Nand F.R. v The Honourable Young, M.J. Minister for Immigration & Ethnic Affairs

[1988] FCA 22

C A T C H W O R D 5

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ADMINISTRATIVE LAW - Judicial Review - Immigration	decision
refusing temporary entry permit and permanent resident	s atus -
Decision that applicant	be deported - Whether denial of natural

justice - Whether a failure to take into account relevant

considerations - Duty to undertake further enquiries.

Administrative Decisions (Judicial Review) Act	1977 (Cth) s.5
Migration Act 1958	s s . 6, 7 & 18

Applicant	NAND	RAVI	FREDDIE
- and -
THE HONOURABLE MICHAEL JEROME YOUNG MINISTER FOR IMMIGRATION AND

Respondent	AFFAIRS	ETHNIC
Fisher J. Adelaide
4 February 1988

IN THE	FEDERAL COURT OF AUSTRALIA	)
1

SOUTH AUSTRALIA DISTRICT REGISTRY	) No.148 of 1987
GENERAL DIVISION
B E T W E E N : FREDDIE RAVI NAND

Applicant ,.;

- and -	t .
THE HONOURABLE MICHAEL JEROME
YOUNG MINISTER FOR	IMMIGRATION
AND ETHNIC AFFAIRS

Respondent

MINUTES OF ORDER

JUDGE I4AKING ORDER	FISHER J.
WHERE MADE	ADELAIDE

:	t	.
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DATE OF ORDER	4 FEBRUARY 1988	I
THE COURT ORDERS THAT:
:

1. The application be dismissed

2. The order made on 8 December 1987 restraining the

deportation order be vacated.

3 . The applicant do pay the respondent his costs of the

application.

Note: Settlement and entry	of orders is dealt with	in Order 36 of
the Federal Court Rules.

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IN THE	FEDERAL COURT OF AUSTRALIA	)
1
SOUTH AUSTRALIA DISTRICT REGISTRY	)	No. 148 of 1987
)
GENERAL DIVISION	1

B E T W E E N :

FREDDIE RAVI NAND

Applicant

- and -
THE HONOURABLE MICHAEL JEROME YOUNG MINISTER FOR IMI-IIGRATION

ANDETHNIC AFFAIRS

Respondent

REASONS FOR JUDGMENT

CORAM: Fisher J. :

4 February 1988

This application challenges the decisions of the

respondent that the applicant be deported and that he not be

granted permanent resident status. It seeks to review four

decisions said to have been made by or on behalf of the

respondent. These decisions are -

(1) the decision of the Delegate of the respondent made

pursuant to subs.6(2) of the Migration Act 1958 on 6

November 1987 that the applicant be refused the grant	of
a further temporary entry permit

(2)	the decision of the said Delegate made pursuant o
paras.6A(l)(c) and (e) of the Act on 6 November 1987 to
refuse the applicant the grant of a resident entry
permit

the decision of the said Delegate made on 6 November

! ( 3 )

1987 not to allow the voluntary departure of the

applicant

(4) the decision of the said Delegate made pursuant to s.18

of the Act on	6 November 1987 that the applicant be
deported.
The applicant relied on a number of the provisions	in

s.5 of the Administrative Decisions (Judicial Review) Act	1977	r
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("the Act")	and his application lists grounds in support	of the

various attacks made by him on the decisions in question.	It is
not necessary to recite	in any detail these provisions and these
grounds at this stage.

