Naidu, D. v Minister for Immigration, Local Government & Ethnic Affairs

[1995] FCA 71

IN THE FEDERAL COURT OF AUSTRALIA    )
VICTORIA DISTRICT REGISTRY          )    No. VG250 of 1992
GENERAL DIVISION  )

BETWEEN:     DAMODARA NAIDU

Applicant

AND:     MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Firstnamed Respondent

AND:     MALCOLM PATTERSON

Secondnamed Respondent

CORAM:     Jenkinson J.

PLACE:     Melbourne

DATE:      24 February, 1995

MINUTES OR ORDER

THE COURT ORDERS THAT:

1. The proceeding be dismissed.

1. The respondent's costs including reserved costs be paid by the applicant.

(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          )    No. VG250 of 1992
GENERAL DIVISION  )

BETWEEN:     DAMODARA NAIDU

Applicant

AND:     MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Firstnamed Respondent

AND:     MALCOLM PATTERSON

Secondnamed Respondent

CORAM:     Jenkinson J.

PLACE:     Melbourne

DATE:      24 February, 1995

REASONS FOR JUDGMENT

Hearing of an application for an order of review in respect of a decision by the second-named respondent, in the capacity of a delegate of the respondent Minister, that the applicant is not a refugee within the meaning of that expression in the Refugees Convention as amended by the Refugees Protocol, and a decision by the second-named respondent, in that capacity, that the applicant be not granted a domestic protection (temporary) entry permit.

The applicant, who was born in 1944 in Fiji, lived in that country until October 1985.  He is of Indian descent and a Hindu.  He and his grandfather and father and other members of his family had for many years taken prominent roles in political activity in opposition to the political organizations which were representative of indigenous Fijians.  In support of his claim to refugee status the applicant alleged that during the decade which preceded his emigration from Fiji to Australia he had been subjected to physical violence and attacks on his business premises by Fijians at whose unlawful actions Fijian governmental authorities had connived.  In early November 1991 the applicant was furnished with a written statement, which a "case officer" of the first-named respondent's Department had prepared, of that officer's reasons for recommending that the applicant be not accorded refugee status, and the applicant was offered the opportunity to provide further material in support of his claim for refugee status and to comment on the case officer's reasons, within 21 days.  On 24 January 1992 a delegate of the respondent Minister, Margaret Carlson, furnished the applicant with a written statement of her reasons for denying him refugee status.  Upon his requesting review of Mrs. Carlson's decision by the Refugee Status Review Committee, the applicant by his solicitors sought an extension of the time allowed for the submission of material in support of the claim for review.  He was allowed until early March 1992.  The Refugee Status Review Committee having recommended, on 19 March 1992, that the applicant be not granted refugee status, the applicant was allowed a further 7 days to comment on the Committee's written reasons for its recommendation and to furnish further material in support of his case.  During the period from early November 1991 until 2 June 1992, when the second-named respondent made his decisions, further material was furnished and comment made on one or the other of the three statements of reasons to which I have referred.  But the applicant and his solicitors on a number of occasions requested more time to procure material relevant to factual questions discussed in those statements of reasons.  The requests were reinforced by reference to the circumstances, first, that from early November 1991 until 27 January 1992 the applicant was being detained, at first under sentence of imprisonment at Morwell River and in January under the Migration Act 1958, and second, that many of the factual questions on which the statements of reasons contradicted, or expressed doubts about, the applicant's contentions related to events in Fiji during the decade which had preceded the applicant's emigration in 1985.

