Caragay, Mercedes v Minister for Immigration and Multicultual Affairs

[1997] FCA 1345

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Review of decision of the Refugee Review Tribunal - Whether Tribunal acted according to substantial justice - Discussion of interrelationship between s 420 and s 476

Migration Act 1958 (Cth) ss 420, 476

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 145 ALR 621, applied.
Venayagamoorthy Velmurugu & Anor v Minister for Immigration and Ethnic Affairs & Anor (Full Federal Court, 5 November 1997, unreported), applied.

MERCEDES CARAGAY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR
NG 837 of 1995

EMMETT J
SYDNEY

6 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 837  of  1995

BETWEEN:

MERCEDES CARAGAY
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

KAY RANSOME sitting as
REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

6 NOVEMBER 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.

1. the applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 837  of  1995

BETWEEN:

MERCEDES CARAGAY
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

KAY RANSOME sitting as
REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	6 NOVEMBER 1997
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   On 13 May 1991 the applicant applied for refugee status.  That application was refused by a delegate of the Minister on 17 August 1992.  On 21 September 1992 an application for review of that decision was lodged.  That application came before the Refugee Review Tribunal (“the Tribunal”) which decided the question on 6 October 1995 and published reasons for doing so.  The decision of the Tribunal was that the applicant is not a refugee.  The decision under review was varied pursuant to the amendments to the Migration Act 1958 (Cth) (“the Act”) so that the decision had the effect of a decision to refuse to grant the applicant a protection visa. The applicant now applies to this Court for review of the decision of the Tribunal.

The ground of the application to this Court is that procedures required by the Act to be observed in connection with the making of the Tribunal's decision were not observed. Section 476(1)(a) of the Act relevantly provides that, subject to section 476(2), an application may be made for review by the Federal Court of a judicially reviewable decision on grounds which include the following:

...that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

It is common ground that the decision of the Tribunal was a judicially reviewable decision. Section 476(2) provides that certain matters are not grounds upon which an application may be made under section 476(1). They are:

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

That provision is significant in relation to the contention advanced on behalf of the applicant in relation to the alleged failure to observe procedures required by the Act.

Section 420(2)(b) of the Act provides that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case. The complaint of the applicant is that there was a failure to act according to substantial justice in reviewing the decision of the delegate. There are two bases upon which that contention was advanced. The first relates to the alleged conduct of the NPA.

The applicant appeared at a hearing before the Tribunal on 12 September 1995 and was accompanied by her representative, Ms Belen Oag of Belan Oag Solicitors.  Following the hearing, Ms Oag made a written submission on behalf of her client's application.  The conclusion of the Tribunal as stated in the reasons was that it was very difficult to assess the applicant's claims in the absence of any proof from an independent source.  The Tribunal accepted the very particular difficulties of proof faced by applicants for refugee status and that an applicant who is otherwise credible should, unless there are good reasons otherwise, be given the benefit of the doubt.  However, there were a number of aspects of the case which led the Tribunal to doubt the veracity of the applicant's claims.

The applicant lived in the Philippines from her birth in 1944 until 1989.  The basis for her contention that she had a well-founded fear of persecution by reason of political opinion was said to be that she was suspected of being a sympathiser with the New Peoples Army (“NPA”).  The contention was that she was caught in the middle between the New Peoples Army and the military.  She said the military thinks she is a member of the NPA and a military spy.  She said she is afraid that she will be harmed by one or other of these groups.

In its conclusions, the Tribunal said that the major matter put forward by the applicant was that the NPA tried to recruit her and when she refused, threatened to harm her.  The Tribunal noted that the NPA had been responsible for the deaths of many prominent people, including mayors, police commanders and business people.  The Tribunal recorded that the applicant had told the Tribunal that the NPA tried to recruit her from about 1980 and that the NPA would come and sleep at her house because they were trying to recruit her.

The Tribunal found that it was inherently implausible that NPA members would sleep uninvited at the applicant's house at a time when the applicant was working for the government as a municipal treasurer.  The Tribunal said that it was implausible that the NPA would so identify themselves to a person who was not committed to their cause.

The Tribunal said that the applicant's account of her involvement with the NPA does not accord with available information about recruitment practices of the NPA.  In its reasons, reference was made to a book called “Silent War” by Victor Corpus, a former member of the NPA which contains the following statement:

Recruitment for membership of the NPA is never done through coercion or force.

