Lowe, J. v Minister for Immigration, Local Government & Ethnic Affairs

[1988] FCA 657

Re: CHARLES FISHER and EMALYNE ELIZABETH FISHER
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. NSW G1058 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Law - application for resident status rejected by primary decision - maker who was under an erroneous impression of the true facts - applicant provided further supportive factual material to Immigration Review Panel - Immigration Review Panel accepted reasons for primary decision - whether a departure from necessary standards of procedural fairness - whether proper consideration given to the merits of the matter - applicants' entitled to have application reconsidered on basis of correction of initial erroneous impression of true facts.

Migration Act 1958 s 6A(1)(e)

HEARING

SYDNEY

#DATE 21:10:1988

Counsel for Applicants: J. Basten, Esq.

Instructed by: Messrs. Craddock Murray and Neumann.

Respondent: G.S. Hosking, Esq.

Instructed by: The Australian Government Solicitor.

ORDER

That the original decision be set aside and the matter be remitted to the decision maker for reconsideration.

That the respondent pay the applicants' costs of the application.

JUDGE1

The application before me is based upon the submission that there has been a failure fully to accord procedural fairness to the applicant in the consideration of his application for resident status pursuant to s 6A(1)(e) of the Migration Act. It is not necessary in these reasons to set out in any great detail the factual background which appears in the material placed before the Court. I note merely that both applicants, husband and wife, entered Australia on 23 August 1987 pursuant to temporary entry permits granted to them for that purpose. They are citizens of what is now the Republic of Fiji. They entered Australia after political events had occurred in Fiji which have been referred to in argument before me as the "first coup" occurring after the election of a government headed by Dr Bavadra.

1. The temporary entry permits of Mrs Fisher was the subject of an application for extension by her on 3 September 1987. That application and supporting documents are exhibit B to the Affidavit of Mr David John Hanley filed on behalf of the Minister in these proceedings. In the supporting statement to the application Mrs Fisher indicated that she requested a further extension of the permit due to political unrest and problems in Fiji and that she wished to stay until things had calmed down in that country and that "we are living in fear all the time since the coup". She continued, "As we are in Australia we are living with my parents and sister who are all working and my husband is going back to Fiji and will be sending funds over weekly", and she indicated that she was in possession of a certain amount of money from which she could, at that point of time maintain herself and the children.

2. It is common ground that in September at a time, shortly after that application was made, events which have been described as "the second coup", occurred in Fiji. Thereafter, the applicant, Charles Fisher, made the application to which these proceedings relate, namely, for the according to him of resident status under the section to which I have referred. That application was made on 22 September 1987.

3. In the application he advanced a number of reasons as to why he should be granted this status. Reference was made to fears for safety of the applicants and their children should they have to return to Fiji, and it was indicated that an inquiry made by Mr Fisher to his employer in Fiji had elicited the response that it would not be safe for him to return to the country because of his previous involvement with the Labour Party as a candidate in Suva City Council elections, and that the authorities were against Labour Party supporters and that matters had become worse in the country.

4. There was also reference to high rate of unemployment in the country and reduction of staff in various industries, some of which were shutting down completely.

5. The application was the subject of a report by the department in a document which is Exhibit D to Mr Hanley's Affidavit. In paragraph 9(v) the statement was made by the reporter that "There is no evidence, nor do I accept that this applicant would be discriminated against in terms of safety to a significantly greater degree than the generality of the population. I note that the applicant has claimed that he was involved in the Labour Party in the Suva City Council elections. There is no evidence that this applicant was a candidate, a significant supporter or a person who has been or would be singled out for adverse attention following the governmental changes in Fiji."

6. It is further stated that the reporter did not "Consider that he would face the prospect of unemployment greater than the generality of the population and that therefore he did not meet the requirements under s 6A(1) (e)".

7. It appears that on the basis of these adverse comments the relevant officer to whom the report was made decided to reject the application. This decision was relayed to Mr Fisher by letter dated 8 February 1988. That letter indicated that Mr Fisher had the right to seek a review of the decision by the Immigration Review Panel and indicated to him the manner in which such an application could be made. Mr Fisher sought such a review and in so doing he, as well as filling out the appropriate documentation, provided further material in amplification of his application and also, it would appear, in response to the comments as to the absence of evidence to which I have made reference. He supplied a photocopy of some election material which indicated quite clearly that he stood in the Suva City Council elections as an endorsed Labour Party candidate.

8. He also furnished a further letter referring to the photostat material and claiming that the regime in Fiji were "very much against all Labour supporters". He made the further claim that the authorities in Fiji would be well aware of the fact that he was such a supporter and had rendered considerable assistance to the Labour Party in the previous political situation. He asserted that the regime would attempt to make life extremely miserable for himself and his family and that he would not be able to support himself without a steady job and steady income; that many of his fellow staff had been made redundant whilst he had been in Australia.

9. He also related other facts generally supporting the claims that I have referred to. He reiterated at the end of the letter that his family would suffer hardship if her were made to return to Fiji as finding employment would be made very difficult for him.

