Asrat, Yonas Haile Giorgis v Vrachnas, J
[1996] FCA 874
•23 AUGUST 1996
CATCHWORDS
IMMIGRATION - allegation that Refugee Review Tribunal failed to act according to substantial justice - opportunity of applicant to comment on material - no factual basis to support allegations - no appropriate grounds of intervention by the Court
Migration Act 1958 (Cth)
No VG 111 of 1996
YONAS HAILE GIORGIS ASRAT
Applicant
- and -
MR J VRACHNAS
First Respondent
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
O'Loughlin J
Melbourne
23 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 111 of 1996
)
GENERAL DIVISION )
B E T W E E N:
YONAS HAILE GIORGAS ASRAT
Applicant
- and -
MR J VRACHNAS
First Respondent
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
MINUTES OF ORDER
Coram: O'Loughlin J
Place: Melbourne
Date: 23 August 1996
THE COURT ORDERS THAT:
Application be dismissed.
The Applicant pay the Respondent's costs of and incidental to this hearing.
The costs are to be taxed in default of agreement.
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 VG 111 of 1996
)
GENERAL DIVISION )
B E T W E E N:
YONAS HAILE GIORGAS ASRAT
Applicant
- and -
MR J VRACHNAS
First Respondent
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
Coram: O'Loughlin J
Place: Melbourne
Date: 23 August 1996
This proceeding is an application to the Court under Part VIII of the Migration Act 1958 (Cth) ("the Act"). In it, the applicant, Mr Asrat, seeks an order of review of a decision that was made by the Refugee Review Tribunal ("the Tribunal" or "the RRT") on 5 February 1996. The application is grounded in s476(1)(a) of the Act which so far as is relevant states that this Court may review a decision of the RRT if procedures that were required by the Act or the regulations to be observed in connection with the making of a decision were not observed.
It has been submitted on behalf of the applicant that the procedures not observed are those that are contained in s57 of the Act. The applicant submitted that s57 applied to the Tribunal because of the provisions of s415 and either alternatively or additionally because of the provisions of par 420(2)(b) of the Act.
The applicant is a male citizen of Ethiopia in his late 20s who arrived in Australia on a false passport on 20 June 1995. He has been in detention since his arrival in this country, a fact which is of concern to me and which has caused me to deliver these ex tempore reasons instead of reserving my judgment.
On 8 December 1995 a delegate of the Minister for Immigration and Ethnic Affairs made a decision that the applicant was not entitled to a protection visa. From that decision the applicant sought review from the RRT. As I have said that Tribunal handed down its decision on 5 February 1996; the decision was adverse to the interests of the applicant. The Tribunal affirmed the decision of the primary decision-maker.
The case for the applicant, as presented in its final form in this Court, was that there was a duty on the Tribunal to put to the applicant particulars of relevant information that would or might adversely affect the interests of the applicant so that the applicant could have the opportunity of giving his evidence or his answers before any decision adverse to his interests was made by the Tribunal. The applicant claimed that this duty arose through a combined reading of sub-s 415(1) and sub-s 57(2). That latter provision states, inter alia, that the Minister must give particulars of relevant information to an applicant for a visa so that the applicant may comment on it and sub-s 57(1) defines relevant information to include information that the Minister considers would be a reason for refusing to grant a visa.
It was submitted that a like duty is imposed on the RRT because of sub-s 415(1) of the Act which states that:-
"The Tribunal may, for the purposes of the review of an RRT - reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision."
In addition, as I have said, it was further submitted that the duty to which I have referred is also imposed on the Tribunal because of the provisions of par 420(2)(b) which states that the Tribunal in reviewing a decision:-
"must act according to substantial justice and the merits of the case."
The applicant submitted that there were three factual issues, each of material importance, where the Tribunal breached its duty to the applicant. Those issues related to:-
(1)the manner in which the Tribunal conducted itself with respect to the evidence of the applicant's witness, Mr Medfu;
(2)the reliance by the Tribunal on statements attributable to an interpreter; and
(3)the findings by the Tribunal with respect to the applicant's wife or girl friend which, so it was claimed, were contrary to the evidence.
