Muin v Refugee Review Tribunal

Federal Court of Australia|2004-02-02|Before: Dowsett J

introduction 1 The prosecutors are Fijian citizens of Indian extraction. They married in Fiji on 4 December 1989 and arrived in Australia on 1 August 1999. On 15 September 1999 they applied for protection visas pursuant to the Migration Act 1958 (Cth) (the "Act"). On 21 October 1999 a delegate of the second respondent (the "Minister") refused their application. On 25 February 2000, the first respondent (the "Tribunal") affirmed that decision, noting that only the male prosecutor had sought to establish refugee status. It seems that the female prosecutor was content to rely upon his claim. The prosecutors subsequently sought writs of mandamus, certiorari and prohibition in the High Court. That application has been remitted to this Court. Again, only the male prosecutor has actively challenged the Tribunal's decision. I shall hereafter refer to him as the "prosecutor". The Tribunal has indicated that it will abide the order of the Court, save as to costs.

decision under challenge 2 The orders sought in the draft order nisi suggest that the prosecutor challenges only the validity of the Tribunal's decision. However, in his statement of contentions, he also purports to challenge the delegate's decision. I am presently seized only of the proceedings remitted from the High Court in which the draft order nisi defines the relief sought. In any event, in the prosecutor's subsequent written submissions, he attacks only the Tribunal's decision. I therefore proceed upon the basis that only that decision is subject to challenge.

grounds 3 The prosecutor's grounds as set out in the draft order nisi are: 'The (Tribunal) heard the matter in the absence of the prosecutors, and there were certain materials referred to in the Decision that were not delivered to nor explained to the Prosecutors prior to the Decision being made. These materials were: (a) an Article in Reuter News Service, 18 May 1999, Fiji (referred to on page 6 of the (Tribunal's) Decision and Reasons for Decision; and (b) "rights-Fiji, New Gov't needs to heal racial wounds" by Kalina Seneviratne Inter Press service 27 May 1999 (cisnet CX35692), referred to on page 7 of the (Tribunal's) Decision and Reasons for the Decision).' 4 Two possible complaints of denial of procedural fairness emerge, namely that the Tribunal: ® did not give the prosecutor an opportunity to be heard; and ® relied upon material of which the prosecutor was unaware and upon which he had no opportunity to comment. These two criticisms overlap to some extent. 5 In argument the prosecutor also complained that relevant material which was before the Minister's delegate was not made available to the Tribunal. This material is described as: '(i) DIMA file CLF1999/14835; (ii) UNHCR Handbook on Procedures & Criteria for Determining Refugee Status, Geneva, 1992; (iii) US Reports, Fiji, 1999.' 6 The gravamen of this complaint appears to be that the prosecutor would have, himself, put such material before the Tribunal had he known that it would not otherwise have been considered. 7 In addition to questions of procedural fairness, the prosecutor asserts that the Tribunal erred in law in that it: '(a) … misunderstood the term "well-founded" in respect of a fear of persecution by requiring that there be a much stricter test than that of a "real chance" of persecution and did not apply the test adopted by the High Court in Chan Yee Kim v Minister for Immigration and (E)thnic Affairs (1989) 109 CLR 379; (b) … did not apply an exercise of discretion but rather involved an assessment of the risk or chance of the (prosecutor) suffering persecution which are matters of degree and judgment: R & Secretary of State for the Home Department: ex parte Streakumaran (1988) AC 958 at 996. (c) … assessed a "real chance of persecution" as an assessment on the balance of probabilities of the chance that the (prosecutor) might be persecuted if he returned to his home country and not, as the decision in Chan required, to the "real possibility" of such persecution taking place. (See also Minister for Immigration, Local Government & Ethnic Affairs & Anor. (v) Mok Gek Bouy (1994) 127 ALR 224). (d) … failed to assess the application with regard to the cumulative effect of the experiences of the (prosecutor) in Fiji; (e) … gave too narrow an interpretation to the phrase "well founded fear of persecution" by taking it to refer only to past events and the past experiences of the (prosecutor) and his activities without relating it to future events and the future behavior (sic) of Fijian authorities as well as the Fijian population in reaction to the past actions and experience of the (prosecutor) or to actions past and future independent of the (prosecutor's) own will. (SeeGuo Wei Rong v Minister for Immigration & Ethnic Affairs and Anor (1996) ALR 421. (f) … erred in law in that they gave too narrow and restrictive a reading to the word "persecution" with regard to the actions that Fijians and the Fijian government and authorities would be likely to take in relation to the (prosecutor) if the (prosecutor) was returned to Fiji. (See Chan supra). (g) … erred in law in determining that the (prosecutor) did not have a well-founded fear of persecution at the time of leaving Fiji and in determining that the change to the political circumstances no longer represented a real chance that the (prosecutor) would suffer persecution if returned to Fiji.' 8 He also submits that the Tribunal: '… acted pursuant to a policy in that (it) wrongly relied upon a generalized interpretation of the current situation in Fiji and of the activities, past and future, of Fijian groups in Fiji and the ability of Fijian authorities to protect the (prosecutor) if returned to Fiji.' 9 A recurring theme in the prosecutor's case is that he was badly advised by his immigration adviser. In particular, he submits that such advice led to his not appearing in the Tribunal and his case not being fairly put before it. I will deal firstly with the prosecutor's claim that he was denied procedural fairness.

