B45 of 2003 v Refugee Review Tribunal [2004] FCA 1479 (17 November 2004)

Last Updated: 17 November 2004

FEDERAL COURT OF AUSTRALIA

B45 of 2003 v Refugee Review Tribunal
[2004] FCA 1479

MIGRATION – judicial review – decision of Refugee Review Tribunal – procedural fairness – whether error of law – Fijian nationals – application for protection visa – whether Tribunal had documents before it which were not provided to visa applicant



Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
The Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 179 ALR 238
























B45 OF 2003 v REFUGEE REVIEW TRIBUNAL
Q146 of 2003

COOPER J
BRISBANE
17 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q146 OF 2003

BETWEEN:	B45 of 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 NOVEMBER 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondents’ costs of the proceeding, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q146 OF 2003

BETWEEN:	B45 of 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGE:	COOPER J
DATE:	17 NOVEMBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 The applicants are nationals of Fiji. They are a married couple. The husband was born in 1970 and the wife in 1974. They arrived in Australia in early 1996 and on 17 April 1996 applied to the Department of Immigration and Multicultural Affairs (‘the Department’) for protection visas. The husband claimed that he was a person to whom Australia has protection obligations under the Refugees Convention (as defined in the Migration Act 1958 (Cth) (‘the Act’)).

2 The wife claimed a protection visa as a member of a family unit of a person entitled to the grant of a protection visa. The applicants’ applications were declined by the delegate of the Minister for Immigration and Multicultural Affairs on 24 June 1996 and the applicants were advised of the delegate’s decision by letter of the same date. On 26 July 1976 the applicants applied to the Refugee Review Tribunal (‘the RRT’) for review of the delegate’s decision. The RRT affirmed the delegate’s decision on 13 February 1997.

3 On 14 December 1998 the applicants became members of a representative action in the High Court of Australia commenced under the names of Herijanto, Muin and Lie. On 8 August 2002 the High Court found in favour of the representative applicants in relation to a denial of procedural fairness. On 25 November 2002, Gaudron J ordered inter alia, that:

‘Leave be granted to any person named in the Schedule to the Statement of Claim in these proceedings to file an application seeking an Order Nisi in relation to the respective decisions of the Refugee Review Tribunal in relation to that individual on or before 1 June 2003.’

4 On 23 May 2003, McHugh J extended the period within which to file an application seeking an order nisi until 20 June 2003.

5 On 19 June 2003 the applicants filed an application in the High Court of Australia seeking an order nisi which was by force of the orders of Gaudron J made on 25 November 2002 remitted for determination to this Court.

6 The grounds relied upon by the applicants are contained in par 4 of the draft order nisi. They are:

'4. There were certain materials referred to in the Decision that were not delivered to nor explained to the Prosecutor prior to the Decision being made. These materials were (with reference to the pagination and paragraphs of the Decision):

(a)	Paragraph 1 page 9

Authority cited (DFAT Cable SU61895 of 30/12/199 (sic). Also DFAT CX2960 of 10/01/94.

(b)	Paragraph 3 page 9

Authority cited (US Dept. of State, Human Rights Report on Fiji 1996).

(c)	Paragraph 1 page 10

Authority cited (AFP 19/12/1996).

(d)	Paragraph 3 page 10

Authority cited (Fiji Times 18/04/96).

(e)	Paragraph 4 page 10

Authority cited (DFAT Cable CX18860 of 06/08/1996).

(f)	Paragraph 4 page 12

Authority cited (US Department of State, as above).’

(original emphasis)

7 In his affidavit in support of the application for an order nisi the male applicant deposed that he sought the relief claimed on the ground that the was denied procedural fairness in that the RRT, in the process of making its decision, had access and referred to materials to which he was neither given access nor given an opportunity to address. The material referred to is that particularised in par 4 of the draft order nisi filed by the applicant and which is reproduced in par [6] of these reasons. The male applicant was not cross-examined on this affidavit. However he filed no further evidence beyond that contained in the affidavit in support of the application.

8 On 23 December 2003 the applicants filed a statement of contentions of relevant facts and law. In these the applicants sought to enlarge the subject matter said to give rise to a denial of natural justice. The document stated:

‘14 The applicant was denied natural justice:

(a)

The first respondent had access to certain materials referred to in the decision that were not delivered to nor explained to the applicant prior to the decision being made (referring to the notation of the decision of the first respondent) as per the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601:

Particulars

(i)	Document D1 – Paragraph 1 page 9 – Authority cited (DFAT Cable SU61895 of 30/12/199 (sic)). Also DFAT CX2960 of 10/01/94 – Used to refute the applicant’s claim that there was a victimisation of members of the National Indian Youth Front (NIYF) and the National Federation Party.

(ii)	Document D2 – Paragraph 3 page 9 – Authority cited (US Department of State, Human Rights Report on Fiji 1996) – Used to refute the applicant’s claim that the National Indian Youth Front (NIYF) existed.

(iii)

Document D3 – Paragraph 1 page 10 – Authority cited (AFP 19/12/1996) – Used to refute the applicant’s claim that the applicant’s victimization through having his house broken into a large number of times was not a convention related consideration.

(iv)	Document D4 – Paragraph 3 page 10 – Authority cited (Fiji Times 18/04/96) – Used to refute the applicant’s claim that the Fiji Government was cracking down on crime – it was also not contemporaneous.

