NAMG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1258

FEDERAL COURT OF AUSTRALIA

NAMG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1258

NAMG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD996 OF 2005

EMMETT J
30 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD996 OF 2005

BETWEEN:	NAMG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD996 OF 2005

BETWEEN:	NAMG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	30 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Peru.  Her husband and son appear to be entitled to citizenship of the United States of America.  They arrived in Australia on 28 September 2000.  On 8 November 2000, they lodged applications for protection (Class XA) visas under the Migration Act 1958 (Cth) (‘the Act’). On 19 January 2001, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant protection visas. On 23 January 2001, the appellant and her family applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 24 July 2002, the Tribunal affirmed the decision not to grant a protection visa. The appellant was notified of that decision on 13 August 2002.

   THE PROCEEDING

2. The appellant and her family then commenced a proceeding in this Court.  That proceeding was remitted to the Federal Magistrates Court.  On 31 May 2005, Driver FM ordered that the proceeding be dismissed and ordered the appellant and her husband to pay the Minister’s costs of the proceeding, which were fixed in the sum of $6,500.  On 17 June 2005, the appellant filed a notice of appeal to this court from the orders of Driver FM.  The Chief Justice has directed that the appeal be heard by a single judge. 

3. The notice of appeal to this Court is not helpful.  The grounds are stated in these terms:

   ‘-    Jurisdictional error in the RRT,

   -     decision of delegate in respect of the fourth applicant; and

   -my application for judicial review by Magistrate Driver was unfair and the cost excessive in faver (sic) to respondent, appeal in front, the decision of Refugee Review Tribunal in (sic) the ground of jurisdictional error.’

4. On 6 July 2005, a Deputy Registrar of the Court directed the appellant to file and serve an amended notice of appeal by 1 August 2005.  On that day a document described as an amended application was filed.  By that document the appellant specified grounds of appeal that I have some difficulty in comprehending.  The grounds are as follows:

   ‘1.1.The Tribunal erred in law being an error in the interpretation of the word ‘persecution’ in the contention of the convention.

   1.2.The Tribunal erred in law and failed to act in according to substantial Justice and the merits of the case, in that unreasonableness can include a misconstruction or misapplication of the Convention.

   1.3.The Tribunal erred in law, simply without examining and assessing the material that was before it, at total.

   1.3(sic) The Tribunal did not properly consider the guidelines and handbook for the determination and processing of the claim.

   1.4.The Tribunal made no explicit reference in its findings concerning to “Harassment” in the case of the appellant “Sexual and economical harassment” and therefore with the conection (sic) of a Gender Related Persecution, with this acts.  Any woman deserves protection, related in grounds of particular group.

   1.5.The Tribunal did not considered (sic) adverse factors that if taken together, produce an effect on my mind, that can reasonably Justify a claim to well founded persecution on “cumulative grounds”.

   1.6.The criteria in the convention (in the form adopted by the protocol) should be applied at the date of the application for refugee status.

   1.7.The Tribunal did not consider that EVEN the applicant not hold political views different from those of the administration in the relevant country when the administration, harassment and harm THE APPLICANT AND not respect human rights.

   1.8.The Tribunal did not recognised, that the appellants and family have rights under international law and child rigths (sic).’

5. Some particulars were furnished in relation to certain of those grounds.  In addition, in purported compliance with a direction by the Deputy Registrar, submissions were filed on behalf of the appellant on 25 August 2005.  Again, I find the submissions almost incomprehensible.   

   THE TRIBUNAL’S DECISION

6. The appellant’s submissions assert that the Tribunal failed to receive or consider relevant material in documentary form containing information favourable to the appellant’s case.  Had the Tribunal properly considered this information, the appellant would have had better chances of obtaining a favourable decision.  It was submitted that this failure was also a breach of procedural fairness.  There then followed references to decided cases and documents.  The material does not appear to me to be directed specifically to the issues that were raised before Driver FM.

7. The Tribunal accepted that the evidence of the appellant was detailed and was offered in an open and forthright manner.  It found that her claims were consistent with her earlier evidence as summarised by the Tribunal in its reasons.  The Tribunal accepted that the appellant owned a successful business in Peru and that her personal and business connections were as described in her statement and at the hearing.  The Tribunal accepted that, through her business dealings, the appellant became aware of, and to some extent involved in, corrupt and illegal financial arrangements in Peru, which were orchestrated by or on behalf of a senior military person and other Government officials.

8. The Tribunal found that, in effect, those people extorted money from the appellant through those illegal arrangements and that she did not receive what was due to her in the normal course of business.  The Tribunal accepted that, as a result, the appellant met with a General Cano, who was directly implicated in the dealings, and that he reacted in the manner described by her.  The Tribunal accepted that the appellant then met with another general who was a minister in the government, but who denied corruption and became angry and warned the appellant to stop with her allegations.

