Zealand, but was declined by both countries. He had subsequently met an agent who said that he could obtain a visa for him to visit Australia for the sum of $1,000. The agent was duly engaged and obtained a visa for him. However he did not travel to Australia until 30 September 1989. The purpose of the visit was to obtain Australian permanent residence, a status which the agent earlier referred to had assured him would be available. While in Australia he experienced some difficulty with the agent carrying out his instructions in that the agent required further monies before he was prepared to file an application for permanent residence on the appellant's behalf. The appellant did ultimately himself file an application in Australia upon humanitarian rather than refugee grounds. These grounds were advanced upon the advice of a consultant in Australia.

However, he had only been in Australia for a period of four or five days when he received a telephone call from his wife advising that their flat had been broken into by a group of Fijian youths. The youths were said by his wife to have stated that they were present for the purpose of killing the appellant. The wife related that she ran out of the back door and sought help whereupon the youths left.
 
The appellant was so concerned at this turn of events that he returned to Fiji five or six days later, This was despite the fact that it had been his intention to never return. Upon his arrival at the airport in Fiji his passport was taken and kept by a military person and a policeman at the airport. He believes this was prompted by his name somehow coming up on the computer on his arrival. The appellant wanted his passport back and accordingly subsequently instructed his lawyer to obtain its return. Efforts were made also by a friend of the appellant who was instrumental in utilising a contact in the Fijian military to obtain a return of the passport. It was received about a month after its seizure. The appellant returned shortly thereafter to Australia, staying there for approximately five or six days. While in Australia the appellant discussed making a further application for residence in Australia, but none was in fact filed. This failure was as a result of a dispute over fees with the consultant.

The appellant returned to Fiji on 29 November 1989 and had no difficulty in passing through Fijian customs and retaining his passport.

Upon his return the appellant resolved that he and his family should collectively apply for a visa to enter Australia or New Zealand. After consultation with a travel agent it was considered more appropriate to obtain a New Zealand visa. However there was a considerable period of delay before a visa was obtained and in the intervening period the appellant and his family changed their accommodation between 10 and 12 times. Throughout this period groups of indigenous Fijians would go to the house of his father-in-law seeking his whereabouts.

Ultimately a visa for the family to enter New Zealand was granted in mid-March 1991. There was approximately a five or six week delay before the family arrived in New Zealand. The appellant explained the delay in that they were having difficulty raising funds to travel to New Zealand and that they had to seek contributions from various family members in that regard.

The appellant arrived in New Zealand on 28 April 1991. An application for New Zealand permanent residence was filed by the appellant and his family, but declined on 24 March 1992.

On 11 August 1992 the appellant filed an application for refugee status which was declined by the Refugee Status Branch of the New Zealand Immigration Service on 30 September 1992."

[4] The Authority accepted that whether or not the applicant was to be classified as having refugee status, depended upon whether he came within the terms of the inclusion clause in Article I A.(2) of the 1951 Refugee Convention and 1967 Protocol relating to the status of refugees which provides:

" ...... 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

"1. Is there a genuine fear?
2. Is the harm feared of sufficient gravity to constitute persecution?
3. Is the harm feared related to any of the five grounds recognised in the Convention, or is related to other factors ?
4. Is the fear well-founded at all?
If so:
(a) As to the whole of the country of origin?
(b) As to only part of the country of origin in which case can the appellant genuinely access protection which is meaningful, and is it reasonable in all the circumstances, to expect the appellant to relocate elsewhere in the country of origin?"

[7] The Authority dealt with the fourth issue next, there being an error as to the numbering in the decision. (Although a submission was originally made on the basis of this mistake, it did not in the end assume any importance). The Authority noted in the 8.5 years since the plaintiff and his family had left Fiji, there had been two elections which had not been marred by civil disorder or unrest. The Authority made reference to its decision in Re UR (Refugee Appeal No.308/92 delivered on 28 March 1994} and in particular, the conclusion expressed in that decision that no evidence had emerged that the Indian community in general was being persecuted, or that there was a real chance of persecution occurring in the future. The decision noted that the possibility of such persecution occurring remained no more than conjecture which did not satisfy the real chance test required by the Convention. In spite of those comments however, the Authority went on to note the circumstances of this case were such that the family and associates of the deceased man might realistically be expected to harbour a grudge against the plaintiff for a long period of time and therefore accepted that there was a real chance of persecution of the plaintiff on his return.