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The applicant is a single man who was born in Fiji o 24

April 1947. He said that although he was born in Fiji he was a
Fijian Indian in that his grandparents were born in India and had

migrated to Fiji to work in the cane fields. He is of the Hindu

religion. He entered Australia on 31 January 1987 and was I-

granted a temporary entry permit for a period of one month. He

was at the time a Senior Customs Clerk in Suva, Fiji who had been

granted 12 months leave without pay by his employer. The

temporary entry permit which he was granted was conditional and
was endorsed "Employment prohibited without written permission of
an authorised officer". On 18 February 1987 he applied for and
on 26 February 1987 was granted a further temporary entry permit

valid until 31 July 1987 by the Department of Immigration, Local

Government and Ethnic Affairs ("the Department"). In this

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application he applied f o r an extension of his entry permit for a

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I I	further period of six months from the date of its expiry.	I
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However to accord with what was said to be the policy of the
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Department a further five months only was granted. On 14 May

1987 a coup ("the first coup") in	Fiji resulted in the overthrow
of the elected government. The applicant said that	as a Fijian

Indian he feared for his safety if he returned to Fiji. On 30

July 1987 he applied to the Department	in New South Wales where
he was then living for	a further extension of his temporary

permit. Prior to making this application he contacted his

employer in Suva and was informed that as a result of the

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political situation he had been retrenched from his employment.

On 3 September 1987 the Department wrote to him at his address in

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New South Wales advising inferentially that his application for a

further extension had been refused and that he must make

arrangements to depart Australia. This decision to refuse	a
further temporary entry permit was not expressly challenged	in

these proceedings. The letter of 3 September 1987 was not

received by the applicant until 25 September, as he had earlier

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that month left Sydney to stay with relatives in South Australia.

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On 27 September 1987 the applicant wrote acknowledging

the Department's letter. A second coup had taken place in Fiji

on 25 September 1987 and in this letter the applicant stated that

for him "a return to Fiji is practically out of the question

because of the present crisis". On 28 October 1987 he was

interviewed by an officer of the Department and arrangements were

made for him to report each Friday thereafter. On 18 November

1987 he was arrested but later that day was released into the

custody of a relative, Dr Prasad, with whom he was staying in

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South Australia. He was informed that arrangements would be

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made for his departure from Australia on Monday 23 November 1987.

However on 18 November 1987 an order was made by this Court ex

parte restraining the deportation which order was however on 19

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November dissolved on the undertaking of the respondent not	to
implement the deportation order prior to	1 December 1987. This

3. . ,

undertaking was subsequently extended to 8 December 1987. On

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that day when the hearing of the application commenced the

undertaking was replaced by an order restraining deportation of

the applicant until further order.

Counsel for the applicant based his attack on the

:	decisions in question primarily on two grounds provided in the
Act namely paras.5(l)(a) and 5(2)(b) as applied by para.5(l)(e).
In short, counsel contended in his opening that in connection I - t .
with the making of the decisions (and in particular the decision to refuse a further temporary entry permit) breaches of the rules
of natural justice occurred and that the decisions were made
without taking relevant considerations into account. A number
of matters were relied upon  at the outset which matters were
added to in counsel's final address. These as initially stated
were -
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The applicant was not given the opportunity to comment

on the finding that he was not a bona fide visitor or

on the view of the Delegate that there was no evidence

of widespread unrest in Fi-~i. Each of these failures

amounted, in the submission of the applicant, to a denial of the rules of natural justice.

(b)	The Delegate failed to take into account three relevant
considerations at the time the decisions were made ,

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namely the fact that the applicant had been retrenched

from his employment, that he feared to return to Fiji

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and that his association in South Australia with	Dr
Prasad put him	at considerable risk if he returned.

(C)	The Delegate ought to have realised that the information supplied by the Department was in conflict with the view
of the applicant as to the state of affairs in Fiji and
she should have made further enquiries.
The ground based on alleged breaches of the rules of

natural justice was recently considered by the High Court.

Comments of Mason J. (as he then was) in Kioa v. West (1985) 159

C.L.R.	550 at p.587 indicate the ambit of the application of the
rules of natural justice in circumstances such	as the present.
He said -

"In the ordinary course of granting or refusing

entry permits there is no occasion for the

principles of natural justice to be called into

play. The applicant is entitled to support his

application by such information and material as he

thinks appropriate and he cannot complain if the

authorities reject his application because they do

not accept, without further notice to him, what he

puts forward. But if in fact the decision-maker

intends to reject the application by reference to
some consideration personal to the applicant on
the basis of information obtained from another

source which has not been dealt with by the	I '
applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter".