(v)	Document D5 – Paragraph 4 page 10 – Authority cited (DFAT Cable CX18860 of 06/08/1996 – Used to refute the applicant’s claim that he found it difficult to own land through reasons of his race.

(vi)	Document D6 – Paragraph 4 page 12 – Authority cited (US Department of State, as above) – Used to refute the applicant’s claim that arbitrary detention and physical abuse was a commonplace activity by police.

(b)	The Delegate of the second respondent had access to materials which were not available to the first respondent (the "Part B documents") as required by s 418(3) of the Act:

Particulars

(i)	Departmental file V96/370 relating to the applicant consisting of folios 1 to 42;

(ii)	United Nations High Commissioner for Refugees Handbook on Determination of Refugee Status;

(iii)

US State Department Annual Report on Human Rights (1995);

(iv)	DIEA Country Information Service Data Holdings.

(c)	The applicant prepared written material that was not considered by either the Delegate of the second respondent or the first respondent nor referred to in the decisions of the Delegate of the second respondent or the first respondent:

Particulars

(i)	Written submissions by applicant dated 15 April 1996.

(d)	The applicant advised the first respondent that he would be legally represented at the hearing of the first respondent. However the applicant was not represented.

...
15. Had the applicant been asked by the Tribunal to comment on the documents before the Tribunal referred to in paragraph 14(a) above or paragraph 14(b) above, he might have pointed to material that suggested that the policies of the government had failed or were likely to fail and that he could have provided evidence, material or submissions that would have caused the Tribunal to reach a different view including but not limited to:

(a) Arranging for further written submissions to be made to the Tribunal;

(b) Seeking to appear at the oral hearing with a representative or agent to make submissions to the Tribunal respecting the contents of the Part B documents;

(c)	Seeking to place additional evidence before the Tribunal; and

(d)	Undertaking research and submitting additional information, including decisions of the Tribunal (differently constituted) which had upheld applications for refugee status made by other ethnic Indian nationals of Fiji prior to the Decision in the applicant’s case.’

(original emphasis)

9 The respondent denied that the documents described as the ‘Part B documents’ were not available to the RRT as required by s 418(3) of the Act as the applicant alleged in par 14(b) of the contentions filed on 23 December 2003. Further, the respondent denied that the applicants or anyone acting on their behalf provided to the Department or the delegate of the Minister any written submission dated 15 April 1996. Finally, the respondent denied that the RRT was prevented from proceeding with the hearing of evidence from the male applicant notwithstanding that at the time of such hearing the male applicant was not legally represented.

10 The respondent did not admit that the male applicant could or would have taken the steps stated in par 15 of the written contentions filed on 23 December 2003 and the male applicant lead no evidence in relation to that issue.

11 In its reasons for decision dated 13 February 1997 the RRT stated that:

‘In ascertaining the applicant’s case, the Tribunal considered:

The Tribunal’s and Departmental files including all submissions from the applicants.
Evidence given by the applicant husband at hearing in Melbourne on 30/1/97.’

12 There is no evidence that the Departmental file together with the delegate’s decision and other relevant documents were not forwarded to the Registrar of the RRT as required by s  418 of the Act. The Part B documents identified by the delegate are the sources wherein was found the evidence used by the delegate in making its decision. The first document was the Departmental file itself being file V96/370. The second document was a book published by the United Nations High Commissioner for Refugees which contains the High Commissioner’s views as to how the Refugee Convention and Refugees protocol ought to be interpreted and applied.

13 The third and fourth documents relate to material from sources which dealt specifically with the circumstances in Fiji. The third document is a report of the US Department of State issued March 1996 entitled ‘Fiji Human Rights Practices, 1995’. The fourth document consisted of a DFAT Cable (CX6454) ‘Fiji Human Rights. Cable SU388 DATED 11 May 1995’, and a DFAT Cable (CX 2980) ‘Cable SU63682 request for information [various issues]’ dated 3 October 1994.

14 The respondent stated that the fourth document also included an undated document entitled ‘Fiji’ which comprised a 12 page review of conditions in Fiji in so far as they relate to human rights in that country. I am satisfied that the version of the document tendered on the hearing as the Part B documents was not before either the delegate or the RRT. The document in terms refers to the Fijian constitution that came into effect in July 1998 and to the election of Mahendra Chandry, an Indo-Fijian, as Prime Minister in the election held in the following May. The document also refers to a number of matters which occurred in 1998. The document was not produced in this form prior to 1998 – 1999. As the delegate’s decision was given on 24 June 1996, this document was clearly not in existence and therefore was not considered by either the delegate or the RRT. A textual comparison of this document and the third document (the document entitled ‘Fiji Human Rights Practices, 1995’) indicates that the 1998 – 1999 document is an updated version of the earlier US Department of State report and where no change has occurred, or the information is by way of background only, the same or substantially the same language appears under the same headings and format.

15 The RRT had before it the 1995 Report prepared and released by the US Department of State which it quotes from in its reasons for decision at page 9. The RRT had before it material indicating that the male applicant had made claims to the Department which he did not repeat in the RRT. From this I infer that the RRT had before it the Departmental file and the delegate’s reasons for decision which set out in detail the claims made by the male applicant which are different in significant respects from those made in the RRT. The reasons for decision of the delegate refer to the DFAT cables CX2980 and CX18860 and the use made of the contents of those cables. I am satisfied that the RRT had before it the Part B documents referred to in the reasons for decision of the delegate of the Minister dated 24 June 1996. There is no evidence to support a contrary finding; the fact that the RRT did not refer to the two cables in its own reasons does not mean that the cables were not before the RRT.