procedural fairness 10 The prosecutor's case owes much to the decisions of the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal,both reported at (2002) 76 ALJR 966. Both plaintiffs had unsuccessfully applied for protection visas and then applied to the Tribunal for review. Pursuant to the Act, in the event of such an application, the Secretary of the Department of Immigration and Multicultural Affairs was obliged to send relevant records to the Tribunal. Certain documents (the "missing documents") were not so forwarded. It was said that the missing documents contained information favorable to the plaintiffs. In each case the Tribunal indicated that it was not prepared to find in favour of the plaintiff on the material then before it and invited him or her to a hearing. Each plaintiff appeared at the hearing but was not aware that documents were missing from the record. Each was unsuccessful in the Tribunal and applied in the High Court for relief similar to that sought in this case. Each plaintiff swore that had he or she known that the missing documents were not before the Tribunal, he or she would have taken steps to ensure that they were considered. 11 It was submitted: ® that the failure to forward the missing documents to the Tribunal constituted a failure to comply with procedural steps prescribed by the Act and that the proceedings were invalidated by such failure; and ® that each plaintiff had been denied procedural fairness. 12 In Muin's case there was a further ground of complaint, namely that the Tribunal had taken into account certain material dealing with the political situation in the plaintiff's country of origin (the "country information"), without affording him an opportunity to comment upon it or respond thereto. A majority of the Court concluded that both Muin and Lie had been misled into believing that the Tribunal had considered, or would consider, the missing documents and had thereby been denied procedural fairness. A majority also concluded that Muin had been denied procedural fairness in that he had been denied an opportunity to comment on the country information. For reasons which are not presently relevant, the question of non-compliance with statutory requirements was not resolved. 13 Both decisions turned on questions of fact and involved the application of well-established principles. There are some factual similarities between the present case and Muin and Lie. However it may be of some importance that the proceedings in the Tribunal were, in the case of Muin, completed on 25 November 1998 when the decision was delivered. In the case of Lie, the Tribunal's decision was delivered on 6 January 1998. In the present case the application for review was made on 15 November 1999, and the Tribunal's decision was delivered on 25 February 2000. The Migration Legislation Amendment Act (No 1) 1998 (Cth) (the "amending Act") madesubstantial amendments to the legislative provisions applicable to proceedings in the Tribunal, which amendments came into effect on 1 June 1999. Section 424A, which was then introduced, may be relevant for present purposes. I will return to this matter at a later stage.

