Tully, G. v Minister for Immigration, Local Government and Ethnic Affairs

[1995] FCA 70

IN THE FEDERAL COURT OF AUSTRALIA    )
VICTORIA DISTRICT REGISTRY          )    No. VG519 of 1992
GENERAL DIVISION  )

BETWEEN:     GOPAMMA TULLY

Applicant

AND:     MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Firstnamed Respondent

AND:     RON GENT

Secondnamed Respondent

CORAM:     Jenkinson J.

PLACE:     Melbourne

DATE:      24 February, 1995      

MINUTES OF 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. VG519 of 1992
GENERAL DIVISION  )

BETWEEN:     GOPAMMA TULLY

Applicant

AND:     MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Firstnamed Respondent

AND:     RON GENT

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.

One ground of the application rested on the circumstances that shortly after the applicant's claim to be accorded refugee status was submitted to the respondent Minister's Department a minute was sent from one part of that Department, concerned with compliance with decisions that a non-citizen not remain in Australia, to another part, concerned with administration of the processes of making such decisions, and that thereafter the minute remained on one of the Departmental files considered by the delegate of the Minister by whom the decisions under review were made.  The minute reads:

"Mr. T. Griffiths
Determination of Refugee Status Branch
CANBERRA

Gopamma TULLY - Application for Refugee Status

I am aware that Mrs Gopamma TULLY (previously NAIDU), date of birth 23 February 1950, has recently lodged an application for refugee status.  While not wishing in any way to influence the consideration of Mrs Tully's claims, I believe it is appropriate for your Branch to be aware of her recent involvement with the Department.

The applicant is the ex-spouse of Damodara Naidu who was recently convicted in the Melbourne Magistrates Court of five counts of conspiracy to defeat a law of the commonwealth (namely the Migration Act).  The charges against Mr Naidu were laid following a joint operation between the Australian Federal Police and the Investigations Section of my Branch into a number of marriages of convenience.  One of the five charges related to Mrs Tully's own marriage to Robert John Tully.  In evidence before the court, Robert Tully admitted that his marriage to Gopamma Tully was contrived so that she could enter australia, and that the marriage was arranged by Damodara Naidu.

An application for migration based on this marriage was lodged by Mrs Tully at the Australian Embassy in Suva, but was not approved as it was considered that her marriage was not an ongoing relationship.

At the request of Mr Naidu's solicitors, Mrs Tully was granted a visitor visa to enter Australia to give evidence on his behalf at the conspiracy hearing.  She was granted the visa on condition that she did not seek to extend her stay, nor seek to remain permanently in Australia.  She arrived on 31 August 1990.  The day before her permit was due to expire, she made an application to extend her stay.  After consultation with the Investigations Section that application was refused.  she left Australia, as expected, on 15 September 1990.

Damodara Naidu was also charged with bigamy.  That charge was heard separately from the conspiracy charges.  Again Mr Naidu's solicitors asked that Gopamma Tully attend the court hearing and a visitor visa was granted on the same conditions as previously.  Mrs. Tully arrived for the second time on 24 November 1990 with permission to remain until 13 December 1990.

The Naidu case was a major breakthrough against Immigration malpractice and did much to restore the integrity of Australia's immigration policies in Fiji and within the Fijian community in Australia.  If Mrs Tully is allowed to remain in Australia for any length of time, without a decision being made on her claims, I am concerned that much of the positive result of this investigation may be undone.

I believe that because of the notoriety of the case, Mrs Tully's continued presence in Australia will be well noted within the Fijian community and may be seen as an inability, on the Department's part, to enforce the Government's policies.

I would therefore be grateful if you could assist by ensuring that Mrs Tully's application is urgently assessed.

I would also appreciate if you could keep me advised of developments.  My case officer for this matter is John Rees, Malpractice Investigations, telephone [phone].

Debbie Bates
State Compliance
Manager
19/2/91"

A further Departmental minute dated 10 April 1991 noted that an officer of "Investigation Section, Central Melbourne Regional Office" had "called today in reference to" the earlier minute.  The minute continued:

"The applicant's involvement in a court case described in that correspondence and an appeal hearing now scheduled for 3 June 1991 have prompted Investigations Section to again request that Gopamma Tully's application be fast-tracked for an early decision, if possible.