16 The applicants fail to make out the factual circumstances alleged in par 14(b) of their contentions filed on 23 December 2003. Further, the applicants do not point to anything in the Part B documents which would have caused them to take any of the steps alleged in par 15 of their contentions. Nor do they assert that they were unaware of the contents of the Part B documents at all times material to their application for review in the RRT.

17 The applicants offered no evidence that a written submission dated 15 April 1996 was sent to either the delegate of the Minister or the RRT. Their counsel conceded that they were in no position to prove up this allegation. Consequently the factual matter alleged in par 14(c) of the contentions was not made out.

18 The allegation in par 14(d) of the applicants’ contentions was not pressed.

19 Ultimately the applicants’ case is that pleaded in par 4 of the draft order nisi. They contend that, as each of the six documents was not delivered to them nor explained to them prior to the RRT making a decision which referred to the documents, they were denied procedural fairness. They contend that such a result follows from the reasoning in Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30.

20 The decision in Muin was based on an agreed statement of facts. The agreed facts raised two issues, each of which was said to make out a failure to extend procedural fairness. The first concerned Muin being mislead as to the use which would be made by the RRT of the Part B documents which were before the delegate of the Minister when the original decision was made by the delegate. That is not the present case. The second issue concerned the reception and use by the RRT of documents containing information adverse to the claim of the applicant in that case for a protection visa without him being given an opportunity to take steps, which it was agreed he would have taken to challenge and contradict the adverse information. As Gleeson CJ said: ‘The stated fact that there was a failure to bring the substance of that material to the attention of the plaintiff, and the disadvantage that followed entitles the plaintiff to succeed on this ground’ (at [30]). A majority of the judges of the High Court (Gaudron, Gummow, Kirby, Hayne and Callinan JJ) were satisfied that the applicant should succeed on the first issue; a majority (Gleeson CJ, Gaudron, McHugh and Kirby JJ) were also of the opinion that he should succeed on the second ground.

21 There is no issue that the RRT is bound by the rules of natural justice and is bound to proceed in a manner that is procedurally fair when undertaking a review of a decision to refuse the grant of a protection visa: The Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 179 ALR 238; Muin at [30], [61], [122], [226]. What is required to discharge the duty depends upon the circumstances of the particular case: Muin at [123], [226], [260]. The applicants bear the onus of making out a case of a failure on the part of the RRT to accord them procedural fairness: Muin at [24].

22 In dealing with the content of the obligation in the case of Miah, Mc Hugh J said at [140] – [141]:

‘140 A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposed to take into account in deciding upon its exercise. (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628; 62 ALR 321 at 380, citing Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 113-14; [1963] 2 All ER 66 at 102; De Verteuil v Knaggs [1918] AC 557 at 560, 561) This does not mean that all material which comes before the decision-maker must be disclosed but, "in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made". (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629; 62 ALR 321 at 380). Thus, the Federal Court has held that information of a non-person nature relating to changed political circumstances that was decisive to the outcome of a refugee decision ought to have been put to the applicant. (Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 129; David v Minister for Immigration and Ethnic Affairs (Fed C of A, Wilcox J, 12 October 1995, BC9502896, unreported), p 17) Nothing in the Act, or in s 56 in particular, indicates a clear intention to exclude this principle of natural justice.

141 Section 56 is not a mandatory power, but a permissive power. It says nothing as to what must be done with the information that the minister obtains under s 56(1). Nothing in the section states, expressly or by necessary implication, that once the delegate chooses to exercise the power, natural justice does not condition its exercise. In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposed to use new material of which the applicant may be unaware and which is or could be decisive against the applicant’s claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.’

(original emphasis)

23 His Honour reaffirmed these views Muin at [122] – [123], [134] – [135].

24 Hayne J also dealt with the content of the duty to extend procedural fairness. His Honour said at [263] – [268]:

‘263 Unlike a court, the tribunal was not restricted to acting only on material that was expressly referred to in the course of a particular review. (Allars, "Neutrality, the Judicial Paradigm and Tribunal Procedure" (1991) 13 Sydney Law Review 377) It was not bound by rules of evidence and its members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may very well be, therefore, that, as individual tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed. And as they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.

264 There is, therefore, a very practical reason to doubt that procedural fairness required the tribunal to identify the source, and the general nature, of every piece of material that led the member to form a view that a particular country was willing and able to protect its citizens. So to hold would impose an obligation that could not readily be performed and in some cases would be impossible. (Castilli-Villagra v Immigration and Naturalization Service 972 F 2^nd 1017 (1992) But the difficulty in the argument advance by Mr Muin is even more deep-seated than that.

265 Procedural fairness required that Mr Muin have a reasonable opportunity to place before the tribunal any submission and any material that he wished to advance in support of his claim. Unlike National Companies and Securities Commission v News Corp Ltd ((1984) [1984] HCA 29; 156 CLR 296; 52 ALR 417) and Mahon v Air New Zealand ([1984] AC 808; (1983) 50 ALR 193) there was no question of allowing a person an opportunity to meet some adverse finding that might later be published. In such a case an investigating body may be obliged to provide an opportunity for rebuttal because the issue emerges with sufficient definition only at the stage where the body forms a tentative view that the adverse finding may be made. But that is not this case. As has already been pointed out, the issue of the willingness and ability of his country of citizenship to afford Mr Muin protection from persecution on Convention grounds was central to his claim. The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal’s review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal’s proceedings.

