MZABP v Minister for Immigration - [2015] FCCA 2116

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABP v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2116

Catchwords:
MIGRATION – Judicial review – complaint that Tribunal did not consider claims separately and cumulatively – procedural fairness – extension of time.

Legislation:

Migration Act 1958 (Cth), ss.414, 424A, 422B(3), 420(2)(b), 477, 351, 414

Applicant M29 of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 1266
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Craig v South Australia (1995) 184 CLR 163
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Applicant WAEE v Minister for Immigration & Multicultural &Indigenous Affairs (2003) 75 ALD 63
Abebe and the Commonwealth of Australia and Another; Ex parte Abebe (1991) 197 CLR 510
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant:

MZABP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 398 of 2014

Judgment of:

Judge Harland

Hearing date:

12 May 2015

Date of Last Submission:

12 May 2015

Delivered at:

Melbourne

Delivered on:

7 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Esser

Solicitors for the Applicant:

Esser Legal

Counsel for the Respondents:

Mr Rebikoff

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application for an extension of time to review the decision of the Refugee Review Tribunal made on 30 November 2012 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 398 of 2014

MZABP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 4 June 2014 the applicant applied for a judicial review of the decision made by the Refugee Review Tribunal on 30 November 2012 affirming the Delegate’s decision to refuse the applicant’s application for a protection visa.
The applicant arrived in Australia on 17 September 2011 travelling on a student visa. The applicant is a citizen of São Tomé and Príncipe.
Before coming to Australia to study, the applicant worked for the Government as Deputy Director of Trade and Commerce Industry at the Department of Trade and before that, he worked for the Prime Minister’s Office as an Economic and Financial Advisor. The applicant says he was a member of the opposition party MLSTP/PSD. The applicant says he was involved in mobilising youth for the opposition party.
The applicant says that he heard that his house was attacked in December 2011 and that an activist was threatened and an attempt on his life was made. An anonymous letter was dropped off at his family’s home. His parents told him that the letter threatened that if he returned he would be killed.
The applicant says he was previously subjected to threats when in March 2008 he was barred from entering his office. The applicant says he has been threatened because he had evidence of government corruption.
The applicant seeks an extension of time and a review of the Tribunal’s decision on the basis of it being affected by an error of law and the taking into account irrelevant considerations. The applicant did not give any particulars. The applicant prepared the application himself.
The applicant retained a lawyer and filed an amended application on

1 April 2015.
The applicant’s lawyer sought to rely on further amended grounds at the hearing. It became apparent during the hearing that the applicant’s lawyer was relying on a further ground not previously articulated.
At the end of the hearing counsel for the Minister sought an order that the applicant file a further amended application so that he could ensure that all grounds for review are dealt with. I made that order and granted the Minister leave to file supplementary written submissions.

The applicant’s amended grounds for review

The applicant’s amended grounds for review are lengthy. I will set them out in full:
(1)The decision the subject of the appeal was comprised of two independent elements, namely a case based on the applicant being entitled to refugee status by reason of being persecuted:
(a)For political reasons (‘the political argument’)
(b)By virtue of belonging to a class of persons namely a whistle-blower as to the existence of high level corruption extending to the office of the Prime Minister (‘the whistle-blower argument’).
(2)Both arguments were independent of one another and each was predicated on its own set of discreet facts and discreet pieces of evidence.
(3)The Tribunal committed a jurisdictional error:
(a)By failing to properly consider and evaluate the evidence that supports the whistle-blower argument.
(b)By misapplying the evidence intended for the whistle-blower argument and using it wrongly in connection with the political argument.
(c)Not properly considering by itself and then evaluating on its merits only the evidence in support of the whistle-blower argument in isolation from the evidence in support of the political argument.
(d)By refusing to consider the merits of the whistle-blower argument and reaching a conclusion based on erroneous reasoning, namely that the existence of a secret report by itself was crucial to the success of the whistle-blower argument when in truth and in fact the non-existence of the secret report was not in fact pivotal at all.
(4)The Tribunal committed a jurisdictional error by failing to accord the applicant procedural fairness:
(a)Contrary to s.414 of the Migration Act 1958 (Cth), by not reviewing the whole of the RRT decision, that is, that part of the decision that rejected the applicant’s claim based on being a member of a ‘particular social group’;
(b)Contrary to s.424A of the Migration Act, by not giving the applicant clear particulars of the information that might be used (and indeed was used) to affirm the decision under review, namely the book entitled Exorcising Devils from the Throne.
(5)The Tribunal committed a jurisdictional error by failing to accord the applicant procedural fairness when contrary to:
(a)S.422B(3) of the Migration Act;
(b)S.420(2)(b) of the Migration Act
the Tribunal failed to give the applicant clear particulars of the information that might be used (and indeed was used) to affirm the decision under review, namely the book entitled Exorcising Devils from the Throne.
(6)The Tribunal committed a jurisdictional error when it failed in its duty to inquire beyond the material, which it saw fit to obtain (principally, the book, Exorcising Devils from the Throne).

