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CCC v Minister for Immigration & Multicultural Affairs

CCC v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA
"CCC" v Minister for Immigration & Multicultural Affairs [2001] FCA 682
IMMIGRATION LAW – Protection visa – Decision of Refugee Review Tribunal to affirm decision of the Minister not to grant protection visa – Whether failure to make a finding on a question of fact is a ground for review – Whether Tribunal failed to review the Minister’s decision – Whether Tribunal misunderstood the meaning of “persecution” – Whether Tribunal made a finding based on no evidence
Migration Act 1958 (Cth) Pt 8, ss 414; 430; 476
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied
Minister for Multicultural Affairs v Anthonypillai [2001] FCA 274 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 referred to
Handa v Minister for Immigration & Multicultural Affairs [2000] FCA 1830 referred to
“CCC” & “NNN” v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V627 OF 2000
MARSHALL J
MELBOURNE
8 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V627 OF 2000

BETWEEN:

“CCC”
FIRST APPLICANT

“NNN”
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

8 JUNE 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the application, including reserved costs, 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

V627 OF 2000

BETWEEN:

“CCC”
FIRST APPLICANT

“NNN”
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MARSHALL J

DATE:

8 JUNE 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The first applicant, CCC, is a Sri Lankan national of Tamil ethnicity. NNN is her daughter. CCC and NNN entered Australia on 9 September 1997. CCC applied on behalf of herself and NNN for protection visas on 8 December 1997. On 5 February 1998, a delegate of the respondent Minister (“the Minister”) refused the application. An application for review of that decision was lodged with the Refugee Review Tribunal (“the RRT”) on 10 March 1998. An oral hearing was conducted by the RRT on 21 June 2000. In a decision dated 10 July 2000 the RRT affirmed the decision of the Minister not to grant protection visas to the applicants. On 23 August 2000, the applicants applied to this Court for an order of review under Pt 8 of the Migration Act 1958(Cth) (“the Act”) in respect of the RRT decision.
RELEVANT CLAIMS ADVANCED BY CCC

1~~In the original application for a protection visa CCC answered the question, “why did you leave [Sri Lanka]”, by referring to a range of matters including the following:~~
~~·a fear of rape or death from the security forces~~
~~·living alone with NNN, she considered herself and NNN to be in a vulnerable situation exposed to “serious abuse of sexual assault, harassment and extreme danger from the…~~

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 682
Decision Date: 8 JUNE 2001

CaseChat Overview and Summary

The case of CCC v Minister for Immigration & Multicultural Affairs involved CCC and NNN, who were applicants for protection visas. The dispute centred around the Review Tribunal's (RRT) handling of their claims, specifically whether the RRT failed to make a finding on a material question of fact regarding an assault on CCC at her home. The applicants argued that this failure constituted a procedural error under the Migration Act, warranting judicial review. The Minister for Immigration & Multicultural Affairs contested these claims, asserting that the RRT had properly considered the applicants' case and that the absence of a specific finding did not reflect a failure in the review process.

The legal issues before the court were whether the RRT's failure to make a finding on the assault constituted a procedural error under the Migration Act and whether this omission indicated that the RRT had not properly reviewed the applicants' protection visa applications. The applicants argued that the RRT's failure to address the assault claim directly was a procedural error that rendered the decision reviewable. The Minister countered that such a failure did not amount to a procedural error and that the RRT had indeed considered the applicants' claims adequately.

The court found against the applicants on both points. It held that the RRT's failure to make a finding on the assault did not constitute a procedural error under the Act, aligning with the High Court's reasoning in Minister for Immigration and Multicultural Affairs v Yusuf. The court further determined that there was no evidence to suggest that the RRT had not properly reviewed the applicants' case. The argument that the RRT's failure indicated a lack of proper review was also rejected, as the court found no basis to believe that the RRT had not engaged in a valid review.