For your consideration."

The latter minute was addressed to the acting Assistant Secretary, DORS Branch.  It also was on a file considered by the decision maker.

It was not submitted that the assertions of historical fact concerning the applicant in either of the minutes had influenced the decision maker to the applicant's disadvantage nor that the exhortations to expedition of the decision had worked any prejudice to her.  Those exhortations do not seem to have been heeded.  The submission was that the sixth and seventh paragraphs of the first minute urged on the decision maker reasons for denying the applicant's claim of which she was unaware and that consequently the requirements of natural justice were not satisfied.

The sixth and seventh paragraphs may be understood as suggesting no more than expedition, and that reading accords with the content of the eighth paragraph and with the introductory clause of the second sentence of the first paragraph.  There is nothing in the material before the court to suggest that the decision maker understood any part of the sixth and seventh paragraphs to be propounding a reason for rejection of the applicant's claim.  This ground of the application fails.

Another ground of the application was based on the last sentence of paragraph 5.2.1. of the decision  maker's reasons for his decision.  That paragraph reads:

"I do not accept that the applicant's fears that as an Indian-Fijian she will face physical danger by returning to Fiji because in the weeks prior to February 1992 other Indian-Fijians have been assaulted or killed and/or had their property destroyed are objectively supported [10]. She does not demonstrate why these incidents should not be regarded as isolated incidents which would be dealt with through the normal legal channels. Further, as Ms Tully has not demonstrated any personal relationships with anyone involved in such isolated incidents, I do not give the claims any weight."

That paragraph referred to an assertion by the applicant in a document submitted by her in support of her claim that in a town near her own former place of residence in Fiji "a sheriff's officer was stoned to death, a group of policemen seriously injured and a police vehicle stoned and damaged.  The dead sheriff's officer was an Indo-Fijian.  Similar events occurred in the village of Tacirua in Suva when ethnic Fijians raided Indo-Fijians' homes, destroyed the property and killed an elderly woman".
         I have been unable to determine what relevant significance in determining the applicant's claim a "personal relationship" between her and any of those mentioned in the passage I have quoted from the applicant's document might have.  I simply do not know what was in the decision maker's mind when he wrote the last sentence in paragraph 5.2.1.  But, if it be assumed that the sentence discloses error of law, yet I would not make an order of review on that ground.  There is an unexceptionable reason, stated in the preceding sentence, for declining to allow the reported "incidents" weight in favour of according the applicant refugee status.

The applicant alleged that she had been beaten by Fijian police in 1987 and she furnished a medical certificate that she had been found to have suffered a perforated ear drum as well as bruising.  The decision maker's reasons for his decision include the following:

"Aftermath of 1987 coups in Fiji

Ms Tully claims to have been harassed by Army personnel in the post-1987 coup period.[2]  She also claims to have been arrested by police on two occasions due to political motivations[3].

While I concede that the applicant may have experienced some difficulties in the aftermath of the 1987 coups, I do not accept that these difficulties were of a severity or nature as to constitute persecution in terms of the Convention and I do not consider that such conditions are ongoing in Fiji now [refer Department of Foreign Affairs and Trade (DFAT) cable O.SU58340 (21.08.1992) Sections 13 and 32 ONLY].

I accept there was a deterioration in law and order in the post coup period during which the Fijian authorities may have been unable to guarantee protection of Fiji nationals but the situation has now stabilised."

It was submitted, in my opinion with some justification, that the passage I have quoted discloses a failure to take into account the allegation of a beating by police.  The word "difficulties" seems a grotesque euphemism.  There is no reference to the claimed injury.  But the paragraph contains an unexceptionable reason for concluding that persecution in 1987 does not ground a fear of persecution in 1992.  I would not grant an order of review by reason of that failure to take into account a relevant consideration.

The application must be dismissed.

I certify that this and the 6 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

Date of Hearing              :   13 February, 1995