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FEDERAL COURT OF AUSTRALIA

B34 of 2003 v Minister for Immigration & Multicultural & Indigenous

Affairs [2005] FCA 871

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – whether failure to consider claim – obligation of RRT to consider claims arising on material before it – applicant’s claims before RRT based on political opinion and ethnicity – applicant HIV positive – no claim raised in relation to membership of particular social group of HIV positive persons – claim neither articulated nor apparent from materials – no jurisdictional error by failure of RRT to consider claim – application dismissed

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth) s 44

Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2000) 190 ALR 601 cited
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 1999 ALR 364 cited
P33 of 2003 v Refugee Review Tribunal [2004] FCA 474 cited

B34 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
QUD142 OF 2003

FRENCH J
29 JUNE 2003
PERTH (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD142 OF 2003

BETWEEN:

B34 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

29 JUNE 2005

WHERE MADE:

PERTH (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs of the application.

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

QUD142 OF 2003

BETWEEN:

B34 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE:

29 JUNE 2005

PLACE:

PERTH (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

Introduction

  1. The applicant is a national of Ethiopia, of Amhara ethnicity.  He is a paraplegic and is HIV positive.  He came to Australia without travel or identity documents in 1998.  He unsuccessfully applied for a protection visa on the grounds of apprehended persecution by reason of his political opinions and his ethnicity.  The Refugee Review Tribunal (the RRT) affirmed the decision not to grant him a protection visa on 28 April 1999.  On 30 May 2003, the applicant filed an application in the High Court seeking a writ of certiorari to quash the RRT’s decision of 28 April 1999 and a writ of mandamus requiring it to hear and determine the application for review according to law.  That application was connected with the representative proceedings which had been commenced in the High Court and which were decided in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601. The application was remitted to this Court and was heard by Cooper J on 15 July 2004.…

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Details
Case
[2005] FCA 871
Decision Date

CaseChat Overview and Summary

The case involves an Ethiopian national who applied for a protection visa on the basis that he faced persecution if returned to Ethiopia due to his political affiliations and disability. The Refugee Review Tribunal (RRT) affirmed the delegate's decision to refuse the application. The applicant then sought judicial review of the RRT's decision, arguing that the RRT failed to consider his claim that he had a well-founded fear of persecution due to his HIV positive status, a claim that he had not explicitly raised before the RRT. The central legal issue was whether the RRT was required to consider the applicant's HIV status as a basis for his fear of persecution, despite the fact that the applicant did not raise this claim before the RRT. The court had to determine if the RRT's failure to consider this aspect amounted to a jurisdictional error.

The court found that there was no basis to conclude that the RRT committed a jurisdictional error. The applicant had not raised the claim of persecution based on his HIV status before the RRT, either in written submissions or during oral arguments. The court held that the RRT was not obligated to consider a claim that was never presented to it. The case law cited by the applicant did not impose a duty on the RRT to consider claims not raised by the applicant. The applicant's argument that the RRT should have been aware of his HIV status due to medical reports available to the department was rejected, as the RRT's role was to consider claims as presented by the applicant, not to speculate on potential claims that were not made.

Consequently, the application for judicial review was dismissed. The court ordered the applicant to pay the respondent's costs of the application. This decision underscores the principle that tribunals are bound by the claims and evidence presented to them and cannot consider matters that are not properly before them, regardless of their availability through other means.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

Background

Background to the litigation

The applicant contends that there was material before the RRT from which it would or should have been aware that he was HIV positive. The RRT, he says, should have considered the possibility that as a member of the particular social group of HIV positive persons he would have a well-founded fear of persecution if returned to Ethiopia. This claim was never raised before the RRT by way of written submission or oral argument. For the reasons set out below there is no basis upon which it could be said that the RRT committed a jurisdictional error by failing to consider a claim never raised before it and not apparent on the materials before it. The application will therefore be dismissed with costs.Factual and Procedural Background The applicant is a national of Ethiopia. He was born on 20 April 1970. He is of Christian Orthodox religion and Amhara ethnicity. From 1978 to 1990 he attended school at Esta M/Eyesusa. He worked as a self-employed driver in Esta from 1990 to 1996. He said he became a paraplegic because of a motor vehicle accident in 1996. At the beginning of 1997 he departed Ethiopia for Italy. He flew out lawfully on an Ethiopian travel document. His travel document expired in Italy and he obtained a new document there. On 18 June 1998 the applicant arrived in Australia with his older brother, who was born in 1968, on Air Lauda, Flight NG1 from Vienna. He had no travel or identity documents. He and his brother were interviewed by airport staff through an Amharic interpreter. He was refused immigration clearance and was detained under s 189 of the Migration Act 1958 (Cth) (the Act). On 19 June 1998 he applied for a protection visa. Following a medical examination he was released on 22 June on a bridging visa and travelled to Brisbane where his older sister lives. On 3 July 1998 he lodged Parts B and C of the protection visa form setting out his claims to be a refugee. He stated that he had been imprisoned on suspicion of supporting forces opposing the government, namely the All Amhara Peoples’ Organisation (AAPO). The government consists of Tigray people who are at odds with the Amharas. He said he feared that government forces would attack and kill him if he returned. He said he had been refused medical attention for the accident in 1996 which had left him paralysed. A delegate of the Minister decided on 25 August 1998 to refuse the applicant’s application for a protection visa. On 4 September 1998, the applicant lodged, with the RRT an application for review of the delegate’s decision refusing the grant of a protection visa. On 28 April 1999 the RRT affirmed the decision not to grant the applicant a protection visa. On 25 May 1999 the applicant sought the exercise of the Minister’s discretion under s 417 of the Act but that request was refused on 11 August 1999. In response to a further request the Minister again refused, on 17 September 1999, to consider the exercise of his discretion under s 417. An attempt, on 17 May 2000, by the applicant to lodge a further application on the ground of apprehended fear of persecution by reason of his HIV positive status was also unsuccessful. The Department refused to accept the application by reason of the operation of s 44 of the Act.

