Naidu, Damodara v Minister for Immigration & Ethnic Affairs
[1995] FCA 1174
•11 OCTOBER 1995
CATCHWORDS
IMMIGRATION - review of a decision of a delegate of the Minister to adopt recommendation of the Refugee Status Review Committee - determination that the applicant did not have refugee status and refusal to grant Domestic Protection (Temporary) Entry Permit under reg.117A of the Migration Regulations - whether denial of procedural fairness - whether Fijian of Indian descent has a well-founded fear of being persecuted for reasons of race or political opinion - whether a refugee.
PROCEDURE - whether further ground not mentioned in application or notice of appeal can be raised on appeal.
Administrative Decisions (Judicial Review) Act 1977
Migration Regulations reg.117A
United Nations Convention on the Status of Refugees 1951
United Nations Protocol on the Status of Refugees 1967
DAMODARA NAIDU v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and MALCOLM PATTERSON VG 152 of 1995
Black CJ, Foster J and Sackville J
Melbourne
11 October 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) VG 152 of 1995
GENERAL DIVISION )
BETWEEN:DAMODARA NAIDU
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First respondent
AND:MALCOLM PATTERSON
Second respondent
CORAM:Black CJ, Foster J and Sackville J.
PLACE OF HEARING: Melbourne
DATE:11 October 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant pay the respondent's costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) VG 152 of 1995
GENERAL DIVISION )
BETWEEN:DAMODARA NAIDU
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First respondent
AND:MALCOLM PATTERSON
Second respondent
CORAM:Black CJ, Foster J and Sackville J.
PLACE OF HEARING: Melbourne
DATE:11 October 1995
REASONS FOR JUDGMENT
BLACK CJ: This is an appeal from a decision of Jenkinson J dismissing an application for judicial review of a decision made on 2 June 1992 by the second respondent as the delegate of the first respondent. The decision was that the appellant, Damodara Naidu, was not a refugee within the meaning of the 1951 United Nations Convention relating to the Status of Refugees, and the 1967 amending Protocol. The appellant also sought judicial review of a consequential decision of the second respondent that he be not granted a domestic protection temporary entry permit. The application to review that decision was also dismissed.
Before us there was an attempt to base a case upon a finding said to have been made by the second respondent that the claims advanced by the appellant did not satisfy the Minister's guidelines or raise other matters which warranted a recommendation for referral to the Minister for humanitarian consideration under s115 of the Migration Act 1958, as it then stood. The amended application for judicial review before the primary judge did not seek a review of this finding. The finding was mentioned in the amended application only as a matter in support of a claim to review the other decisions. It
appears too that no such case was pursued at the trial.
In my view, no basis has been shown for the exercise of the Court's discretion to allow the necessary amendments to the application to be made at this late stage. And, indeed, no leave to make such amendments was sought. It may well be, in any event, that the point is misconceived, as Mr Cavanough, who appeared for the respondents, argued. In these circumstances, I would not allow it to be argued at this late stage.
I therefore now turn to the matters that are properly in issue. The facts of this case are set out in the reasons for judgment of Jenkinson J, and it is unnecessary for me to repeat them here, except to say that the appellant was born in Fiji in 1944 and lived in that country until l985. The appellant is of Indian descent, and he and his grandfather and his father, as well as other members of his family, had for many years taken a prominent part in political activity in opposition to the political organisations which were representative of indigenous Fijians. His claim to be a refugee was founded essentially upon his claim of fear of persecution for the Convention reasons of race, that is to say, his Indian ethnicity, and political opinion.
The substantial complaint made by the appellant was that he was denied procedural fairness by the decision-maker. The learned primary judge concluded that the appellant had not been denied procedural fairness but before us counsel for the appellant, Mr Rose, contended that the learned judge was in error in so concluding. In considering the case that procedural fairness was denied, it is necessary to examine in some detail the various procedural steps taken between 5 June 1991, when the appellant made his application for refugee status, and 2 June 1992, when the decisions sought to be reviewed were made.
