NAAM v Minister for Immigration
[2003] FMCA 55
•26 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAAM & ANOR v MINISTER FOR IMMIGRATION | [2003] FMCA 55 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – procedural fairness – whether decision unfairly based upon information arising after the RRT hearing and not disclosed to the applicants – whether there was in fact any unfairness – whether any evidence of what the applicants would have done if put on notice about the information – no reviewable error found. PRACTICE AND PROCEDURE – Whether the Federal Magistrates Court has jurisdiction to deal with a purported decision under the Migration Act. |
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Commonwealth Constitution, s.75(v)
Federal Magistrates Act 1999 (Cth), s.18
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 474, 483A
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
Re Minister for Immigration; ex parte “A” (2002) 185 ALR 489
Re Minister for Immigration; ex parte Lam [2003] HCA 6
Stead v SGIO (1986) 161 CLR 141
First Applicant: Second Applicant: | NAAM NAAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ976 of 2002 |
| Delivered on: | 26 March 2003 |
| Delivered at: | Sydney |
| Hearing date: | 27 February 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicants: | Mr D Ash |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ976 of 2002
| NAAM |
First Applicant
NAAN
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 21 August 2002. The RRT affirmed a decision of a delegate of the respondent not to grant the applicants a protection visa. The applicants challenge the decision of the RRT on the basis that the RRT breached the rules of procedural fairness in making its decision two and a half years after the hearing, taking into account country information current as at 2002, which was not available at the time of the hearing, which the applicants were not given the opportunity to comment upon and which was adverse to their interests.
The applicants are citizens of Ukraine who arrived in Australia on 10 May 1996. On the same day they each lodged an application for a protection visa, which was refused by a delegate of the Minister on 10 February 1998. They applied on 12 February 1998 for a review of those decisions before the RRT. The applicants claim to have suffered harm as a result of their imputed political opinion and membership of a particular social group, constituted by the family of the applicant NAAM’s father. The father was a member of the RUKH party in Ukraine. These claims were accepted.
The presiding member found that the risk of harm to the applicants was from non State sources. The risk of harm emanated from political opponents of NAAM’s father. The RRT found that effective State protection is available in Ukraine against that risk of harm and concluded that neither applicant has a well founded fear of persecution.
The applicants complain that the RRT, in reaching its findings on effective State protection, had regard to a 2002 US State Department report on human rights practices in Ukraine. They complain, in particular, that they have been disadvantaged by the RRT’s use of the report. In paragraph 27 of written submissions filed on behalf of the applicants on 20 February 2003, Mr Ash submits that had the applicants had the opportunity to address the report, they would have been able to point to, for example, references to members of the security forces committing abuses, the government’s poor human rights record and police beatings (and killings) of detainees. Mr Ash makes reference to the court book at pages 216 and 218.
Consideration and findings
The first issue to consider is one of jurisdiction. Mr Ash queried whether the Court would be dealing with the matter under s.18 of the Federal Magistrates Act 1999 (Cth) as a matter arising under its associated jurisdiction. He raised the query in the light of the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 that a purported decision infected with jurisdictional error is not a decision at all. It is a nullity. In the circumstances, he noted that there may be doubt whether this Court has any jurisdiction pursuant to s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which confers jurisdiction “in relation to a matter arising under this Act”. He noted that while the High Court clearly has jurisdiction to review decisions purportedly made under the Migration Act, under s.75(v) of the Constitution, and the Federal Court clearly has a similar jurisdiction under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) the jurisdiction of this Court is expressed differently of s.483A. I ruled that no issue of jurisdiction arises. The High Court was careful to point out in Plaintiff S157 of 2002 at [95] and [96] that, in the light of its decision, the same approach to the interpretation of the privative clause in s.474 of the Migration Act would apply in proceedings in the Federal Court and this Court. I take this to mean that this Court, like the Federal Court and the High Court, has jurisdiction to review a purported decision under the Migration Act.
