Mocan v Refugee Review Tribunal

[1996] FCA 446

CATCHWORDS

IMMIGRATION - Application to review decision of Refugee Review Tribunal refusing claim for refugee status - Whether a real chance of persecution by reason of religion or membership of a particular social group - Consideration of decision relating to "satisfaction" as to refugee status - Whether proper, genuine and realistic consideration given to case put to the Tribunal - Whether error of law can arise in respect of case not put to the Tribunal - Whether a denial of natural justice in respect of information obtained by the Tribunal's officers and relied upon by the Tribunal.

ADMINISTRATIVE LAW - Judicial Review - Federal Court - Decision in relation to satisfaction as to refugee status - Consideration of role of Federal Court on review of decision of Refugee Review Tribunal.

Administrative Decisions (Judicial Review) Act 1977 (Cth) 5(1)(e), (f) and (j)
Migration Act 1958 (Cth) s.22AA

Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v. Wu Shan Liang & Ors. 27 May 1996 - High Court; unreported
Hindi v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1
Broussard v. Minister for Immigration and Ethnic Affairs (1988) 21 FCR 472
Morato v. The Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401
Secretary, Department of Social Security v. Cooper (1990) 26 FCR 13
Somaghi v. Minister for Immigration Local Government & Ethnic Affairs (1991) 31 FCR 100
Chu Sing Wun v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540

VG\375 ALEXA MOCAN V. THE REFUGEE REVIEW TRIBUNAL AND THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

MERKEL J.
MELBOURNE
6 JUNE 1996

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN   VG No. 375 of 1994

ALEXA MOCAN
  Applicant

and

THE REFUGEE REVIEW TRIBUNAL and
      THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondents

Coram:Merkel J.

Place:Melbourne

Date:6 June 1996

MINUTES OF ORDERS

1. The time within which an application for relief may be brought under the Administrative Decisions (Judicial Review) Act 1977 be extended to 25 October 1994.

2. The Application for an Order to Review dated 25 October 1994 be dismissed.

3. The Applicant pay the taxed costs of the Respondents of and incidental to 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
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN   VG No. 375 of 1994

ALEXA MOCAN
  Applicant

and

THE REFUGEE REVIEW TRIBUNAL and
      THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondents

Coram:Merkel J.

Place:Melbourne

Date:6 June 1996

REASONS FOR DECISION
The applicant
The applicant, a citizen of Romania, arrived in Australia on 19 September 1990. He was 58 years of age at the time of his arrival.

In Romania, he and his family members had been persecuted by reason of their strong religious affiliation with the Pentecostal Church. In particular, the applicant, as a prominent and senior member of the Church, had been singled out by the secret police of the Communist regime, the Securitate, for discriminatory treatment.

By an application dated 9 September 1991 and received by the Department of Immigration and Ethnic Affairs on 16 September 1991, the applicant applied for refugee status in Australia. He also applied for a Domestic Protection (Temporary) Entry Permit on the ground that he was entitled to refugee status. On 25 August 1993 a delegate of the Minister found that the applicant was not a refugee and refused both applications.

On 14 September 1993 the applicant made application for review of the delegate's decision by the Refugee Review Tribunal ("the RRT"). The RRT, constituted by Mr. J. Vrachnas, conducted a hearing on 4 May 1994. On 25 May 1994 the RRT affirmed the delegate's decision.

The RRT appears to have accepted that the applicant and members of his family had been persecuted in Romania by reason of their religion. The central issue of fact was whether, in the light of the political change and growth in religious freedom that has occurred since the overthrow of the Ceaucescu regime in 1989, that fear was "well founded".

On 25 October 1994 the applicant applied to the Federal Court for orders to review the decision of the RRT relying primarily on the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act").

The legislative framework
It is a matter of some significance in the present case that in determining the application for refugee status, the date for deciding whether the applicant had the status of a refugee was the date of determination and not the date of application: see: Lek v. Minister for Immigration, Local Government and
Ethnic Affairs (No. 2) (1993) 45 FCR 418, 420-425 per Wilcox J.