It should first be noted that the application for recognition of refugee status was in itself a detailed document which, if the required forms are included, totalled some 44 pages. That application was considered, in some detail, by a case officer, whose assessment was forwarded to the applicant on 5 November 1991 at Her Majesty's Morwell River Prison, where he was then serving a sentence. That appears from the appeal book at page 204.
In the letter with which the case officer's assessment was forwarded, the writer noted that before a decision was made on the appellant's application by the Minister, Mr Naidu had an opportunity to comment on the case officer's recommendation, and to provide any new material in support of his claim for refugee status. It pointed out that he had 21 days from the date of the letter to do so, and that any comments or new material must be in writing.
The case officer's assessment set out the appellant's claims, and contained a specific expression of doubt about the appellant's credibility in certain respects concerning events in and prior to 1985 in Fiji, and also concerning the four visits the appellant had made to Fiji after leaving that country in l985. The case officer also referred to documentary material that might, in her view, have been provided, but was not provided, such as evidence concerning the appellant's trial and conviction in Fiji in l977, his sentence on that occasion, and any attempts to overturn the conviction at that time.
Mr Naidu replied to that letter on 17 and 18 November 1991, sending some comments and other material to the Department, but pointing out that he needed time to get all the necessary evidence from Fiji, which he could only do when he was released from prison. In the meantime, he asked that the material that he had forwarded be attached to his file. That material dealt with a number of matters and it raised the question of available documentary material. One of the points that Mr Naidu made was that he had proof of the circumstances relating to his 1977 conviction, which he said involved the jury finding him not guilty, but the judge overruling the jury. He said in effect that he would provide that proof as soon as he could. He also made reference to media reports of relevant events in Fiji, upon which he relied. His case, however, at that stage was that he needed more time.
In response to his request the Department, on 10 December l991, allowed a further 21 days. In reply to that the appellant wrote from prison on 20 December saying that he would provide the material by 29 February 1992.
The next relevant event is the decision of the Delegate, the covering letter for which appears at page 222 of the appeal book. The decision, which was forwarded to the appellant at that time, sets out the reasons for decision, including the reasons for the rejection of the appellant's account of events in Fiji in several relevant respects. The decision refers to the absence of documentation, thereby, no doubt, drawing the appellant's attention to the relevance of that matter. The appellant then exercised his right to have that decision reviewed, and the review mechanism was put in train.
At that stage the appellant had become represented by Ravi James and Associates. They wrote on 11 February 1992 to the Secretariat of the Refugee Status Review Committee, which was the committee that would then review and make recommendations about the matter. In this letter the solicitors said that as their client was already in custody and that as they were in the process of obtaining relevant files from his previous solicitors, they were not in a position to make submissions in support of the review application, but as soon as they had all the relevant files, they would advise the Department of the extension of time sought.
There was a further letter from the solicitors on 18 February, in which the solicitors raised questions about the trial of the appellant in Fiji, and also questions concerning the conditions that were asserted by the Department to exist in Fiji, and disputing some of those matters. There was further reference to the need to obtain documents, and the need for more time to do so.
On 27 February the Department wrote to Mr Naidu, care of his solicitors, saying in substance that as the application for refugee status had been received over six months ago, and Mr Naidu had been in Australia since 1985, he had had, in the writer's view, sufficient time to provide relevant information and it was not possible to delay consideration of the application by the Committee any longer.
The next relevant event was the Department's further statement, on 3 March 1992, that there would be no further extension of time.
A short time later, on 5 March 1995, Ravi James and Associates wrote a further letter to the Committee Secretariat attaching a statement from the applicant, and confirming that most of the documentation he had indicated would be forthcoming, but pointing out that as he had been free from custody only for three working days they would need more time.
The point must be made, however, particularly in relation to the primary argument advanced before us, that the solicitors' letter of 5 March, which dealt with the case with considerable care and clarity, referred to events in 1985 and earlier. The letter also referred to a matter that has assumed significance in this case, namely, the appellant's return visits to Fiji, and what might be made of those.