Extension of Time

The time limit for filing a review is set out in s.477(1) of the Migration Act. The application must be filed within 35 days. When considering whether or not to grant an extension of time the relevant considerations are: the extent of the delay, the explanation for the delay, the prejudice to the respondent and the merits of the application.
The applicant filed his application on 6 March 2014 which is 14 months after the time limit expired. This is a considerable delay.
The applicant says he relied on the advice of his migration agent to seek ministerial intervention pursuant to s.351 of the Migration Act. There are several decisions which address this. Seeking ministerial intervention is not an adequate explanation for delay as the applicant could have pursued his appeal rights at the same time: see Applicant M29 of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 1266; M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520.
The Minister acknowledged that there is no prejudice to him if the extension of time is granted but that the merits of the case do not justify the grant of an extension of time. It is necessary to consider the merits of the applicant’s case before returning to this issue.

The Legislation

The Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows
“The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.
It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).
The Act provides for classes of visas: s 31. Visas may be permanent or temporary: s 30. One class of visa is a protection visa: s 36(1). The criterion for a protection visa is provided for in s 36(2). It relevantly provides:
(2)     A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)   a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political 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 or, owing to such fear, is unwilling to return to it.
If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.
Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.
If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order. First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.
Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country”.

Grounds 1 to 3

These grounds are related and will be discussed together. In essence, the applicant complains that the Tribunal did not consider his claim arising from fear of persecution because of his political opinions and his claim as a whistle-blower separately. It is necessary to examine the claim the applicant made. In his statutory declaration dated 6 March 2012 it is clear that the applicant is claiming fear of persecution because of his membership of a political party and his political beliefs. At CB 30 he says:
“because of my well-founded fear of persecution my political beliefs, I am unable to return to my country. In March 2008, I was moved from Prime Minister’s office where I have been working since 2005 and it was politically motivated… By holding the evidence of corruption that is, handover to the press may challenge the government leadership and open a scandal that may cause this government for I am now receiving an anonymous death threat.”
The reference to holding evidence of corruption raises by implication at least a whistle-blower claim.
The Delegate accepted that the applicant was a member of the political party. The Delegate referred to country information which indicated that individuals could privately or publicly criticise the government without fear of reprisal. The Delegate also noted that there are a number of political parties which actively participate in government and openly express their views in São Tomé and Príncipe. The Delegate was not satisfied that the applicant met the criteria under the Refugees Convention.
The Tribunal did consider the political opinion claim separately from the whistle-blower claim.
The applicant prepared another statutory declaration on 3 October 2012[1]. At paragraph 2 the applicant refers to fearing he will be killed because of his political opinions and his possession of confidential information. In that statutory declaration the applicant describes the document he says he found revealing government corruption with respect to Japanese food aid. At paragraph 56 he says he has concrete evidence of corruption. He does not say what he did with the document, whether he made copies and where the document is. He talks about disclosing the contents of the document to a close friend Antonia Viegas.
[1] CB 114.
The Asylum Seeker Resource Centre prepared written submissions on the applicant’s behalf on 8 October 2012. Those submissions state:
“the applicant has a well-founded fear for the following refugee convention reasons:
·his political opinion and/or
·his membership of a particular social group comprising of ‘whistle-blowers’”.
The submissions go on to state that the applicant’s claims need to be considered both separately and cumulatively. This is clearly correct. See Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [7].
The Tribunal decision refers to the interview with the Delegate where the Delegate put to the applicant that the information about corruption involving the bilateral agreement with Japan had already been publicised[2]. The applicant said some of it had but that the matter was in the Courts and there was an ongoing cover up.
[2] CB 174 [40-41].
