Applicant NAMD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 544

FEDERAL COURT OF AUSTRALIA

Applicant NAMD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 544

MIGRATION – appeal from decision of Federal Magistrate – whether Refugee Review Tribunal failed to comply with statutory procedures – whether breach of rules of procedural fairness – whether jurisdictional error – where delay in making of decision – where Refugee Review Tribunal relied on more recent country information

Judiciary Act 1903 (Cth) s 39B
Federal Court of Australia Act 1976 (Cth) s 25
Migration Act 1958 (Cth) ss 424A, 474

Applicant A v Ministerfor Immigration and Ethnic Affairs (1997) 190 CLR 225 cited
Hickman, R v; Ex parte Fox and Clinton (1945) 70 CLR 598 cited
Kioa v West (1985) 159 CLR 550 cited
NAMD and NAME v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 333 affirmed
Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 cited

APPLICANT NAMD OF 2002 & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N26 OF 2003

EMMETT J
16 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N26 OF 2003

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:

APPLICANT NAMD OF 2002
FIRST APPELLANT

APPLICANT NAME OF 2002
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

16 APRIL 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the appeal be dismissed;

2.        the appellants pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N26 OF 2003

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:

APPLICANT NAMD OF 2002
FIRST APPELLANT

APPLICANT NAME OF 2002
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	EMMETT J
DATE:	16 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are husband and wife.  They are citizens of the Russian Federation and arrived in Australia on 28 December 1998.  On 8 February 1999, they lodged applications for protection (class XA) visas with the then Department of Immigration and Multicultural Affairs.  The applications were made under the Migration Act 1958 (Cth) (‘the Act’). On 23 March 1999, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant protection visas and, on 29 March 1999, the appellants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 7 May 2002, for reasons given on 30 May 2002, the Tribunal affirmed the decision not to grant protection visas. On 24 June 2002, the appellants applied to the Federal Court of Australia for orders under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision.

2. On 22 July 2002, Hill J transferred the proceeding to the Federal Magistrates Court.  After a hearing on 21 November 2002, the Federal Magistrates Court ordered that the application be dismissed with costs: see NAMD and NAME v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 333. The appellants now appeal to the Federal Court of Australia by notice of appeal filed on 13 January 2003. Pursuant to the provisions of s 25(1)(a) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice has determined that the appeal be heard by a single judge of the Court.

3. The grounds of the application originally made to the Court are as follows:

   ‘According to the new judicial review scheme of 2 October 2001 the RRT decision might be challenged if there is one or more of the following grounds exist:

   ·the decision maker was not acting in good faith in making the decision;

   ·the decision is not reasonably capable of reference to the decision making power given to the decision maker; the decision does not relate to the subject matter of the legislation; …

   ·the decision exceeded the limits set out in the Commonwealth Constitution.

   …

   The Tribunal’s decision to refuse me a protection visa contradicted the Principles of the UN Convention. The Tribunal accepted that I was a member of the Church of Scientology; accepted that I was subject to violent attacks …The only ground which led to the negative decision was “independent country report information” which, in point of fact, confirms facts of oppression suffered by members of this Church of Scientology.

   The hearing regarding my application for review took place in October 2000.  The Tribunal did not make any decision unless the new law related to all decisions was introduced on 2 October 2001.

   Given the outline of facts, it should be suggested that the decision-maker purposely ignored relevant facts and issues, and intentionally made its decision more than one year after the hearing took place, to deprive me of a legal possibility to challenge the unjustified and baseless decision.

   The mentioned facts clearly indicate the decision-maker was not acting in good faith in making the decision, which is the ground to apply to courts to challenge the Tribunal’s decision.’

4. In her reasons for the orders made on 23 December 2002, Barnes FM summarised the contentions advanced on behalf of the appellants. Her Honour recorded that submissions were made that independent country report information relied on by the Tribunal confirmed that oppression was suffered by members of the Church of Scientology but that the Tribunal purposely ignored relevant facts and issues. Further, it was submitted that the Tribunal intentionally made its decision more than one year after the hearing took place and after the legislative changes to the Act in October 2001. Her Honour recorded that that was claimed to demonstrate that the decision maker was not acting in good faith in making the decision. Her Honour also referred to claims that the decision of the Tribunal was controversial and illogical. The first appellant also asserted in oral submissions to the Magistrates Court that the failure to invite him to comment on certain of the independent country information relied on by the Tribunal was a breach of s 424A of the Act.

