Jae Bok Lee v Minister for Immigration & Ethnic Affairs
[1997] FCA 321
•2 MAY 1997
CATCHWORDS
MIGRATION LAW - Application for refugee status - Refusal by Minister - Unsuccessful review by Refugee Review Tribunal - Application to review Tribunal's decision - Review sought on ground that required procedures not observed - Review grounded on complaint that applicant not permitted to continue to address Tribunal orally - Invited to make written submissions in lieu - Written submissions made - Whether permissible ground of review - Attempt to review decision on merits.
Migration Act 1958 ss420, 425, 476
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Lek v Minister for Immigration and Ethnic Affairs (1993) 117 ALR 455
Mohinder Singh v Minister for Immigration and Ethnic Affairs (unreported, 24 January 1997)
Ma v Billings (1996) 142 ALR 158
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259
Sarbjit Singh v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 191
JAE BOK LEE v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS VG 274 of 1996
COURT:Sundberg J
PLACE:Melbourne
DATE:2 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 274 of 1996
GENERAL DIVISION )
BETWEEN:JAE BOK LEE
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
COURT:Sundberg J
DATE:2 May 1997
PLACE:Melbourne
MINUTES OF ORDER
The Court orders that:
The application be dismissed.
The applicant pay the respondent's taxed 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 )
VICTORIA DISTRICT REGISTRY ) No VG 274 of 1996
GENERAL DIVISION )
BETWEEN:JAE BOK LEE
Appellant
AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
COURT:Sundberg J
DATE:2 May 1997
PLACE:Melbourne
REASONS FOR JUDGMENT
SUNDBERG J:
Background
The applicant is a national of South Korea who arrived in Australia on 7 July 1988. On 14 December 1994 he applied for a protection visa, claiming he had a well-founded fear of being persecuted by reason of his political opinion were he to return to South Korea. On 27 June 1995 the respondent's delegate refused the application. On 1 August the applicant applied to the Refugee Review Tribunal for review of that decision. On 10 January 1996 the applicant attended a hearing before the Tribunal and gave evidence in support of his case. He was not legally represented and spoke through an interpreter. On 12 April the Tribunal affirmed the delegate's decision to refuse a protection visa. The present appeal is from that decision. The applicant again appeared for himself, assisted by an interpreter.
Evidence before Tribunal
The applicant is 60 years old. He obtained a tertiary degree in South Korea that qualified him for work in the fishing industry, and worked predominantly in that area. He claimed that his father disappeared in 1951 and was probably executed because he was suspected of being a communist sympathiser. He said that in about 1981, after returning from a trip to Japan, he was arrested by members of the security forces. He was detained for a day and left in a room where he was required to write down details of those whom he had met in Japan. About six months later he was again detained for a similar period and required to provide details of another trip to Japan. On neither occasion was he harmed physically. He said he was accused of having made contact with North Koreans living in Japan. He was not charged with any offence. After that he had no further contact with the security forces.
The applicant's problem with the security forces was, he said, well known in the community, and the banks with which he dealt were aware of the problem. The applicant's business eventually owned five ships. From about 1981 he began to have problems getting loans from the banks. Although in 1981 and 1982 he was not refused loans, those he obtained were for amounts smaller than he had requested, and securing them involved difficult negotiations and the payment of bribes. After 1982 he was unable to obtain loans. He said that all Korean banks are linked to the government, and they indicated to him that the withdrawal of financial support was due to the security forces' interest in him. They also told him his company would be made bankrupt. The applicant said his company was closed down and its assets were sold at public auction.
In the early 1980s the applicant was involved in a court case with the Korean Exchange Bank and the buyer of his ships. The court decided in the applicant's favour and ordered the buyer to pay him the full amount he was owed. The Bank claimed there was no money in the
buyer's account with which the judgment could be satisfied. The applicant is concerned that the Bank people, who, he said, are personally liable to satisfy the court order, would harm him if he were to return to South Korea.
The applicant said he had to work as a kitchen-hand from 1983 to 1986. On two occasions in 1986 his appointment as a fishing master was rescinded. He believes the reason for this was that the ship-owners knew of his father's history and of his own problems with the Bank.