The Tribunal decision discusses the applicant’s statutory declarations in detail. The Tribunal hearing took place on 10 October 2012. The Tribunal went into detail with the applicant about the alleged document he found and the scandals about corruption[3].
[3] CB 180 [85-88].
It is clear from paragraph 90 of the decision that the Tribunal referred to the book Exorcising Devils from the Throne and the assertion from that book that the scandal about food aid corruption broke out in the early 2000s and resulted in Japan suspending aid from 2004 to 2008. The Tribunal also told the applicant that it could find no country information suggesting another scandal in 2011. The Tribunal member put other matters of concern about the applicant’s account to the applicant at the hearing.
The Tribunal also addressed the applicant’s religion. The country information indicated that the government generally respected freedom of religion. There was no country information concerning the Jewish community but there were no reports of anti-Semitic acts. Therefore, the Tribunal was satisfied that the applicant did not face a real chance of persecution based on his religion.
The Tribunal’s decision refers to the country information it had regard to in some length. The book Exorcising Devils from the Throne was not the only source of country information the Tribunal relied on.
Paragraph 151 of the decision reflects the Tribunal being aware that the applicant was making three claims being that he had a well-founded fear of persecution because of his political opinion, for reasons of being a member of a particular social group of whistle-blowers and because of his religion.
The Tribunal accurately in my view noted that at paragraph 155 of its decision that the applicant’s main claims related to events which he said took place in July and August 2011.
The Tribunal found it implausible that the applicant would not have given a copy of the report to the leaders of his party as it would have been very useful in removing a corrupt government from power since it had a precarious number of seats in Parliament. The Tribunal also found that his evidence was contradictory about how much the public knew about the corrupt activities in relation to Japanese food aid.
The Tribunal refers to information that said that all of the available information indicates that Japan has not suspended delivery of food aid since August 2010. The country information also indicates that the scandal is very well-known and the Tribunal considered it very unlikely that if there was a further scandal in 2010 that there would be no country information about that. The Tribunal also found that the article the applicant provided did not support his contention and that the article referred to the previous scandal and not a subsequent one in 2011.
The applicant submits the tribunal did not properly consider his whistle-blower claim and says it was not solely reliant on the existence of a secret document. He relies on paragraph 16 of his statutory declaration appearing at the CB 162 the paragraph does not disclose an alternate basis for a whistle-blower claim. The applicant referred to [38] of SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 but that has no application here because there is no claim arising from the material before it which the Tribunal failed to consider.
The Tribunal found that there was no secret report and that the applicant had fabricated that claim. At paragraph 178 the Tribunal stated that it was not necessary to decide whether whistle-blowers constituted a particular social group in the applicant’s country because it concluded that there was no secret report exposing corruption and has found that the applicant is not a whistle-blower. It noted the applicant’s own evidence was that he did what he could to ensure the document was not exposed publicly and that there was only a remote chance that if he returned that he would become a whistle-blower.
The applicant refers to Craig v South Australia (1995) 184 CLR 163 and the definition of jurisdictional error and refers to the refusal of the Tribunal to consider the applicant’s claim to be a member of a particular social group, being whistle-blowers as being an example of such a jurisdictional error. However, this ignores the Tribunal’s finding about the non-existence of the secret report, which was the basis of the applicant’s whistle-blower claim. I do not accept the applicant’s submission that the Tribunal ignored the whistle-blower claim or failed to consider it.

The applicant also refers to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 but does not point out how the Tribunal ignored relevant material, failed to take into account a relevant consideration or did not base the decision on the material before it.
The Tribunal accepted that the applicant may have lost his job but that it was not for a Convention reason but because of being absent for more than three months. The tribunal noted that the applicant is very well educated and has very good prospects of finding of some employment.
It is clear that the applicant’s claim to be a whistle-blower focused on the existence of the report. The Tribunal rejected the fundamental premise of the applicant’s claim when it found that the report did not exist. The applicant did not make any other claim to be a whistle-blower. I am satisfied that the Tribunal properly considered the claim the applicant put before it.
The conclusion was open to the Tribunal on the evidence before it. Grounds 1 to 3 have not been made out.