5. The Magistrate concluded that the decision of the Tribunal was a privative clause decision within the meaning of s 474(2) of the Act and was therefore subject to the limitations as to judicial review prescribed by s 474(1) of the Act. Her Honour had regard to the principles stated by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 to the effect that such a provision is effective unless it could be shown that the decision was not a bona fide attempt to exercise the power conferred on the decision maker, that the decision did not relate to the subject matter of the legislation or that the decision was not reasonably capable of reference to the power conferred on the decision maker. Her Honour concluded that the effect of s 474 was to exclude the rules of procedural fairness.

6. Since her Honour’s decision, the High Court has suggested a possible further qualification in that regard in Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 in which the High Court held that the expression ‘decision made under this Act’ in s 474 must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. An administrative decision that involves jurisdictional error is, in law, no decision at all. Thus, if there is jurisdictional error because, for example, of a failure to discharge imperative duties or to observe inviolable limitations or restraints, the decision in question could not properly be described in the terms of s 474(2) as a decision made under the Act.

7. The Magistrate recorded that the main arguments raised by the appellants were that there had been a breach of s 424A in relation to certain of the independent country information relied on by the Tribunal. It is desirable to say something about the reasons of the Tribunal before examining her Honour’s reasons and the submissions advanced by the appellants on the hearing of the appeal.

8. In their original application for visas, the appellants relied upon a handwritten statement in the Russian language, which was translated and which was before the Tribunal.  In that statement, claims were made that the appellants were visited by a local policeman.  They claimed that they tried to explain to the local policeman that they were normal people, that they were involved in Scientology and that they were against anything that would affect the health of a human being adversely.  They claimed that the policeman asked them whether they understood that they were criminals spreading anti Russian propaganda and that they could be charged with a criminal offence.  They claimed that the policeman said that if they received another complaint he would deal with them more specifically.  The appellants also made claims of an assault at a bus stop in the city centre when they were affixing flyers advertising Scientology books.  Thereafter, they received threats which made living in their flat unbearable and they therefore moved to the home of one of their parents.

9. Shortly after that, they received a telephone call from the police concerning a break in at their flat.  They returned to the flat and observed writing on the wall.  In response to an inquiry by a detective, the appellants said that they were Scientologists and explained the essence of the religion.  After hearing what was said, the policeman asserted that they were ‘sectarians’ and that he could see no reason for opening a criminal case and searching for culprits because the appellants were spreading anti Russian propaganda and they could be charged with a criminal offence. 

10. The Tribunal accepted that the appellant was a member of the Church of Scientology.  It also accepted that it was plausible that the appellants were targeted by people who had been led, through Orthodox Church-inspired propaganda, to regard Scientology as an aberrant sect.  The Tribunal also accepted the appellants claim that their house was ransacked and that graffiti was sprawled on the walls of their house.  The Tribunal also found that the Church of Scientology has had, and continues to have, difficulties with the Russian Government in obtaining official registration in some cities.  It found that Scientologists have been forbidden to distribute certain medicines although it also observed that it appeared that those medicines had been regarded as dangerous by the health authorities. 

11. The Tribunal referred to three separate independent sources concerning the state of Scientology in the Russian Federation.  The first was dated 26 April 1998; the second was dated 27 September 1999.  No complaint was made by the appellant concerning those two sources.  However, the Tribunal also referred to a United States Department of State Report on International Religious Freedom of 2001 (‘the 2001 report’).  The appellants complaint is that their attention was not drawn to that report prior to the decision of the Tribunal.  The report, of course, was brought into existence after the oral hearing before the Tribunal. 

12. It is fair to say that the 2001 report is capable of giving rise to a conclusion that the position of the Church of Scientology in Russia may have improved since the departure of the appellants.  The report relevantly says:

    ‘The Church of Scientology has experienced many problems with both registration and with harassment from the authorities.  Since 1999, in particular, the Moscow Scientology Church has come under intense pressure from the authorities.  The Procurator formally charged the Church with criminal activities, including distributing medicine illegally. …

    In January 2001, the case was … dismissed for lack of evidence.  The Procurator appealed; however, on May 19 the appellate court upheld the lower court’s ruling clearing the Scientologists of all charges.  The Church of Scientology reportedly is now considering a legal challenge to the Ministry of Justice’s refusal to reregister it.  The Church reports that the authorities have impeded the operation of its centres in Dmitrograd, Khabarovsk, Izhevsk, and other localities ….’