266 Nor was the tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of "contradiction" if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin’s claim. It was for him to make good his claim that he was entitled to Australia’s protection.

267 Nor was this some aspect of his personal circumstances about which it might be expected that he had special knowledge or to which his answer might have some particular significance. (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145; 67 ALR 21 at 24; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; 176 ALR 219) It was a question about the general political situation in Indonesia – a matter about which his personal knowledge could fairly be expected to have been fully revealed (or at least revealed to the extent that he considered useful) in whatever evidence or submission he had made to the tribunal.

268 Yet in essence the plaintiff’s case in relation to adverse material was, first, that he could legitimately expect the tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the tribunal to tell him what material, adverse to his claim, the tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the tribunal in the role of an adversary to a claimant’s claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the tribunal is not to be case in the role of contradictor.’

25 By the time that the applicants commenced proceedings in the RRT they were aware of the issues which had arisen before the delegate and the reasons why the applicants’ claims had not been accepted.

26 The claims made by the male applicant of persecution on the ground of political opinion and race were recorded in the protection visa decision record of the delegate as follows:

‘3.1.1.2 His stated activities in Fiji are as follows:

(a) The applicant claims that in October 1987 he became a formal member of the National Federal Party (NFP). He claims that he participated in rallies public meetings and protests. In December 1987, he was arrested and detained for 15 days before he was released with a warning to stop his political activities.

(b) The applicant claims that following his release he organised an Indian Youth group called the National Indian Youth Front. The purpose of forming the front was to rescue Indians from attacks from Fijians and prepare Indians at large for a civil war which looked imminent. He was elected president of the front. At the same time he remained an active member of the NFP. By December 1987 there were 200 members of the front.

(c) The applicant claims that in June 1988 he was accused by the authorities of conducting a propaganda campaign to oust the regime. He claims he was taken to police headquarters and interrogated, beaten and verbally abused. He claims that he was detained overnight and his family were not informed where he was. He claims he was warned to stop his propaganda campaign and was told that his name had been included in a list of those under military suspicion.

(d) The applicant claims that during general elections in 1992 he was chased and caught by Fijians and assaulted because of his active opposition to the regime. The matter was reported to police but he was called a liar and blacklisted and was threatened that he would be arrested for a false report.

(e) The applicant claims that during the February 1994 elections the applicant and another three member of the front were arrested and released after 3 days.

(f) The applicant claims that in December 1995 he lead a protest against the constitution that it has disadvantaged minorities. He claims that as a result he was interrogated and bashed by the authorities.

At interview the applicant was asked how he was able to leave Fiji if he was blacklisted. He claimed that he had a friend in Customs who told him when he would be working, as a result the applicant made a booking to depart on a date that his friend was working so as to ensure that he would be able to leave the country.

3.1.2.3 The applicant claims that he had difficulties obtaining a passport (in October 1987) because he was a member of the Indian community. He eventually did obtain one because he had a friend working in the passport office who was able to arrange this for him.’

27 The delegate of the Minister found that the male applicant did not have a real chance of persecution for a convention reason if returned to Fiji, and that his fear of persecution on return was not well founded. In coming to that view the delegate’s reasons in part were:

‘4.3.4 As indicated above, I accept that in the aftermath of the coup there were human rights abuses. In this light I accept the possibility that the applicant may have been detained (although by December 1987 the situation had stabilised to some extent).

4.3.5 This situation however occurred in 1987. I do accept that if the applicant returned to Fiji that there is areal (sic) chance that he would face the same treatment. In making this finding I have taken into consideration the following:

.Free elections have occurred on two occasions since that time.

.The NFP is a legal party in Opposition with a total of 20 members in the Fiji Parliament.

.The NFP is a main opposition party in Fiji and has a high profile.

.The US State Department report indicates that Fiji’s Constitution provides the right to assemble for political purposes. (The only restrictions are in the interest of public order).

.The US State Department report states that there were no reports of political prisoners in Fiji.

.While there are some reports of opposition (Indian) groups being harassed in the post coup period, there has been no evidence of political harassment since the return to Parliamentary democracy in 1992 (DFAT cable of 11/5/95).

.A number of sources indicate that members of political parties in Fiji are not harassed or otherwise punished because of their membership.

4.3.6 I have been unable to find a reference to the National Indian Youth Front. The applicant at interview indicated that is still operating, he is still president and there are currently about 200 members. Its function is to help Indians in Fiji such as if they have been looted etc and if there are recurring problems to alert groups such as the NFP to push for reform. The applicant has claimed that because of his position, profile within the front he has been targeted and is a marked person. At interview the applicant was asked if he had any evidence of the claims he was making, he thought he may have been able to have his membership card for the National Indian Youth Front and possibly a newspaper article about his involvement sent to him from Fiji. The applicant was asked to provide these within two weeks. To date the documents have not been forwarded, nor has any contact been made by either the applicant or his representative in relation to this matter.