The applicant contended that the South Korean government retains strong links with the military, and that there have been no changes in conditions there that would make it safe for him to return.
Tribunal's reasoning
The Tribunal noted the provisions of Article 1A(2) of the Convention relating to the Status of Refugees, set out extracts from Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 396, 429-430 espousing the "real chance" test and explaining the notion of "persecution", and noted that the question whether a person has the status of a refugee is to be determined upon the facts existing at the time the matter is considered: Lek v Minister for Immigration and Ethnic Affairs (1993) 117 ALR 455 at 462-463. See now Mohinder Singh v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 191 at 193-196.
The Tribunal discounted the applicant's fear of persecution based on his father's disappearance in 1951. It observed that the applicant did not claim any difficulties with the authorities prior to 1981, some thirty years after the disappearance. It also discounted his questioning by the authorities in 1981, saying that the security forces had not bothered him
since his second release. The Tribunal considered there was not a real chance that, some fifteen years after they last showed an interest in the applicant, the security forces would, were he to return to South Korea, persecute him over matters related to his contacts in Japan. Nor did the Tribunal consider there was a real chance that the banks would persecute him for a Convention reason upon his return.
The Tribunal noted that the applicant's resort to the judicial system in South Korea had been successful. The fact that the Bank failed to pay the judgment debt did not disclose a real chance of persecution for a Convention reason. The applicant remained in South Korea for nearly a decade after the Court action, and encountered no harm from Bank officers. The prospect that persons associated with the Bank might now punish him because he had won his court case, and they were exposed to personal liability on the judgment, was "far-fetched".
The Tribunal then set out extracts from the United States Department of State report of 1995 regarding human rights in South Korea, and concluded on the basis of the report that while detention of some political prisoners continues, as do certain human rights abuses, there has been a gradual improvement with respect to the independence of the judiciary. The Tribunal said there was nothing in the report or in any other material before it which showed that the applicant's fear of persecution was well-founded. It concluded that there was not a real chance that the applicant would face persecution if he were now to be returned to his country of origin. The delegate's decision was affirmed.
Grounds of review
The grounds upon which decisions of the Tribunal are reviewable by the Court are set out in s476 of the Migration Act 1958. The first ground relied on by the applicant is that
procedures that were required by the Act to be observed in connection with the making of the Tribunal's decision were not observed. This is the ground for which s476(1)(a) provides. The applicant's complaint in his Particulars, and as expounded before me, is that although the Tribunal asked him many questions about his employment and other matters, which he answered, it "would not permit him to address it orally about the issues arising in relation to the decision under review". What actually happened at the conclusion of a lengthy exchange between the Tribunal Member (Mr Brewer) and the applicant, in which the Member sought to elucidate the facts on which the applicant relied, appears from the transcript:
MR BREWER: Okay. Mr Lee, what I propose is this. That your adviser will be sent a copy of the tape, and you may wish to have a discussion with him about your application, and the evidence you have given today. You have already submitted a fair amount of material yesterday, but it may be the case that you want to submit other material, and it may be the case that your adviser would want to make a submission on your behalf in writing. So what I propose is that we adjourn now, that you will have an opportunity to talk with your adviser and submit any other material, either through him or yourself, within the next fortnight.
...
THE INTERPRETER: Then I can submit other materials besides this one that I submitted yesterday. If you need some more things in regard to the ... (indistinct) ... and what I want to do today is that you please listen to me for ten minutes more.
MR BREWER: Well, I think it would be better if, in consultation with your adviser, you sort out, through your material, if there is anything else you want to submit, and determine, with his assistance, material that is relevant to your application. Okay?
...
MR BREWER: Okay, so you understand that you have got until 25 January, you or your adviser to submit further material?
MR LEE: Yes.
The applicant availed himself of the opportunity to make further submissions. In fact he made three written submissions. The submissions are written in well-constructed English, and it appears that the applicant must have had some assistance in formulating them, presumably from "the adviser" mentioned by Mr Brewer.
Section 420 provides in part:
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
...
(b)must act according to substantial justice and the merits of the case.