Procedural fairness - notice of hearing 14 The course of correspondence between the prosecutor and the Tribunal is of some importance in this case. In his application to the Tribunal, the prosecutor gave his address as 81 Brentford Road, Richlands. He had given the same address in his original application for a protection visa. There is no suggestion that the prosecutor ever notified the Tribunal of any other address. He had the assistance of an immigration adviser in connection with his application to the Tribunal. Her address was also supplied in his application. It appears from the affidavit of Mark Justin Steele (filed on 12 December 2003) that on 18 November 1999 the Tribunal wrote to the prosecutor at the Richlands address, advising him that his application for review was under consideration. A copy of the letter was sent to the immigration adviser. The letter was relevantly as follows: 'We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department's documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour. If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments. Some hearings are conducted by video or telephone conference. If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process. You should quote the file number shown at the top of this letter when sending any documents to the Tribunal. Any documents that are not in English are to be translated into English by an accredited translator.' 15 Later in the letter, the prosecutor's attention was drawn to the importance of his advising any change in telephone number, home address or address for service. The prosecutor has sworn that he had not seen this letter until his solicitor showed him a copy on 16 December 2003. Notwithstanding such averment, counsel for the prosecutor, in oral submissions, argued that the prosecutor was led by this letter to believe that all documentation which had been before the delegate would be before the Tribunal (TS 12 l 7 - TS 13 l 4). Unfortunately, I did not notice this inconsistency during the hearing and so did not draw it to counsel's attention. Nonetheless, it is clear that the evidence does not support the submission. 16 On 10 December 1999 the Tribunal again wrote to the prosecutor at the Richlands address as follows: 'The Tribunal has looked at all the material relating to your application but it is not prepared to make a favorable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.' 17 The date and place of the meeting were then set out. The letter continued: 'Please tell the Tribunal whether or not you want to come to the hearing by completing the enclosed "Response to Hearing Invitation" form and returning it to the Tribunal by 24 December 1999. This will help the Tribunal plan for your hearing and give us time to book an interpreter if required. If you want the Tribunal to take oral evidence from another person or persons, you must complete the "witness" details on the enclosed form and return it by 24 December 1999. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send are to be in English, or translated into English by an accredited translator.' 18 A copy of this letter was sent to the immigration adviser. The prosecutor also denies having received this letter. He says that he was shown a copy by his solicitor on 5 December 2003. Although the prosecutor denies seeing either of the letters prior to the hearing, he does not deny that they were received at 81 Brentford Road Richlands. He asserts only that: 'I have never resided at this address which is the address of my brother-in-law.' 19 As I have previously pointed out, it was the address provided by him to the Tribunal. He can hardly complain that the Tribunal proceeded on that basis. I infer that both letters were sent to, and received at the Richlands address, and that copies were sent to, and received by the prosecutor's immigration adviser. 20 An officer of the Tribunal spoke to the immigration adviser on 21 and 31 January 2000. His note of the first conversation is as follows: 'I spoke to the above (prosecutor's) adviser regarding their failure to respond to the hearing invitation. She was able to confirm that her most recent address for this (prosecutor) is the same as ours. She said she would contact her client and get back in touch with us asap.' 21 His note of the second conversation is as follows: 'I received a telephone call from Ms Mary Lingham, adviser to the above (prosecutor) who was able to confirm that (the prosecutor) would not be appearing at his hearing scheduled to be held tomorrow. She was not able to tell me why he would not be appearing or, should the Member decide to offer him another hearing date, whether or not he intends to attend a hearing at any stage or if he is happy for the Tribunal to go to a decision on the papers. She said she would endeavour to get in touch with her client and get back to me asap.' 22 The prosecutor swore, in his affidavit filed in the High Court on 13 June 2003, that he was not informed of the date of the Tribunal hearing. However, in his affidavit filed on 12 December 2003, he swore that he was advised by his immigration adviser that the hearing had been fixed for 1 February 2000. Such advice was clearly received before the hearing, for he asked the adviser if he could attend. He was told that this was not necessary as the Tribunal had all the "written material" and was not interested in anything else. At that time, the prosecutor believed that the adviser had made submissions on his behalf. He now believes that she had not done so. He denies having been contacted by the immigration adviser as suggested in the diary notes to which I have referred. He swears that he was not aware that he was entitled to attend the hearing and make submissions. 23 The Tribunal had tried to advise him of these matters in the correspondence. Even accepting that he did not receive those letters, I cannot accept that he was unaware of the purpose of the hearing. He asked the immigration adviser whether he could attend and clearly understood that it was the occasion for making submissions. She did not tell him that he could not attend, but that there was no point in his so doing. That was a matter for judgment. He chose to act on this advice. That he did not attend the hearing was a consequence of such choice. There was no denial of procedural fairness. See R v Home Secretary; Ex parte Al-Mehdawi [1990] 1 AC 876 at 895 and SBA Foods Pty Ltd v Victorian WorkCover Authority & Anor [2001] VSC 276 per Gillard J at [274-283]. See also Stefanovski v County Court of Victoria & Anor [2000] VSC 417 per Gillard J at [175-190]. A passage from the decision in Al-Mehdawi was cited with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy & Ors (2002) 210 CLR 438 at [22]. However the passage in question was not directly supportive of the outcome in Al-Mehdawi. I also note that his Honour there observed that: 'Procedural unfairness can occur without any personal fault on the part of the decision-maker.' 24 It may also be significant that in Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 at 133, the Full Court (Pincus, Gummow and Lee JJ) referred, with apparent approval, to an extract from the decision of the Court of Appeal in Al-Mehdawi, which decision was reversed by the House of Lords. 25 The prosecutor did not point to any authority in support of his assertion that a party who, acting on advice does not appear in the Tribunal, may later complain that such action led to his not being heard. I have been unable to find any such support. Al-Mehdawi and the two Victorian decisions are to the contrary. The Chief Justice's observation in Hot Holdings and the apparent approval by the Full Court in Barrett of the extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords in that case should be treated with caution. Nonetheless the outcome is consistent with general principles and good policy. In my view, the prosecutor cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser, led to his being denied procedural fairness. In any event, it is far from clear that the advice was other than appropriate in the circumstances. That would depend very much upon what the prosecutor told the adviser about the case. He has not demonstrated to me that there was much to be said in his favour beyond the matters set out in his visa application. I refer in particular to pars 10, 19 and 20 of his affidavit filed on 12 December 2003. I will return to those paragraphs at a later stage. 26 The prosecutor asserts that the Tribunal ought to have postponed the hearing "… when it should have been clear that the (prosecutor's) adviser was not relaying messages to the (prosecutor)." I cannot conclude from the material before me that as much was "clear" or that the Tribunal should have so proceeded. It may have been obvious to the officer of the Tribunal that communications between the immigration adviser and the prosecutor were not what they might have been, but it would not have been clear to him that this was attributable to any default on the part of the adviser. 27 He also submits that: 'Procedural fairness required that the Tribunal not proceed with the hearing on 1 February 1999 in the absence of the (prosecutor). The internal memorandum of the Tribunal dated 31 January 2000 records that an executive of the Tribunal telephoned the (prosecutor's) representative only one day prior to the proposed hearing to determine whether the (prosecutor) would attend. Having offered the (prosecutor's) representative the possibility of another hearing date and being told that the (prosecutor's) representative would "get back to me asap" no further action was taken by the Tribunal's executive and the hearing proceeded in the absence of the (prosecutor's) response.' 28 This misrepresents the content of the internal memorandum of 31 January 2000. It does not suggest that the adviser was "offered … the possibility of another hearing date". It rather suggests that she was asked whether or not the prosecutor would be able to attend if another hearing date were offered. There is nothing in this point. 29 The prosecutor asserts that in his absence, the Tribunal ought to have adopted what is described as "the proper inquisitorial mode", which apparently means that it should have gone "… beyond the materials before it in making its decision." No attempt was made to identify the way in which the Tribunal ought so to have extended its area of inquiry. There is nothing in this point.