In addition, the High Court found at [97] that the exclusion of jurisdiction to review privative clause decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) would not apply in the case of a decision infected by jurisdictional error. There is no doubt that this Court generally has jurisdiction under the ADJR Act.
In the circumstances, I find that I have jurisdiction to deal with the application. In future, in proceedings in this Court, there may be an advantage for applicants to proceed both under s.39B of the Judiciary Act and under the ADJR Act. Whether or not the decision under review is found to be a privative clause decision there is no doubt that the Court has jurisdiction to deal with the matter pursuant to s.483A of the Migration Act on the same basis as the Federal Court under s.39B of the Judiciary Act. If the decision is found not to be a privative clause decision, this Court will also have jurisdiction to grant relief under the ADJR Act.
At paragraph 32 of the RRT decision (court book, pages 173-174) the RRT quoted extensively from the “most recent” report by the US Department of State in relation to human rights in Ukraine. It is common ground that the report referred to by the RRT became available in 2002. Mr Lloyd, for the Minister, read an affidavit by Althea Houton annexing a 1999 version of the US State Department report, released on 23 February 2000. He conceded during the course of argument, that this was an earlier version of the report.
Mr Ash submits that the issues to resolve in relation to this material are:
a)was the material pivotal to the RRT’s reasoning?
b)was the material available to the applicants at the hearing?
c)if not, does that amount to a breach of natural justice (procedural fairness)?
In reaching its ultimate decision that effective State protection is available, the RRT made two key findings. First, the RRT found at paragraph 42 of its decision (court book, page 176) that there was no evidence before the RRT that the Ukrainian government condones, or is unable or unwilling to provide effective protection against, harm inflicted on members or supporters of RUKH by their political opponents. The RRT noted complaints of harassment made by the applicants to the police and found that the response by the police did not indicate a failure of State protection. Secondly, at paragraph 43 (court book, pages 176-177) the RRT found that the evidence indicates that the Ukrainian government has put in place, and does not hinder the operation of, structures and processes which are available to any Ukrainian who perceives their human rights to have been infringed or abused. The RRT stated that other than to have made two complaints to the local police, the applicants made no effort to access any of the other avenues of protection which are available to them, and neither did applicant NAAM’s father. In addition, neither the applicants nor applicant NAAM’s father made any effort to insist that the local police perform their duties more rigorously. In such circumstances, there cannot be said to be a failure of State protection where a government has not been given the opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming.
Mr Lloyd submits that nothing turned on this second finding.
I disagree. In my view, both findings determined the ultimate finding that effective State protection was available to the applicants in Ukraine. The first finding was that the available evidence did not indicate that the Ukrainian government was unable to unwilling to provide effective State protection. The response of the police was central to this finding. The second finding was that the Ukrainian government has put in place structures and processes by which a Ukrainian may challenge governmental action that is said to be an infringement on their human rights. Although not expressly stated, it is sufficiently clear from the reasoning adopted by the presiding member that the RRT had in mind that a Ukrainian could use the processes of the Ukrainian Ombudsman or the European Court of Human Rights, to challenge ineffective State protection. In my view, these findings in combination led to the ultimate RRT finding. It is apparent from the letter sent by the RRT to the applicants on 26 September 2002 providing documents that were cited in the decision and the terms of paragraph 32 of the decision itself that the 2001 report by the US Department of State released on 4 March 2002 was central to the second finding.
The next question is whether the material was available to the applicants either at the hearing or within a reasonable time prior to the making of the RRT decision. It is common ground that the RRT did not send a copy of the 2001 US State Department report to the applicants until after the decision was made. However, the applicants themselves made a submission to the RRT based upon part of the 1999 version of the US State Department report. I understand the relevant document to be that appearing in the court book at page 147. The report annexed to the affidavit of Althea Houlton is a year later than the report apparently accessed by the applicants. In addition, notwithstanding an erroneous reference in the material to the contrary, it was accepted by both parties before me that the Ukrainian Parliament did not establish the office of Ombudsman until 1998. Further, it was not until 1997 that Ukraine ratified the European Convention on Human Rights and so acceded to the jurisdiction of the Human Rights Court. In the circumstances, it is entirely reasonable to suppose that the version of the US State Department report available to the applicants was significantly different from the later version of the US State Department report relied upon by the RRT. On the evidence before me, I conclude that the information in the document relied upon by the RRT was not available to the applicants at any time prior to the decision of the RRT.