Section 425 provides:
(1)Where section 424 does not apply, the Tribunal:
(a)must give the applicant an opportunity to appear before it to give evidence; and
(b)may obtain such other evidence as it considers necessary.
(2)Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issue arising in relation to the decision under review.
(Section 424 provides for review "on the papers" in certain circumstances.)
The effect of the more recent cases on the relationship between ss420 and 425 on the one hand, and s476(2)(a) on the other, can be summarised as follows:
The requirement in s420(1) that the Tribunal provide a mechanism of review that is fair and just imposes on it the duty to comply with the rules of natural justice or procedural fairness.
The requirement in s420(2)(b) that the Tribunal act according to substantial justice and the merits of the case imposes on it a duty to comply with the rules of natural justice or procedural fairness.
Section 425 partially explains what the inherently flexible notions of natural justice and procedural fairness require in proceedings before the Tribunal.
The rules of natural justice or procedural fairness as explained by s425 are "procedures required by the Act to be observed" for the purposes of s476(1)(a).
Although ss420 and 425 require the Tribunal to act in accordance with the rules of natural justice or procedural fairness, failure to comply with those rules is not a ground upon which its decisions can be reviewed: s476(2)(a).
See Ma v Billings (1996) 142 ALR 158 at 164-166, Eshetu v Minister for Immigration and Ethnic Affairs (1979) 142 ALR 474 at 485, Dai v Minister for Immigration and Ethnic Affairs (unreported, 17 April 1997) and Mohideen v Minister for Immigration and Ethnic Affairs (unreported, 17 April 1997).
It follows from proposition 5, that if declining to give the applicant the further ten minutes in which to present oral argument constituted a denial of natural justice, that complaint is not a ground of review in this Court. But I am far from thinking that the course adopted involved
such a denial. The Tribunal thought it would be better for the applicant, whose English is poor and who for the most part addressed the Tribunal through an interpreter, to consult with his adviser and make any further submissions in writing. This he did, making three substantial submissions with supporting material. Instead of halting and unorganised oral submissions, he was able, with the help of his adviser, to prepare well-constructed submissions, together with supporting evidentiary material. The applicant was greatly advantaged by the course adopted. He was able to put his case in a far better fashion than would have been possible had he simply been permitted to address the Tribunal for a further ten minutes.
The next ground of review is that the Tribunal's decision was an exercise of discretionary power in accordance with a rule or policy without regard to the merits. This is the ground provided for by s476(1)(d) and (3)(c). It reflects the common law position that an administrative body may not adopt an arbitrary rule by which it will act, irrespective of the merits of the particular case: a desire for consistency alone must not be allowed to preclude a consideration of all the merits of each individual case. The applicant's complaint is that the Tribunal "repeated policy that significant political reform has occurred in Korea since 1988 while ignoring the continued vigorous resort to the National Security Law of Korea". This is not a complaint that the Tribunal decided the case by reference to a predetermined policy or arbitrary rule and failed to consider the merits of the applicant's case. It is a complaint that it accepted evidence that there had been significant political reform since 1988 rather than evidence that the authorities still resorted to the National Security Law. The Tribunal's decisions are not subject to review on that ground. But in any event, the complaint is misconceived. The Tribunal did not ignore evidence that the applicant says it should have accepted. The Tribunal set out a lengthy extract from the State Department Report, which balanced the improvements in South Korea against continuing human rights abuses. The
Tribunal concluded that while some political prisoners remain detained and certain human rights abuses still occur, there have been gradual improvements in the independence of the judiciary. It is clear that what the applicant wants this Court to do is to review the Tribunal's decision on the merits. But it has no jurisdiction to do so: Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272, 291.
