M1031 of 2003 v Minister for Immigration
[2004] FMCA 763
•5 November 2004
|
| M1031 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 763 |
| MIGRATION – Review of Refugee Review Tribunal – application for protection visa – failure to provide opportunity to respond to adverse material – applicant misled by Tribunal – jurisdictional error for denial of procedural fairness. |
Migration Act 1958 (Cth)
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)
Migration Regulations 1994 (Cth)
Muin v Refugee Review TribunalLie v Refugee Review Tribunal [2002] HCA
Applicants S194 of 2002 v Refugee Review Tribunal [2003] FCA 615
Re Refugee Review Tribunal; Ex parte Aala [2000] 204 CLR 82
| Applicant: | APPICANT M1031 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and OTHERS |
| File No: | MLG 1485/2003 |
| Delivered on: | 5 November 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 15 October 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J A Gibson |
| Counsel for the Respondent: | Dr S Donoghue |
ORDER
The decision of the Refugee Review Tribunal dated 24 November 2000 be set aside.
The matter be remitted to the Refugee Review Tribunal for reconsideration.
The respondent pay the costs of the applicant fixed in the sum of $6,000.
Certify for Counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1485 of 2003
| APPLICANT MLG1031 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Procedural history
The applicant is a citizen of Cambodia. He arrived in Australia on
12 January 1996 on a student visa. In May 1996 he was joined by his wife and have three children. On 24 September 1997 he applied for a protection visa. His wife and children were included n the application.
On 3 June 1998, a delegate of the first respondent refused to grant the applicant and his family protection visas and on 2 July 1998 the applicant applied to the Refugee Review Tribunal (“the RRT”) seeking to review the delegate's decision. On 29 September 2000 a hearing was held with the assistance of an interpreter in the Khmer language. The applicants were represented by a migration agent. The applicant and his wife gave oral evidence. A transcript of those proceedings is before this Court. On 24 November 2000, the RRT affirmed the delegate's decision. The decision was handed down on 15 December 2000.
The applicant joined the Muin and Lie class action commenced by way of order nisi in the High Court on 16 February 2001. After that matter was determined by the High Court (Muin v Refugee Review TribunalLie v Refugee Review Tribunal [2002] HCA 30), he commenced proceedings in the High Court in accordance the orders made by Gaudron J. In those proceedings, which were subsequently remitted to the Federal Court, he sought an order nisi for the writs of certiorari, mandamus and prohibition. That application was remitted to this Court by Kenny J. on 18 December 2003.
The draft order nisi sought constitutional writs on two grounds but only the second ground was argued. That was that the decision of the RRT was made in breach of the rules of procedural fairness or natural justice in that the applicant:
was not given an opportunity to answer adverse material concerning the situation in Cambodia which was in the possession of, and relied upon, by the second respondent.
The legislation
The application to the RRT was made prior to the commencement of the Migration Legislation Amendment (Procedural Fairness) Act2002 (Cth). Thus if the applicant can establish there was a breach of procedural fairness, then judicial review is not prevented by s.474 of the Migration Act 1958 (Cth) (the Act).
Section 65 of the act provides that if the Minister is satisfied that the prescribed criteria and other specified matters have been satisfied, the visa is to be granted; if not, the visa is to be refused.
The criteria prescribed for the grant of a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (Cth). One of the criteria is that the applicant is a person to whom Australia has protection obligations under the 1951 Convention in relation to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Article 1A(2) of the Convention defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable, owing to such fear, is unwilling to return to it.
Refugee Review Tribunal decision
The applicant claimed to fear persecution for reason of his political opinion or imputed political opinion. He claimed that he joined FUNCINPEC (National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia) in 1993 and that he took part in an election campaign in May 1993. FUNCINPEC won that election but the election was followed by a period of dual government comprising FUNCINPEC and the CPP (Cambodian People's Party). He claimed to have never been an office holder in the party but to have remained active in the party between 1994 to 1996 in Cambodia before his departure for Australia. Whilst in Australia his membership has continued and he has attended meeting here.