Grounds 4 and 5 procedural fairness complaints

The applicant complains that ss.414 and 424A of the Migration Act were not complied with. Section 414 states:
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Having considered the decision, I am satisfied that the Tribunal complied with s.414. It is clear that the Tribunal considered the 3 aspects of the applicant’s claim separately and cumulatively as it was obliged to do.
Section 424A states:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
The Tribunal invited the applicant to attend the hearing.
The applicant also complains that ss.422B(3) and 420(2)(b) were not complied with. Section 422B is set out as follows:
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Section 420(2)(b) is set out as follows:
(2)(b) must act according to substantial justice and the merits of the case.
The applicant did not obtain a transcript of the Tribunal hearing. He does not suggest that the summary in the decision is not accurate.
At the end of the hearing that applicant was given the opportunity to put further evidence before the Tribunal. The applicant told the Tribunal member that he was expecting to receive documents from his family which demonstrate that they have sought asylum in Portugal and the applicant’s representative said that she would try and find information about the second scandal. After the hearing, the Tribunal also emailed the applicant’s friend Mr Viegas. The Tribunal also sent a letter to the applicant pursuant to s.424A of the Migration Act inviting him to respond to particular pieces of information that may lead to the Tribunal finding his claims lacked credibility. The applicant did not provide a further statutory declaration, submissions, further country information or documents relating to his family’s applications for protection in Portugal nor did the Tribunal receive a response from Mr Viegas. The applicant prepared a further statutory declaration on 19 November 2012 after the hearing. The applicant could have put further material, including country information before the Tribunal but did not do so.
The applicant complains that he should have been given advance notice by the tribunal that it was going to rely on the book Exorcising Devils from the Throne to make adverse findings against him. The book falls into the category of country information. The tribunal was not obliged to give such notice because of section 424A(3). Kenny J made the following comment about country information in VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 131 FCR 80 [at 50].
“It is usual for the tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act.”
The High Court confirmed that country information is not a class of information which must be drawn to the applicant’s attention at [91] of Plaintiff M61/2010E v Commonwealth and Others [2010] HCA 41.
The applicant also complains about the Tribunal’s treatment of country information. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court at [113] said:
“…By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. The can be no objection in principle to the Tribunal relying on ‘county information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function…The question of the accuracy of the ‘country information’ is one for the Tribunal , not for the Court. If the Court were to make its own assessment of the truth of ‘country information’ it would be engaging in merits review. The Court does not have power to do that”.
There is no substance to the complaints in grounds 5 and 6.

Ground 6

The applicant properly conceded that the Tribunal is under no general duty to investigate or make enquiries. What the applicant does not say in his submissions is that it is clear that the Tribunal did make enquiries after the hearing. The Tribunal indicated to the applicant that they wanted to speak to his family members. The Tribunal also emailed the applicant’s friend in an attempt to get more information and furthermore told the applicant at the hearing that it would not be able to put as much weight on an email response if it was able to take evidence from his friend.
It is also clear that the Tribunal referred to country information available to it. There is no substance to the submission that the Tribunal failed to enquire about critical facts that the applicant says support the conclusion of official corruption in São Tomé and Príncipe. It is clear that the Tribunal attempted to find information with respect to the food aid scandal which the applicant said took place in 2011. The applicant had the opportunity and took the opportunity to place country information of his own before the Tribunal. It is also clear from the tribunal decision that it did not rely solely on the book Exorcising Devils from the Throne when assessing the county information.
The Federal Court’s comments at paragraph 47 of Applicant WAEE v Minister for Immigration & Multicultural &Indigenous Affairs (2003) 75 ALD 630 are applicable. Once the Tribunal rejected the fundamental premise of the whistle-blower claim, it did not need to consider it further. The applicant did not advance his claim on some other basis: see Abebe and the Commonwealth of Australia and Another; Ex parte Abebe (1991) 197 CLR 510 at [187].
There is no substance to the complaint in ground 6.
Having considered the merits of the application argued before me, I am not satisfied that the applicant has reasonable prospects of success. In these circumstances, it would not save the administration of justice to grant the applicant an extension of time. I will hear from the parties on the question of costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 7 August 2015