Re Freddie Ravi Nand v the Honourable Michael Jerome Young Minister of Immigration and Ethnic Affairs [1988] FCA 18 (4 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: FREDDIE RAVI NAND
And: THE HONOURABLE MICHAEL JEROME YOUNG MINISTER FOR IMMIGRATION AND ETHNIC
AFFAIRS
No. NSW 148 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

Administrative Law - judicial Review - Immigration decision refusing temporary entry permit and permanent resident status - 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 ss. 6, 7 & 18

HEARING

ADELAIDE
4:2:1988

Counsel for the Applicant: Mr. A. Collett Miss C. Byrt

Solicitors for the Applicant: Johnston Withers McCusker & Co.

Counsel for the Respondent: Mr. J. O'Halloran

Solicitors for the Respondent: Australian Government Solicitors

ORDER

The application be dismissed.

The order made on 8 December 1987 restraining the deportation order be vacated.

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.

DECISION

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 to

paras.6A(1)(c) and (e) of the Act on 6 November 1987 to
refuse the applicant the grant of a resident entry
permit

(3) the decision of the said Delegate made on 6 November

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.

2. The applicant relied on a number of the provisions in s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("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.

3. The applicant is a single man who was born in Fiji on 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 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 application he applied for an extension of his entry permit for a further period of six months from the date of its expiry. However to accord with what was said to be the policy of the 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 political situation he had been retrenched from his employment. On 3 September 1987 the Department wrote to him at his address in 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 that month left Sydney to stay with relatives in South Australia.

4. 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 South Australia. He was informed that arrangements would be 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 November dissolved on the undertaking of the respondent not to implement the deportation order prior to 1 December 1987. This undertaking was subsequently extended to 8 December 1987. On that day when the hearing of the application commenced the undertaking was replaced by an order restraining deportation of the applicant until further order.

5. Counsel for the applicant based his attack on the decisions in question primarily on two grounds provided in the Act namely paras.5(1)(a) and 5(2)(b) as applied by para.5(1)(e). In short, counsel contended in his opening that in connection 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 -

(a) 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 Fiji. 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
namely the fact that the applicant had been retrenched
from his employment, that he feared to return to Fiji
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.

6. 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] HCA 81; (1985) 159 CLR 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
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 affected, "be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance".

7. The ground based upon alleged failure to take a relevant consideration into account was discussed by Mason J. in Minister of Aboriginal Affairs v. Peko Wallsend Limited [1986] HCA 40; (1986) 60 ALJR 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..."

8. 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. Counsel for the respondent also objected to a paragraph in the affidavit of Dr Prasad which I ruled should be deleted. Each of these deponents other than Dr Prasad was cross-examined. A further document namely a telex date stamped 27 August 1987 was by consent admitted as an exhibit in the proceedings.

9. 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 1987 contained as well as a letter a copy of two pamphlets named "Fiji Voice". On the evidence I am not satisfied that the envelope did contain the earlier pamphlet but only that dated 2 October 1987. I must say that in any event very little if anything turned on this issue in that the pamphlet of 2 October was subsequent to the second coup and the only matter referred to in argument, on the assumption that the decision maker received both pamphlets, was information contained in the earlier pamphlet of the arrest in Fiji of a Miss Gillespie.

10. Turning to the applicant's contention that the making of these decisions was an improper exercise of power in that a number of relevant considerations (three in all) were not taken into account I note that under s.18 of the Migration Act the Minister's discretion is unconfined in that no criteria for its exercise are provided. Likewise the discretion to issue entry permits is unfettered. As Mason J. said in Kioa v. West at p 587 -

"The grant of an entry permit is a matter of
discretion. Indeed the cancellation of a
temporary entry permit is expressed to be a matter
of absolute discretion: s.7(1)".

11. It is pertinent 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 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 so. 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 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.

12. 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.