The applicant described some of the disturbing events of the election in May 1993 when some FUNCINPEC members were killed and others were beaten and intimidated by members of the CPP. He took part in the campaign in Takeo. The applicant referred to the events of 5-6 July 1997 when the Second Prime Minister, Hun Sen, staged a coup against the First Prime Minister, Prince Ranariddh and his party. FUNCINPEC official were tortured and executed and hundreds lost their lives or were arrested by the CPP. The applicant was concerned that his name was still on the blacklist held by the CPP.
The applicant submitted to the RRT articles on events mostly in 1998 which referred to suspicious deaths and to demonstrations around the July 1998 election results.
The Tribunal discussed with the applicant advice from DFAT that ordinary members of FUNCINPEC were not at risk of arrest or harm at the hands of the authorities.
Leading members of Funcinpec and the KNP in Cambodia are not considered to be at risk at present, and are unlikely to become the prime targets of harassment by the Cambodian People's Party (CPP). They have the protection of international media scrutiny and the government's undertaking of a free and fair election. (Country Information Report, 160/98, 14 March 1998, CX29295).
The Tribunal noted that this advice was given over two years ago but that it had remained firm since that time. For example, in December of that same year, the Tribunal referred to advice by DFAT that they:
checked with two NGO organisations and they confirm that with the formation of the new Cambodian Government on 30 November 1998, FUNCINPEC members have ceased to report harassment by members of the security forces. The only exception is several FUNCINPEC police officers who were allegedly involved in the demonstrations that occurred in Phnom Penh in September…the political harassment of FUNCINPEC supporters is no longer an issue. (CX33468, 17/12/1998).
In the course of that exchange the Tribunal member commented to the applicant that people looking in on Cambodia would say that the situation had “got a whole lot better since then” (1998) and later said:
Let me tell you why. Our own department of foreign affairs says that there’s no risk now to people who are ordinary FUNCINPEC members. Ranariddh and Hun Sen still share offices really. There are FUNCINPEC – I think 21 members of parliament or it is 31 – I forget my numbers – are FUNCINPEC members.
and later –
Yes, now you know all that, so what’s your opinion about that?
The Tribunal accepted that:
There remain serious human rights violations and risks for those who operate in the area of opposition politics. However, Cambodia has weathered the violent instability of the two prime ministers period and has apparently entered a time of some political stability.
The Tribunal proceeded to make enquiries of the applicant on the premise that he was an ordinary FUNCINPEC member despite his evidence and that of his wife who claimed they were deeply involved in the party. It posed as the pivotal issue:
The question is whether somebody who’s an ordinary member of FUNCINPEC and hasn’t been taking part in anything since 1996 is at risk.
The Tribunal concluded that it was satisfied that a supporter of FUNCINPEC who held no office in the party and who had been unconnected with events in the 1997 coup and its aftermath could return to Cambodia and does not face a real chance of persecution for reason of that support for FUNCINPEC. It was satisfied that the applicant was able to vote and take part in the political life of Cambodia if he wished to do so.
The Tribunal was further satisfied that the applicant wife had no profile which indicated she was the sort of person who would draw an adverse and harmful reaction from her government or its agents.
Consideration
The applicants' principal contention is that the Tribunal committed a jurisdictional error which brings the facts of the case within the framework of principles of breach of natural justice established in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966; 190 ALR 601; 68 ALD 257.
It is clear that that the reliance on country information which was said to suggest that ordinarily FUNCINPEC members did not face a real chance of persecution was pivotal to the final decision. It was the manner in which the substance of such information was conveyed to the applicant concerning aspects of documents which were put as unfavourable to the applicant's case that the applicant’s Counsel contends is open to challenge. The basis of the challenge to the decision is said to be the misleading way the RRT characterised two items of DFAT material, both as regards the risk factor on return, but also concerning the risk factor in the inevitable context of impending elections which the applicant clearly raised in response to the proposition that ordinary FUNCINPEC members have no risk.