Procedural fairness - the missing documents 30 The prosecutor also complains of lack of procedural fairness arising out of his allegation that documents which were before the delegate were not before the Tribunal. In Muin and Lie it was held as a matter of fact that the Tribunal had led each plaintiff to believe that the missing documents would be before the Tribunal. As I have previously observed, counsel for the prosecutor sought to advance the same proposition in this case, asserting that such belief was based upon the letter of 18 November 1999. However that argument is not available, given that the prosecutor says that he did not see the letter at any material time. The prosecutor suggests that his immigration agent also misled him in this regard. As I have said, that cannot be a basis for an allegation that the Tribunal failed to afford him procedural fairness. 31 The missing documents are described in the delegate's decision as: 'DIMA file CLF1999/14835 UNHCR Handbook on Procedures & Criteria for Determining Refugee Status, Geneva, 1992 US reports, Fiji, 1999.' 32 As appears from the first page of the delegate's "decision record" (exhibit B to the prosecutor's affidavit filed on 12 December 2003), the original visa application is numbered CLF1999/14835. I infer that it is the file allegedly not supplied to the Tribunal. At p 4 of the Tribunal's reasons, it stated that it had the departmental file. There is no reason to conclude otherwise or that the file was not considered. The second allegedly "missing" item appears to have been a handbook published by the United Nations High Commissioner for Refugees. It prescribes procedures for dealing with the determination of refugee status. The third item contains, one assumes, American documents relating to conditions in Fiji at the relevant time. There is, as far as I can see, no reason to conclude that these items contained material which was favorable to the prosecutor's case or that they were not considered by the Tribunal. The only reason for the prosecutor's suggestion to that effect appears to be that the items are not expressly identified in the Tribunal's reasons. As was observed in Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 (per Ryan, Heerey and Allsop JJ) at [21], failure to refer to particular aspects of the evidence may be consistent with such evidence being treated as irrelevant or of not sufficient importance or significance to justify any such reference. In my view there is no basis for inferring that the material in question was not before the Tribunal or considered in the decision-making process.