[8] The Authority then went on to consider the need to establish a nexus between the real chance of persecution and race, religion, nationality, membership of a particular social group or political opinion, the basic reasons for refugee status contemplated by the Convention. The Authority came to the conclusion that on the evidence the whole chain of incidents was brought about as a result of one or more of three factors:-

(a) Controversy over timber cutting rights;
(b) Local dissatisfaction over hotel management prosecuting non-paying customers;
(c) A desire by certain locals to consume alcohol without paying for it.

[10] The Authority accepted that both the plaintiff and his family (at p12):-

" ... have clearly endured a significant level of inhumane treatment and disruption to their lives, but we do not consider that such treatment and suffering is by reason of them being of Indian descent, nor does it qualify under any of the other Convention grounds."

[13] On the re-hearing, the Authority first came to the conclusion that it had no jurisdiction to re-open an appeal and came to that conclusion on the basis of its terms of reference and other decisions which were in point. The Authority went on however to decide that even If it did have power to re-open the present appeal, it would not have exercised a power to do so in favour of the plaintiff and rejected the arguments based on delay. It noted that the argument based on alleged illogicality depended on the fact that there had been a minor error in numbering (to which reference has already been made), in dealing with the issues. It also rejected arguments based on the allegations that there had been a finding of credibility which was in conflict with the ultimate decision.

[14] The plaintiff then commenced this action seeking review of the decision of the Authority. In support the plaintiff relies on three alleged causes of action. The first arises out of alleged delay. The second is that the Authority did not have proper or adequate regard to the interests of the plaintiff's child, bearing in mind the provisions of Article 3 (1) of the United Nations Convention on the Rights of the Child and the third, that the decision of the Authority was unreasonable.

[15] The second defendant did not dispute that the delay was unacceptable. Counsel noted and I accept, that steps have been taken by the Authority and by Government, to endeavour to ensure that such delays do not recur. I accept that the delay resulted from what were described as systemic delays. It appears that a much greater number of appeals were received in the year ended 30 June 1993, than those which had been filed in the previous year.

[16] Counsel drew attention to a number of cases suggesting that delay in an immigration context may constitute a basis for judicial review, see Tcherepenine v Chief Executive Department of Labour (High Court Wellington, AP 79/96, judgment delivered 8 October 1996), Raju and Another v Chief Executive Department of Labour (High Court Wellington, AP 307/95, judgment delivered 8 October 1996), Rathod v Minister of Immigration and Another (High Court Wellington AP 311/94 and CP 332/94, judgment delivered 15 July 1997). In all those cases, the Judges accepted that delay might constitute reviewable error, but before it could do so there had to be tangible prejudice. Apart from the fact that the delay has imposed anxiety upon the plaintiff and his family, it is not suggested in this case that there was any prejudice sufficient to justify the intervention of the Courts.

[17] For the purposes of this decision I am prepared to accept that where the plaintiff can show that he or she has sustained prejudice in a legal sense to a sufficient extent as a result of delay, the Courts will in an appropriate case regard that as justification for intervention. However in my view it is the obligation of the person asserting that such prejudice has occurred to prove it and I reject the contention that there was any obligation on the Authority in view of the delay, in the absence of an assertion of prejudice, to seek information as to whether or not there had been a change of circumstances.

[18] Counsel noted in Taylor on Judicial Review para. I2.37, that failure to enter into an inquiry by delay could be unreasonable and in Wade and Forsyth - Administrative Law (1994) 7th ed. pp. 435 and 436, authorities are cited which justify the statement that delay in performing a legal duty "may amount to an abuse which the law will remedy". Prejudice can be seen as an example of a situation where delay had an unacceptable effect on a plaintiff's rights, a concept which perhaps shades into that abuse of power which allows a Court to intervene. I am also prepared to accept delay of itself could in an extreme case, justify intervention where the delay was such that it could be suggested there had in reality been no decision at all or where the delay was so great, such decision as was delivered, may not have accurately reflected the material out of which the decision arose. To take an extreme example, if there was a delay of 10 years between the hearing and the decision, there might well be grounds for arguing that the ultimate decision was fatally flawed. In this case however, although as has been conceded, delay was unacceptable it was not such as to justify intervention on any of the grounds to which reference has been made. I reject that basis of the application.