The final ground of review is that the Tribunal's decision was induced by actual bias. This is the ground provided for by s476(1)(f). The complaint here is that the Tribunal relied on the State Department Report and "failed to advert to the view of Amnesty International that the National Security Law was increasingly used to imprison people for non-violent exercise of their rights to freedom of expression and association". That complaint does not fall within s476(1)(f). It is not evidence of actual bias, which covers the case where a Tribunal has an interest in the outcome of a proceeding or has prejudged the matter: Sarbjit Singh v Minister for Immigration and Ethnic Affairs (unreported, Lockhart J, 18 October 1996). Rather it is a complaint, like the second one, that the Tribunal came to the wrong conclusion. It is not even a complaint that the Tribunal preferred one piece of evidence over another, for the Amnesty International material was not before the Tribunal. Accordingly this is a clear case in which a review on the merits is sought in reliance on material that was not before the Tribunal.
Putting aside the way in which the complaint is formulated in the application for review, there is nothing in the transcript of proceedings before the Tribunal that suggests bias of any variety, let alone "actual bias".
I have dealt with the case on the basis of the arguments put to me. However I should observe that although the applicant's case for a protection visa was based on the claim that,
were he to be returned to South Korea, he would be likely to suffer persecution by reason of his political opinions, his written outline of submissions included the statement that his case is "not that he was subjected to persecution for political reasons, but that he was justifiably afraid for his physical safety once he won the civil case he brought against the Korean Foreign Exchange Bank". The emphasis is the applicant's. Later he repeated that his fear is "not because he has engaged in political activities of any kind". The applicant's own submissions would seem to take him outside the protection of the Convention.
The application is refused with costs.
I certify that this and the preceding nine pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg
........ ........ ........ ........ ........ ........ .
Associate
2 May 1997
The Applicant appeared in person.
Counsel for the Respondent: R M Downing
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 7 April 1997
Place of Hearing: Melbourne
Date of Judgment: 2 May 1997
The requirement in s420(1) to provide a fair mechanism of review imposes on the Tribunal the duty to comply with the rules of natural justice. The requirement in s420(2)(b) to act according to substantial justice and the merits of the case may also require it to comply with the principles of natural justice or procedural fairness: cf Collins v Repatriation Commission (1980) 48 FLR 198 at 210 and Courtney v Peters (1990) 27 FCR 404 at 411. In Ma v Billings (1996) 142 ALR 158 at 164-165, Drummond J said:
Once it is accepted, as I think it must be, that, in the context of s420 of the Migration Act, the obligation imposed on the tribunal to act in reviewing decisions in accordance with substantial justice and the merits of the case does not permit the tribunal to disregard the statutory criteria governing the grant of visas, it is difficult to see how that statutory requirement can involve anything other than an obligation governing the kind of procedure the tribunal must follow in applying the statutory criteria in the course of reviewing the decision. The statutory duty must, therefore, I think, be limited to a duty to make a determination whether the statutory criteria are satisfied in accordance with procedures that will ensure that the real issues relevant to the determination are identified and considered.
I have difficulty in finding any distinction between such procedures and the requirements of natural justice. To so read s420(2)(b) means that it adds little to the duty cast by s420(1) on the tribunal in carrying out its functions under the Act to pursue the objective of providing a mechanism of review that is fair and just. But that seems to me to be the effect to be given to s420(1) and (2)(b). I do not read s425 as cutting down the obligation cast by s420 on the tribunal to comply with the principles of natural justice or procedural fairness: rather does s425 prescribe what has to be done in order to meet the inherently flexible requirements of procedural fairness or natural justice where the tribunal decides that it cannot dispose of the matter "on the papers" under s424.
Since natural justice is "not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise" ..., s476(1)(a) would be apt to empower the Federal Court to review a judicially reviewable decision of the RRT on the ground that a breach of the rules of natural justice occurred in connection with the making of a tribunal decision; but s476(2)(a) excludes a breach of the rules of natural justice as a ground of review of RRT decisions.
After reviewing several decisions in which the relationship between ss420 and 476(1)a) was examined, at 166 his Honour concluded:
If I am correct in thinking that s420 obliges the RRT, in reviewing a decision, to comply with the rules of natural justice, while s476(2)(a) prevents correction of a failure by the tribunal to do that, it follows that the parliament has adopted a process in which an applicant for review is entitled to expect that his application will be dealt with by the RRT in accordance with the principles of natural justice, but, if that does not happen, he is left without any remedy. But I think that is what parliament must be taken to have intended.
0
14
0