Procedural fairness - the additional material 33 The final complaint of want of procedural fairness is that the Tribunal allegedly considered additional material (the "additional material") upon which the prosecutor was not invited to comment. That material was firstly, an article which appeared in Reuters News Service dated 18 May 1999, a substantial extract from which appears at pages 6 and 7 of the Tribunal's reasons. The article: ® records the defeat of the government of Sitiveni Rabuka at an election and his resignation; ® refers to the fact that the leader of the Fiji Labor Party, Mahendra Chaudhry had claimed victory; ® records that the election was conducted under a constitution '… ending native Fijian political dominance and ensuring a multi-race government … '; ® refers to the possibility of uncertainty following a change of government; ® records that Mr Rabuka had said that the election was '… a step towards racial harmony …'; that he did not expect 'a Fijian backlash';andthat 'My group will not do anything … '; ® records observations by political observers that the elements which had '… laid the foundation for the 1987 coup were missing in Fiji in 1999.'; ® observes that Fiji now had better race relations and that there was wide-spread support for Indian candidates from indigenous Fijians; and ® records that the '… police have called for continued calm while a government is established.' 34 Of this article, the Tribunal observed: 'The report indicates that Rabuka has accepted the result of the election and there is no real chance that there will be ethnic violence that could result in harm to the (prosecutor). Therefore the (prosecutor's) fears are not well-founded.' 35 The second item of additional material was an article headed 'Rights-Fiji: New Gov't needs to heal racial wounds' which apparently appeared in the Inter Press service on 27 May 1999. An extract appears at pp 7 and 8 of the Tribunal's reasons. It: ® refers to the need for the new government to heal racial tensions and to a call by the new Prime Minister to 'put the past behind us', apparently referring to ethnic division; ® refers to the Prime Minister's inclusion in his government of indigenous Fijians, including a seventeen member cabinet dominated by indigenous Fijians, both Deputy Prime Ministers being Fijian; ® reports that analysts considered that this was '… sensitive to the sensitiveness of indigenous Fijians …'; ® refers to difficulties with leased sugarcane farmers, which leases were expiring; ® observes that the land was communally owned by indigenous Fijians and leased to Indian farmers and that this had been the source of racial tension; ® asserts that the renegotiation of these agreements would be a sensitive issue at the root of indigenous land rights; and ® records that Mr Chaudhry had promised to respect the special rights of the indigenous community as enshrined in the Constitution but to deliver an agreement '… which will also be fair and beneficial to the Indian community'. 36 Of this extract the Tribunal said: 'This material supports the view that the government is attempting to resolve issues that led to ethnic tension and the Tribunal could find no reports of ethnic violence since the election. The (prosecutor) claims that he will be killed by the Fijian natives but he has provided no details as to why he believes he will be killed for the Tribunal to consider whether his fear is related to the Convention or well founded.' 37 This material must be understood in the context of the prosecutor's case. The complaints made in his application were that: ® His house and land were taken by indigenous Fijians. ® He does not now have a house in which to live. ® His former land is owned by Fijian people who will not give him a lease. ® He and his wife found it very difficult to live in Fiji after their furniture and cooking items were stolen and destroyed. ® They had reported certain matters to the police but they had taken no action '… because it happens everywhere in Fiji'. ® If the prosecutor returns to Fiji, he might be killed by indigenous Fijians. ® His wife is very worried. ® Nobody in the country knows what to do about the situation. ® Businesses are closing and it is very hard to find a job. ® The prosecutor has lost everything and has no future in Fiji. ® Indigenous Fijians now own his house and land and are living in it. ® The prosecutor is very worried for his life if he returns. ® These things happen all over Fiji, and the authorities do not know what to do about it. 38 His claims are somewhat imprecise. However one might (generously) infer that he claims: ® fear for his personal safety; ® fear that he will be discriminated against in seeking employment; and ® fear for the security of any assets which he may acquire. 39 Although he does not say so expressly, one might also (generously) infer that such fears arise out of concern that he will be discriminated against as a Fijian of Indian extraction.