13. The appellants did not attempt to adduce any evidence before the Federal Magistrates Court as to the steps that might have been taken had they been informed that the Tribunal proposed to rely on the report to any extent.  It is fair to say that the Tribunal did give some weight to the report in so far as the Tribunal, in its reasons, recorded the fact that the 2001 report referred to activities of zealots who had specifically targeted Scientologists and that the authorities had successfully limited their activities in several regions. 

14. There was no contravention of s 424A of the Act by the Tribunal. Section 424A(1) provides that the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be part of the reason for affirming a decision that is under review and must invite an applicant to comment on it. However, by the operation of s 424A(3), that requirement does not apply to information that is not specifically about the applicant or another person, but is about a class of persons of which the applicant or other person is a member. The information contained in the 2001 report is clearly not specifically about the appellants, or any other person, but is concerned with the Church of Scientology in general. Her Honour dealt with the claim in relation to s 424A and no submissions were addressed to me to suggest any error on the part of her Honour in dealing with that question.

15. It is convenient at this stage to address the question as to whether the failure on the part of the Tribunal inform the appellants of the 2001 report was a breach of the rules of procedural fairness so as to constitute a jurisdictional error on the part of the Tribunal.  An applicant is usually entitled to support his or her application by such information and material as he or she thinks appropriate.  An applicant cannot complain if a decision maker rejects that application because the decision maker does not accept, without further notice to the applicant, what he or she puts forward.  It is only if the decision maker intends to reject the application by reference to some consideration personal to the applicant, on the basis of information obtained from another source that has not been dealt with by the applicant in the application, that procedural fairness would require the applicant be given an opportunity of responding to the matter: Kioa v West (1985) 159 CLR 550 at 587.

16. It is clearly undesirable that a decision maker should delay for in excess of eighteen months before making a decision. It is more undesirable that a decision maker should take into account material brought into existence after hearing what the persons most affected by that decision wished to say in relation to the matter. However, a failure to give to an applicant an opportunity to comment on material that is not critical to the decision will not, of itself, constitute a denial of procedural fairness. As I have said, there was no evidence of any material that the appellants would have put to the Tribunal had the contents of the 2001 report been drawn to their attention. If the information contained in the 2001 report had been critical to the decision of the Tribunal, a failure to give the appellants an opportunity of responding to it may well have constituted procedural unfairness tantamount to failure to give the appellants a right of hearing. However, the failure to inform the appellants of the 2001 report was not a failure to comply with a procedural requirement of the Act. Further, the 2001 report was not determinative of the outcome so far as the Tribunal was concerned.

17. Having regard to the limited extent of reliance placed upon it, I do not consider that the failure to inform the appellants of the 2001 report constituted a jurisdictional error on the part of the Tribunal. That is to say, there was no failure to discharge an imperative duty. Section 424A indicates the extent of the Tribunal’s duty to furnish information to the appellants.

18. The Magistrate also dealt with the allegation made in the Magistrates Court of bad faith on the part of the Tribunal. Her Honour concluded that the fact of a delay in decision making does not, of itself, establish bad faith or the absence of an honest and genuine attempt by the decision maker to undertake the task required by the Act. There was no breach of any statutory requirement of the Act in that regard nor was there any basis for concluding that there was a blatant or reckless disregard to procedural requirements. Her Honour also recorded that mere error of fact or law or irrationality as was argued by the appellants does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision making.

19. Her Honour concluded, that taking all the circumstances into account, the appellants had not established that the Tribunal failed to make a bona fide attempt to exercise its power. Clearly, there was nothing to suggest that the decision of the Tribunal did not relate to the subject matter of the legislation and it was clearly capable of reference to the power given to the Tribunal under the Act. I am not persuaded that there was any error on the part of the magistrate in dealing with the questions with which she was asked to deal.

20. The notice of appeal from the decision of the Magistrate indicates a misapprehension as to the nature of an appeal from a decision of the Federal Magistrates Court.  The grounds set out in the notice of appeal are as follows: 

    ‘Review under s [39B] of the Judiciary Act. The decision-maker was not acting in good faith because:

    ·the Tribunal failed to give the appellant an opportunity to address adverse material;

    ·the Tribunal breached 424A(1) of the Act;

    ·the Tribunal’s arguments were contradictory and did not reflect factual situation in the Russian Federation.’

