MZWJY v Minister for Immigration
[2005] FMCA 1027
•27 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWJY & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 1027 |
| MIGRATION – Protection visa – primary applicant – family members applicant – whether invitation to appear given to all applicants – whether procedural fairness where second applicant directed to ‘wait outside’ hearing room – jurisdictional error – available protection subject to evidence of applicant denied an audience – invitation to attend hearing means present inside hearing room – denial of opportunity to be inside hearing room – procedural fairness and denial of natural justice. |
| Migration Act 1958, ss.54, 55, 417, 424A, 425, 425A |
| S1775/2003 v Refugee Review Tribunal (2004) FCA 872 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441 |
| Applicants: | MZWJY, MZWJZ, MZWKA & MZWKB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 619 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 1 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr M.W. Gerkens |
| Solicitors for the Applicants: | FCG Legal Pty Ltd |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The decision of the Refugee Review Tribunal dated 25 August 2000 be set aside and declared invalid.
The application be remitted to a differently constituted Refugee Review Tribunal to be determined according to law.
The respondent shall pay the applicant's costs of the application.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 619 of 2004
| MZWJY, MZWJZ, MZWKA & MZWKB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicants are citizens of Sri Lanka. They are husband and wife and their child. They arrived in Australia on 28 December 1998 as the holders of visitors visas. On 8 February 1999 the applicants applied to the respondent's Department for protection visas. At the time of making the application only the applicant husband (the first applicant) made specific claims to be a refugee under the refugees convention. His claims were set out in a statement accompanying the application. It is noted that in the application the first applicant clearly sets out the grounds relied upon by him in support of the application for a protection visa. He included in that application his spouse (the second applicant) and son. It is important to note that the contact address provided for the first applicant was set out clearly on the application.
The other applicants had completed form "D", which is the document entitled ‘Application For a Member of the Family Unit’. It should be noted that the son of the parties was then only two years of age and obviously the application by that son was completed by others. Nevertheless, the applicant husband's spouse completed a form "D" and there are at least two relevant issues which arise from the completion of that form. The first is that it is an application for a member of the family unit and the form clearly states the following:-
“This part is for a member of the family unit who does NOT have their own claims to be a refugee but is included in this application.
If you DO have your own claims to be a refugee, complete a part C instead.”
The second relevant issue arising from the completion by the applicant's spouse of the application is that when asked to indicate the ethnic group to which she belongs, the group "Burgher" has been inserted.
On 17 March 1999 a delegate of the respondent determined that the applicants were not persons to whom Australia had protection obligations and refused the grant of the protection visas. On 15 April 1999 the applicants applied for review of the delegate's decision to the Refugee Review Tribunal (the RRT) pursuant to the provisions of the Migration Act 1958 ("the Act"). In the present application, for reasons which will become apparent, upon making application to the RRT an invitation was forwarded to the first‑named applicant to attend a tribunal hearing to be held on 17 August 2000. A letter dated 13 July 2000 from the tribunal to the first-named applicant at the contact address given in the application states the following:-
“RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) -
...
Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.
If you want to come to a hearing it will be on
Date: Thursday, 17 August 2000
Time: 10 AM
Please arrive at least 15 minutes before the start of the hearing
Place: Level 2, 628 Bourke Street, Melbourne, Vic 3000”
That letter dated 13 July 2000 had referred to the names of the applicants and those names were set out above the instruction to the recipient of the letter to tell "all persons named above" about the letter. With the letter was an attached brochure providing information about what would happen on the day of the hearing. A copy of the brochure was not made available in the court book. However, what does appear in the court book is a document entitled "Response to Hearing Invitation" (court book page 76). That Response to Hearing Invitation provides under the heading the following words:-
“Each person over the age of 18 must complete a separate form.”
It is acknowledged that in fact only the first applicant completed the Response to Hearing Invitation form. One of the questions asked on that form is, "Do you want the tribunal to take oral evidence from any witnesses?" The box ticked by the applicant is "no". Likewise, he has answered ‘no’ to the question, "Do you want to bring someone with you to the hearing?" I make the observation in dealing with the chronology of events that it is hardly surprising in the circumstances that the name of the applicant spouse who is also an applicant was not included as a witness from whom oral evidence would be taken.