On page 628 of that case Brennan J. said that these principles do

not require that a person whose interests are likely to be

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affected, "be given an opportunity to comment on every adverse

piece of informatlon, irrespective of its credibillty, relevance

or significance".

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The ground based upon alleged fallure to take a relevant

- .

consideration into account was discussed by Mason	J. in Minister
of Aboriginal Affairs v. Peko Wallsend Limited (1986)	60 A.L.J.R.

560 at p.565. I refer only to one aspect of what he said on that

and the subsequent page though all is relevant.

"(a) The ground of failure to take into account a	:
relevant consideration can	only be made out if a

decision maker fails to take into account a

consideration which he is bound to take into

account in making that decision..."

Before giving particular attention, in the light of these principles, to each of the matters relied upon by the applicant I indicate that the evidence before me comprised two

affidavits affirmed by the applicant and one affirmed by	Dr
Prasad together with a number of exhibits. Counsel for the

respondent tendered an affidavit sworn by the Delegate who made

the decisions and an affidavit sworn by John Edward Symonds, an

authorised officer under ss. 6A and 31A of the Migration Act who

interviewed the applicant and signed the recommendations to the

Delegate. Certain paragraphs of the later affidavit of the

!	applicant which related to an alleged relationship with and arrangements to marry an Australian citizen were with the consent
of counsel for the applicant deleted. An affidavit by the
Australian citizen on these topics was neither tendered nor read.
NO further reference was made to these matters in the hearing.

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Counsel for the respondent also objected to a paragraph in the

affidavit of Dr Prasad which I ruled should be deleted. Each of i

these deponents other than Dr Prasad was cross-examined. A

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further document namely a telex date stamped 27 August 1987 was I

by consent admitted as an exhibit in the proceedings.

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On the facts established by these affidavits there was

very little dispute. The only contentious issue was whether an

envelope which the applicant handed to Mr Symonds on 30 October l

1987 contained as well as a letter a copy of two pamphlets named	!
!~

"Fiji Voice". On the vidence I am not satisfied that he t '

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envelope did contain the earlier pamphlet but only that dated 2

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October 1987. I must say that in any event very little if

anything turned on this issue in that the pamphlet of 2 October !I'

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was subsequent to the second coup and the only matter referred to : 1

in argument,	on	the assumption that the decision maker received	! >
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both pamphlets, was information contained in the earlier pamphlet

of the arrest in Fiji of a Miss Gillespie.

Turning to the applicant's contention that the making of

these decisions was an improper exercise of power in that a

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i	number of relevant considerations (three in all) were not	taken	I
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into account I note that under s.18 of the Migration Act the

Minister's	discretion	is	unconfined	in	that	no criteria for its	l
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exercise are provided. Likewise the discretion to issue entry	l
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permits is unfettered. As Mason J. said in Kioa v. West at

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p.587 - 1 '

"The grant of an entry permit is a matter of

discretion. Indeed the cancellation f a

temporary entry permit is expressed to be	a matter
of absolute discretion: s.7(1)".

..

8.

It is pertlnent to note at this stage that there is no

challenge to the decision to refuse the applicant's application

of 30 July	1987 for a further extension of his temporary entry
permit. Nor	was any formal application for such a permit before

the Delegate on 6 November 1987 when the decision to deport was ,

made. The applicant's case was that by his letter of 27

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September 1987 and in the interview of 28 October 1987 he

impliedly sought a further temporary entry permit. However he
did not make application for a permanent resident permit. To do

so would have been contrary to his case, namely that he wished to

return when it was safe for him to do S O . In accordance with

the approach of the High Court in	Kioa's case the decision maker
gave consideration	to the question whether it was appropriate for
the applicant to be relieved of his status of	a prohibited

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immigrant by granting him a temporary or permanent entry permit.