9. The appellant claimed that soon afterwards she began to encounter problems and said that she feared to return to Peru because she would be at risk of serious harm from the same people.  She feared reprisals against her, especially if she exposed corruption and co-operated with the present government.  She did not believe that the present government could or would protect her.

10. However, having considered all of the evidence, the Tribunal was not satisfied that the appellant's fear of being persecuted, if she returns to Peru, was well-founded.  The Tribunal found that the general political situation in Peru had changed significantly since the fall of the Fujimori government in November 2000 and the subsequent election of the Toledo government.

11. The Tribunal considered that, in general terms, the independent evidence suggests a level of optimism about the political direction in Peru since the downfall of the Fujimori government and the inauguration of Alejandro Toledo as President in July 2001.  The Tribunal considered that other independent evidence confirmed that both the interim government and the Toledo government had been keen to implement democratic reforms and legislation. 

12. The Tribunal referred to the appellant’s submissions that those attempts were, and would be, insufficient to address the layers of institutionalised corruption in the police, the military and the government in Peru.  The Tribunal referred to articles provided by the appellant relating to the downfall of the Fujimori regime and its immediate aftermath in early 2001.  The Tribunal had regard to the fact that Toledo had, at the time of the Tribunal hearing, been in power for almost 12 months and the independent evidence indicating that his efforts towards democratising Peru had been significant.  The Tribunal referred to significant changes in the legal, security, judicial and police systems in Peru and was satisfied from the evidence that the present government in Peru intends to do all it can to put an end to corruption within the military, the police and the institutions of government.

13. The Tribunal considered that the appellant’s fear of being harmed in the future by General Cano, or those acting on his behalf, was closely connected with past events.  The Tribunal accepted that during 1999 those people began to retain money and cheques due to the appellant and that she suffered financial hardship.  The Tribunal accepted that the appellant threatened to expose General Cano and his supporters with the intention of forcing them to pay her.

14. The Tribunal had regard to the appellant’s explanation of her belief that General Cano and his supporters would do more serious harm to her if she returned to Peru.  However, the Tribunal concluded that that possibility was not likely.  It considered that, if General Cano intended to do serious harm to the appellant because of what she knew about him, it was more likely that he would have acted on that intention when he had a clear opportunity over many months and when he was in a position of significant power.  In any event, the Tribunal considered that, if it was wrong in that regard, it was satisfied that the authorities in Peru would be able and willing to offer adequate protection to the appellant against any serious harm that General Cano or his supporters might do to her.  The Tribunal reiterated its finding that the present government had been in power for almost 12 months and observed that there was no reasonable evidence before the Tribunal that the government was not politically stable and would not continue to implement and consolidate the democratic and institutional reforms it had initiated.

15. The Tribunal also concluded, on the basis of the independent evidence before it, that if the present government were keen to obtain testimony from the appellant, it would be in a position to offer her adequate protection as a witness.  The appellant was unable to refer the Tribunal to any specific information that contradicted the independent evidence before the Tribunal in that regard.  The Tribunal was not satisfied that some adequate state protection would not be available to the appellant if she were to return to Peru, or if she were to give information or evidence to the present authorities.

16. The Tribunal accepted that the appellant was previously a supporter of the Fujimori government.  She claimed that the new government was likely to investigate everyone connected with earlier governments and, in particular, might investigate her business.  The Tribunal did not accept that the appellant would be targeted because of her former political allegiance.  The Tribunal considered that the independent evidence confirmed that the present government is keen to investigate serious instances of corruption in the past.  The Tribunal found that any investigation of the appellant’s business would occur in the context of a legitimate application of the general, criminal or other law.  The Tribunal considered that the appellant’s own evidence indicates that the harm she fears is in the form of financial or tax penalties connected with the nature of the financial arrangements in her business.  The Tribunal accepted that that might occur, but was not satisfied that such harm would represent persecution of the appellant for a Convention reason.

17. The Tribunal ultimately concluded that it was not satisfied that the appellant’s fear that she would not be accorded the protection of the state authorities if she returns to Peru was reasonable or well based.

    GROUNDS OF REVIEW

18. The original application to this Court, which was remitted to the Federal Magistrates Court, disclosed no adequate grounds.  An amended application was filed in Court by leave, on 31 March 2005.  The grounds specified in that amended application were that the appellant was denied procedural fairness and that the Tribunal failed to take account of relevant considerations and material.  The amended application referred to written submissions by way of particulars of those grounds.