The time allowed the applicant to provide further material was in my opinion obviously inadequate to enable him to procure from Fiji material probative of the occurrence of events in that country before his emigration.  But in the particular circumstances of this case it does not follow that, as was submitted on behalf of the applicant, the denial of a greater period of time amounted to a denial of procedural fairness.  Although the makers of the three statements of reasons, particularly the case officer and Mrs. Carlson, devoted much attention to determining whether the applicant's accounts of the events of those years were correct, the significance of those events in the determination of the application for refugee status in 1991 or 1992 is on the material before the court obviously minimal, as the second-named respondent recognised in his reasons for the decisions under review.  That racial and political tensions in the decade which preceded the applicant's emigration had resulted in arson and other grossly unlawful actions affecting the applicant and members of his family were conclusions which the material before the second-named respondent compelled.  The questions as to whether or not the applicant's conduct in relation to the dramatic incidents which he described was wholly blameless and as to whether any of the organs of government connived at the unlawful actions directed against the applicant and his property were most unlikely to be answerable by the respondents in this country in 1992, whatever time was allowed the applicant to produce material concerning those questions.  And the answers would in any event be of little relevance to the determination of refugee status in 1992.  Between 1985 and 1992 a dramatic political upheaval in Fiji had resulted in constitutional change and in a focussing of international scrutiny of the state of human rights in Fiji.  The applicant's case was that against persons of Indian descent known to be strongly opposed politically to the present government of Fiji - indeed, to the present constitution of that country - unlawful violence was being, and would be, directed by extremists of an opposite political persuasion, with the connivance, perhaps at the behest, of elements of organs of state power such as the Army.  It was plainly upon the acceptance or rejection of that case that the determination of the applicant's claim to refugee status in 1991 or 1992 would turn.

During 1988 and 1989 the applicant visited Fiji on four occasions.  The statements he submitted in support of his application for grant of refugee status were made in a number of documents furnished to the respondent's Department between May 1991 and April 1992.  In his original written application he claimed to have been detained by Fijian soldiers at the airport on arrival in Fiji on one occasion in 1988, to have been "threatened and interrogated", and "warned to leave Fiji again", and "followed and visited daily" during the week he remained in Fiji, and told "to get out while I was still alive".  The context in which the statements that the applicant should leave Fiji are placed suggests that the applicant intended to attribute those statements to soldiers, but it is not made clear that this  is his meaning.  Elsewhere in the original application the applicant claims to have been visited and questioned by soldiers "every day for the period I was in Fiji" in 1988, but whether the claim is of visitation and questioning during one visit or more than one visit is unclear.  Elsewhere in the original application the applicant claims that in 1989 he was visited daily be soldiers while he was in Fiji, and that he was questioned about his activities and as to why he had returned, and that his belongings were searched.  There is evidence that the four visits were from 4 June until 25 June 1988, from 30 July until 8 August 1988, from 3 December 1988 until 2 January 1989 and from 11 May until 31 May 1989.  The case officer's statement of November 1991 indicated that officer's uncertainty as to the significance of the applicant's statements about his experiences during the visits and the officer's curiosity as to the reason why Fijian soldiers had an interest in him.  In his response the applicant wrote:

"During 4/6/88 to25/6/88 and other trips I had difficulties but I was told to give some Yongana KAVA I gave it as a SEVUSEVU than I was not asked anything.  Once I was told to give a bottle of whisky and I can go without any hassle I gave that Fijian he was happy and I bought that for my mum.  I felt bad to tell you all these before but since you invite I tell you all these which is silly but have to do it when circumstances aroses.  My family who were out side well know that I was interrogated and had problems because every one was with me have gone out well before me and told my family that the army is questioning me.  Once my son was with me he will tell you how the army questioned me.  What diffcuties I faced he can write and give it to you if you need.  HE was crying there."

In another part of the four-page typewritten response the applicant wrote:

"At least I am hornestly saying that I was once detained and interrogated by the army.  They would have done all the time but I changed my apperance altogther they could not recognise me my mum even was shocked.  Once I took my small son with me so that they wont hold me because of the child.  I am also well known in RAKI RAKI thats why I was living elsewhere only once Istayed with mum and the army was searching for me."

The rest of the applicant's response adds little further information about his experiences during his four visits.  It does however include the statement:

"To explain why the army would have some interest in me was because I have openly spoken against Rabuka regime and totally condemned his actions and ill treatments."

Mrs Carlson's statement of reasons for her decision not to grant the applicant's claim includes the following:

"24.I considered the additional comments put forward by the applicant in response to the assessment of his application.  He maintains he meets the criteria for grant of refugee status but fails to provide new information which adds weight to his claims.  I find it incredulous that the applicant was able to travel to and depart Fiji between 1988 and 1989 without great difficulties as he does not claim to have travelled on a false document or identity.