It should also be noted that in the court book there is correspondence from migration agents dated 1 August 2000 advising that they have been appointed to act "on behalf of the above-named applicant and his family in relation to their application for review of a decision not to grant protection visa ..." A request was made for the hearing to be postponed. That request was not granted. Further correspondence from migration agents dated 2 August 2000 was forwarded to the RRT. That correspondence constituted a submission which included a detailed reference to the application history and other material.
In relation to court proceedings it is noted that having applied for review of the delegate's decision to the RRT, the RRT ultimately affirmed the delegate's decision by its decision dated 25 August 2000 handed down on 8 September 2000. On 13 September 2000 the applicant sought ministerial intervention pursuant to s.417 of the Act on humanitarian compassionate grounds. That application was refused on 12 January 2001. On 20 March 2001 the applicants became members of what are known as the ‘Muin/Lie’ class action. Orders were made by Gaudron J in the High Court on or about 25 November 2002 and material filed in the High Court seeking constitutional writ relief in respect to the tribunal's decision was filed on behalf of the applicants, with the matter then remitted to the Federal Court of Australia. On 30 April 2004 Emmett J refused an order nisi (see S1775/2003 v Refugee Review Tribunal (2004) FCA 872).
The applicant's claims
As indicated earlier in this judgment, the applicant husband made convention claims and he was referred to as the applicant. He claimed to have a well‑founded fear of persecution due to his political opinion as a member and supporter of the Sri Lankan political party, the Sri Lanka Freedom Party (SLFP), which is the dominant member party of the Peoples Alliance Party ("PA"). The PA became the government of Sri Lanka after the 1994 elections. The applicant claimed that his involvement began during the 1994 election campaign. He claimed that although he had no official position in the party, he had assisted it in its youth movement, in election‑related activity such as putting up posters, organising meetings, letterboxing and generally campaigning. He claimed that he had suffered at the hands of members of supporters of the other main political party which had held government until 1994, the United National Party (UNP).
Of significance in the present application is a claim by the applicant that he had been assaulted in 1996 and 1998 and threatened in telephone calls. It is noted that reference to the assaults appears in correspondence which I take to be annexed to the application (court book page 21‑23). In that correspondence which is undated reference is made to an event which occurred on 25 June 1996. The paragraph in the letter provides as follows:-
“On 25 June 1996 at about 7 pm my wife who was pregnant at the time was walking along with me near my residence ... when I was assaulted by a gang which was from the opposition political party youth movement. It left me seriously hurt and my wife in a state of shock. The police were unable to help me as I was unable to identify anyone. The party supporters assured me protection and also assured me that they would deal with the matter. My wife who was eight months pregnant and she was not in good health and was under severe shock and anxiety.”
In the submissions made on behalf of the applicants by the migration agent by correspondence dated 2 August 2000 the following relevant references are found in relation to the applicant's claims summarised in those submissions:-
...
·On 25 June 1996 at around 7 pm the applicant and his wife were assaulted by a gang of UNP supporters. The applicant was seriously wounded and his pregnant wife was in a state of extreme shock.
...
·The applicant's wife went into labour on 3 July 1996. Complications resulting from the shock, stress and anxiety following the attack forced the doctors to perform a Caesarean to save the unborn child.
...
·On 26 September rival political gangs clashed, resulting in two deaths in the applicant's neighbourhood. Fearing for his wife and child's safety, he sent them to Australia on 6 October 1997. On 8 October he moved from his residence.
...
·The applicant's wife and child returned on 28 November 1997.
·On 12 March 1998 the applicant was stopped and assaulted by gang members. He was heavily beaten and clubbed almost to death. The fear, shock and anxiety from this brutal attack caused his wife to miscarry their second child.
·In July 1998 the applicant heard news that the UNP were planning a series of attacks against their main rivals. The growing fear for the safety of his family and the constant stress of living in apprehension of attack forced the applicant to finally leave the country on 27 December 1998.
The applicant fears that if he returns to Sri Lanka he and his family will be subjected to violence on account of his active membership of the SRFP.
Further by way of submissions, in the same correspondence reference is made to the following as a basis upon which the applicant disagreed with the delegate's decision:-
·The applicant respectfully disagrees with the delegate's claim that the violence and harassment he experienced was sporadic. He asserts that while actions occasioning harm to his person may have been intermittent, the harassment he and his family experienced was sustained and systemic.
I conclude from the above extracts that issues were specifically raised concerning at least two assaults and that in relation to one of those assaults the applicant's wife was a witness. It is clear to me that the issues were raised both in the supporting material at the time of the application and in the subsequent submissions made by the migration agent for and on behalf of the applicants.