The parties were in agreement that the applications to the RRT and to this Court were governed by the provisions of the Migration Act 1958 ("the Act") as set out in Reprint No. 4 (which was the Act reprinted as at 31 January 1994).

Under s.4(1) a "refugee" has the same meaning as in the Refugees Convention or as in the Convention as amended by the Refugees Protocol as defined in s.4(1). The meaning of "refugee" in the Convention or in the Convention as amended by the Protocol is a 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.

Section 22AA of the Act provides that if the Minister is satisfied that a person is a refugee he may so determine in writing. That power is able to be delegated under s.176. Pursuant to the provisions of s.34A of the Acts Interpretation Act 1901 (Cth) the "satisfaction" of the Minister required by s.22AA becomes the "satisfaction" of the delegate.

Although the applicant's application for refugee status was made prior to the operation of s.22AA (which was enacted by the Migration Amendment Act (No. 2) 1992 and commenced on 30 June 1992) that section appears to apply to applications made prior to 30 June 1992 (see s.22AD(1)). In any event the delegate's decision, the application to the RRT to review that decision and the RRT's decision all post-date and appear to be governed by s.22AA.

Recently, it has been pointed out that a determination under s.22AA is a decision as to satisfaction regarding the status of the applicant as a refugee, rather than a determination of refugee status: see Minister for Immigration and Ethnic Affairs v. Wu Shan Liang & Ors. (27 May 1996 - High Court; unreported at 19 per Brennan CJ, Toohey, McHugh and Gummow JJ).

Accordingly, although the delegate made a "finding" that the applicant is not a refugee, pursuant to the Act, that finding was either a determination or equivalent to a determination, that the delegate was not satisfied that the applicant was a refugee.

The applicant was entitled to apply to the RRT to review the decision of the delegate as a "RRT reviewable decision" pursuant to s.166B. Under s.166BC the RRT was empowered to exercise all of the powers and discretions of the delegate in relation to the decision made by him. If the RRT varied or substituted a decision then that decision, as varied or substituted, is taken to be the decision of the Minister: see s.166BC(3).

Accordingly, the task for the RRT was to determine, as at the date of review, whether it was "satisfied" that the applicant is a refugee and if so, to determine in writing "that the person is a refugee" under s.22AA of the Act. Such a determination would have led to the applicant being granted the protection permit or visa he was seeking.

The role of the Federal Court
In Wu the High Court considered the role of the Federal Court in reviewing a determination made under s.22AA by a delegate of the Minister.

The joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ at 17-19 considered the difficulty inherent in reviewing a decision as to "satisfaction" both at common law and under the ADJR Act. Review under the ADJR Act requires consideration of whether the RRT's failure to obtain the requisite state of "satisfaction" is reviewable on the grounds relied upon by the applicant. Clearly the task of an applicant is more onerous when the decision the subject of review, is subjective rather than objective, in nature.

I have made reference to those observations as they are of significance when considering the role of the Court in reviewing a decision as to lack of satisfaction.

In Wu at 12-13 Brennan CJ, Toohey, McHugh and Gummow JJ and at 36-7 Kirby J cautioned against:

(a)an unwarranted use of administrative review procedures to achieve a review upon the merits;

(b)construing the reasons for the administrative decision "minutely and finely with an eye keenly attuned to the perception of error".

These cautions are particularly apposite to the applicant's submissions in the present case notwithstanding the fact that the grounds of review were significantly refined by counsel for the applicant in the course of the hearing. In that context I turn to consider each of the grounds relied upon during the hearing.

Failure to give consideration to the personal circumstances of the applicant
It was submitted on behalf of the applicant that on a fair reading of the RRT's reasons for decision, consideration was not given to the particular circumstances of the applicant. Accordingly, it was put that the RRT did not address the question of whether there was a real chance of persecution of the applicant by reason of religion.