In this regard counsel for the applicant contended that errors

were made in considering the application for a temporary entry

permit which tainted the subsequent three decisions culminating

in the decision to deport.

In his final submissions counsel for the applicant went

somewhat beyond the case which he made at the outset. Because

my ultimate view is that the application must be dismissed I

propose to give separate consideration to each of his

contentions.

On the ground of denial of natural justice I reiterate

without restating the principles enunciated by Mason 3. in the

Kioa case. Counsel's first submission was that these rules were

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I	breached in that the appllcant was not made aware that his
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i	position in relation to a resident entry permit was being
I	considered. It followed therefore, it was said, that he did not
!	fill out "the comprehensive appllcation form" referred to in the
l	Minister's policy statement and did not make submissions or
produce information relevant to such an application. Counsel
I	was unable to produce any authority or point to any provision,
l	express or implied, in the Act which imposed any obligation such
as the applicant relied upon. In fact the applicant was not at
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the relevant time entitled to apply for a permanent entry permit,
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and on his case he had no desire or intention to remain
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permanently or indefinitely. He was at the time a prohibited
immigrant, and thus liable to deportation under s.18, who wished
to remain in this country until he felt it was safe to return to
Fiji. As is the practice in reaching the decision to make the
deportation order the Delegate considered whether to refuse the
i	grant of a temporary and permanent entry permit, thereby
assessing whether there was any ground upon which the applicant could "shed the status of prohibited immigrant" (see per Brennan
J. in - Kioa at p.606). There is no warrant or justification for
the contention that in this process the Delegate was required by
law or fair procedures to give the applicant the opportunity to
make a formal application for permanent resident status and this submission must be rejected.

It was then said that the Delegate made a finding of

fact to the effect that the applicant was not a bona fide

visitor. Counsel contended that the applicant should have been

given the opportunity to make submissions for the purpose of

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correcting this finding. In my opinion thc denial of th 11s

opportunity, assuming this to be the case, does not amount to	a
denial of the principles of natural lustice unless it occured	in

circumstances such as referred to by Mason J. in the passage

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1 cited from his reasons at p.587 of Kioa. I refer in parti.cular

to two sentences thereof, namely -

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"However this is not to say that fairness will

I	l	necessarily, or even generally require that an
i	applicant for a further entry permit be given an
I	opportunity to be heard even where deportation may follow from its refusal."

"But if in fact the decision maker intends to

! reject the application by reference to some

consideration personal to the applicant on the

I	basis of information obtained from-another source
I	which has not been dealt with by the applicant in
his application there may be a case for savinu -~
i	l
that procedural fairness requires that he be given
an opportunity of responding to the matter". (My
emphasis)

It is my opinlon that the applicant cannot in this

matter bring himself within this statement of principl'e. The

Delegate has merely characterised the applicant as not being at

the time a bona fide visitor in that he was and still is not

prepared to return to	Fiji in accordance with the terms of his
earlier temporary entry permit and his undertaking. He will not
depart voluntarily until he feels it is safe for him to do	so,
and this he said is the only basis for his objection to the

deportation order. It cannot be said that the Delegate's

characterisation of the applicant	as other than a bona fide
visitor is	on the basis of information obtained from another
source which has not been dealt with by the applicant	in his

application. The applicant asks that his letter of 27 September

1987 be accepted	as an application for a further entry permit,
alternatively that such an application was implicit	in his
interview of 28 October.	On each of these occasions he made

i	very clear his attitude that he was not willing to return until
in his oplnion it was safe for him to do so.
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j	Counsel for the applicant however relied strongly upon
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the decisions of Keeley J. in Naniewska v. Minister for

Immigration and Ethnic Affairs (1986) 70 A.L.R. 284 and Chan Yee

I	Kim and Others	v. The Minister for Immigration and Ethnic	Affairs
!	an unreported decision delivered on	4 December 1987.	In each of
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i	these matters that judge held that a finding that the applicant
i	was not a bona fide visitor should be notified to the applicant
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who should be given an opportunity to deal with and answer the
;	finding. Failure to give such an opportunity amounted in those
!	cases to a denial of natural justice.