10. He was supported in these contentions by a letter from Mr A.D. Miller, his father-in-law, residing at an address in Maroubra, New South Wales. In that letter Mr Miller indicated that he was, in fact, a candidate in the Fiji general elections of 1987 and that Mr Fisher had actively supported him in his campaign. The letter clearly made the points that there would be some not inconsiderable danger of harrassment should Mr Fisher return to Fiji at that time and also difficulties in relation to his obtaining gainful employment.

11. This, then, was the material placed by Mr Fisher before the Department in relation to his application for a review by the Panel of the earlier decision. The Department, in accordance of what appears to be normal procedure, produced a document for the use of the Immigration Review Panel which accompanied the file which was sent on for its consideration.

12. That document is Exhibit G. It is the most significant document to be considered in this application. The reasons put forward in the document for the maintenance of primary decision were obviously accepted by the Immigration Review Panel which unanimously recommended that: "The departmental decision be maintained". When the matter came before Mr Hanley as the officer of the department responsible for the making of the final decision, he accepted and adopted the reasons set out in Exhibit G.

13. It is submitted on behalf of the applicants that those reasons, in themselves, indicate that there has been, relevantly, a failure of procedural fairness in respect of the consideration by the Department of the applicant's application. It is put that, in words used by Sheppard J in the recent decision of Hindi v. Minister for Immigration and Ethnic Affairs, (unreported 30 September 1988), a consideration of the material to which I have made brief reference indicates that there has been a failure; "to give proper consideration to the merits" of the application.

14. I have felt some difficulty in relation to this matter as it has unfolded before me. It is very important that I bear in mind that the Court in no way enters into any reconsideration of the merits of these cases when they come before the Court for review. The Court's sole function is to determine whether there has been some departure from the necessary standards of procedural fairness required by law.

15. I have come to the conclusion that this is an appropriate matter for reconsideration. I shall give my reasons briefly. It is convenient in doing so, to deal in order with the reasons given in Annexure G.

16. The first reason embraced by the decision-maker in reaching his decision was, "There is no evidence that he" (i.e. is the applicant) "would be singled out for harrassment or discrimination above and beyond those in the general Fijian/Indian community or more than other Labour supporters in Fiji". That statement cannot really stand in light of the fact that not inconsiderable additional material was supplied when the application for review was made. I have already referred to this material. Mr Hanley, indeed very properly indicated that there was no reason why the statements of the applicant and Mr Andrew Miller should not be accepted and, of course, the photostat copy of the electioneering material speaks for itself.

17. The situation simply is that there was evidence to be considered as to whether harrassment or discrimination above and beyond that in the general Fijian/Indian community might well occur in relation to this application should he return to Fiji. The ultimate weight of that evidence was and is a matter for consideration by the department and not by this Court. The indication that the situation had been assessed as one where there was no evidence must raise doubt in a court called upon to review this decision as to whether proper consideration has been given to that material.

18. On balance I feel I must come to the conclusion that it is demonstrated that there has been an absence to give proper consideration and that is should be looked at again.

19. The second reason, in Exhibit G deals with the question of economic hardship. It is not entirely clear what is meant by the department's statement that "Economic Hardship is not a compelling, compassionate circumstance sufficient to set aside normal policy'. There is certainly evidence put forward in support of the claim that the applicant could suffer economic hardship resulting from discrimination being exercised against him because of his political affiliations. It is in that context, of course, that the claim for economic hardship is made. The manner of statement of the reason is eloquent of the suggestion that the question of economic hardship was not considered in relation to the question of political discrimination. In the circumstances, looking at the matter as I must look at it, I am constrained to the view that proper consideration has not been shown to have been given to the economic aspects of this claim against the background of the assertion that political discrimination might occur. For those reasons I think that the matter should be looked at afresh.

20. Finally, the reason is given that the applicant did not fulfil the conditions of the section because: "All of their close relatives reside in Fiji so their family composition/disposition is not a compassionate circumstance". That reason obviously involves an error of fact. The passage that I have already read from the supporting document forwarded by Mrs Fisher when applying for the extension of her temporary entry permit certainly provides sufficient information that relatives are living and working in Sydney.

21. A closer consideration of the material would have indicated that one of those relatives was in fact Mr Miller who himself was claiming the possibility of victimisation should he returm to Fiji and, it would appear, was himself making an application for refuge status. The question of the residence of relatives and the disposition of immediate family is quite clearly a matter that is taken into account in applications of this kind. Provision is made in the relevant forms for information to be provided of these matters.

22. In the circumstances it is clear that the decision maker, at the time the decision was made, was under an erroneous impression of fact that the apparent close relatives all resided in Fiji. It cannot be said that that erroneous impression of fact may not have adversely affected the decision that was made. Clearly the applicants are entitled to have their application considered on the basis of that erroneous impression being corrected.

23. For all these reasons, I have come firmly to the decision that this is an appropriate matter for an order to be made in the terms sought. I therefore set aside the decision and remit the matter to the decision maker for reconsideration in accordance with law and in the light of the reasons that I have given in this decision. A submission has been made to me that it would be appropriate in this case if no order for costs were made. I have considered the submission and the reasons that were advanced but in all the circumstances I think this an appropriate case for the ordinary order to be made, I order that the respondent pay the applicant's cost of this application.