4.3.7 In view of my previous comments above at 4.3.5, I am unable to accept that the applicant would face treatment that would amount to persecution because of his association and role within the National Indian Youth Front. As indicated I have been unable to find a reference to this group, however, the applicant’s comments would indicate that it provides assistance and advice to the Indian population. From his comments it would also appear that the group is associated with the NFP. Given that there are legitimate, legal opposition groups and parties, operating in Fiji and the group and the applicant are associated with one that has some 20 members in parliament, it is unlikely that the authorities would be concerned with a small group of some 200 people, particularly given from the applicant’s comments it would seem that the group does not appear to be taking action to incite or agitate the population. As it would appear to have remained in existence for some 9 years (according to information provided by the applicant), and there is no reference to the group in relation to action or interest by the authorities, it would not appear to be regarded as a threat to the authorities.

4.3.8 The applicant commented that the group is targeted because it seeks a change of government, while provisions within the Constitution ensure political dominance is held by the ethnic Fijians. Even so, whilst this may be regarded as discriminatory and seen as not being democratic, there is still provision for the existence of other groups including political parties, and political parties who have members in parliament and who are freely able to voice their opinions (as per para 4.3.5).

4.3.9 The applicant has stated that since 1987 he has also on other occasions been beaten, arrested and detained, 1988, and at the time of the elections in 1992 and 1994, and in 1995 because of his protest against the constitution. Whilst it is possible that these incidents did occur, the applicant is unable to provide any evidence to support this claim. Given that free elections took place in the years mentioned, and the Constitution had been changed to ensure Fijian dominance in government, there would not appear to be any reason to arrest the applicant because he campaigning against the ethnic Fijians. I also refer to my previous comments at 4.3.5 in regard to there being no evidence of political harassment of opposition groups since 1992.

4.3.10 In regards to the 1994 elections where the applicant claimed he had been arrested for this reason and held for 3 days it was put to the applicant at interview that Departmental sources (DFAT advice of 03/10/94) had indicated that as far as they were aware during this time (1994 elections), there were no reports of police harassment or monitoring of NFP members or other prominent critics of the coups or the Constitution other than routine monitoring of the activities of all political parties in Fiji. The applicant responded that he disagreed, that the people were monitored, and that anytime they took any steps (seen as anti-government) the police or army came down and arrested them or stopped them doing thing.’

28 From these reasons it would have been obvious to the male applicant that:

(a) the delegate could not find any reference to the group called the National Indian Youth Front in the resources available to the Department and was looking to him to provide some evidence of it, its activities and his past and continuing involvement with it which the male applicant had failed to do. That is, the existence of the National Indian Youth Front, his involvement in it and its interest, if any, to the Indian authorities was a live issue.

(b) the material available to the delegate indicated that circumstances in Fiji had substantially improved since 1987 and that since the return to Parliamentary democracy in 1992 members of political parties in Fiji, including members of the National Federation Party of which the male applicant claimed to be a member since 1987 have not been the subject of harassment or otherwise punished because of their membership. That is, whatever his experiences of persecution between 1987 – 1992 were because of his political opinions and/or race, the changed circumstances in Fiji based on the material available to the Department meant that there was not a real chance of their repetition.

29 For the same reasons, namely that the situation had changed in Fiji especially since the 1992 elections and that there was no evidence that the male applicant was of any interest to the Fijian authorities by virtue of his membership of any political or Indian based organisation, the delegate did not accept that the male applicant was on any blacklist maintained by the Fijian authorities. That is, the material available to the Department did not indicate that any blacklist was maintained and that there was nothing in the circumstances of the male applicant which would indicate that he would be a person of interest to the Fijian authorities if he returned to Fiji.

30 The first document of which the applicants complain consists of two DFAT cables CX2880; SU61895 dated 30 December 1994 and CX 2960 DATED 10 January 1994. Both cables say that a so called ‘blacklist’ did not then exist and that it lapsed in late 1988. They further stated that there was no evidence of Fijian citizens returning to Fiji being detained at Nadi Airport or subsequently being harassed for political reasons. The RRT noted that the applicants made no claim of the male applicant being on a black list before the RRT although he had made such a claim to the delegate. The RRT noted that the information in the cables and the 1995 US Department of State Report to similar effect was against the claim previously made.

31 The second document to which the applicants’ complaint relates is the 1996 US Department of State Human Rights Report on Fiji. The document was referred to in the following context:

‘The Tribunal finds that there has been a substantial change in the treatment of Fijian Indians, notwithstanding that there is discrimination against Fijian Indians in the constitution, in the tertiary sector and the public service. The Tribunal notes that it has not been able to find any information either via DFAT, Amnesty International, US Department of State "Fiji Human Rights Practices, 1996", February 1997 or in any other publication available to the Tribunal in regard to the National Indian Youth Front. The Applicant was not able to provide any details of this movement, however in the absence of any evidence to the contrary the Tribunal accepts that the Applicant may have been a member of such a movement and that in the past because of his membership with this organisation and the NFP he may have encountered treatment amounting to persecution of the time of the coups.’