The interests of the child  

[19] The second cause of action relied on was the interests of the child. Mr Petris submitted and I accept, that the plaintiff's child was included in the application for refugee status. He drew attention to the provisions of Article 3 (1) of the Convention on the Rights of the Child which provides as follows:-

"In all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

[22] I am prepared to accept that the position of a child needs to be considered in a different light from that of an adult. A child is more vulnerable and less able to protect itself, but in the end the question of whether or not the interests of the child were adequately taken into account, depends upon the resolution of the principal question at issue which is whether or not the decision in respect of the plaintiff could stand since similar considerations apply to both. The increased vulnerability of the child in this case depends on it being a child. There is nothing on the material accepted by the Authority to indicate that this child has been in the past or would be in the future, at risk because he is of Indian descent. The second cause of action does not therefore take the matter further.

Unreasonableness

[23] That leaves the final cause of action, that the decision of the Authority is unreasonable in both the general sense and in particular because it contains an unresolvable inconsistency. In considering the concept of unreasonableness, Ms France noted that before a decision could be said to be unreasonable in an administrative law context, the plaintlff must meet the stringent tests set out in Wellington City Council v Woolworths New Zealand Limited (No. 2) [1996] 2 NZLR 537. Nevertheless a decision can be fatally flawed if on the face of it, it contains an error of law. It is the contention for the plaintiff that there was an error of law in that the ultimate conclusion of the Authority involved a demonstrable inconsistency arising out of its findings of fact. The principal basis for this submission was the fact that the Authority accepted the credibility of the plaintiff. Accordingly Mr Petris submitted it must have accepted the factual assertions which he made during his examination before The Authority and which were contained in the documentary material upon which he relied.

[24] Mr Petris argued that on that evidence it was clear the material component and the motivation which led to the violence from which the plaintiff and his family had undoubtedly suffered, was the fact that he was a Fijian Indian. Secondly, he had asserted and it was not disputed, that he had been detained and beaten by military personnel who constituted State agents and thirdly, that Fijian police failed to provide protection to the plaintiff and his family, the principal reason for that failure being that the plaintiff was a Fijian Indian. Mr Petris's point is that there is an inconsistency in accepting that evidence of the plaintiff which clearly indicates that he was at risk because he was of Indian descent and at the same time concluding that his problems arose from criminal activity unrelated to race. It is therefore necessary to consider whether the evidence did justify the conclusion on which Mr Petris relied, that there was a sufficient degree of motivation of a racial nature to satisfy the requirements of the Convention.

[25] First, it is asserted that an element in the motivation for the violence which the plaintiff had sustained was that he was a Fijian Indian. This contention was specifically rejected by the Authority. On a careful analysis of the factual material before it, the Authority came to the conclusion the plaintiff had been subjected to the treatment of which he complains as a result of the incidents involving the deceased and those persons associated with him. The Authority saw those incidents as arising out of the refusal of the persons concerned to pay for the liquor which they had consumed and as an escalating response to the consequent complaint made by the plaintiff to the Fijian police. The Authority rejected the suggestion that this activity originated for racial reasons. I do not think that this conclusion can be criticised. The distinction is drawn in the evidence of the plaintiff himself, between actions of a general nature directed at persons of Indian origin at the time of the two coups in Fiji and those which were directed at him personally, which gave rise to the incidents which escalated into the course of conduct of which complaint is made.

[26] While there are some statements in the evidence which do suggest racial overtones there was material which could justify the conclusion at which the Authority arrived, that the persecution of the plaintiff arose out of the incidents resulting in the death of a Fijian whose family and friends have conducted a persistent vendetta against the plaintiff ever since. On an application for review it is no part of the Court to treat the application as an appeal and usurp the function of the Authority in making a decision which is entrusted to the Authority. Apart from anything else, an Authority which deals with large numbers of these cases is in the best possible position to assess the significance of the evidence which it hears and to draw the conclusions which it does.