Fear of personal violence 40 The prosecutor provided the Tribunal with virtually no reasons for his fear of personal violence. Fear of persecution for a Convention reason must be well-founded. Although the prosecutor bears no particular onus, it would be difficult for the Tribunal to assess the question without information from him as to the basis of his fear. Nonetheless, the material to which the Tribunal referred suggested a history of civil unrest and possibly violence in Fiji, attributable to inter-racial tension. This offered some context for the prosecutor's concerns. The Tribunal was obviously aware of this history but concluded that the new constitution, the new government and events since the election offered better prospects for the future. The question for determination by the Tribunal was whether or not the prosecutor's fears were well-founded. It concluded that because of those occurrences, '… there is no real chance that there will be ethnic violence that could result in harm to the (prosecutor). Therefore the (prosecutor's) fears are not well-founded.' It may be arguable that the Tribunal failed to consider whether, despite its optimism, the prosecutor's fears might still have been well-founded. I will consider the appropriateness of the Tribunal's reasoning process when I consider other grounds upon which the prosecutor relies. 41 For present purposes, it is important to note that although the delegate did not refer to the additional material, nonetheless her decision was made upon the same general basis as that of the Tribunal. The delegate observed: 'The new government inherits a constitution that contains provisions that protect indigenous interests. "Included in the amended Constitution is a strengthened bill of rights and a compact among the people to protect their respective rights and interests, which, however, acknowledges that the paramountcy of indigenous Fijian interests can not be subordinated to the interests of other communities." There is no evidence that the new government intends to violate the democratic rights of any group in Fiji. Whatever changes the new government envisages making to law and policy, these will be made within the democratic framework. This by definition cannot be framed so as to discriminate or persecute any group.' 42 The prosecutor asserts that, had he been aware of the new material considered by the Tribunal, he would have responded thereto. In pars 10, 19 and 20 of his affidavit filed on 12 December 2003, he outlines such response. As to his fears for his personal safety, in par 20 he asserts that he could have referred, in support of his claim, to the fact that '… two of my countrymen were killed in rioting at the time'. He provides no details of such events, nor claims to be able to do so; nor does he explain why he did not refer to such events in his visa application or in his application to the Tribunal. The prosecutor also asserts that '… I had been threatened with being killed when I complained to the police about the new Fijian leaseholder stealing my possessions'. Again, there are no details. The prosecutor also refers to the imprisonment of Mr Chaudhry and his ministers for thirty-two days. However this event occurred after the Tribunal's decision. 43 The prosecutor's proposed response concerns past events rather than prospects for the future. The Tribunal appears to have assumed a history of racial tension and perhaps violence, but to have chosen to place great store by the new constitution, the new government and events since the election. The prosecutor's reference to the deaths of two persons and to the threat made against him go some way to explain his own fears and to offer support for them, but those matters say nothing about the factors which appear to have weighed most heavily with the Tribunal. His proposed response does not deal with the additional material. It rather addresses historical matters. Further, the absence of any detail concerning these incidents makes it difficult to infer that knowledge of them could possibly have led the Tribunal to a different conclusion. It is inconceivable that the mere reference to the deaths of two Fijians of Indian extraction without details of when the event occurred, where and who was involved, could have done so. Similarly, the alleged threat, without details of the person making it or of the circumstances in which it was made, could hardly have such effect. It would be fanciful to conclude that the prosecutor's proposed response could have displaced the Tribunal's reliance upon the changed circumstances in Fiji.

Fear concerning employment prospects 44 As to the prosecutor's claims concerning employment prospects, nothing in his material suggests that his perceived difficulties arose out of fear of discrimination, let alone persecution for a Convention reason. In his visa application he attributed the problem to economic circumstances. In any event, he does not suggest that there was any evidence touching that issue which he could have led in response to the additional material.

Fear concerning security of property 45 As to security of property, the prosecutor claims to have been dispossessed of leased premises and of movable property. The only additional information concerning those matters which he suggests that he may have led in response to the additional material is: ® that he held a sublease from his cousin's brother-in-law, whose head lease was from the Fijian government; and ® that the head lease still had 'many years to run'. According to the prosecutor, the government chose to transfer the lease to an indigenous Fijian. The prosecutor was evicted. 46 The Tribunal accepted that there was a policy of "preferential rights" to property for indigenous Fijians but concluded that such policy did not amount to persecution. I do not understand the prosecutor to challenge this conclusion. As to the security of the prosecutor's other assets, the Tribunal was aware that he claimed to have been deprived of his furniture and cooking utensils. The prosecutor does not suggest that he had any further information to offer concerning that matter. Again, the Tribunal proceeded upon the basis that future events were unlikely to reflect past difficulties. 47 In summary the prosecutor's proposed response to the additional material simply re-inforced a view of the past which the Tribunal seems to have accepted. Even if the Tribunal's consideration of the additional material was contrary to the requirements of procedural fairness, I would be inclined to the view that the prosecutor had nothing further to say relevant to such material. This would have led me to exercise my discretion against granting the relief sought. However there are two other aspects of the matter which compel rejection of the prosecutor's complaint.