I do not accept that any amount of disguise could have prevented his arrest by the army or police on arrival if he had travelled on a validly issued passport and under his own identity.  The applicant does not indicate as to where else he stayed in Fiji other than to say that he stayed with his mother once.  I agree that the applicant is well known in rakiraki.  I know that it is not that easy for visitors to Fiji, particularly former residents or citizens, to remain incognito especially if the person comes from a small town like Rakiraki.  I do not find it plausible that the applicant could claim to have given gifts to ethnic Fijians to prevent harassment and at the same time claim to have been successful in disguising himself while in.  I therefore persist with the view that the applicant was not in danger while in Fiji."

"32.I considered the applicant's claim that he had difficulties while in Fiji in June 1988 and `other trips' but that he was advised to offer `kava' as a gift and he was therefore `not asked anything'.  The offering of `kava' as a gift is a traditional and accepted practice in Fiji and maybe offered for many reasons.  I do not however accept that the offering of `kava' would be sufficient to allay the concerns of the authorities of the applicant being a security risk in Fiji or of the `extremist terrorists' desire to eliminate the applicant or allow him to profit from the sale of his property(s) in Fiji.

33.I cannot accept that the applicant could successfully evade detection from the police/military or other person:

.whilst using a passport in his own name,

.travelling in and out of Fiji four times between June 1988 and May 1989,

.st   aying in his home town, even if at only one time with  his mother, where he and his family are well known for their political activity,

.conduct business to sell property,

and, having a similar appearance to Ragh Khan.  In addition I find implausible that he could not recall the dates for his claimed only detention by the military."

A document entitled "Summing Up of Refugee Status Review Committee (RSRC) Deliberations, which includes a statement of that Committee's reasons for not according the applicant refugee status, includes the following:

"The applicant's willingness to return to Fiji four times since his initial departure from Fiji discounts his subjective fear of persecution.  He has reavailed himself of the protection of his country of nationality.  While it is plausible that the applicant was arrested at the airport in 1988 and detained for `over two hours' and that he was visited daily by the army when he returned in 1989, he was able to successfully depart Fiji on each occasion which indicates that the authorities had little interest in him."

That document states that the meeting of the Committee at which the decision not to accord the applicant refugee status was held on 19 March 1992 and that all material forwarded by the applicant had been considered.  A typed statement by the applicant dated 4 March 1992 included the following:

"I went back to Fiji on four occasions in order to salvage what was left over to re-settle my life in Australia.  The periods during which I have been there have been marked by instability, Fiji was reeling under criticisms from international countries and was making several attempts to say to the world that things were back to normal and was curbing open persecution to paint the picture.  I also gained some confidence, as a person being processed for residence and return visa to Australia and chose these times to get my assets sold.  The real danger would have happened to me from the Security Forces and the Taukei Movement had I continued to remain there for a reasonable length of time and became identified by my being back in the country to remain there permanently.  I knew I would be in such danger and, therefore, made my visits there brief.  The business I conducted could have been done on one long stay but out of my fear of being identified, I had to make four trips.  During these visits I encountered difficulties.  One of them was very scary but I managed to extricate myself.  Since being released from detention, I am making all efforts to obtain the necessary material to substantiate the claims and also that the situation in Fiji is not as portrayed by the assessment and that there is definite danger to ethnic Indians and I have a real chance of being persecuted if returned to the country."

The second-named respondent's statement of the reasons for his decision include the following:

"5.  I attach significance to the fact that the
applicant has returned to Fiji on four occasions.  I find I cannot treat as serious the applicant's claim that he was able to avoid the authorities in a small country like Fiji through use of disguises.  I also take the view that these trips were not of a short duration as claimed by the applicant, being for a month in one case.  I consider that the number of trips and the time he was in Fiji indicates that he did not have a well-founded fear of persecution."

"23. I have considered the applicant's claim that the primary delegate gave too much weight to DFAT advice.  However in reaching the above conclusions I have taken into account local and international newspaper reports and those appearing in specialist periodicals, DILGEA's own sources and non-government organisations, as well as DFAT reports.