[27] Mr Petris submitted that the Authority had accepted the plaintiff's account of the abusive treatment which he sustained at the hands of the military. Mr Petris submitted that when the context of the coups is taken into account, this indicated not only persecution from a State agency since the personnel were military, but also that this was racially based. There are two aspects of this submission which justify comment. The first is that on the view taken by the Authority, there was evidence to support a conclusion that the activities of the military personnel involved arose because of their association with the deceased men, his family and friends and in view of the overall conclusion of the Authority, it was therefore open to it to determine that the activities concerned were not racially based. More importantly however as has already been said, the Authority accepted that whatever the position may have been at the time of the incidents, the situation in Fiji has improved to the point where it could not be said that the plaintiff as a Fijian of Indian descent, was at risk of racially based persecution from State personnel.

[28] That leaves the third argument which has given the most cause for concern. The Courts have accepted that persecution giving rise to the status can occur as the Convention itself indicates, when an individual is the subject of conduct by private citizens which is either knowingly tolerated by his country, or where that country refuses or is unable to protect the individual from such behaviour. The matter was discussed in the Canadian Court in Rajudeen v Minister of Employment and Immigration (1984) 55 N.R. 129. In that case the Court accepted that the applicant had been persecuted over a lengthy period of time in Sri Lanka because of his religious beliefs and his race. The mistreatment was carried out by what were described as 'thugs' of the Sri Lankan majority and not by Government authorities or by the police. The Court accepted however that the police took no active steps to stop the violence, always managing to arrive on the scene after the violence had occurred. The applicant said that the police aggravated the situation by their indifference and also said that because the police were themselves of the Sinhalese majority he had no confidence that they would protect him.

[29] Mr Petris submits that in this case while the Authority has dealt with the question of whether or not the plaintiff has been subjected to persecution as a result of his race and concluded that that was not the reason for the conduct which he suffered, nevertheless he has put forward evidence to the effect that he has not been assisted by the police because he is an Indian in conflict with Fijians and that the Authority has not dealt with this question in its decision.

[30] In Rajudeen v Minister of Employment and Immigration it is clear that the persecution which the appellant sustained, was persecution which resulted from his religious beliefs as well as his race. The Court was able to find therefore that the appellant had been the victim of persecution for the purposes of the Convention. Having found that the appellant had been the victim of persecution, the Court went on to find that there was ample evidence of the appellant being unwilling to avail himself of the protection of the police in Sri Lanka.

[31] It is the contention of Mr Petris that the evidence in this case establishes both the criteria which were significant in Rajudeen’s case. He notes first, that the Authority was prepared to find that the plaintiff and his family had been the subject of persecution for the purposes of the Convention. He then says that there is ample evidence to indicate that he has not in the past received adequate protection from the Fijian police and he cannot expect in the future if he returns to Fiji, that he or his wife and family, will receive adequate protection from criminal acts of the kind which have already occurred and which put their physical safety at risk.

[32] Counsel on both sides drew my attention to various aspects of the evidence which tended to suggest a conclusion one way or the other. There is material which would suggest that any failure of the police to act was occasioned as a result of corruption in the sense that the police were dominated or at least influenced by members of the family of the deceased man. That could not found refugee status in terms of the Convention. On the other hand, there are also comments to suggest that the plaintiff saw it as useless or inappropriate to seek assistance or to expect assistance from the police on racial grounds.

[33] The Authority came to the conclusion that the problems faced by the plaintiff arose from criminal activity not arising out of racial grounds but did not deal specifically with the question of whether any failure of the police or the authorities to protect him, was a failure which could give rise to refugee status for the purposes of the Convention. The Authority has specifically accepted that the plaintiff had both suffered and had a reasonable fear of suffering persecution and that conclusion formulated as it was in terms of the Convention, must suggest a sufficient racial element to make the Convention relevant. I do not think therefore that it is open to me to assume that the Authority by implication, dealt with the question as to whether or not the plaintiff could expect that protection which the Convention contemplates. If it did not answer the question, then the decision is flawed. If on the other hand it did answer the question by implication, there must be at least some element of inconsistency in its conclusion as to persecution.

[34] In addition it is appropriate to bear in mind at this point the delay which occurred between the hearing and the decision. It may be that that delay was such that the secondary point as to an ability of the plaintiff to rely upon the police in Fiji was overlooked. It was certainly raised by the formal application filed by the plaintiff and which gave rise to the hearing. Under those circumstances I think that the matter ought to be remitted to the Authority and re-heard. There will be an order to that effect.

[35] Counsel may make submissions as to costs.

Solicitors for the plaintiff: Messrs Ian McCulloch and Company (Wellington)
Solicitors for the defendants: Crown Law Office (Wellington)