There was attached to the solicitor's letter a comprehensive statement by Mr Naidu of his position, in which he dealt with events and circumstances then existing in Fiji, and what might have happened to him if he had returned, and in which he said (at page 308 of the appeal book) that he was making all efforts to obtain the necessary material to substantiate the claim. He also said that the situation in Fiji was not as portrayed by the assessment, and that there was indeed a definite danger for people of Indian origin, and thus that there was a real chance of his being persecuted.
On 21 April 1992, the Department wrote to Mr Naidu, care of the Immigration Detention Centre, stating that the application for review had been considered by the Refugee Status Review Committee, and that the Committee had assessed that he did not meet the criteria for the grant of refugee status, and it made a recommendation accordingly. However, the letter contained this important paragraph:
"Before the RSRC makes its final recommendation to the Minister... or his delegate, you have the opportunity to comment on its assessment or to provide new material in support of your claim to refugee status. Any comments or new material must be provided in writing."
The letter also informed Mr Naidu that he had seven days from date of receipt of the
letter in which to provide that material. The result of that was that further submissions were made. They appear in the pages that follow page 346 of the appeal book, referred to in Ravi James & Associates' letter of 28 April 1992. It was requested in the letter that those submissions be taken into account.
The submissions were quite lengthy, and they dealt with, amongst many other things, the findings of the Committee about which complaint was made. They dealt with the law and order situation in Fiji, which it was asserted had not improved, and they claimed that the military was unrestrained. It was said that claims that the opposition parties were operating freely, and were able to state their views publicly through the press, were an elaborate facade, and so forth. The case on behalf of Mr Naidu was put strongly.
The other matter of some importance is that the document (at page 357 of the appeal book) deals specifically with the appellant's returns to Fiji, a matter as to which his credibility had been plainly doubted by various decision-makers and recommending bodies. Some of this doubt appears to have arisen by virtue of the absence of relevant documentation which the applicant had said was available, and which he would supply.
On 2 June 1992 which, it should be noted, was about a year after the process first started, the delegate made the decisions complained of and gave quite lengthy reasons for the primary decision. As I have observed, the whole process had taken nearly a year from application through the various stages of assessment and consideration to the operative decision and it is against that background that the principal submissions made on behalf of the appellant must be considered.
The first submission was that there had been a breach of the rules of natural justice in a particular respect, namely, that matters personal to the appellant and relevant to the decision had not been put to him for consideration, and also that matters of a more general nature adverse to his case had not been put before him for reply and general comment. Various authorities were cited in support of the proposition that matters of that nature should, consistently with the requirements of procedural fairness, have been put to
the appellant.
A consideration of the history of the matter shows, however, that the submission is not made out on the facts of the case. In my view, the matters that are said not to have been put to Mr Naidu for his consideration were clearly and sufficiently brought to his attention, so that the substance of them, and the substance of the concerns expressed about his credibility in some respects, were there to be dealt with, and, indeed, in many respects were dealt with by him. I therefore reject that submission.
The next group of submissions concerned the treatment by the decision-maker of events in Fiji up to the time the appellant had left that country. The assessment of these submissions requires one to look at the delegate's decision as a whole. If one does that it is clear, in my view, that the finding that the appellant is not a refugee stands quite independently of any finding about his credibility, based upon the events that he relied upon occurring before he left that country in l985.
The decision-maker quite clearly, in my view, looked at the whole of the circumstances as they existed in Fiji at the relevant time, which the decision-maker took, of course, to be l992. Insofar as credibility was a factor, I would conclude that the decision-maker made findings on material that was properly before him, and of which the appellant had due notice. I do not consider that those findings are open to attack.
It was said that the learned primary judge was in error, in that the appellant, in effect, had only a very short time to provide more material about the pre-l985 events in Fiji, after his attention had been specifically drawn to the significance that the Committee attached to them by publication of its recommendations in April 1992 and that he was therefore denied procedural fairness. As to that, the first thing to be said is that the finding that the appellant is not a refugee stands independently of any findings about the events prior to l985. But there is, in any case, much to be said for the point made by Mr Cavanough, that the appellant had had much more time to consider this matter than the very short and, in the learned primary judge's view, inadequate time allowed after 21
April. He had had effectively since 27 February, by which date at the latest, as I understand it, he was released from custody. Indeed on one view, although perhaps a rather hard view, the appellant had had longer than that.