The tribunal's findings
The tribunal made findings which I accept are accurately summarised in the respondent's contentions as follows:-
·The applicant was an ordinary member of the SLFP who may have occasionally participated in election campaigns.
·It rejected the claim that any threats had been made against the applicant.
·It rejected the claim that the applicant was assaulted.
·It rejected a claim that the applicant had been harassed by the UNP in any way.
·It found that state protection was available to the applicant if he were to need it.
·It placed no weight on letters of support provided by the applicant.
·If the applicant were genuinely in fear of his life he would have left earlier.
·It rejected the claim that his family in Sri Lanka were being harassed to find out where he was.
·It rejected the claim that he may have been targeted by the UNP because he was a Burgher and his wife a Tamil and rejected the claim that she was a Tamil in any event.
It is useful to set out the following extract from the RRT's decision dealing with some of those issues where it specifically states as follows (court book 109):-
“I note the comments made by the applicant that he may have been targeted because he is Burgher, and that his wife is Tamil. This claim came only at the end of the hearing. Independent evidence as outlined at pages 9 and 10 of this decision does not support a contention that Burghers are in any way harassed for reason of their ethnicity, and for this reason, and the lateness of the claim, I do not accept it. The applicant further stated that his wife was Tamil, again only for the first time at the end of the hearing. I do not accept that the wife is Tamil, given that the applicant's application form clearly stated her ethnicity as Burgher, and all of her given names are Burgher, not Tamil names, and this claim was made so late in the process. I consider that she is of Burgher ethnicity, and there is no evidence that suggests that a Burgher woman is any more discriminated against in Sri Lanka than a Burgher man.
Having considered the information, both individually and cumulatively, I do not accept that the applicant has a real chance of persecution for reason of his political opinion or his Burgher ethnicity or his family relationship to his wife if he were to return to Sri Lanka now or in the foreseeable future. I therefore find that the applicant does not have a well founded fear of persecution for these or any other convention reason if he were to return to Sri Lanka now or in the foreseeable future.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
No specific Convention claims were made by or on behalf of the applicant's wife and child, and there is no basis on which the Tribunal can be satisfied that they are refugees. The fate of their application therefore depends on the outcome of the applicant's application. As the Tribunal has found that the applicant does not satisfy the criteria for a protection visa, it follows that his wife and child cannot be granted a protection visa.”
The application
The applicants have relied upon an amended application filed 1 March 2005, together with an affidavit of the second applicant affirmed on 28 February 2005. In the amended application the grounds relied upon are as follows:-
The grounds of this application are that the decision purportedly made by the respondent on 8 September 2000 -
(A)was made without jurisdiction and/or is affected by errors of jurisdiction on the following grounds:
(i)the respondent did fail to take account of a relevant consideration in failing to take oral evidence from applicant 2 at Refugee Review Tribunal (the tribunal) hearing conducted on 17 August 2000 before member Elizabeth Jensen;
(ii)the tribunal failed to accord the applicant/s procedural fairness in relation to the tribunal hearing on 17 August 2000 on the basis of those grounds set out at paragraph (B) of this amended application;
(B)was made by the respondent without according the applicant/s procedural fairness in relation to the tribunal hearing conducted on 17 August 2000 before member Elizabeth Jensen on the following grounds -
(i)the tribunal failed to comply with sections 425, 425A and 427 of the act in relation to the hearing notice dated 13 July 2000 provided to the applicants;
(ii)the tribunal failed to comply with sections 425 and 427 of the act by failing to take oral evidence from applicant 2 at the tribunal hearing on 17 August 2000, although applicant 2 was present and willing to provide oral evidence to the tribunal on the day of this hearing;
(iii)the tribunal failed to invite comment from applicants 1 and 2 pursuant to sections 424 and 424A of the act at this hearing regarding claims pursuant to the refugee convention relating to the applicant's claims particularly relating to applicant 2's Tamil ethnicity;
(iv)the tribunal, by failing to allow applicant 2 to give oral evidence to the tribunal at hearing on 17 August 2000 and thereby comply with section 425 of the act, did bring about her contravention of section 426A of the act.
It is relevant to note that in the affidavit of the second applicant she deposes to the events which allegedly occurred on 17 August 2000. In the absence of any evidence to the contrary, I accept the affidavit evidence of the second applicant in relation to the following where she states,
(8)On the morning of 17 August, pursuant to our application for review my husband and I (applicant 1 and applicant 2) attended the RRT then located at Level 2, 628 Bourke Street, Melbourne 3000 in the state of Victoria to give oral evidence in support of our application for review.