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In my opinion there is a significant difference between L .'

those two cases and this matter. In Waniewska's case the

conclusion of the Delegate was that the applicant "was not abona

fide visitor in the first place". In other words, that at the

time of her entry into this country she was not a bona fide
visitor but a person who intended from the outset to remain	I
indefinitely and thus contrary to her undertaking. As Keely	J.
said on p.296 -

"The conclusion of the delegate, which is	adverse
to the applicant,	was that she was not a bona fide
visitor. That conclusion was not one which	was
apparent on the face of any statements made	or

documents supplied by the applicant. The

delegate's conclusion was based upon an inference

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which the delegate drew from the mere 'frequency
of [her] appllcatlons to remain in Australia'
(para 52) and the early date of her first inquiry

as to the posslbility of obtaining resident status

(para 49). Assuming, without deciding, that such

an inference was open to the delegate upon the

material before him, it was certainly not an

inference which would necessarily be drawn. It

was not an inference the drawing of which was in fact anticipated by the applicant; nor was it, in my opinion, an inference the drawing of which by

the delegate should, in all the circumstances,

have been anticipated by the applicant."

Likewise in Chan Yee KimIs case Keely 3. found, contrary

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to a	submission made by counsel for the Minister, that the	I .
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relevant conclusion was to the effect that the applicant was not

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a bona fide visitor at the time she came to Australia. He

reiterated on a number of occasions that the conclusion referred

to the time of entry into Australia and not the time of

preparation of the submission for the Delegate.

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In my opinion the conclusion in this matter referred to i

the time when Mr Symonds made the submission to the Delegate.

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There was no suggestion that the applicant wished to obtain '

resident status or to remain indefinitely. There are a number

of significant indications to the contrary. Moreover the

conclusion that he was not at the relevant time a bona fide

visitor was readily apparent both on the face of statements made

and documents supplied by him.	It was, to the extent to which	? '
; -'

it was an inference, such as must have been anticipated by the

affidavit in the light of his attitude, with which it was wholly

consistent. I therefore reject this ground.

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The final ground upon which counsel for the applicant

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I relied was the failure of the Delegate to give him an opportunity

to comment on advice relied upon by the Delegate, namely -

,	"Notwithstanding this the First Assistant Secretary I-ligration Division DILGEA, Canberra had advised that 'there was no evidence of widespread unrest or harassment, although reports continued of isolated incidents of violence...'"
It was contended that in the light of conflicting views

as to the state of affairs in Fiji the applicant should have been

given what can only be described as yet another opportunity to

state his view of happenings in Fiji. However he had already

had and taken advantage of a number of such opportunities and was

fully aware of the divergence of view, see for example the letter

of 27 September 1987 and Dr Prasad's letter of 30 October 1987.

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I turn to the question of relevant and irrelevant

considerations. On the assumption, which I consider to be

without justification, that the considerations relied upon by the

applicant were matters which the decision maker was obliged to

take into account I am of opinion that she had given

consideration to them. These considerations were four in number,

namely failure to take into account -

(a) the contents of Volume	1 of Fiji Voice;
(b)	the fact that the applicant had lost regular and long standing employment in Fiji by reason of the coup;
(c)	the danger to the applicant's safety resulting from his association with Dr. Prasad;
(d)	the applicant's fears for his safety at the time
when she was considering the grant of a further

temporary entry permit.

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The question whether such consideration was adequate is not a

matter for this Court.	In para. 8 of the statement of	reasons
under s.13	of the Act the material to which regard was had	is as

follows, namely -

copy of Fijian passport no 199117 in the name

Freddie Ram Nand (24/4/47) -

copy of visitor questionnaire dated 18

February 1987 -

copy of supplementary information sheet

completed in connection with an application

for extension of TEP dated	30 July 1987	-
case decision dated	1 September 1987	-
copy of letter to Mr Nand dated	3	September
1987 -

copy of letter from	Mr Nand dated 27 September
1987 -

copy of report on interview between John

Symonds and Freddi (sic.) Ravi Nand dated	28
October 1987 -
copy of letter from Dr Prasad dated	30 October
1987 -

copy of	'Fiji Voice' dated October	1987 -
and

policy on illegal immigrants of 17 October

I 1985. "

In addition regard was had to a further policy statement

with reference to Fiji of 16 October 1987, which is set out later

in these reasons.