The court dismissed the applicants' application and ordered that the applicants pay the respondent's costs, including reserved costs, to be taxed in default of agreement.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application, including reserved costs, to be taxed in default of agreement.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

This submission cannot succeed in the light of the recent High Court judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf”). In Yusuf the High Court held that a failure by the RRT to make a finding on a question of fact did not amount to a failure to observe a procedure within the context of s476(1)(a) of the Act. In their joint judgment, with which Gleeson CJ agreed, McHugh, Gummow and Hayne JJ said at [77]:“An alleged failure to make a finding of fact on a material question is not a failure to observe a ‘procedure… required’ by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the means that an asserted failure to make findings is not a breach of s 430. Accordingly, s 476(1)(a) is inapplicable.” It was further submitted that the failure to make a finding on the issue of assault at CCC’s home showed that the RRT had not engaged in a valid review under s414 of the Act. I reject this submission. There is no reason to believe that the RRT did not consider the applicants’ application for protection visas. In Minister and Multicultural Affairs v Anthonypillai [2001] FCA 274 (“Anthonypillai”) the Full Court at [78] said:“…there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to “review” the decision of the Minister.” The Full Court in Anthonypillai then dealt with what it referred to as some “extreme” examples of how such a failure may occur, including a failure to address the correct question. I fail to see how anything the RRT did in this matter reveals that it did not properly consider the application before it. Finally Mr Gray contended that the failure to make a finding on the issue of assault at CCC’s home showed that the RRT had made an error of law as identified under s476(1)(e) of the Act. Mr Gray submitted that the RRT misunderstood the meaning of “persecuted” by not finding that CCC had a well founded fear of persecution on account of her race if returned to Sri Lanka by reference to the assaults that occurred in her home. I also reject this submission. In the Respondent’s Contentions of Fact and Law it was stated: “It simply does not follow from the absence of any specific reference to claims of intimidation and assault that the Tribunal failed to appreciate that the claimed incidents could amount to persecution within the Convention definition. There is noting on the face of the decision to indicate that the Tribunal had departed from the correct understanding of persecution…”With respect, I agree with this submission. I also accept Mr Gibson’s submission that such a contention is essentially an invitation to the Court to engage in impermissible merits review. Failure to Make a Finding Regarding the 1997 Sexual Assault Claim

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Reference was made by the RRT to CCC making “several trips abroad and return[ing] to Sri Lanka”. The RRT also commented on the ease with which CCC and NNN left Sri Lanka and viewed that as an indication that they were of no interest to the authorities and would not be suspected of LTTE affiliation if returned to Sri Lanka, or persecuted for any Convention based reason.CONSIDERATION OF COMPETING CONTENTIONS Mr P Gray of counsel appeared for CCC and NNN pursuant to the Court’s pro bono assistance scheme. Mr J Gibson of counsel appeared for the Minister. Mr Gray prepared and filed comprehensive contentions of fact and law upon which he relied. At the hearing he focussed primarily on two submissions. He provided some further oral submissions on a third issue after the Court expressed an interest in that submission being developed. Mr Gray otherwise relied on his written contentions on the remaining issues without seeking to develop them orally. Mr Gray submitted that the RRT failed to comply with s430(1)(c) of the Act by failing to set out a finding on a material question of fact. The alleged material question of fact was whether Sri Lankan security forces assaulted CCC during visits to her home by kicking her and pushing her around and pointing their guns at her. It was contended that the failure to make a finding about that claim was a failure to observe a procedure prescribed by s430(1)(c) of the Act and consequently reviewable by the Court under s476(1)(a) of the Act. This submission cannot succeed in the light of the recent High Court judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf”). In Yusuf the High Court held that a failure by the RRT to make a finding on a question of fact did not amount to a failure to observe a procedure within the context of s476(1)(a) of the Act. In their joint judgment, with which Gleeson CJ agreed, McHugh, Gummow and Hayne JJ said at [77]:“An alleged failure to make a finding of fact on a material question is not a failure to observe a ‘procedure… required’ by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the means that an asserted failure to make findings is not a breach of s 430. Accordingly, s 476(1)(a) is inapplicable.” It was further submitted that the failure to make a finding on the issue of assault at CCC’s home showed that the RRT had not engaged in a valid review under s414 of the Act. I reject this submission. There is no reason to believe that the RRT did not consider the applicants’ application for protection visas. In Minister and Multicultural Affairs v Anthonypillai [2001] FCA 274 (“Anthonypillai”) the Full Court at [78] said:“…there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to “review” the decision of the Minister.”

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V627 OF 2000

BETWEEN:	“CCC” FIRST APPLICANT “NNN” SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	8 JUNE 2001
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	8 JUNE 2001
PLACE:	MELBOURNE