Reference was also made to information supplied by the Department of Defence in a briefing on 19 August 1992 (contained in CISINFO document PHL00260, 20 August 1992) containing inter alia the following:

Coerced recruitment is not a feature of the NPA.

In its reasons, the Tribunal noted that coerced recruitment is not a feature of the NPA which is a clandestine insurgent force in the Philippines.  The applicant says that no reference was made to the two documents to which I have just referred in the course of the hearing and that the failure to do so was a failure to act according to substantial justice.

The second matter relied upon is the way in which the Tribunal dealt with the applicant's alleged membership of the Yellow Ladies' Brigade. The Tribunal recorded that the applicant had stated that her treatment at the hands of the NPA stemmed in part from her association with an organisation called the Yellow Ladies Brigade which operated in support of Corazon Aquino.  The Tribunal said that it had been unable to find any mention of that organisation in any of the material available to it about the Philippines and also noted the inability of the applicant to recall that organisation and her association with it at a departmental interview.

The Tribunal said that it did not accept her explanation that she was confused at the time and unable to remember.  The Tribunal considered that the significance of the organisation should have been remembered by the applicant and that the departmental officer at the interview gave her every opportunity to mention the association and prompted her to do so.  The Tribunal said in its conclusions that the fact that the applicant failed to mention the organisation, combined with the fact that the Tribunal can find no record of the organisation, leads the Tribunal to conclude that the applicant has fabricated her association with the organisation.  The applicant complained that she was not told that the Tribunal had been unable to find any record of the organisation.  The applicant contended that the failure to tell her that some significance attached to the failure to find any such record was a failure to act according to substantial justice.

There has been some controversy in this court as to the relationship between section 476(1)A and section 420(2)(b). That controversy has to some extent been put to rest by the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, and the decision in Venyagamoorthy Velmurugu & Anor v Minister for Immigration and Ethnic Affairs & Anor, (Full Court, 5 November 1997, unreported).

Davies J in Eshetu, observed (at page 624) that in his opinion section 420 describes procedures with which the Refugee Review Tribunal is bound to comply and that a breach of them is a ground of review under section 476(1). Burchett J generally agreed with that conclusion. Finkelstein J in Vellupillai Arulampalam Thambythurai & Anor v Minister for Immigration and Multicultural Affairs & Anor (16 September 1997, unreported), observed (at p.9) that:

...the duty to “act according to substantial justice and the merits of (a) case” is a duty to adopt and apply all those procedures that are necessary to ensure, so far as may be possible, that the decision-maker is able to arrive at a decision that is both just and in accordance with the merits.

Counsel for the applicant submitted that a duty to act according to substantial justice entails a duty to act so as to ensure that the result is one which would not strike a judge as being fundamentally unfair (see Cairns J in Middleton v Middleton [1966] 1 All ER 168 at 172-3). His Lordship there was concerned with the principle that an English court has a discretion to refuse to recognise a foreign decree of divorce which offends against English ideas of substantial justice and referred to Formosa v Formosa [1962] 3 All ER 419. In that case the expression "substantial justice" is used in a very broad sense and cannot perhaps be further defined than by saying that “what strikes an English judge as being fundamentally unfair is contrary to substantial justice”.

In Yao-Jing Li v Minister for Immigration and Multicultural Affairs (24 April 1997, unreported), Foster J also observed (at p.37) that substantial justice is not a concept which admits of easy definition. His Honour referred to the explanatory memorandum in respect of section 420 which contains the following:

“Substantial justice” is used to emphasise that it is the issues raised by the case, rather than the process of deciding it, which should guide the RRT [Refugee Review Tribunal] in making its decisions.  It is intended that the RRT will operate in an informal non-adversarial way that will facilitate applicants putting their own case in their own words.

His Honour thought that it was neither necessary nor desirable to undertake the task of defining substantial justice and that it was sufficient for present purposes that he express agreement with the general thrust of the explanatory memorandum that the term “substantial justice” is concerned with the decision of the issues raised in the case rather than the process of deciding them.  He observed that considerations of natural justice focus upon due process in the making of decisions and that, whatever else substantial justice may require, it certainly demands that a decision actually be made in respect of the significant issues posed in the case.