As to the point made by counsel for the appellant, Mr Rose, that without knowing the extent of the appellant's subjective fear, it was impossible to determine that his fear was not objectively well founded, I note that the subjective fear relied upon was that asserted by the appellant himself. It was stated as a fact. The finding of the decision-maker was that such a fear - that is, the fear that the appellant stated he had - was not objectively well founded. In those circumstances Mr Rose's submission on that point should be rejected.
Mr Rose then argued that procedural fairness required, in the circumstances of the case, an oral hearing or, at the least, that matters pertaining to his client's credibility, or that of his witnesses, should be put to him for consideration and response. I have dealt with the second part of that submission, but as to the argument that procedural fairness required an oral hearing, I agree with the learned primary judge that no such hearing was required in the circumstances of this case and I agree with the judge's reasons for so concluding.
It was also argued that there was no evidence upon which the primary judge could have upheld a finding that the appellant did not have a well founded fear of persecution on the basis that, after leaving Fiji with that fear in 1985, he re-entered it in l988 and l989. I am not persuaded that this was a "no evidence" situation, or indeed that it approaches such a situation. In my view, the findings were clearly open to the decision-maker. Whether or not we, or others, would agree with those findings is, of course, quite beside the point in an application for judicial review, the purpose of which is not to review the merits of the decision, but to consider whether or not the decision has been made according to law.
There is no basis either, in my view, for the contention that the decision-maker was under a duty of inquiry in the circumstances. As McHugh J has observed recently in Minister
for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 at 389, a failure to make further inquiries may constitute an improper exercise of a power granted by a statute, or may involve a failure to take into account a relevant consideration in exercising that power. However in my view, whilst the High Court and this Court have indeed recognised that in some circumstances there is a duty of inquiry, they have done so in circumstances far removed from the present.
I have already dealt with Mr Rose's final submission on behalf of the appellant, which concerned s115 of the Migration Act l958 and humanitarian considerations. For the reasons outlined earlier, I would not allow that point, if indeed it is a point with any substance, to be further argued.
In my view, therefore, the learned primary judge was correct in dismissing the application for judicial review. No case for want of procedural fairness was made out. I should add that the history of this case shows that a very careful consideration over a period of nearly a year was given to the appellant's claims. It is apparent that a very large volume of material was considered: far more material than was put before us in the appeal books. I also observe that the case was argued before Jenkinson J for some three days, and it has been carefully argued before us.
I would therefore dismiss the appeal, with costs.
I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.
Associate:
Date:
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) VG 152 of 1995
GENERAL DIVISION )
BETWEEN:DAMODARA NAIDU
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First respondent
AND:MALCOLM PATTERSON
Second respondent
CORAM:Black CJ, Foster J and Sackville J.
PLACE OF HEARING: Melbourne
DATE:11 October 1995
REASONS FOR JUDGMENT
FOSTER J: I agree with the reasons for judgment of the Chief Justice, and the order proposed by his Honour. I have nothing to add.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice M L Foster.
Associate:
Date:
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) VG 152 of 1995
GENERAL DIVISION )
BETWEEN:DAMODARA NAIDU
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First respondent
AND:MALCOLM PATTERSON
Second respondent
CORAM:Black CJ, Foster J and Sackville J.
PLACE OF HEARING: Melbourne
DATE:11 October 1995
REASONS FOR JUDGMENT
SACKVILLE J: I also agree with the reasons of, and the order proposed by, the Chief Justice.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.
Associate:
Date:
Counsel for the appellant: P N Rose
Solicitors for the appellant: Ravi James and Associates
Counsel for the respondent: A L Cavanough
Solicitors for the respondent: Australian Government Solicitor
Hearing Date: 11 October 1995
Place of hearing and judgment: Melbourne
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