24.  I have considered the claims that the applicant needed more time to collect information from Fiji.  However in the letter received on 29.4.92 the applicant's solicitor stated that the accompanying submission be taken into consideration in the final recommendations.  I take this to indicate that there is no further request for delay from the applicant.  In any case given my assessment that the applicant has shown through his return visits to Fiji, the doubts I have about his general credibility and an objective consideration of current conditions in Fiji, that he does not have a well-founded fear of persecution, I do not consider that further material relating to events that occurred a decade ago will have major bearing on my decision."

Among the material submitted by the applicant's solicitors to the first-named respondent's Department in April 1992 was this written statement:

"TO WHOM IT MAY CONCERN

My name is Subar Mani.

I am a Fiji Indian by birth and reside at Hotel Central, Nadi, Fiji.  I am the manager of the hotel.  I know DOMODARA NAIDU personally.  I have know him for many years.  I know of his history in Fiji and the work he did for the liberation of Indians from oppression from the political powers.

He booked in at my hotel in 1988 on three occasions in 1989 on one occasion.

Each time he booked in under a false name because he was afraid the Fijian Army or other people under the command of the Fijians would take him away and kill him if they became aware of his presence at the hotel.  I was also afraid because I would also be punished for allowing him to stay at the hotel.  I know of his past and the reasons the Fijian Government people are after him.

I would not be happy to have him book in under his own name.  I wanted to look after him and also look after myself.

While he was here, he was very quiet and did not take part in any anti Fiji activity.  Despite all this.  Fijian people called at this hotel four times to enquire whether Domodqara Naidu was staying there I told them I had no person under that name staying there.  When I told him this he left the hotel immediately.

I know from my own knowledge of Fijian affairs that Domodara Naidu will be executed if he returns to live in Fiji.  Please give him a life by leaving stay away from Fiji

Yours faithfully

SUBAR MANI"

Little, if any, other information is to be gleaned from the documents from time to time submitted to the first-named respondent's Department by or on behalf of the applicant concerning what passed between him and soldiers or others in Fiji during 1988 and 1989.  In the circumstances disclosed by the whole of the material before the second-named respondent it would be by reference to communications of that kind that the decision maker might be able to determine whether the applicant, as distinct from the generality of well-known and long-term political opponents of the government of Fiji, was at risk of persecution if he were to return to indefinite residence in that country.  The submission on behalf of the applicant that he had been denied adequate time to present further material in support of his case may be accepted in relation to that part of his case which was concerned with events in and before 1985.  But there is no basis in the evidence for such a conclusion in respect of events in 1988 and 1989.  It had been made clear in the case officer's statement of reasons in November 1991 that a determination of the applicant's claim to refugee status was likely to proceed on the footing that the generality of persons in his position of opposition to the government of Fiji was not now at risk of persecution.  A substantial amount of material was thereafter furnished by or on behalf of the applicant to the Department which was intended to persuade a decision maker to the contrary.  But the only available source of information as to what had passed between the applicant and Fijian soldiers in 1988 and 1989 was, so far as the respondents and other officers of the Department could know, the applicant himself.  The applicant did not need more time than he was allowed to provide that information.  He needed the services of a lawyer to recognise what relevant information he had, to elicit that information from him and to present that information in a coherent, intelligible form to the Department.  When that had been done, other sources of relevant information, such as Mr. Subar Mani, may have been identified and could have been approached to furnish that information.  The first-named respondent's officers knew in early February 1992 that the applicant was represented by solicitors in relation to his application.  The time thereafter allowed for the submission of further material in relation to the applicant's visits to Fiji in 1988 and 1989 was in my opinion quite adequate.  And I consider that the time was adequate which was allowed the applicant to provide further material to contradict the belief that the generality of active and well-known opponents of the government were not at risk of persecution, in the Convention sense of that word, in 1991 or 1992.  The failure to provide adequate time for the presentation of further material about events in and before 1985 did not in the circumstances of this case constitute a denial of procedural fairness, in my opinion, because the relevance of such material was minimal.