(9)Although a migration agent, Ms V.T. Correia (RMA9901295) of LCJ Migration Services, was representing my family and I before the RRT, neither Ms Correia nor any other representative acting on behalf of Ms Correia or LCJ Migration Services accompanied my husband and I to the RRT on 17 August 2000.
(10)After arriving at the RRT, an officer with the RRT requested that my husband enter hearing room 4 where the hearing in relation to our review application was to take place and I was told to wait outside.
(11)I was not asked to enter hearing room 4 at all during the hearing conducted on 17 August 2000.
(12)At no stage during the hearing conducted on 17 August 2000 was I asked to provide oral evidence to the RRT.
(13)At no stage after the hearing on 17 August 2000 was I asked to provide oral or other evidence to the RRT.
It is further relevant to note that a supplementary court book was provided which includes a transcript of the RRT hearing. In the transcript there does not appear to be any reference made to the second applicant at the commencement of the hearing. However, at the end of the hearing there are a number of relevant exchanges relating to the issue of whether or not an opportunity was given to the first applicant to call other evidence. Specifically the following exchange occurs:-
TRIBUNAL MEMBER: Right, okay, all right. Is there anything - okay, well, I will consider that. As I said, I also have to consider the country information that says that Burghers are persecuted in any way. Is there any other things that you think that are relevant then to your claims?
APPLICANT No, everything I have stated then, you are most free to check those letters and ...
TRIBUNAL: Right, okay. Do you want to have a few minutes to think if there is any other matters that you want to raise? Do you think everything has been covered?
APPLICANT: I think everything has been covered, I think.
TRIBUNAL: Okay. All right. Well, I've got no further questions. I think most of the issues have been covered, or the relevant issues have been covered from my point of view. Well, let me tell you what I will do now. Well, one view is I take away what information you've given me today and I also consider the country information that I have on the situation in Sri Lanka and I write a decision. ...
In the supplementary court book it is of significance, in my view, that there appears to be a document entitled "HEARING INFORMATION FORM" dated 17 August 2000. That hearing information form refers to the tribunal officer assisting as "Stuart Moss". It refers to the hearing room being hearing room number 4 and refers to the name of the applicant and states next to the heading "All Included Applicants" the other applicants in the application. Significantly, in my view, on the same form where provision is made for "PERSONS IN ATTENDANCE" the name is given of the first applicant as the, "primary applicant". Next to the name "Included Applicant/s" the name of the second applicant appears and there is a line drawn through that name. The line drawn through the name still makes it possible to clearly read the name as being that of the second applicant. It is noted that the hearing commenced, according to the form, at 9.44 and finished at 10.45.
For the purposes of this application it is my conclusion, based on that form and the fact that it records the commencement and finish time, that the form would have been made available to the RRT or at the very least the applicants included in the application would be known to the RRT and that the name of the second applicant appeared on the form. I am unable to determine whether the name of the second applicant was deleted before, during or after the RRT hearing. The name, however, remains clearly visible, and I infer that she was at least at one point a person in attendance.
Combining that form with the affidavit of the second applicant for the purpose of this application, I find that at all material times the second applicant in response to the invitation issued by the RRT attended at the premises where the hearing was to be conducted, that her name at one point was inserted into the hearing information form and that at another point in time deleted from that form, but otherwise accept her affidavit evidence that she was instructed by an officer of the RRT to "wait outside". I further accept for the purpose of this application that at no stage did the RRT invite the second applicant to be present at the hearing. I further conclude that at no stage did the first applicant seek to have the second applicant called as a witness in support of his application or indeed to attend at the hearing room on her own behalf as an applicant in her own right.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
The Issues
It was submitted on behalf of the applicant that jurisdictional error has occurred by failure to take relevant considerations into account (ground A(i) and (ii)). It was argued that the reference to the assaults and the other material relating to both the first applicant and his wife was a clear claim amounting to what is described as persecution by reason of family relationship of the other applicants with first applicant, that is, that they were being persecuted because they were members of a particular social group. It was argued that the RRT failed to consider that issue which had been raised for its consideration. The respondent submitted that in the present case the RRT is not required as a matter of law to consider an application which was never made but which might have been put on another basis. Reference was made to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441 at paragraph 31 where the court states the following:-
“31.None of the prosecutors relied upon the position of their husband and father as the main applicant to found a claim that they fell within the second category. The reasons why they did not do so are apparent, at the least, from their then state of knowledge respecting his whereabouts. The tribunal was required to review the decision of the delegate who, in turn, had been required (by s 47) to consider the application and the criteria which that application had to meet, not the criteria for an application, never made, which might have been put on another basis.”