32 The applicants complain in their contentions that the document was ‘used to refute the applicant’s claim that the National Indian Youth Front (NIYF) existed’. The US Department of State Report was merely one of the sources which the RRT had searched to attempt to find some evidence of the existence of this alleged organisation. In context the statement of the RRT means no more than the RRT could not find a reference to the organisation despite a broad search. At the time of the hearing the applicants were aware that the RRT could not find any reference to it, despite its searches. The RRT records in its reasons:

‘The Tribunal put to the Applicant that it has not been able to find any information about the National Indian Front Youth. The Applicant said that this group had not received much publicity and that it was small. The Applicant said that he has not been able to get any information about the organisation because it took a long time. The Tribunal put to the Applicant that he has had eight months since the primary decision to provide information to the Tribunal. The Applicant replied that every time he has written to the secretary of the organisation he has not received a reply. The Applicant said that it is either because the organisation is afraid or that his letters are not getting to this organisation. The Tribunal put to the Applicant that he still has relatives living in Fiji and it would’ve been easy for them to obtain the information for him.’

33 The same issue had been raised before the delegate of the Minister. On both occasions the male applicant said that he would provide evidence of its existence, and on both occasions, he failed to do so when given the opportunity.

34 The third document of which complaint is made is an Agence France-Presse report dated 19 December 1996. The applicants contend that the RRT used the document to repute the applicant’s claim that having his home burgled seven or eight times between 1987 and one month before he came to Australia in 1996 was victimisation for a Convention reason. This claim had not been made before the delegate. It arose in the following circumstances:

‘The Applicant told the Tribunal that in 1988 he was chased by Fijian youths and cut his knee. He says that after the coup he was monitored by the authorities.

The Applicant said that if he tried to purchase land he was not permitted to do so. When he finished his apprenticeship he was discriminated against and could not obtain a job.

The Tribunal put to the Applicant that these incidents occurred in 1988 and that there had been a substantial change since that time. The Applicant said that the fear was still there and he could not go out after the coups because there were robberies. He said that his home had been burgled seven or eight times. He then told the Tribunal that his house was attacked once, that on five or six occasions it was broken into and attempts made to remove property.

The Applicant said that these incidents occurred after the Coup continued to one month before he came to Australia in 1996.

The Applicant said that if he returned he feared that Fijian youths would attack him and beat him up.’

35 The RRT dealt with the claim in the following manner:

‘The Applicant’s claim in regard to his house being broken into is clearly not Convention related. Reports available to the Tribunal indicate that the level of crime, both robbery and violent crime, is rising in Fiji and is considered a major problem in the country. The Tribunal has regard to a report by Asha Lakhan (AFP 19/1296) "Theft is a multi-million dollar industry in Fiji. Police" states:

"Soaring crime ... is developing into a major social problem in this pacific island nation. Police statistics show that Fiji has one of the highest per capita crime rates in the world. At a rate of 28%, it rates well ahead of the United States at 5.65 and Britain at 10.5%. The largest increases have been in burglaries and home break-ins which have almost doubled in the past five years."

Lakhan stated that Indians, who traditionally own gold jewellery are targeted for robbery.’

36 The applicants do not challenge the accuracy of the press report.

37 The fourth document of which the applicants complain is a newspaper report in the Fiji Times dated 18 April 1996. The report relates to a meeting between the Prime Minister Mr Rabuka and the Opposition Leader Mr Reddy. The complaint is that the article was used ‘to repute the applicants’ claim that the Fiji Government was cracking down on crime – it was also not contemporaneous’. The applicants have not made such a claim and the RRT did not use the material for that purpose. The reference by the RRT to the article is part of its statement that there was in 1996 a high crime rate which had grown to the extent that it was a concern. The RRT said:

‘Concern over the rise in crime has been expressed by the Prime Minister and the Opposition Leader (Sudesh Kissun, Fiji Times, 18/4/96) and the President.’

38 The material was used with the Agence France-Presse report to demonstrate that the occurrence of significant crime was wide spread and not engaged in by the perpetrators for a Convention reason.

39 The fifth document is a DFAT cable CX18860 of 6 August 1996. The complaint is that it was used ‘to refute the applicant’s claim that he found it difficult to own land through reasons of race’. The RRT dealt with the cable in the following way:

‘In regard to the Applicant’s claim that he is not able to own land, the Tribunal accepts the following information in DFAT in a cable dated 6/8/96 (cable no CX18860) which stated:

"The right of everyone to own property is also restricted by the present land ownership system instituted by the British Colonial Administration. Under this system, ethic Fijians currently hold about 83% of the land, the state holds another 8%, and only the remaining 9% is held by non-ethnic Fijians. The lack of secure land tenure is a major problem in the agricultural sector (primarily sugar cane production), with the majority of Indo-Fijian farmers involved in cashcrop production believing the current land tenure and leasing arrangements discriminate against them.’

40 This document supports the applicant’s claim and was accepted by the RRT as a correct statement of the position in Fiji.

41 The sixth document of which the applicants complain is the US Department of State Fiji Report on Human Rights Practices for 1996. The RRT in its reasons stated:

‘U.S. Department of State, Fiji Report on Human Rights Practices for 1996 Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997 states in part:

Fiji’s system of parliamentary government, inherited when the country gained independence from Great Britain in 1970, was interrupted in 1987 with the installation of a military-led regime following two bloodless coups. Fiji returned to elected government in 1992, and Prime Minister Sitiveni Rabuka was re-elected in 1994.

An independent, multiethnic Constitutional Review Commission presented its long-awaited report to the President in September. The 1990 Constitution reflected the proindigenous Fijian bias of the two coups; the Constitutional Review Commission’s report proposes a more representative system. The report aims to encourage multiethnic government through heterogeneous electoral districts and a preferential voting scheme, while preserving ethnic Fijian veto power over legislation affecting interest in land or customs. The proposal, if approved, would be a major step toward an improved political and business climate ...