13. On the ground of denial of natural justice I reiterate without restating the principles enunciated by Mason J. in the Kioa case. Counsel's first submission was that these rules were breached in that the applicant was not made aware that his position in relation to a resident entry permit was being considered. It followed therefore, it was said, that he did not fill out "the comprehensive application form" referred to in the Minister's policy statement and did not make submissions or produce information relevant to such an application. Counsel was unable to produce any authority or point to any provision, express or implied, in the Act which imposed any obligation such as the applicant relied upon. In fact the applicant was not at the relevant time entitled to apply for a permanent entry permit, and on his case he had no desire or intention to remain 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 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.

14. 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 correcting this finding. In my opinion the denial of this opportunity, assuming this to be the case, does not amount to a denial of the principles of natural justice unless it occured in circumstances such as referred to by Mason J. in the passage cited from his reasons at p.587 of Kioa. I refer in particular to two sentences thereof, namely -

"However this is not to say that fairness will
necessarily, or even generally require that an
applicant for a further entry permit be given an
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
basis of information obtained from another source
which has not been dealt with by the 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". (My
emphasis)

15. It is my opinion that the applicant cannot in this matter bring himself within this statement of principle. 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 very clear his attitude that he was not willing to return until in his opinion it was safe for him to do so.

16. Counsel for the applicant however relied strongly upon the decisions of Keeley J. in Waniewska v. Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 and Chan Yee Kim and Others v. The Minister for Immigration and Ethnic Affairs an unreported decision delivered on 4 December 1987. In each of these matters that judge held that a finding that the applicant was not a bona fide visitor should be notified to the applicant 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.

17. In my opinion there is a significant difference between those two cases and this matter. In Waniewska's case the conclusion of the Delegate was that the applicant "was not a bona 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 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
which the delegate drew from the mere 'frequency
of (her) applications to remain in Australia'
(para 52) and the early date of her first inquiry
as to the possibility 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."

18. Likewise in Chan Yee Kim's case Keely J. found, contrary to a submission made by counsel for the Minister, that the relevant conclusion was to the effect that the applicant was not 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.

19. In my opinion the conclusion in this matter referred to the time when Mr Symonds made the submission to the Delegate. 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.

20. The final ground upon which counsel for the applicant 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
Migration Division DILGEA, Canberra had advised
that 'there was no evidence of widespread unrest
or harassment, although reports continued of
isolated incidents of violence...'"

21. 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.

22. 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.

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 Ravi 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
1985."

23. 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.

24. 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
military forces and indigenous Fijians and
feared harassment and intimidation;
. he is not married and has no other
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 him 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
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."

25. 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 consideration nor that in fact it was put before the Department. The decision maker was aware of the applicant's employment and the fact that he had been retrenched as this information was 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 his 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 27 September 1987 or at the time of his interview on 28 October 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.

26. As well as contending that the decision maker failed to take into account relevant considerations, counsel for the applicant submitted that irrelevant considerations were taken into account, namely that the applicant had breached the conditions of the visa issued to him and failed to honour his undertakings. It was contended that the Delegate erred in 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 number of answers to this contention. In the first instance 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 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 rejected together with the contention that as the finding that the applicant was not a bona fide visitor was unfairly made to take it into account was an irrelevant consideration. I have already indicated my reasons for holding that this finding was in the circumstances fairly made.

27. 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 portion of which was set out verbatim in paragraph 13 of the reasons.

28. Counsel for the applicant also relied upon a contention that because there was a disagreement as to the extent of the danger to which the applicant would be exposed, the Delegate was obliged to make further enquiries. The decision of Wilcox J. in Ertan v. Hurford (1987) 72 ALR 695 and in particular his comments on p 702 were cited in support of this contention. In 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 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 was under a positive obligation either to accept the applicant's version or to make further enquiries.

29. It was also contended on behalf of the applicant that certain procedures required by law were not observed. He was 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. It was said that these omissions amounted to a denial of natural justice. Why this should be so and where lay the obligation in law for these procedures to be adopted was not explained and in particular why these alleged failures amounted to a denial of natural justice 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 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 reject this ground.

30. 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.

31. The final ground relied upon was that in the making of the decisions the relevant discretions were exercised in accordance with a rule or policy and without regard to the merits of the case. It was said that the 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.

32. It follows that in my opinion none of the grounds for review has been made out and the application therefore must be dismissed with costs. The order restraining deportation made on 8 December 1987 must be discharged.