The respondent also relied upon the decision of Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114 where at paragraph 1, albeit in dissent, the court states the following:-
“1.The system of judicial review of administrative action, as it operates in relation to visa applications by people seeking acceptance as refugees, often means that, by the time a case reaches this court, it is at the fifth level of decision-making. It may be, as in this case, that there have been adverse decisions at the first and second levels (the minister's delegate and the Refugee Review Tribunal (the tribunal)) and that the tribunal's decision has been upheld at the third (Federal Court of Australia) and fourth (Full Court of the Federal Court) levels. It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.”
The respondent noted that the RRT in this instance had rejected that the assaults had occurred and notes that no specific claims were ever made by the wife or the son save as members of the family unit of the applicant. They made no individual claims under the convention at all and accordingly the RRT was not required to consider such a claim. It was further submitted that no claims were made that either of the other applicants had a subjective or well‑founded fear of persecution for reasons of membership of a social group. It was submitted that the RRT therefore was not obliged to consider such a claim which had never been advanced. Reliance was placed upon the decision of Jacobson J in SZBAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 263 where the court states the following:-
“83 The short answer to this point is that there is no suggestion anywhere in the material put to the RRT that the appellant was mistreated because he was a prisoner. The claim put forward was that he was mistreated by reason of his connection to the GAM.
84 To permit the argument that the appellant feared persecution by reason of his membership of a particular social group to be run for the first time on appeal would be to offend the basic principle stated in Coulton v Holcombe. It is fundamental to the administration of justice that the substantial issues be settled at the trial, or in the decision under review. The point which the appellant now seeks to argue cannot be raised on appeal because the foundation for such a claim was not made in the RRT.”
In my view, the respondent's submissions in relation to this ground should be accepted. Applying the authorities to which reference has been made and having regard to the way in which the application was first submitted, then notwithstanding the reference to assaults occurring either as witnessed by the applicant spouse or in a family context, it is clear to me that at no stage did the other applicants raise on their own behalf a separate and specific claim based upon being members of a social group, that is, the family of the first applicant. Where no specific claim is made, it is not appropriate, in my view, applying the authorities to which I referred, for the RRT to then seek to construct a claim which may potentially be made by those other family members. The opportunity through either the migration agent or otherwise was clearly given to the applicants to modify the claim from the particulars given in the original claim or indeed to submit a further claim.
Whilst I accept that the applicants are not required to formally submit an amended claim and that subsequent material provided may form the basis of a claim not previously raised in any form or sense (see ss.54 and 55 of the Act) I do not accept in the present case that there is sufficient material before this court or that there is indeed sufficient before the RRT to provide any or any proper basis upon which it could be concluded that the other applicants had a separate claim. Accordingly, I do not accept that this ground has been established.
A matter of some greater significance, in my view, was the issue raised by the applicant that the second applicant had been denied procedural fairness by not being permitted to give evidence or be present at the hearing. Whilst the arguments advanced in relation to this ground refer to principles of natural justice and/or a breach of s.424A of the Act by failing to grant the second applicant an audience, it seems to me that in all the circumstances the real denial of procedural fairness arises from the circumstances where an applicant and/or a potential witness in support of another applicant has been denied the opportunity of giving evidence. I do not accept that there has not been an appropriate invitation given to the contact address for all applicants in this matter. It is clear that in fact the second applicant attended the premises where the hearing was conducted. It is equally clear on the evidence that
I have found, however, that the second applicant was asked to wait outside and at no stage was invited to enter the hearing room. Whilst
I have determined that the second applicant did not have a separate application, the fact remains that she is for the purposes of the Act an applicant entitled to be present at the hearing. The outcome of the RRT's determination of the claim made by the first applicant clearly has a significant impact upon the application of other applicants included in his application, that is, his family members. Further in this case I am satisfied that given there were allegations of assault, one of which was clearly asserted to be in the presence of the second applicant, that her evidence in relation to that issue was significant as part of the support of the applicant's assertion that he was assaulted.