...c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

Police sometimes physically abuse detainees; the authorities have punished some of the offending officers, but these punishments have not been sufficient to deter all police abuses. The Police Department’s internal affairs unit investigates complaints of police brutality and is working with the Ombudsman’s office to ensure impartial observers in the investigation of complaints about police conduct ...

...d. Arbitrary Arrest, Detention, or Exile

The Law of Arrest and Detention provides that a person may be arrested only if police believe that a breach of the criminal law has been or is about to be committed. Arrested persons must be brought before a court with "undue delay." This is taken to mean within 24 hours, with 48 hours as the exception (such as when an arrest is made over the weekend). Rules governing detention are designed to ensure fair questioning of suspects. Defendants have the right to a judicial review of the grounds for arrest; in urgent cases defendants may apply to a judge at any time, whether he is sitting or not.

Incommunicado and arbitrary detention, both illegal, did not occur ...

...Section 2. Respect for Civil Liberties, Including:

a. Freedom of Speech and Press

Freedom of speech is generally respected. The Government at times criticizes the media for its coverage of sensitive issues, particularly if the Government perceives the coverage as resulting in a diminution of respect for authority.

Nevertheless, political figures and private citizens can and do speak out against the Government. Although the Public Order Act and other acts prohibit actions that are likely to incite racial antagonism, there were no reported arrests for such public statements ...

...b. Freedom of Peaceful Assembly and Association

The Constitution provides the right to assemble for political purposes, subject to restrictions in the interest of public order. Permits for public gatherings must be obtained from the district officer. The Government does not always grant permits for large outdoor political meetings or demonstrations, particularly if the police advise of difficulties with the anticipated crowd size or their ability to assure public safety.

The Government routinely issued permits for rallies organized by political parties, religious groups, and groups opposed to government policies.

All opposition party headquarters operate without government interference. Political organizations operate and issue public statements and did so repeatedly and openly throughout the year ...

...Section 5. Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status.

The Constitution prohibits discrimination on the basis of race, sex, place or origin, political opinion, colour, religion, or creed, and provides specific affirmative action provisions for those disadvantaged as a result of such discrimination. Enforcement of these constitutional provisions is attenuated by the Government’s policy of using "affirmative action" to advance ethnic Fijians and by traditional mores as to the roles and rights of women and children ...

...Indo-Fijians are subject to occasional harassment and crime based on race, which is compounded by inadequate police protection. There have been no credible allegations of government involvement in such incidents, which the police have investigated, sometimes resulting in arrests.

The country information discussed above establishes that there has been substantial change and sustained improvement in the human rights situation that existed in Fiji post coups. This Applicant left the Fiji in 1996 at a time when there was and continues to be sustained improvement in regard to the treatment of Fijian Indians by the indigenous population and the authorities. The Tribunal finds that at the time the Applicant left Fiji he did not have a well-founded fear of being persecuted for a Convention ground.’

42 The applicants complain that this document was used ‘to refute the applicants’ claim that arbitrary detention and physical abuse was a common place activity by police’.

43 As the RRT reasons record, the male applicant did not make any claim of arbitrary detention or physical abuse by the police or claim that such conduct was common place. The RRT stated in its reasons:

‘The Applicant was on a number of occasions asked by the Tribunal whether he had provided all the information and claims to the Tribunal he thought was important for his case. The Applicant only provided claims in regard to being beaten by Fijian youth in 1988, and being unable to complain to the police after these incidents. He also claimed that he feared being robbed, as well as being discriminated in employment and not being able to purchase land.

The Tribunal had difficulty in accepting the Applicant was a credible witness. However the Applicant’s lack of credibility does not necessarily affect the totality of the Applicant’s claims. Tribunal does not accept as credible the Applicant’s claims in regard to alleged mistreatment at the hands of Fijian youth from 1989 until he came to Australia in 1996. The Applicant has not given any credible details in regard to his claims. In his interview with the Department he claimed that he had been beaten, arrested and detained in 1992, 1994 and 1995 because of his protest against the Constitution. He did not provide any details to the Department of his claims. The Applicant did not make these claims to the Tribunal, instead he claimed that he was stopped and questioned by Fijian youths two or three times a month from 1988 until he came to Australia in 1996. When he was stopped he was asked where he was going and then permitted to go. There is no evidence before the Tribunal that these incidents were Convention related or amounted to persecution for a Convention ground. The Tribunal finds that being stopped and asked where one was going to, does not amount to persecution for a Convention ground. The Tribunal does not accept the Applicant’s claim that he attempted to access the protection of the Fijian police but was not able to do so, or that he will not in the future be able to access such protection should he return to Fiji in the foreseeable future.

Information before the Tribunal (see US state report etc, cited below) and cited below shows that there has been a substantial change post coups of the treatment of Fijian Indians not only by the authorities but also by the indigenous Fijian population.’