Furthermore paras. 5, 6 and 7 of the reasons

specifically make reference to many if not all the matters put
forward by or on behalf of the applicant. These paragraphs were

as follows -

"5. Mr Nand was interviewed at this office on 28

October 1987 and stated that:

. he had not left Australia as directed because of his fear of what would happen to him on his return to Fiji where he lived near Fijian

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military forces and indigenous Fijlans and

feared harassment and intimidatlon;

. is not married and has no other

he

relationship	which	he	wished	to	bring	to
notice;

.	he has no close relatives in Australia;
.	he understood that his visa was issued subject to his leaving by the expiry date, that he was not permitted to work and must have a valid

return ticket;

.	he had been granted a further TEP valid until
31 July 1987 by DILGEA Sydney and that an
application for a further extension had been :.

refused;

. he had worked as a customs clerk in Fiji but

has not worked in Australia;

. he brought funds of $A2600 with im to

! Australia and still has $A2400 as he has

relatives and friends	in	Australia who have
supported him;

.	he has a valid return ticket to Fiji where he
has property valued at approximately $A40,000.
.	he has not registered with Medicare, used any educational facilities or social services in Australia;
.	he is willing to leave Australia but would
like to stay until the situation in Fiji is
calmed or been restored to its former
situation so that he can return without fear or fright; and

. that Dr Prasad would be making a written

submission on his behalf.

6.   Mr Nand had also written to DILGEA Sydney on

27 September 1987 stating again that he was	. . _,
unwilling to return to Fiji due to the crisis	i '
there and advising that he was now staying in South Australia.

7.   Dr U. Prasad has made written representations

on behalf of Mr Nand arguing that, contrary to

departmental information, the Indian community in

Fiji is subjected to daily torture, rape and

humiliation. In support of this Dr Prasad has

provided a copy of the 'Fiji Voice' which is

published by the Fiji Independent News Service

( FINS) in NSW. "

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Dealing in turn with the applicant's contentions I make

the following findings. The applicant has not satisfied me that

the contents of Volume 1 of Fiji Voice was a relevant

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consideration nor that in fact it was put before the Department.

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The decision maker was aware of the applicant's employment and

the fact that he had been retrenched as this information was

I supplied in the applicant's letter of 30 July 1987 referred to in

paragraph 8 of the Reasons. On the question of the applicant's

additional fears for hls safety consequent upon his association

with Dr. Prasad this matter was specifically referred to in

paragraph 8. The applicant finally said that the decision maker

had not considered the applicant's fears for his safety	at	the
time when she was considering the grant for a further entry

permit. However the applicant's counsel contended that I should

accept that his client impliedly made this applicant by letter of

2 1 September 1987 or at the time of his interview on 28	October	l
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1987. In this letter and on this occasion the applicant

expressly made it very clear that his concern for	his safety was
the reason for his reluctance to return. I therefore have	no
hesitation in rejecting the applicant's submissions on this aspect of the matter.

As well as contending that the decision maker failed to

take into account relevant considerations, counsel for the

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applicant submitted that irrelevant considerations were taken

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into account, namely that the applicant had breached the

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conditions of the visa issued to him and failed to honour his	!,
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undertakings.	It	was	contended	that	the	Delegate	erred	in	. _
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finding that all the conditions had been breached and all the - -

undertakings had not been honoured. On this basis it was said that the applicant was found not to be a bona fide visitor and the further temporary permit was refused. There are indeed a

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number of answers to this contention. In the first instance

p > c.

