Naidu, D. v Minister for Immigration, Local Government & Ethnic Affairs & Anor [1995] FCA 71

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG250 of 1992 GENERAL DIVISION ) BETWEEN: DAMODARA NAIDU Applicant AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Firstnamed Respondent AND: MALCOLM PATTERSON Secondnamed Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 24 February, 1995 MINUTES OR ORDER

THE COURT ORDERS THAT:

1. The proceeding be dismissed. 2. 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. VG250 of 1992 GENERAL DIVISION ) BETWEEN: DAMODARA NAIDU Applicant AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Firstnamed Respondent AND: MALCOLM PATTERSON 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. The applicant, who was born in 1944 in Fiji, lived in that country until October 1985. He is of Indian descent and a Hindu. He and his grandfather and father and other members of his family had for many years taken prominent roles in political activity in opposition to the political organizations which were representative of indigenous Fijians. In support of his claim to refugee status the applicant alleged that during the decade which preceded his emigration from Fiji to Australia he had been subjected to physical violence and attacks on his business premises by Fijians at whose unlawful actions Fijian governmental authorities had connived. In early November 1991 the applicant was furnished with a written statement, which a "case officer" of the first-named respondent's Department had prepared, of that officer's reasons for recommending that the applicant be not accorded refugee status, and the applicant was offered the opportunity to provide further material in support of his claim for refugee status and to comment on the case officer's reasons, within 21 days. On 24 January 1992 a delegate of the respondent Minister, Margaret Carlson, furnished the applicant with a written statement of her reasons for denying him refugee status. Upon his requesting review of Mrs. Carlson's decision by the Refugee Status Review Committee, the applicant by his solicitors sought an extension of the time allowed for the submission of material in support of the claim for review. He was allowed until early March 1992. The Refugee Status Review Committee having recommended, on 19 March 1992, that the applicant be not granted refugee status, the applicant was allowed a further 7 days to comment on the Committee's written reasons for its recommendation and to furnish further material in support of his case. During the period from early November 1991 until 2 June 1992, when the second-named respondent made his decisions, further material was furnished and comment made on one or the other of the three statements of reasons to which I have referred. But the applicant and his solicitors on a number of occasions requested more time to procure material relevant to factual questions discussed in those statements of reasons. The requests were reinforced by reference to the circumstances, first, that from early November 1991 until 27 January 1992 the applicant was being detained, at first under sentence of imprisonment at Morwell River and in January under the Migration Act 1958, and second, that many of the factual questions on which the statements of reasons contradicted, or expressed doubts about, the applicant's contentions related to events in Fiji during the decade which had preceded the applicant's emigration in 1985. The time allowed the applicant to provide further material was in my opinion obviously inadequate to enable him to procure from Fiji material probative of the occurrence of events in that country before his emigration. But in the particular circumstances of this case it does not follow that, as was submitted on behalf of the applicant, the denial of a greater period of time amounted to a denial of procedural fairness. Although the makers of the three statements of reasons, particularly the case officer and Mrs. Carlson, devoted much attention to determining whether the applicant's accounts of the events of those years were correct, the significance of those events in the determination of the application for refugee status in 1991 or 1992 is on the material before the court obviously minimal, as the second-named respondent recognised in his reasons for the decisions under review. That racial and political tensions in the decade which preceded the applicant's emigration had resulted in arson and other grossly unlawful actions affecting the applicant and members of his family were conclusions which the material before the second-named respondent compelled. The questions as to whether or not the applicant's conduct in relation to the dramatic incidents which he described was wholly blameless and as to whether any of the organs of government connived at the unlawful actions directed against the applicant and his property were most unlikely to be answerable by the respondents in this country in 1992, whatever time was allowed the applicant to produce material concerning those questions. And the answers would in any event be of little relevance to the determination of refugee status in 1992. Between 1985 and 1992 a dramatic political upheaval in Fiji had resulted in constitutional change and in a focussing of international scrutiny of the state of human rights in Fiji. The applicant's case was that against persons of Indian descent known to be strongly opposed politically to the present government of Fiji - indeed, to the present constitution of that country - unlawful violence was being, and would be, directed by extremists of an opposite political persuasion, with the connivance, perhaps at the behest, of elements of organs of state power such as the Army. It was plainly upon the acceptance or rejection of that case that the determination of the applicant's claim to refugee status in 1991 or 1992 would turn. During 1988 and 1989 the applicant visited Fiji on four occasions. The statements he submitted in support of his application for grant of refugee status were made in a number of documents furnished to the respondent's Department between May 1991 and April 1992. In his original written application he claimed to have been detained by Fijian soldiers at the airport on arrival in Fiji on one occasion