Evidence

Evidence Before The Court

The grounds of the application set out in the draft order nisi were as follows: ‘1.The Tribunal failed to consider or ask whether the Prosecutor was eligible for the grant of a protection visa on the basis that he was a member of a social group consisting of persons who were HIV positive. 2.The Tribunal failed to comply with the rules of natural justice by failing to disclose to the Applicant and give him an opportunity to comment upon the following documents: (a)United States Department of State “Country Reports of Human Rights Practices 1998”;(b)Australian Department of Foreign Affairs and Trade (“DFAT”) Cablegram AB905 dated 4 August 1998; (c)the DFAT advice dated 28 March 1994; (d)the DFAT report dated 30 August 1995; (e)the DRAFT Cablegram NA6654 dated 19 November 1997.’As noted above, the application proceeds only upon the first of the above grounds. Claims and Evidence Before the RRT Relevant to the Applicant’s HIV Status It is apparent from the papers that the applicant made no claim in his application for a protection visa or before the RRT on the basis that he was at risk of persecution in Ethiopia on account of his status as an HIV positive person. The written contentions made on behalf of the applicant on this ground were limited and were in the following terms: ‘6.The Applicant was a paraplegic and is also HIV positive. He did not make any specific claim for a protection visa on the basis of his HIV positive status.7.However, the Minister and the Tribunal were aware that the Applicant was HIV positive, the Minister having obtained a medical report which indicated that he had that condition....13.Sections 36(2), 64, 414 and 415 of the Migration Act 1958 (“the Act”) required the Tribunal to consider whether the Applicant had a well founded fear of persecution for a convention reason. This included consideration of whether the Applicant had well founded fear of persecution by reason of his membership of a social group consisting of persons who are HIV positive, albeit that such a claim was not specifically made by the Applicant: c.f. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/02 (2002) 195 ALR 1 at [75] – [76], [87] per Gaudron and Kirby JJ. The present case is distinguishable from circumstances in Applicants S134 because this is not a case that involved issues as to the satisfaction of “criteria expressed in disjunctive terms”: see par [32]. The Tribunal failed to consider whether it was satisfied that the Applicant is a person to whom Australia owes protection obligations by reason of his membership of a social group consisting of persons who are HIV positive. It is contended that such failure amounted to a jurisdictional error.’ The applicant relied in part upon materials obtained from departmental files under a freedom of information request. An internal departmental facsimile dated 28 August 1998 included the following statement: ‘The report of his medical examination carried out while detained in Sydney also appears to indicate that he is HIV positive.’A copy of the medical examiner’s report which was dated 22 June 1998 indicated that the applicant was suffering from paraplegia and contained a note that he was HIV positive. Also in the hands of the department was a report from South Western Area Pathology Services dated 25 June 1998 which set out test results indicating that the applicant was HIV positive.

Decision

Reasons for decision

FRENCH J
The remitted application came on for hearing before Cooper J on 15 July 2004 at which time his Honour reserved his judgment. Sadly his Honour died in March 2005. At the time of his death judgment had not been delivered. The matter has now come on for rehearing and the parties have agreed that it should be determined on the papers which were before his Honour and by reference to the transcript of argument and submissions put before him. The only ground relied upon before his Honour was the first ground relating to the alleged failure of the RRT to consider whether the applicant was entitled to a protection visa by reason of apprehended persecution on account of his HIV status.The RRT’s Reasons for Decision The RRT set out the applicant’s background and claims in its decision. The applicant gave evidence to the RRT that, before his arrival in Australia, he had spent 18 months in Italy. There he had been operated on for the back injury which had left him a paraplegic. He said his back had been injured in a motor vehicle accident about two months before he left Ethiopia. A friend was killed in the accident. He had been chased by police because he had been involved in a demonstration held under the auspices of the AAPO. He did not receive any treatment in Ethiopia because there were insufficient funds for hospital treatment. Later, however, he did receive some non-hospital medical treatment such as pain killing injections. He had left Ethiopia via Bole airport at Addis Ababa His friends had obtained a passport for him and he had been carried onto the aircraft on a stretcher. He claimed that the authorities thought that he, like his friend, had been killed in the accident. According to the RRT’s reasons the applicant claimed to have become a member of the AAPO more than five years before. He described it as an illegal organisation whose members were not permitted to demonstrate or express their views. He had been attracted to it because it was a democratic organisation opposed to the government. He was a secretary with the AAPO and moved around the country helping with communication, organising demonstrations, gathering people together and writing papers. The applicant told the RRT there was considerable pressure on Amhara people in the countryside who are members of AAPO. Their treatment contrasted with that of supporters of the AAPO in large cities such as Addis Ababa. The applicant told the RRT, in his written submissions, that he had been in prison on two occasions. The first was about four years before when he had been in prison for three months, then about a year later he had been in prison for five months. On the first occasion he was taken before a court because of his participation in a demonstration and was set free after his court appearance. He couldn’t describe any specific charges laid against him. It appears that in his oral evidence he claimed to have been imprisoned for much longer periods. The applicant said he had not outlined any of his claims when interviewed on arrival in Australia because he was tired and stressed. He had given only very brief answers. He told his whole story to his adviser when he lodged his application for a protection visa. He could not recall who had filled out the application but thought it may have been his sister. However, according to the RRT, his sister gave evidence that she played no role in his application for a protection visa. His adviser had commented at the end of the hearing that the sister had completed the initial application based on information which the applicant had provided to her and that she acted as interpreter although an accredited interpreter was called upon for occasional assistance.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.