In my opinion, and putting to one side whether the duty as alleged existed, there is no substance in any of these three complaints. I will deal with each of them in turn.
First, Mr Medfu. Mr Medfu, who is also an Ethiopian national, gave evidence that he had been a long time friend of the applicant in Ethiopia. He made an unfavourable impression on the Tribunal; his evidence was not accepted. It transpired that the hearing before the Tribunal took place on 19 January 1996 and on that day the hearing was completed save for the delivery of the Tribunal's decision. On 24 January the Tribunal issued a subpoena directed to the on-shore refugee program of the Department of Immigration. The subpoena called for the production to the Tribunal of:-
"the migration application of Yonas Abebe Medfu (DOB 6.9.70)"
Based on this fact alone the applicant asserted that the Tribunal thereby engaged in a further fact finding exercise without the knowledge of the applicant and, I interpolate, presumably to the detriment of the applicant. Although it might be thought unusual for the Tribunal to have sought additional information in such circumstances there are several
answers to the applicant's complaint. First, there is nothing in the reasons of the Tribunal to suggest that it acquired any information as a result of the issue of the subpoena. The subject was not referred to. Secondly, if the Tribunal acquired information which was adverse to the interests of the applicant and the Tribunal was minded to make some use of that material it would have been open to the Tribunal to refer the material to the applicant. The applicant has no right to assume that the Tribunal would not have so conducted itself. If any such duty existed as that submitted on behalf of the applicant, the applicant has, in my opinion, failed to establish that the issue of the subpoena constituted a breach of that duty.
I turn next to the subject of the interpreter. The applicant submitted that the Tribunal unfairly relied on information given to the primary decision-maker by an interpreter without first informing the applicant of its intention to do so, thereby denying the applicant the right to answer what had been said by the interpreter. The applicant's credibility was the subject of an adverse finding by the Tribunal. Indeed, the Tribunal went so far as to say that the applicant's material claims had been contrived. Several aspects of the review of the case advanced by the applicant were instrumental in the Tribunal coming to this conclusion. One factor was an assertion made by the applicant that his mother was long dead. To appreciate the applicant's complaint and the history of this subject, it is necessary to start with the reasons for the decision of the original decision-maker. They appear at page 84 of the appeal book and read as follows:-
"At interview the applicant was shown a letter dated 19 July 1987 in the Ethiopian calendar. On the advice of TIS [Telephone Interpreter Service] accredited interpreter. This letter is dated about March 1995 and is from the applicant's mother. The applicant was advised in the interview that the interpreter had assured me that that letter could only be from his mother. The applicant was asked to explain at the second interview who this letter was from. After reading the letter the applicant explained that the letter was from his grandmother who lived in Addis Ababa and that she would often refer to herself as his young mother."
This particular subject was taken up, among others, with the RRT, by the Refugee Advice Casework Service on behalf of the applicant. By letter dated 15 January 1996 it wrote in these terms to the Tribunal:-
"It is submitted that the delegate [the primary decision-maker] has failed to give proper, or apparently any consideration to Amhara cultural practice when dismissing the applicant's explanation as to why his Grandmother refers to herself as his mother. We refer the Tribunal to the attached letter from the Secretary of the Ethiopian Community in Victoria which states inter alia that it is a common practice that grandparent refers to a grandson as "my son" ..."
The Tribunal's conclusion on this particular subject appears in its reasons at page 136 of the appeal book and it reads as follows:-
"Mr Berenhu's evidence that the term "mother" may be used by relative or friends other than a natural mother, is plausible. However, the interpreter at the Applicant's Departmental interview read the relevant letter written in March 1995 and was certain that it could only have
been from the Applicant's natural mother. The Applicant has not submitted any details about his mother other than to state that he last saw her shortly before he left Ethiopia and his written submissions have been devoid of any mention of his mother's alleged death. Given the regular correspondence he has had with family members it could reasonably be expected that he would have some information about her death yet none has been forthcoming. In the circumstances the Tribunal finds that the letter written by his, "mother", is in fact from his natural mother and his initial claim that she has been killed is not credible."