The respondent submits that there was no breach of the rules of procedural fairness in this case, because:
a)procedural fairness required only that the applicant be made aware of the critical issue upon which the Tribunal's decision was likely to turn, and that was done in this case. The Tribunal was not required to bring information to the applicant's attention that supported his claim;
b)further or alternatively, this is a case of a kind in which no breach of procedural fairness can be established in the absence of evidence as to what the applicant would have done had the alleged breach not occurred.
It is clear that the Tribunal is obliged to accurately state documentary information on which it relies and which contains material adverse to the applicant so that he has an opportunity to properly deal with that material.
The full text of the DFAT Cable numbered CX29295 was not put to the applicant and whilst there is no obligation on the RRT to draw to the applicant’s attention materials favourable to his claim, procedural fairness does require an opportunity for the applicant to deal with an adverse proposition that is not stated in a misleading fashion.
The Tribunal implicitly accepted that the applicant was an active member of the FUNCINPEC party – that he was active in the party – albeit he was not in a leadership position. It referred however to him being an ordinary member, in contradistinction to a member in a leadership position, and in that vein put to the applicant a selected passage from the DFAT Cable No. CX29295. In the context of the entirety of the cable the adverse material put was, I find, misleadingly portrayed. I accept that the manner in which this material was conveyed to the applicant was misleading. The Tribunal baldly put that ordinary members are not at risk and that was put in the context of a cable which also went on to say that:
others who had a history of some activity could, if they returned to Cambodia, expect a call from the security authorities to warn them against further activism.
The critical issue for the Tribunal to address was whether the level of activity of the applicant was such that he was at risk of persecution if he were to return to Cambodia. The country information relied upon by the Tribunal was not accurately stated and put to the applicant. It contained adverse material – even if all the material was not adverse – and need to be put in proper context and without misleading the applicant. It was determinative of the decision. Whilst the Tribunal was not obliged to draw to the applicant’s attention materials favourable to his claims, procedural fairness does require the Tribunal to draw to his attention those favourable parts of the documents identified because their effect was to render misleading the statement that there was no risk to ordinary FUNCINPEC members, and by implication, either passive or active members. On a fair reading of the DFAT cables of 13 March 1998 and 17 December 1998 the applicant was objectively mislead. Those cables did point to risk factors for those persons with a history of some activity.
I accept Counsel for the applicant’s submissions that:
Had the applicant and his wife been given access to the complete documents, or had there been a fair and accurate summary of what the documents said, they would have been in a position to answer what was an accurate proposition rather than a misleading one. They would have presented cogent and specific arguments to the Tribunal members addressing their mischaracterisation as ordinary but impliedly passive FUNCINPEC supporters as opposed to the low level political activists which they were clearly were. To this end, the following further matters which were accepted, or not rejected, would be relevant by way of submissions:
·The sister of the applicant’s wife is a human rights activist, concerned with Cambodian women’s issues, who fled to Thailand and who remains in that country in order to carry out her work safely.
·The applicant has participated in demonstrations in Australia that may well have led to his inclusion on a CPP ‘black list’ of political activists.
·The applicant’s wife has a history of assisting FUNCINPEC during election periods by distributing pamphlets, explaining the election process and touring the election booths for the benefit of Khmers.
I conclude there was a failure to accord the applicant procedural fairness. It was not a matter of a failure by the Tribunal to tell the applicant of information that was favourable to him, which clearly was not the obligation of the RRT. I find the applicant was misled about the contents of the country information put to him as contained in the DFAT cables. That information was pivotal in the RRT’s reasons for dismissing his claim (Applicants S194 of 2002 v Refugee Review Tribunal [2003] FCA 615 per Jacobson J at (70) and (87)).
The applicant was denied an opportunity to answer the finding which the RRT made on the basis of the material contained in the cables that no ordinary members of FUNCINPEC were at risk of persecution.
I cannot be satisfied that the denial of that opportunity made no difference to the outcome of the proceedings before the LRRT (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82).
Accordingly, the applicant must succeed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: T. Jones
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