A necessary starting point in considering the submission is the decision of the High Court in Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 which established two propositions as to the steps by which refugee status was to be determined:

First, the definition of refugee involved a mixed subjective and objective test. Second, the definition would be satisfied if an
applicant could show genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. (Wu at 2 per Brennan CJ and Toohey, McHugh and Gummow JJ).

In the context of s.22AA the first step requires that the decision maker be satisfied that the applicant for refugee status has a subjective fear of being persecuted for a Convention stipulated reason and also that, objectively, that fear is "well-founded". The second step -

necessitates speculation in the sense of prediction, in other words, an assessment of the future. That is implicit in the formulation "real chance". (Wu at 20 per Brennan CJ, Toohey, McHugh and Gummow JJ).

In Chan a "real chance" was described as one that conveys a "substantial as distinct from a remote chance", at 389 per Mason CJ: see also 398 per Dawson J, 407 per Toohey J and 429 per McHugh J. Those passages demonstrate that a real chance may be less than a probability but must be more than a far fetched possibility or an insubstantial chance.

In applying the two step process for ascertaining refugee status, whether it is to be "determined" under s.6A(1)(c) of the Act, as in Chan, or is to be the subject of the subjective satisfaction required under s.22AA, as in Wu, there can be no doubt that each of the steps requires careful consideration of the individual circumstances of the applicant. On the other hand a relevant step will often involve consideration of the general circumstances prevailing in the country of the
applicant's nationality in so far as they are relevant to the reason put forward for the applicant's fear of persecution.

It was submitted that by considering the application for refugee status in terms of the degree of religious freedom generally in Romania since 1989, the RRT failed to address the particular circumstances of the applicant and the likelihood of persecution of the applicant by reason of his previous religious affiliation with the Pentecostal Church.

In administrative review terms, it was submitted that in making the decision there was an improper exercise of power within ss.5(1)(e) together with 5(1)(f) and (j) of the ADJR Act, in that the RRT failed to give "proper genuine and realistic consideration upon the merits" of the applicant's case: see Hindi v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1, 12-13 and Broussard v. Minister for Immigration and Ethnic Affairs (1988) 21 FCR 472, 483.

The reasons for decision of the RRT do not afford a basis for the submission. In addition to discussing the growth in religious freedom in Romania since the 1989 revolution the RRT specifically addressed the personal circumstances of the applicant and concluded that those circumstances did not give rise to a "real chance" of persecution against him on religious or, indeed, on any other Convention stipulated ground if he returned to Romania.

The following extracts from the RRT's reasons for decision amply demonstrate that the submission is without foundation.

The Applicant and members of his family suffered as described on account of their religious beliefs during the period in which Ceaucescu reigned. However, the weight of evidence since mid-1990 strongly suggests that members of recognised religions are generally free to practise their religion without interference from the State and can properly expect State protection against interference from other groups. This is not to say, of course, that no individual members of religious groups are discriminated against or suffer persecution.  (p.6).

While clerics who take a leading role in the political processes may be subject to criticism and discreditation at the hands of the ruling party or other political opponents, there was no evidence available to the Tribunal which indicated that people who involved themselves in church activities such as the applicant pursued, were subject to similar treatment or to discrimination on account of those activities. (p.7).

The Tribunal accepts the evidence of the applicant and witnesses that members of his family escaped the country because of mistreatment arising from their religious beliefs. It accepts that the Applicant was harassed by the Securitate, described in the Reuters article as "the instrument of terror of communist dictator Nicolae Ceaucescu". It does not accept, however, the claim that the accident in 1990 was the act of the Securitate directed at the Applicant. (p.8).

In weighing the evidence, the Tribunal concludes that Pentecostals in Romania are free to carry on their religious practices, either as ordinary members of the congregation or in more prominent roles such as the applicant filled, without interference from the Government or from sources which operate with tacit Government consent or lack of Government control. The Tribunal considers that this freedom to pursue religious activities is likely to continue into the future. (p.8).