A significant issue raised by the applicant in relation to the assaults was subject to an adverse determination by the RRT in circumstances where having denied the second applicant the right to be present in the hearing, it also as a matter of denying procedural fairness failed to at least extend the opportunity for the second applicant to give evidence not so much in support of her own application, but rather in support of the first applicant's application which of course had significant impact upon the second applicant as a family member. In general terms, it seems to me undesirable for a second applicant's name to be entered on a form as a person attending, to then be told to "wait outside" particularly where that person may well have been able to give evidence if invited to do so by the RRT in relation to a crucial issue, namely, whether or not the first applicant was or was not assaulted.
It has been argued by the respondent that in this instance there is no practical injustice given the adverse findings made by the RRT against the applicant, that is, the first applicant, and specifically noting that in any event the RRT in this instance has proceeded to make a further and discrete finding that there is appropriate state protection available to the applicants should they be required to return to Sri Lanka. Whilst
I am concerned that in the present case the evidence of the second applicant may not have advanced the first applicant's claim very much further and indeed whilst the result may still have been a rejection of that evidence, it is impossible to speculate as to the outcome of proceedings where the second applicant was able to give evidence of an event which at least on the material submitted caused her significant personal harm given that she was then pregnant at the time when the assault allegedly occurred.
A more difficult question arises as to whether or not there is any practical unfairness in this matter of the kind referred to by the court in Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 in circumstances where the finding was made as submitted by the respondent relating to the availability of protection in Sri Lanka for the applicants. However, without making a finding based upon the appropriate and available evidence including the second applicant as to the nature and circumstances of the assault and assistance then offered at that time, it is my view that at the very least there is a potential practical unfairness, however slight, to the applicants by denying the second applicant the right to attend the hearing in circumstances where if she had attended, I am prepared to infer that in all probability she would have been asked to give evidence at the very least to seek to corroborate the first applicant's version of events. It is that denial which constitutes a denial of procedural fairness. I am not satisfied that a failure to properly analyse and consider that material could properly be claimed to be an outcome where there is no practical unfairness, albeit that a conclusion was drawn by the RRT in relation to protection in Sri Lanka available to the applicants. The level of that protection may well be influenced by consideration of the nature and extent of the events surrounding the assault, including police protection then made available as a consequence of that alleged assault. They are all matters for the RRT to properly consider.
Other issues were raised in relation to what might be described as a combined Burgher/political claim of the first applicant. In my view, individual issues were considered in relation to those matters and I do not accept that by merely combining the two, that a new issue arose for consideration by the RRT, which in any event rejected the assertion by the applicant in relation to this issue by making a very specific finding in this instance that it was satisfied, as it stated, that the applicant had not been the subject of persecution in any way as a result of that alleged treatment. The finding in relation to the claim by the applicant that Burgher ethnicity was not a basis for granting a protection visa was one which was made and which was open to be made on the basis of country information leading to that conclusion that Burghers were not "in any way harassed for reasons of their ethnicity". I accept the RRT was entitled to place appropriate weight on the independent country information (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10). I further accept that it was open to the RRT to reject the later claim in relation to the ethnicity of the second applicant due to its lateness and that that was separately dispositive of the claim (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558).
I am not prepared to accept that there has been a failure to invite the second applicant to appear as indicated and accordingly that there has been any breach of s.425 or 425A of the Act. I accept, as indicated earlier, that in my view the forwarding of the correspondence set out earlier in this judgment to the first applicant was sufficient in the discharge of the RRT's obligations under those provisions of the Act. It is, however, my conclusion that once having discharged the duty to invite an applicant to appear, particularly an applicant who, albeit is a family member, has a capacity to corroborate at least part of the claim then before the RRT by the first applicant, that it is a denial of procedural fairness to require that second applicant to simply "wait outside" the tribunal hearing. The invitation must be a real invitation to not simply attend the premises where the hearing is conducted, but to be present in the hearing room whilst the hearing is being conducted. Denial of the opportunity to be present in the hearing room whilst the hearing is being conducted in my view constitutes either a denial of procedural fairness sufficient to lead me to conclude that there have been jurisdictional error.
It follows therefore that the following orders should be made:-
(1)The decision of the Refugee Review Tribunal dated 25 August 2000 be set aside and declared invalid.
(2)The application be remitted to a differently constituted Refugee Review Tribunal to be determined according to law.
(3)The respondent shall pay the applicant's costs of the application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 July 2005
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