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there is no doubt that the applicant had not abided by all the

conditions and had not honoured all of his undertakings and this

is an equally acceptable construction to put on the Delegate's	._
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terminology. It was never suggested that the applicant had for example breached his undertaking not to engage in employment.	!-,
Furthermore it cannot be argued that these facts were irrelevant
and that they were not entitled to be taken into account. The
fact that the applicant considered he had good reason for his
failure to depart is not necessarily to the point. This ground
must be relected together with the contention that as the finding	,
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that the applicant was not	a bona fide visitor	was unfairly made	I ,
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to take it into account was an irrelevant consideration. I have

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already indicated my reasons for holding that this finding	was in
the circumstances fairly made.

It was then said that the decision must be reviewed

because the decision maker acted upon facts the existence of

which were not established or which facts were wrong. The

contention was that she proceeded on the basis that circumstances

had not changed since the decision of 1 September 1987 at the

time when she decided not to extend the applicant's temporary

entry permit. In this circumstance, it was said, she had

proceeded on the basis that there had been no change since that

date, thereby overlooking the second coup in Fiji of 25 September

1987. This submission must be rejected in that there was plenty

of evidence that the impact of the second coup had been taken

into account, even though there may have been a disagreement as

to the consequences thereof. I refer in particular to the

contents of a telex received in Adelaide on 16 October 1987

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I	portion of which was set out verbatim in paragraph	13 of the
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!	reasons.
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Counsel for the applicant also relied upon a contention

1	I	that because there was	a	disagreement as to the extent of the
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I danger to which the applicant would be exposed, the Delegate was i

obliged to make further enquiries. The decision of Wilcox J. in

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l	-	Ertan v. Hurford (1987) 72 A.L.R.	695 and in particular his
I

comments on p.702 were cited in support of this contention. In

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my opinion this authority does not assist the applicant as he and

Dr Prasad had every opportunity, of which they availed

themselves, to put the full facts before the Delegate. She was

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entitled, after taking into account their version of the

situation, to prefer the version provided for her by the

Department. It cannot be reasonably suggested that the Delegate

I

!	was under a positive obligation either to accept the applicant's version or to make further enquiries.
!
I	It was also contended on behalf of the applicant that certain procedures required by law were not observed. He was
I
not informed that he had the right to apply for refugee status

nor that he had a right to apply for a resident entry permit.

.,

* I

It was said that these omissions amounted to a denial of natural

I

justice. Why this should be	so and where lay the obligation in	I .
~
c

law for these procedures to be adopted was not explained and	in
particular why these alleged failures amounted to	a denial of
natural lustice was not specified. There is	no obligation in law

for the Department or its officers to advise the applicant
concerning refugee status and the delegate had no authority to

.. 19.

determine this status. Likewise there is no obligation to advise

of the right to apply for a resident entry permit, which on his

case in any event the applicant did not desire except	as a
possible means to an end. I relect this ground.

Counsel for the applicant submitted that the Delegate's

conclusion that the applicant's fears for his safety both

generally and in consequence of his association with Dr Prasad

did not constitute strong compassionate or humanitarian grounds

was an error of law. Counsel did not indicate why it was a

question of law	and not of fact and this ground also must be
rejected on the ground that such	a conclusion was a conclusion of
fact.

, ,I

The final ground relied upon was that in the making of

the decisions the relevant discretions were xercised in

accordance with a rule or policy and without regard to the merits

of the case. It was aid that he applicant's loss of

employment and the danger to him if he returned were not

!.

considered. However such	a submission is contrary to the facts.
The Delegate was aware of and did take into account his	loss of
employment and his fears for his safety. These matters were very
much	in the forefront of her assessment. The latter matter of

his fears were been placed before her by the applicant in his

letter of 27 September 1987 and during his interview on 28

October 1987 as well as by Dr Prasad in his letter of 30 October

1987. Furthermore these matters were referred to in a number of

instances in the recommendations put before the Delegate by	Mr
Symonds.

!