There was no substantial disagreement between the parties before me as to the general concept of substantial justice.  Having regard to the ephemeral nature of the concept, that is not surprising.  The real conflict, of course, is in determining in concrete circumstances whether the concept has been observed or not.  The applicant relied on observations concerning the obligation that a Tribunal inform a party before it of the existence of significant information.  For example, in Velmurugu, the judgment of Davies J with which Burchett and Whitlam JJ agreed, contains the following passage (at p.6):

...Counsel referred to the fact that the Tribunal had in its possession the 20 folios in respect of which an exemption had been claimed and also the letter which the Tribunal recorded as having been written to it.  Mr & Mrs Velmurugu did not see these documents.  The submission was that the Tribunal had information which was relevant to the case and on which Mr & Mrs Velmurugu had not been given the opportunity to comment.

It may be accepted that, when a Refugee Review Tribunal has significant information relating to a party before it which has not been disclosed, it should always make it perfectly clear that it has that information and provide the reasons why the material is not disclosed.

I was also referred to a decision of O'Loughlin J in Yonas Haile Giorgas Asrat & Anor v Minister for Immigration and Ethnic Affairs, (23 August 1996, unreported), in which his Honour also referred to section 420. His Honour said (at p. 9):

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 an 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).

Such observations of course must be considered in the light of section 476(2) which expressly provides that a breach of the rules of natural justice is not a ground upon which an application may be made under section 476(1). The reconciliation of that provision with section 420(2)(b) being a procedure with which the Tribunal must comply, was said in Eshetu to be that section 476(2) is concerned with common law principles. The Act itself, however, imposes its own requirements designed to ensure fairness and justice.

One of those requirements, for example, is section 425 which provides that where a review on the papers is not to occur, the Tribunal must give the applicant an opportunity to appear before it to give evidence. The Tribunal may obtain such other evidence as it considers necessary. Subsection 426 provides that, in those circumstances, the Tribunal must notify the applicant of the applicant's entitlement to appear and the Tribunal must have regard to the applicant's wishes concerning the giving of written notice to witnesses for the purposes of obtaining oral evidence from the person or persons named in the notice. Those provisions, together with section 420 and other provisions, guarantee that the procedures of the Tribunal must comply with some minimum standards which are not necessarily the same standards as would be required by the common law in relation to the rules of natural justice or procedural fairness.

It is against that background that I must consider the question of whether or not the failure to draw to the applicant's attention the two documents relating to recruitment and membership of the NPA and the absence of any information concerning the existence of the organisation known as the Yellow Ladies' Brigade resulted in the Tribunal not acting according to substantial justice.  There was before me a transcription of the oral hearing before the Tribunal in which the applicant gave evidence.  The applicant was asked by the Tribunal when she first started receiving threats from the NPA. She said it started in 1980 when she was still working as Municipal Treasurer, up to 1989.

Later (at p.10 of the transcript) she was asked:

So you said that the NPA was threatening you because you would not join them, is that right?

The answer through an interpreter was:

Yes, because they want women members.

Question:

And they continued to threaten you for about 9 years?

Answer through the interpreter:

Yes...  My mother just by seeing the barrel of a gun will start crying.

The Tribunal then asked:

Ms Caragay, everything that I have read about the NPA says that the NPA doesn’t force people to join them.

The response was:

No, there are some really - give you a death threat to join them because I have already attended the meeting and they took me to the place where they get so many members they really...

The Tribunal then said:

That does not make sense, why they would try and force you to join if you didn’t want to.  What good would you be to them if you didn’t want to join?

Answer:

Because maybe I am a Municipal Treasurer an office centre... I can recruit maybe.  If they can recruit me I can recruit them...

Question:

Why would they continue to threat you for nine years.  It must have been obvious by that time that you weren’t going to join?

It is against that evidence that one must consider the parts of the reasons for the Tribunal's decision complained about.

I consider that the applicant was told fairly that the Tribunal had read material which says that the NPA does not force people to join them.  That may be a matter which figured in the reasoning which led to the Tribunal's conclusion that it did not accept her evidence.  I read the reasons for the Tribunal as saying that it was simply not believable that the NPA would for 9 years continue to endeavour to recruit somebody who clearly did not want to join.  That is what the Tribunal is saying in the passages to which I referred above.