Notice of issues 48 Firstly, the Tribunal disposed of the case upon the same basis as did the delegate. The prosecutor was therefore aware of the need to address the significance of the new constitution, the new government and events since the election. The rules of procedural fairness require that a party know the case which he must meet. See Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at [99] per Gaudron J, [140] (per McHugh J) and [191] per Kirby J. I do not understand it to be necessary that a party be told in advance the precise evidence to be led by the opposing side. In our courts, trials regularly proceed upon pleadings which allege facts rather than disclose evidence. It has long been accepted that such notice is sufficient to enable the opposing party to identify the evidence which he or she should call. In the event that a party does not appear at a trial, he or she cannot complain that evidence was called of which he or she had no forewarning, provided always that such evidence fairly related to the issues raised in the pleadings. The prosecutor knew that the delegate had decided the matter, having regard to the new constitution, the new government and events since the election. The whole point of his application to the Tribunal was to reverse that conclusion. He chose not to attend the hearing or to provide further information. He cannot complain that he was not offered an opportunity to comment upon material which seems to have gone no further than that upon which the delegate relied in reaching the decision under challenge.

Section 424A 49 A further problem for the prosecutor is s 424A of the Act. At the relevant time that section provided: '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 50 The section requires the Tribunal to extend to an applicant an opportunity to comment concerning material upon which it proposes to act. However subs 424A(3) excludes certain material from that prescription. In this case the additional material concerned the relations between indigenous and non-indigenous Fijians. To my mind such material was not about the prosecutor but about a class of persons of which the prosecutor was a member, namely non-indigenous Fijians. However the prosecutor submits that the appropriate "class" for the purposes of s 424A is much narrower. In par 7 of his supplementary submissions he submits: 'The (prosecutor) was part of a group of persons that can be defined as Fijian Indians: (a) Whose land was taken although their leases had several years to run; (b) Who were illegally dispossessed by Fijians of their homes and as a result were denied access to basic services and whose capacity to subsist was threatened; (c) Who had been robbed of their possessions; (d) Who had sought the protection of the authorities and such protection had been refused'. 51 The submission seems to be that membership of this narrower group excludes the possibility of membership of the wider group, at least for the purposes of s 424A. The argument is unappealing, but the prosecutor asserts that the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 supports such an approach. That decision concerned identification of a relevant "social group" for the purposes of the Convention. It had nothing to do with the operation of s 424A. Sub-section 424A(3), in my view, excludes the additional material from the operation of subs 424A(1). 52 Counsel for the Minister, very fairly, pointed out that Division 4 of Pt 7 of the Act (of which s 424A is part) did not, at the relevant time, expressly purport to prescribe exhaustively the requirements of procedural fairness in the Tribunal. I am told that the Act has subsequently been amended so to provide. Counsel suggested that it may be arguable that there was a further duty to offer an opportunity to comment upon material in circumstances in which s 424A would not require such action. The prosecutor did not advance that argument. In any event, it is difficult to see how Division 4 could have had any useful effect unless it was treated as effectively "covering the field". It is most unlikely that Parliament intended that the Tribunal should be required, in circumstances not identified in the Act, to seek comments on matters clearly excluded from the operation of subs 424A(1). I consider that s 424A exhaustively defined the aspect of procedural fairness which is presently relevant. It is possible that such an interpretation of the section renders it unconstitutional. That argument has not been raised before me.