At this stage it is relevant to point out that the applicant knew from the contents of the reasons of the primary decision-maker that his claim that his mother was dead had not been accepted. He also knew that his advocate, the Refugee Advice Casework Services, had written to the RRT challenging that finding. In those circumstances it is difficult to understand what was required of the Tribunal. It would be facile to suggest that the Tribunal would have a duty to give notice to the applicant that the Tribunal considered every adverse finding of the primary decision-maker to be material information militating against the interests of the applicant.
The applicant must be taken to have known the contents of the decision of the primary decision-maker as it was the applicant who was seeking from the Tribunal a review of that decision which was adverse to him. I find that if a duty, of the type advocated by the applicant, existed, that duty was not breached by the claimed failure on the part of the Tribunal to inform the applicant that the Tribunal would consider some part, or parts, of the primary decision to be relevant information in terms of s57 of the Act. Nor do I consider that the Tribunal failed to act according to substantial justice and the merits of the case as required by par 420(2)(b).
I turn then to the third area of complaint, that is the subject of the applicant's wife or girlfriend. The Department of Immigration had sought information from the applicant's girlfriend who was resident in Egypt. To do this they used the services of the Australian Embassy in Cairo. In its reasons for decision the Tribunal had cause to say that aspects of the conduct of the Australian Officials in the Embassy in Cairo were unclear. In its reasons, the Tribunal quoted from a cable that had come from the Embassy which reported that a conversation between Embassy officials and the applicant's wife is unrecorded.
Mr Hurley, counsel for the applicant, submitted that this was a finding that was wrong. It was his submission that the conversation had been recorded. Passing over the question whether such a complaint, if accurate, was no more than a complaint about an error of fact and, as such, not reviewable by this Court, I find myself unable to accept Mr Hurley's submission. A review of the contents of the book of documents confirms that the Tribunal accurately stated that the conversation between the embassy officials and the applicant's girlfriend was unrecorded.
The cables from the embassy in Cairo to Australia upon which Mr Hurley rested his submissions were secondary sources; they were summaries at the best. They were not a record of the conversation between the authorities and the girlfriend. As a result of the conclusions that I have reached it can be seen that I am of the opinion that there is no merit in this application having regard to the factual nature of the complaints that have been raised. If there is a duty, there is nothing in the submissions that would point to a breach of that duty or to an error of law on the part of the Tribunal. These findings render it unnecessary therefore to consider whether s57 and par 420(2)(b) had any part to play in these proceedings. However, in deference to the submissions of counsel, and in case this matter proceeds further, I add the following observations.
I will deal first with s420. That section directs the Tribunal as to the manner in which it is to exercise its powers. If, for example, material information adverse to the interests of the applicant came to the notice of the Tribunal, and it appeared that the applicant had never been apprised of that information, it would be incumbent on the Tribunal to bring it to the attention of the applicant. Not to do so and then to use it against the interests of the applicant would not accord to substantial justice and would amount to an error of law, allowing this Court to intervene under par 476(1)(e); that, in my opinion, would be the appropriate ground. Paragraph 476(1)(a) deals with the subject of procedures, and
I do not think that a failure of the type that I have postulated would be a breach of a procedure, it would be a breach of the standards laid down in par 420(2)(b).
It must not be overlooked that even though par 420(2)(b) requires the Tribunal to act according to the merits of the case, this Court is not empowered to engage in an exercise of reviewing the merits. The force and effect of par 420(2)(b) is therefore subject to that limitation in these and like proceedings. The limitation on the Court exists because there is a full review of the merits available in the Tribunal. However, there is nothing before the Court in these proceedings which would engage the Court's jurisdiction under this particular provision.