in 1988, to have been "threatened and interrogated", and "warned to leave Fiji again", and "followed and visited daily" during the week he remained in Fiji, and told "to get out while I was still alive". The context in which the statements that the applicant should leave Fiji are placed suggests that the applicant intended to attribute those statements to soldiers, but it is not made clear that this is his meaning. Elsewhere in the original application the applicant claims to have been visited and questioned by soldiers "every day for the period I was in Fiji" in 1988, but whether the claim is of visitation and questioning during one visit or more than one visit is unclear. Elsewhere in the original application the applicant claims that in 1989 he was visited daily be soldiers while he was in Fiji, and that he was questioned about his activities and as to why he had returned, and that his belongings were searched. There is evidence that the four visits were from 4 June until 25 June 1988, from 30 July until 8 August 1988, from 3 December 1988 until 2 January 1989 and from 11 May until 31 May 1989. The case officer's statement of November 1991 indicated that officer's uncertainty as to the significance of the applicant's statements about his experiences during the visits and the officer's curiosity as to the reason why Fijian soldiers had an interest in him. In his response the applicant wrote: "During 4/6/88 to25/6/88 and other trips I had difficulties but I was told to give some Yongana KAVA I gave it as a SEVUSEVU than I was not asked anything. Once I was told to give a bottle of whisky and I can go without any hassle I gave that Fijian he was happy and I bought that for my mum. I felt bad to tell you all these before but since you invite I tell you all these which is silly but have to do it when circumstances aroses. My family who were out side well know that I was interrogated and had problems because every one was with me have gone out well before me and told my family that the army is questioning me. Once my son was with me he will tell you how the army questioned me. What diffcuties I faced he can write and give it to you if you need. HE was crying there." In another part of the four-page typewritten response the applicant wrote: "At least I am hornestly saying that I was once detained and interrogated by the army. They would have done all the time but I changed my apperance altogther they could not recognise me my mum even was shocked. Once I took my small son with me so that they wont hold me because of the child. I am also well known in RAKI RAKI thats why I was living elsewhere only once Istayed with mum and the army was searching for me." The rest of the applicant's response adds little further information about his experiences during his four visits. It does however include the statement: "To explain why the army would have some interest in me was because I have openly spoken against Rabuka regime and totally condemned his actions and ill treatments." Mrs Carlson's statement of reasons for her decision not to grant the applicant's claim includes the following: "24.I considered the additional comments put forward by the applicant in response to the assessment of his application. He maintains he meets the criteria for grant of refugee status but fails to provide new information which adds weight to his claims. I find it incredulous that the applicant was able to travel to and depart Fiji between 1988 and 1989 without great difficulties as he does not claim to have travelled on a false document or identity. I do not accept that any amount of disguise could have prevented his arrest by the army or police on arrival if he had travelled on a validly issued passport and under his own identity. The applicant does not indicate as to where else he stayed in Fiji other than to say that he stayed with his mother once. I agree that the applicant is well known in rakiraki. I know that it is not that easy for visitors to Fiji, particularly former residents or citizens, to remain incognito especially if the person comes from a small town like Rakiraki. I do not find it plausible that the applicant could claim to have given gifts to ethnic Fijians to prevent harassment and at the same time claim to have been successful in disguising himself while in. I therefore persist with the view that the applicant was not in danger while in Fiji." "32.I considered the applicant's claim that he had difficulties while in Fiji in June 1988 and `other trips' but that he was advised to offer `kava' as a gift and he was therefore `not asked anything'. The offering of `kava' as a gift is a traditional and accepted practice in Fiji and maybe offered for many reasons. I do not however accept that the offering of `kava' would be sufficient to allay the concerns of the authorities of the applicant being a security risk in Fiji or of the `extremist terrorists' desire to eliminate the applicant or allow him to profit from the sale of his property(s) in Fiji. 33. I cannot accept that the applicant could successfully evade detection from the police/military or other person: . whilst using a passport in his own name, . travelling in and out of Fiji four times between June 1988 and May 1989, . st aying in his home town, even if at only one time with his mother, where he and his family are well known for their political activity, . conduct business to sell property, and, having a similar appearance to Ragh Khan. In addition I find implausible that he could not recall the dates for his claimed only detention by the military." A document entitled "Summing Up of Refugee Status Review Committee (RSRC) Deliberations, which includes a statement of that Committee's reasons for not according the applicant refugee status, includes the following: "The applicant's willingness to return to Fiji four times since his initial departure from Fiji discounts his subjective fear of persecution. He has reavailed himself of the protection of his country of nationality. While it is plausible that the applicant was arrested at the airport in 1988 and detained for `over two hours' and that he was visited daily by the army when he returned in 1989, he was able to successfully depart Fiji on each occasion which indicates that the authorities had little interest in him."