The third issue is whether the failure to give the applicants an opportunity to comment on the US State Department report relied upon by the RRT amounted to a breach of procedural fairness. Mr Ash relies upon the statement made by His Honour Kirby J in Re Minister for Immigration; ex parte “A” (2002) 185 ALR 489 at 498 where His Honour says:
In Australia, it is a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power will be afforded a fair opportunity to respond to information or relevant material adverse to that person’s interests which the repository of the power proposes to take into account in deciding upon its exercise. In short, persons should ordinarily be afforded the opportunity to provide evidence or material to rebut information or material tendered against that person’s interests. As well, the person should be afforded the opportunity of persuading the decision‑maker, by oral or written submissions, as to the significance of the adverse evidence or material and the way in which it might be reconciled with the person’s claim.
In this case, I accept that the material was adverse to the applicants’ interests as it tended to establish the effectiveness of State protection. However, as was found in Stead v SGIO (1986) 161 CLR 141 this fair hearing rule is subject to an important qualification. The further question to be asked is whether, if the applicants had had an opportunity to comment on the material, it would have made any difference. This qualification was recently confirmed by the High Court in Re Minister for Immigration; ex parte Lam [2003] HCA 6 where the High Court found that the rules of procedural fairness are not mechanical. There will not be a denial of procedural fairness in the legal sense unless there is unfairness in fact. It is the applicant who bears the onus of establishing that the applicant could have used the opportunity to make a difference to the outcome. The applicants do not have to satisfy me that, had they had the opportunity, they could have produced material or made submissions that would necessarily have produced a different outcome. They only have to satisfy me of the possibility of a different outcome: Stead at 146-147. In Re Minister for Immigration; ex parte “A” Kirby J expressed the matter as the need to establish an arguable case, but I do not think that is a different test.
However the test is framed, in my view, the applicants have not discharged the onus placed upon them. In Re Minister for Immigration; ex parte “A” at [54] Kirby J said this:
Thirdly, the applicant has not placed before this Court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.
In this case, although the applicants, in paragraph 27 of their written submissions filed on 20 February 2003, have asserted what they would have done, that is not evidence. The applicants each filed an affidavit in support of their application but, when the Mr Lloyd informed Mr Ash that the respondents would be required for cross-examination on their affidavits, Mr Ash elected not to read them, even though the applicants were present in court. In the circumstances, I do not have the benefit of the evidence in those affidavits, or whatever the applicants may have stated under cross-examination. I do not draw any adverse inference from the failure of the applicants to give evidence.
I am, however, left with an absence of evidence on their behalf. Mr Ash submitted that sufficient implication could be drawn from the court book itself as to the kind of submissions that the applicants might have made if they had had the opportunity to do so. In my view, however, there is nothing in the court book that gives any reliable guide as to what the applicants might have done. It is a matter of pure speculation. It is not sufficient for applicants to leave the Court in a position of speculating about what they might have done. I find that the applicants have not discharged their onus of establishing the possibility that they could have put material or submissions before the RRT that might possibly have produced a different outcome.
In the circumstances, I will dismiss the application.
For completeness, I note that in his written submissions Mr Lloyd also relies upon s.424A of the Migration Act. However, Mr Lloyd properly did not press that defence at trial, given that he was instructed on the day that s.424A was not in its present form at the relevant time. In particular, I understand that there was no express exception in s.424A of country information at the relevant time. To the extent that it is relevant at all to these proceedings, s.424A simply gives statutory expression to the general law obligation of procedural fairness, which I have found on the facts of this case, has not been breached.
I will hear the parties as to costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 March 2003