While the Tribunal accepts that the applicant and his family suffered discrimination up until the time that the applicant fled his country and that this suffering was based on religious grounds, the information discussed above, including the evidence of the applicant, leads the Tribunal to the conclusion that there is not a real chance that he will be persecuted if he returns to Romania either by reason of his religion or because of his membership of the particular social group comprised of members of his family. (p.9).

In weighing all of the evidence, the Tribunal finds that the applicant is not a refugee. It accepts that he has been badly mistreated in the past and has a genuine fear of returning to his country of nationality, but finds that the fear is not well-founded as there have been substantial changes in Romania since he left and there is not a real chance that he will be killed or otherwise persecuted because of his religion or membership of the family group or on account of his wife's nationality. (p.9).

Failure to consider persecution of applicant as a member of a family group
The second submission was that there was persecution against the applicant as a member of a particular social group being his family which consisted of the applicant, his 5 children, his wife and his brothers and sisters. It was submitted that proper, genuine and realistic consideration was not given to this aspect of the applicant's case.

I accept that, in particular circumstances, a family can constitute a social group for the purposes of the Convention definition: See Morato v. The Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 and Chan at 390 per Mason CJ. There is nothing in the reasons for decision that suggests that the RRT took a different view. However, in the present case the circumstances that may relevantly make the applicant's family a "particular social group" all relate to its religious affiliation or that of its members.

Seen in that way, essentially, the submission raises the same issue as the first submission save that it relates to the applicant and his family members or some or other of them.

In that context proper, genuine and realistic consideration was given to the likelihood of discrimination against the applicant as a member of his family by reason of past discrimination against the family or its members on the basis
of religious affiliation. This is apparent from the passages from the reasons which I have already set out.

Continuation of past persecution
The main submission sought to be put to me, but not before the RRT, was that properly understood, the applicant's real fear was that -

(a)he and his family members were persecuted by the Securitate prior to the 1989 revolution by reason of their religion;

(b)the Securitate members who persecuted the applicant and his family during that period had become part of the State security apparatus of the new government;

(c)the view maintained by those members was that the applicant and his family members were and continued to be anti-social elements in spite of the fact that the activities that led to the formation of that view were no longer regarded in Romania as anti-social;

(d)the applicant held a genuine fear that he would continue to be persecuted by the Securitate members in their new guise; and

(e)the fear was well-founded.

An initial problem was that the case was not put that way to the RRT and accordingly that issue was not considered by the RRT.

Nevertheless, it was not disputed by the respondents that in those circumstances there can be a reviewable error of law if the point is of sufficient significance and is fairly open on the evidence: see Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 and Secretary, Department of Social Security v. Cooper (1990) 26 FCR 13, 18.

It was contended on behalf of the Minister that this submission raised no different issue of fact to that which was the subject of the first two submissions. It was submitted that the RRT had concluded that the grounds for past persecution had ceased and that accordingly there is no longer a real chance of persecution of the applicant. In reality, the Minister's submission was that the evidence or other material before the RRT did not support a finding, on an objective basis, that there was a real chance that the past persecution of the applicant would be continued as the original religious basis for it no longer exists.

I afforded the applicant the opportunity to refer to the evidentiary basis that may show why the fear was well founded but ultimately the evidence pointed to concerned the applicant's subjectively based fear of persecution. The evidence and the material before the RRT did not warrant a finding that, viewed objectively, there was a real chance that the fear relied upon was "well founded".

Denial of natural justice

A fourth ground, being a denial of natural justice, was put forward during the hearing. It was submitted that the RRT had relied and acted upon information obtained from enquiries made by its officers, which was adverse to the applicant, without affording him an opportunity to be heard in respect of the information: see Kioa v. West (1985) 159 CLR 550 and Somaghi v. Minister for Immigration Local Government & Ethnic Affairs (1991) 31 FCR 100.

In my view the evidence does not sustain the ground relied upon.