44 The material in this 1996 report was substantially the same as that contained in the 1995 report which was before the delegate and was relied upon by the delegate to find that there had been significant change in Fiji since 1987 and that the elections in 1992 and 1994 had occurred without political harassment of opposition groups: see par 4.3.5 of the delegate’s decision record. That there was material contrary to the male applicant’s claims of arrest and detention by the police in 1992, 1994 and 1995 was specifically put to the male applicant by the delegate. The delegate said:

‘4.3.9 The applicant has stated that since 1987 he has also on other occasions been beaten, arrested and detained, 1988, and at the time of the elections in 1992 and 1994, and in 1995 because of his protest against the constitution. Whilst it is possible that these incidents did occur, the applicant is unable to provide any evidence to support this claim. Given that free elections took place in the years mentioned, and the Constitution had been changed to ensure Fijian dominance in government, there would not appear to be any reason to arrest the applicant because he campaigning against the ethnic Fijians. I also refer to my previous comments at 4.3.5 in regard to there being no evidence of political harassment of opposition groups since 1992.

4.3.10 In regards to the 1994 elections where the applicant claimed he had been arrested for this reason and held for 3 days it was put to the applicant at interview that Departmental sources (DFAT advice of 03/10/94) had indicated that as far as they were aware during this time (1994 elections), there were no reports of police harassment or monitoring of NFP members or other prominent critics of the coups or the Constitution other than routine monitoring of the activities of all political parties in Fiji. The applicant responded that he disagreed, that the people were monitored, and that anytime they took any steps (seen as anti-government) the police or army came down and arrested them or stopped them doing things.

4.3.11 On the basis of available evidence, I do not accept the applicant’s comments. I refer to my comments at 4.3.5 and 4.3.9 above.’

45 On the face of this material, the male applicant did not seek to make the claim of police arrest and detention again.

46 The US Department of State 1996 report was used by the RRT as material supporting a finding that there had been a substantial change and sustained improvement in the human rights situation that existed in Fiji post coup. That issue was specifically put to the male applicant before the delegate and also before the RRT. In par 4.3.2 of the reasons of the Minister’s delegate, it was stated that since ‘the end of the second coup in October 1987 ... there have been many detailed accounts (as reported in the US State Department Reports and Amnesty International Reports) of improvements in the political and civil life of Fiji’. It should have been obvious to the male applicant that the issue of a change for the better as a circumstance removing any basis for holding a fear of a real chance of persecution for a Convention reason when he left Fiji in 1996 was a live issue to the RRT and one which was adverse to his claim.

47 In my view the rules of natural justice did not require that the applicants have delivered to them the six documents referred to by the RRT nor have those documents explained to them by the RRT: Muin [265] – [268]. The documents did not deal with some aspect of the male applicant’s personal circumstances about which it might be expected that he had special knowledge or to which his answer may have some special significance. The material in the documents related to the general political and social situation in Fiji in the period 1987 to early 1996 when the male applicant departed Fiji; matters which the male applicant claimed to have knowledge of and which he used to justify his rejection of the assertions by the delegate and the RRT that the independent material available to them indicated such a change in circumstances as to render any fear of persecution which they held as not being well founded. The materials related to circumstances in Fiji prior to the male applicant’s leaving the country; they do not relate to a change of circumstances after his departure of which he may have no knowledge or only limited knowledge and may need to take additional steps to obtain fresh material in support of his application. Much of the material in the country information documents restated what had been earlier referred to by the delegate in its reasons and which had been put to the male applicant by the delegate.

48 The only issue which had not arisen in the earlier proceedings before the delegate was the claim that the applicants’ house had been burgled on a number of occasions between 1988 and 1996. There is no indication in the RRT reasons that the applicants gave any detail of these burglaries or of any circumstances which would indicate that they were being carried out because of the political opinion or race of the male applicant. Although both press documents came into existence in 1996 after the male applicant had left the country, they dealt with the situation in the previous five years. Importantly, the applicants do not say that the content of the press reports is incorrect. There is nothing in the press material which has been used by the RRT in a way that the applicants could not reasonably have expected that it would be used. Nor is there anything in the reasons of the RRT to indicate that this material was or could have been decisive against the male applicant’s claim for refugee status.

49 Unlike the Muin case there is no agreed fact that the male applicant would have done anything to further advance his claim if he was aware of the contents of the particularised documents including the press releases. In his supporting affidavit, the male applicant does not depose as to anything he would or could have done which he failed to do and which may have led to a different result before the RRT. The applicants joined the High Court proceeding S97 of 1998 on 14 December 1998 and have since that time been aware of the issues raised as to the alleged breach of natural justice. There is no material from the applicants explaining such an omission. Rather it was left for counsel for the applicants to submit in the written contentions that had the RRT asked the male applicant to comment on the documents ‘he might have pointed to material that suggested that the policies of the government had failed or were likely to fail and that he could have provided evidence, material or submissions that would have caused the Tribunal to reach a different view ...’.

50 The respondent did not accept that the submission was factually correct. In those circumstances I am not satisfied that the male applicant would or could have done anything different if he had been referred to the six documents particularised in the draft order nisi.

51 There was a submission by the respondent that the applicants required an extension of time within which to seek the issue of prerogative writs. In my view the Orders of Gaudron and McHugh JJ had the effect of granting to the applicants the necessary extension of time to file the application. Having filed within that time, no further order is necessary.

52 In my opinion for the above reasons the applicants have failed to discharge the onus which they bear to make out a failure on the part of the RRT to extend to the male applicant procedural fairness in the determination of his application for review of the decision of the delegate to refuse to grant to him a protection visa.

53 The application will be dismissed with costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 17 November 2004

Counsel for the Applicant:	M Wilson
Solicitor for the Applicant:	Sharma Lawyers
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 May 2004
Date of Judgment:	17 November 2004