The material submitted by or on behalf of the applicant in and after November 1991 included allegations of events in Fiji in and after 1989 which were said to indicate persecution of well known citizens of Indian descent.  The second-named respondent dealt in his statement of reasons with some of those allegations in part by stating his findings as to what had in fact happened and in part by expressing his opinion as to whether the events did in fact indicate persecution.  It was submitted on behalf of the applicant that he had been denied procedural fairness by reason of the second-named respondent's failure to accord him an opportunity to seek to show the findings and opinions to be mistaken.  I cannot accept the submission.  The events under consideration had been the subjects of publicity shortly after they happened.  The applicant chose to provide the Department with material about those events.  There was no requirement of natural justice that the applicant be given a further opportunity to provide further material.

It was submitted that the circumstances of this case were such that natural justice required that the applicant be given an oral hearing.  Certainly a reading of the reasons for the second-named respondent's decision - as of the reasons for the decisions by others which preceded the second-named respondent's decision - indicates that the applicant could gain recognition as a refugee only if he could show that he, unlike the generality of well-known Indian opponents of the government of Fiji, had been so treated during his recent visits to that country, or had gained such information, as to justify a well-founded fear of his persecution.  The materials submitted by or on behalf of the applicant on that crucial issue were of two kinds.  There were assertions by Fijians of Indian descent, some resident in Australia or New Zealand and others resident in Fiji, that an Indian of the applicant's description - a well-known and long-term opponent of the government of Fiji who had worked against that government in Australia after 1987 and who would enter Fiji without any political prominence to resume residence - would be persecuted.  That material did not justify an oral hearing : it fell to be evaluated by reference to the contradictory information the decision maker had from Australian government and other sources and to the decision maker's opinion concerning the credibility of those who made the assertions.  The other material consisted of the applicant's statements as to what had happened to him in Fiji in 1988 and 1989 and the letter of Mr. Subar Mani which I have quoted.  That material was exiguous, confusing and, in part, apparently contradictory.  But the material had been submitted while the applicant was represented by a solicitor.  There were no circumstances, as there had been in Somaghi v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 F.C.R. 100, to suggest to the decision maker that the applicant's solicitor had failed to appreciate the importance of evidence, if evidence there was, that in 1988 and 1989 events had occurred which suggested that the applicant might be persecuted in Fiji if he entered the country to resume residence, and not as a person proposing to return shortly to Australia with the permission of the government of that country. The applicant had had ample opportunity to provide that evidence, with the assistance of his solicitor. In those circumstances no requirement in my opinion existed that he be offered an oral hearing in order to create an opportunity to provide the evidence, nor any requirement that he or his solicitor be invited to provide that evidence, the importance of which ought to have appeared obvious.

It was submitted that natural justice had been denied the applicant by the decision maker's recourse, for evidence as to the behaviour of members of the organs of government of Fiji, to documents no better identified than in paragraph 23 of his statement of reasons (which I have quoted) and by the decision maker's failure to afford the applicant an opportunity to see and controvert the contents of those documents.  I do not accept the submission.  From the case officer's statement of reasons in early November 1991 it is apparent that officers of the first-named respondent's Department were having recourse to information about conditions in Fiji from the Department of Foreign Affairs and Trade.  Mrs. Carlson's statement of reasons and the statement of reasons of the Refugee Status Review Committee refer also to that source of information.  No request was made by or on behalf of the applicant for sight of the document by which the information was conveyed.  All three statements of reasons show reliance on the information.  There can be no ground for complaint that the second-named respondent had recourse to other sources of the same kind of information, without offering the applicant an opportunity to see them.  Further, no attempt was made in this proceeding to obtain discovery of the documents.  The court has no basis for suspecting that, if the applicant had had access to the documents before the decisions were made, he might thereby have been enabled to advance his claim for the grant of refugee status.

Other grounds of the application were without substance.  The proceeding must be dismissed.

I certify that this and the 16 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

Associate

Dated:  24 February, 1995

Counsel for the Applicant     :   Mr. T.V. Hurley

Solicitors for the Applicant  :   Messrs. Ravi James & Assoc.

Counsel for the Respondents   :   Mr. A. Cavanough

Solicitors for the Respondents    :    Australian Government
  Solicitor

Dates of Hearing             :   9, 10 and 13 February, 1995