The information which was relied upon by the RRT in its decision was given to research officers of the RRT by 3 representatives of the Pentecostal Church and related to the extent of religious freedom in Romania. The information is referred to in the RRT's reasons as follows:

This picture of freedom to practice religious beliefs and participate in church activities was confirmed in telephone discussions between Tribunal research officers and representatives of Pentecostals in Victoria on 8 October 1993. Two of the representatives said Pentecostals enjoyed full religious freedom. A third representative said that things were the same as before the securitate follows people and phone calls are intercepted. (p.7).

The information was set out in an earlier decision in matter BV93/00508 dated 7 March 1994, by the same member of the RRT. That matter also related to a claim for refugee status by a Romanian national. In the decision the information appears in the form set out above but is followed by the conclusion that:

Pentecostals in Romania are generally free to carry on their religious practices without interference. (p.5).

The information was adverse to the case being put forward to the applicant and in my view the gravamen or substance of it was required to be brought to his attention. It is not necessary that the detail of the information be disclosed as long as the applicant is on notice of its "essential features": see Chu Sing Wun v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540, 548.

The transcript of the hearing before the RRT was tendered in evidence. I am satisfied that, at an early stage of the hearing, the tribunal member handed a copy of his reasons for decision in the earlier matter to Mrs. Ambi, the applicant's representative. The member did so on the basis that the decision indicated some of the material to which the tribunal member would be referring. The decision was referred to during the course of the hearing.

Further, during the hearing the tribunal member specifically stated to the applicant that the evidence he had seen from a lot of sources including "some religious sources" showed that in practice people in Romania, including those affiliated with the Pentecostal Church, can practice their religion freely. The applicant agreed with that statement but said that some people who were persecuted before the revolution are still being persecuted.

In those circumstances it is my view that both the detail and the essential features of the information were disclosed to the applicant.

It was also contended that the disclosure was such that the applicant was not afforded a reasonable opportunity to deal with it. I cannot accept that contention. The decision was handed to the applicant's representative and neither she or the applicant sought, or stated, that they required further time to consider it. Further, the issue was specifically raised with the applicant during the hearing.

In any event, although the hearing concluded on 4 May, the decision was not handed down until 25 May 1994. If the applicant wished to put further matters to the tribunal in response to any of the matters raised in the decision or during the hearing it was open to him to do so.

Conclusion
For the reasons set out above I have concluded that no error of law attended the reasoning or procedures of the RRT and accordingly the Application of the applicant must be dismissed with costs. I should add that although I have only dealt with the grounds of review pursued during the hearing, the matters not pursued appeared to relate more to a review upon the merits rather than to any reviewable error of law.

The significance of the change in the legislative regime applicable to refugees since Chan by the enactment of s.22AA was not the subject of argument before me. If I had considered that that legislative change might have affected the outcome of the case I would have requested further submissions on s.22AA in the light of the High Court decision in Wu. However, as the conclusions I have arrived at would be the same under either legislative regime I did not regard it as necessary to hear submissions on s.22AA or on the decision of the High Court in Wu.

There can be little doubt that the outcome of the review process for the applicant is an unhappy one. Other members of his family, who went to the United States in 1992, have gained refugee status by reason of past religious persecution. Had the applicant's case been considered at a significantly earlier point of time a different outcome may have ensued.

However, the RRT's conclusions were based upon the significant changes that it was satisfied had occurred since the ousting of the Ceaucescu regime in Romania in 1989. The relevant time for ascertaining whether there is a real chance of persecution on a Convention stipulated ground is the date of the relevant determination. The RRT discharged its duties in that regard in accordance with law and no reviewable error has been demonstrated.

I certify that this and the preceding 15 pages are a true copy of the Reasons for Decision of the Honourable Justice Merkel

Associate:

Dated:

Heard:1 March 1996

Place:Melbourne

Judgment:     6 June 1996

Appearances:  Mr. T. Ginnane instructed by Baker & Armstrong appeared for the Applicant.

Mr. K. Bell instructed by the Australian Government Solicitor appeared for the Respondents.