21. Those grounds do not address the reasons given by the Magistrate.  However, it must be borne in mind that the first appellant appeared in person, albeit with the assistance of an interpreter, and made submissions on behalf of himself and his wife.  Having regard to the very limited nature of a proceeding by way of review of a decision of the Tribunal, the grounds of appeal, in effect, are that the Magistrates Court failed to decide the grounds before it according to law. 

22. The applicant made submissions in writing in support of the appeal.  The essence of the complaints made are as follows: 

    ‘The Tribunal’s finding regarding the [a]ppellant’s ability to seek or obtain adequate State protection seems very wrong. …

    [T]he Tribunal’s finding is incorrect, because it is based on information which did not exist, because it contradicts available information, because it contradicts the [a]ppellant’s claims, the very claims the Tribunal accepted. …

    [Instead] of addressing the issue of possible persecution, which is the key element in definition of status of refugee, the Tribunal addressed an issue of “ability to practice his religion”. … [T]he [a]ppellant never claimed he left Russia because he was deprived of practi[s]ing his religion.  The [a]ppellant claimed he left Russia because of persecution for reasons of his religious convictions.

    The Tribunal failed to consider the right question, namely, whether, in practical sense, the [a]pplicant will be subjected to harm for a Convention reason. …

    The evidence, as accepted by the Tribunal, was that the [a]ppellant had been beaten, intimidated, threatened by the district policeman, suffered property damage and finally was abused and threatened by the police who refused to open a criminal case.  These findings clearly raised an issue about whether there was a chance of harm for a Convention reason that the authorities could not provide protection against.’

1. In oral submissions made by way of supplementation of the written submissions, the first appellant concentrated on the proposition that, as he put it, the Tribunal failed to deal adequately with the question of whether the authorities would be able to provide him with protection.  He said there was no proof that he would be protected if he returned to Russia in 2003. 

2. The Tribunal in its conclusions said that there was nothing before it that would suggest that the appellants would not be able to seek the protection of the State if they were to be threatened in the future by Orthodox Church-inspired zealots.  The Tribunal had regard to the claims concerning the police but concluded that there was no evidence that such behaviour was allowed or encouraged within the authorities.  While the Tribunal accepted the appellant’s claim that his flat had been ransacked and graffiti was scrawled on the walls, the Tribunal also found the appellants would have had recourse to the authorities.  Further, the fact that Scientologists had been forbidden to distribute certain medicines did not, the Tribunal found, imply that the Russian authorities would not offer the appellants protection against zealots in the future.  The Tribunal concluded that the appellants would be able to practise their religion on return and, in cases of harassment, could obtain adequate State protection. 

3. The thrust of the appellant’s case is simply that the Tribunal made a wrong decision.  The Tribunal addressed the question of whether or not the appellant would be able to obtain State protection or protection from the authorities in the event of harassment.  The Convention, when it speaks of persecution, is concerned with official persecution or persecution that is officially tolerated or uncontrollable by the authorities of the relevant country.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is, or appears to be, powerless to prevent the private persecution: see Applicant A v Ministerfor Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233, 258.

4. While the evidence before the Tribunal may have been sparse on the question of protection from the authorities, I consider that the reasons demonstrate that the Tribunal addressed that question and that it was open to the Tribunal to conclude that any persecution of the appellants by reason of their membership of the Church of Scientology was by private individuals and not by the authorities or the State. It was also open to the Tribunal to find that if the appellants were threatened in such a way in the future they would have recourse to the authorities who would provide adequate protection. It was not open to the Federal Magistrates Court to review that question on the merits. The findings made by the Tribunal were findings of fact; whether they were wrong or illogical is not to the point so long as the conclusions were reached in good faith and there was neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Section 474(1) precluded any review by the Magistrate’s Court.

5. I am not persuaded that there was any error on the part of the Magistrates Court in the reasons given on 23 December 2002.  Nor am I persuaded that there was any reviewable error on the part of the Tribunal.  It follows in my view that the appeal should be dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             4 June 2003

Counsel for the Appellants:	The first appellant appeared in person with the assistance of an interpreter
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 April 2003
Date of Judgment:	16 April 2003