I turn to s57 which forms part of Subdivision AB of Division 3 of Part II of the Act. Part II is entitled "Control of Arrival and Presence Of Non-Citizen"s. Division 3 is entitled "Visas For Non-Citizens". The subdivision is entitled "Code Of Procedure For Dealing Fairly, Efficiently And Quickly With Visa Applications". Hence it can be seen that the subdivision is not limited to protection visas. This subdivision was introduced with effect as from 1 September 1994 as an intended code to direct the speedy processing of visa applications. At the same time, concepts of natural justice, procedural fairness, and Wednesbury-style unreasonableness were removed as grounds for review in the belief that the new code would afford the same type of protection but with greater certainty and predicability of application.
Subdivision AB, comprising ss52-64 sets out the manner in which the minister must deal with visa applications. It is in that context that s57 appears. The matter of significance when considering the importance of s57 is to note that its primary object is the treatment of information that would be the reason, or a part of the reason, for refusing to grant a visa. Everything else in the section is either incidental to or consequential upon that risk of refusal. It is the minister through his delegate who alone may refuse the visa. The Tribunal does not have that power of refusal.
Although sub-s 415(1) says that the Tribunal may exercise all the powers and discretions that are conferred on the primary decision-maker, that statement must be read as qualified by ss 411,412 and sub-s 415(2), which limit the role of the Tribunal. Section 411 identifies what decisions are RRT reviewable decisions, and they include a decision to refuse to grant a protection visa; s412 identifies who may apply for the review of an RRT reviewable decision, and such an application may only be made by a non-citizen who is the subject of the primary decision; sub-s 415(2) details the powers of the Tribunal. It states that:-
"The Tribunal may:
(a)affirm the decision; or
(b)vary the decision; or
(c)if the decision relates to a prescribed matter - remit the matter for the reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set aside and substitute a new decision.
But as I have said, the Tribunal has now power to refuse to grant a visa. It can affirm a decision, it can vary it, it can even grant a visa, but it cannot refuse a visa. Furthermore, as Lehane J pointed out in Mahboob v The Minister for Immigration and Ethnic Affairs, an unreported judgment published on 15 April 1996:-
"[T]he refusal [by the minister] to grant a protection visa is an RRT reviewable decision and is not itself, therefore, a judicially-reviewable decision."(p5)
This Court in these proceedings is not reviewing the decision of the primary decision-maker to refuse the applicant a protection visa; it is reviewing the decision of the RRT only.
There is a final matter which, in my opinion, is also a convincing reason why it cannot be said that s57 imposes any duty on the Tribunal when it is reviewing the merits of the decision of the primary decision-maker. The reason is based upon the presence of s342 in Division 2 Part V of the Act. That Division deals with the internal review of certain decisions. Although a decision to refuse the grant of a protection visa is not an internally reviewable decision, it is instructive to note that on an internal review of a decision, s342 states, with certain qualifications, that:-
"Subdivision AB of Division 3 of Part II [and hence s57] applies in relation to a review by a review officer."
A decision to refuse the grant of a protection visa is an RRT reviewable decision, not an internally reviewable decision, but there is no provision equivalent to s342 in Division 2 of Part VII which deals with the review of protection visa decisions and which is the division in which s415 is found.
Section 342 was introduced into the Act in 1994 as a separate exercise subsequent to the substantial amendments of 1992. If the Parliament had intended the code to apply to the RRT it would have been a simple matter for it to include a statutory equivalent of s342 in Part VII. The absence of the equivalent is a powerful persuasion in favour of the argument that a duty of the type imposed on the primary decision-maker by s57, is not imposed on the Tribunal.
I am therefore of the opinion that the applicant in these proceedings would not be able to complain to this Court on the ground that the RRT was obliged to, and had failed to comply with the provisions of s57 of the Act.
The application must be dismissed.
I certify that this and the preceding pages are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice O'Loughlin.
Associate:
Date:
Counsel for the applicant : Mr T Hurley
Solicitor for the applicant : Erskine Rodan
& Associates
Counsel for the respondent : Mr C Gunst
Solicitor for the respondent : Australian Government Solicitor
Date of hearing : 22-23 August 1996
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