ErrorS of law 53 I turn to the alleged errors of law identified in the prosecutor's statement of contentions. The prosecutor did not expressly deal with them in oral argument, although he did not expressly abandon them. As was pointed out by counsel for the Minister, each of these matters will lead to relief of the kind sought in these proceedings only if the error in question amounted to a jurisdictional error. Counsel conceded that error of the kind described by the High Court in Craig v The State of South Australia (1995) 184 CLR 163 at 179 would be sufficient to produce that outcome. It was there observed that: 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' I do not understand the prosecutor to have made any contrary assertion. 54 At pp 5-6 of the Tribunal's findings, it observed: 'The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out … . Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making …, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her … . Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant … .' 55 As previously mentioned, at p 7 of its reasons, the Tribunal observed, having regard to some of the additional material: 'The report indicates that Rabuka has accepted the result of the election and there is no real chance that there will be ethnic violence that could result in harm to the (prosecutor). Therefore the (prosecutor's) fears are not well-founded.' 56 On pp 8 and 9 the Tribunal continued: 'This material supports the view that the government is attempting to resolve issues that led to ethnic tension and the Tribunal could find no reports of ethnic violence since the election. The (prosecutor) claims that he will be killed by the Fijian natives but he has provided no details as to why he believes he will be killed for the Tribunal to consider whether his fear is related to the Convention or well founded. The (prosecutor) has provided no material to support his assertion that businesses are closing and it will be difficult to a find job. The (prosecutor) has not provided any details that would enable the Tribunal to assess whether there has been closure of businesses and whether these closures and the difficult employment situation is in any way related to a Convention ground. The (prosecutor) has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that the (prosecutor) has a well-founded fear of persecution within the meaning of the Convention.' 57 Although the prosecutor alleges numerous errors of law, they seem to be different ways of expressing one theme, namely that the Tribunal disposed of the matter by concluding that it was unlikely that the prosecutor would suffer persecution for a Convention reason and that his fear was therefore not well-founded. As I have previously observed, it is at least possible that such a fear could be well-founded notwithstanding the Tribunal's view that the feared events were unlikely to occur. 58 While it is true that the Tribunal, in the present case, placed great emphasis upon its own views as to the future, such emphasis was inevitable in the absence of any detailed information from the prosecutor as to the reasons for his fears. The Tribunal knew that he had been deprived of his land as a result of a policy which favoured indigenous Fijian citizens over citizens of Indian extraction. However it concluded that this policy did not constitute persecution for a Convention reason. As I have observed, that conclusion appears to be unchallenged. It also knew that certain property had been stolen and that the police had done nothing about it. It knew that the prosecutor had been threatened on one occasion. It is not surprising that in the absence of any details surrounding these incidents, the Tribunal should have concluded that any fears held by the prosecutor ought to have been dissipated by the events upon which it placed great store. The prosecutor's uninformative visa application, his failure to provide further information and his failure to attend a hearing in the Tribunal inevitably led to there being very little material upon which the Tribunal could reach any conclusion other than one which was unfavourable to him. Its focus on the post-election situation did not reflect a misunderstanding by the Tribunal of its duty but the unsatisfactory and unconvincing generality of the prosecutor's claims. I see no ground for concluding that the Tribunal misunderstood the test which it was to apply or failed to apply such test. 59 These observations dispose of most of the alleged errors of law. However one or two other matters require further comment. It is said that the Tribunal '… did not apply an exercise of discretion but rather involved an assessment of the risk or chance of the (prosecutor) suffering persecution which are matters of degree and judgment ...'. I find it difficult to understand this proposition. The reference to "discretion" seems to be misconceived. The Tribunal's function is to weigh evidence rather than to exercise a discretion. The error appears to have arisen from a misunderstanding of an observation in the speech of Lord Templeman in R v Home Secretary, Ex parte Sivakumaran [1988] AC 958 at 996. 60 It is also said that the Tribunal failed '… to assess the application with regard to the cumulative effect of the experiences of the (prosecutor) in Fiji.' It is difficult to see how this criticism could be made out in view of the paucity of information supplied by the prosecutor as to his experiences. 61 The prosecutor asserts that the Tribunal erred in law by giving too narrow and restrictive a meaning to the word "persecution". It was for the prosecutor to identify the persecution which he feared. He does not point to any aspect of his fears which was overlooked or wrongly treated as not amounting to persecution. 62 It is said that the Tribunal '… erred in law in determining that the (prosecutor) did not have a well-founded fear of persecution at the time of leaving Fiji and in determining that the change to the political circumstances no longer represented a real chance that the (prosecutor) would suffer persecution ... .' This is more an argumentative assertion than a legitimate criticism of the Tribunal's decision. If it is meant to imply that the Tribunal addressed the prosecutor's fears at the time that he left Fiji rather than at the time of its determination, then the criticism is without foundation. It is quite clear that the Tribunal addressed the current fears of the prosecutor. 63 Finally, it is asserted that the Tribunal acted pursuant to a policy in that it '… wrongly relied upon a generalized interpretation of the current situation in Fiji and of the activities, past and future, of Fijian groups in Fiji and the ability of Fijian authorities to protect the (prosecutor) ... .' Nothing in the Tribunal's reasons or in the material offers support for this criticism.

Negligence or incompetence of the immigration adviser 64 As I have observed, the prosecutor relies, in support of his arguments concerning procedural fairness, upon his assertion of incompetence or negligence on the part of his immigration adviser. I have dealt with that matter. He also submits that the Court has jurisdiction to intervene to protect the prosecutor from the consequences of such incompetence or negligence. It is said that such power is analogous to that exercised by a court of criminal appeal when it intervenes to set aside a verdict where the accused person's legal representative at the trial was incompetent or negligent. My understanding is that such intervention is, at least usually, pursuant to an express conferment of jurisdiction to intervene where there has been a miscarriage of justice. See, for example, Queensland Criminal Code, s 668E. For present purposes, no such jurisdiction is conferred upon this Court. In any event, as I have previously indicated, I am of the view that neither negligence nor incompetence has been demonstrated.

Orders 65 The application must be dismissed. I will hear submissions as to costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 2 February 2004 Counsel for the Prosecutor: M Wilson

Solicitor for the Respondent: Blake Dawson Waldron

Migration Act 1958(Cth)ss 424A, 424A(1), 424A(3)

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