I do not regard the failure to put before the applicant the two documents cited in the reasons as a failure to observe substantial justice.  There is nothing about putting or making the observation in general terms that strikes me as being fundamentally unfair.  The material is not material concerning the applicant; it is general material which would have been available had the applicant asked for details of what the Tribunal said had been read by the Tribunal.  In any event, there is no evidence to indicate what might have happened if the two documents had been put before the applicant.  That in my opinion is not decisive in this case but even if I had concluded that there had been some denial of procedural fairness by referring only to what had been read in general terms rather than in specific terms I would still have to be satisfied that there had been a fundamental unfairness.

It seems to me that it may be incumbent upon an applicant in those circumstances to indicate that there would be some utility in referring the matter back to the Tribunal.  It may be that I would not conclude that it would have been totally pointless in referring the matter back if I had been satisfied that there had been fundamental unfairness.  However, for the reasons I have indicated, I consider that the question that was put was a sufficient indication, if this was a matter of concern which could have been addressed.  The applicant, who had the assistance of a solicitor, was given sufficient indication to enable her to refute the suggestion that the NPA does not force people to join them if she wished or was able to do so.

The second matter relied upon, the reference to the Yellow Ladies Brigade, was not, in chief, addressed at any length by counsel for the applicant.  It is not totally clear what the Tribunal was saying.  It is possible that the Tribunal was saying that it had concluded that the Yellow Ladies Brigade did not exist.  It does not, of course, say so and I consider on a fair reading that it does not say that.  The significant thrust of the reasons is that the applicant had given significantly inconsistent evidence and more particularly, in an interview, had been unable to recall the name of the Yellow Ladies Brigade. 

In her application for refugee status, the applicant referred to the Yellow Ladies Brigade. However, in her interview before the delegate, although given fair opportunity to do so, failed to mention that name.  The reasons for decision of the delegate were before the Tribunal and were before me.  They contained the following (at 30):

When asked whether she had any political involvement she claimed that she had participated in municipal meetings.  It was put to the applicant that according to her written claims her difficulties with the NPA flowed from her activities in a certain organisation.  The applicant stated that she was a leader in a youth organisation which was against the NPA - that sometimes she was a leader and sometimes not.

It was put to the applicant that there were very significant discrepancies between the contents of her application and the information she was giving at interview.  It was put to the applicant that she did not appear to know what was in her application.  She stated that because of her difficulties in Australia she had forgotten the details.  It was put to the applicant that there can only be one true account of her experiences and that the reason for her difficulties with the NPA was fundamental to her application.  She said she can't remember. 

It is against that background that the observations made by the Tribunal in relation to the Yellow Ladies Brigade must be considered.  The Tribunal attached considerable significance to the fact that, in the interview with the departmental officer, the applicant, having been given every opportunity to mention the association and being prompted to do so, failed to mention it.  The reasoning seems to be that, in those circumstances, grave doubt should arise in relation to whether or not the applicant should be believed when she says that her membership of the Yellow Ladies Brigade caused concern in relation to the NPA.

The reference to the fact that the Tribunal could find no record of the organisation appears to be no more than the indication that the Tribunal simply had no information about the Yellow Ladies Brigade.  It may be that an inference could be drawn that the applicant had no other information either.  If she had such information, she could have made that available to the Tribunal.

As I have said, I do not read the reasons as constituting a conclusion that the Yellow Ladies Brigade did not exist.  The conclusion is simply that the Tribunal was not satisfied that the applicant was a member of such an organisation. Indeed the Tribunal was positively satisfied that the applicant had fabricated her association with the organisation.  It is clear, however, that that conclusion is based on the failure to identify the association at a critical time in circumstances where it is almost unbelievable that she would not have been unable to name the organisation if it had the significance which she said it had in her case before the Tribunal.  For that reason I do not consider that the omission to tell the applicant that some significance would be attached to there being no record of the organisation constituted a failure to act according to substantial justice.

It follows, in my view, that the application should be dismissed with costs.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:            6 November 1997

Counsel for the Applicant:	J. Parnell
Solicitor for the Applicant:	Belen Oag
Counsel for the Respondents:	V. Hartstein
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	6 November 1997
Date of Judgment:	6 November 1997