19. In his reasons for judgment, Driver FM examined all of those particulars in considerable detail, and they are set out verbatim.  Driver FM’s reasoning indicates why, in his Honour’s view, the two grounds failed.  Driver FM accepted that the appellant's case was unusual and difficult.  She had made credible claims of a fear of harm at the hands of a well-known and senior military figure in Peru.  While the Tribunal accepted that the appellant's fear was genuine and that the circumstances she recounted were credible, his Honour observed that the Tribunal did not find that the fear was well-founded. 

    Procedural Fairness

20. His Honour referred to three elements in the written submissions before him concerning alleged failure to afford procedural fairness. 

21. The first was that the Tribunal failed to consider the totality of the claims put by the appellant.  His Honour dealt with those claims in some detail and observed that the Tribunal appeared to have gone out of its way to ensure that the appellant had the opportunity to comment on the information proposed to be relied on by the Tribunal.  Driver FM considered that it was far from clear that there was any factual misunderstanding by the Tribunal, as was asserted by the appellant, assuming any such factual misunderstanding would have constituted jurisdictional error. 

22. The second element of the procedural unfairness ground was an asserted failure to give the appellant the opportunity to comment upon country information that was adverse to her claims, however, his Honour was satisfied that correspondence between the Tribunal and the appellant afforded her ample opportunity to comment on any adverse material.  I shall say something more on that question when I deal with the submissions made orally by the appellant on the hearing of the appeal. 

23. The third element of the procedural fairness claim concerned an assertion as to the manner in which the Tribunal dealt with a letter from the appellant’s mother.  The letter was received after the hearing.  The Tribunal made no finding concerning the authenticity of the letter, but it was not minded to give credence to the written threat referred to in it.  Driver FM concluded there was no denial of procedural fairness on the part of the Tribunal in failing to invite debate from the appellant about the assessment of that letter.

    Failure to take Account of Relevant Matters

24. The second ground concerned alleged failure on the part of the Tribunal to consider whether General Cano’s intentions to harm the appellant would have changed after his arrest.  Driver FM considered that the conclusion by the Tribunal that effective State protection was available in Peru was open on the material before the Tribunal.  His Honour considered that it was reasonable for the Tribunal to conclude that the ability of General Cano to exact retribution was reduced by the investigation against him.  There appears to me to be nothing exceptionable in Driver FM’s reasons.

    Other Complaints

25. In her oral address, the appellant made no attempt to deal specifically with the reasons of Driver FM.  There were, however, two matters addressed by the appellant orally.  They are both directed to what she asserts was unfairness in the way that she was dealt with by the Tribunal. 

26. The first concerned the circumstances in which the hearing was conducted.  The appellant was pregnant in the first half of 2001 and her pregnancy was a difficult one.  The appellant’s application to the Tribunal for review of the delegate’s decision was lodged on 23 January 2001.  On the same day, the Tribunal wrote to the appellant, inviting her to provide any new documents or written evidence that might be available to her.  On 16 February 2001, the Tribunal wrote to the appellant, inviting her to a hearing on 2 May 2001.  By that letter, the Tribunal said that it had looked at the material relating to the application, but was not prepared to make a favourable decision on that information alone.  On 21 February 2001, the appellant wrote to the Tribunal requesting a postponement of her hearing.  In her letter, she said that, due to such a quick response from the Tribunal, she would not be able to recall the information that she needed from Peru in time to make the hearing.

27. By letter of 28 February 2001, the Tribunal initially said that it was unable to grant a postponement.  It said that, in her letter, the appellant had stated that she needed at least six weeks to obtain documents from Peru.  Since the hearing had been listed for 2 May 2001, which was nine weeks away, the Tribunal considered that the appellant had adequate time to obtain any documents that she needed.  The appellant subsequently furnished a medical certificate concerning her inability to attend a hearing on 2 May 2001.  As a consequence, that date was vacated and a further hearing was fixed for 25 July 2001.

28. That date was also vacated and the hearing in fact took place on 15 August 2001, after the appellant had given birth to her son.  A transcript of the hearing before the Tribunal on 15 August 2001 is before the Court.  No indication appears in that transcript that the appellant asked for any further adjournment.  I do not consider that there is any justification for complaint concerning the approach adopted by the Tribunal in conducting the hearing.  There is no material before the Court to suggest that the appellant was not able to make adequate submissions.  There was nothing to indicate that she did not have ample opportunity to put before the Tribunal at the hearing whatever it was she wanted to say.

29. The second oral complaint before me that was made orally by the appellant concerns the exchange of correspondence between the Tribunal and the appellant after the hearing.  At the end of the hearing on 15 August 2001, the Tribunal is recorded as saying:

    ‘If there is anything that you think of after this hearing that you want to tell us about that you didn't say because you were not following it, or whatever, then contact the Tribunal by telephone to tell us that, and I will give you some extra time in which to put that in writing, however simply you can write it.’

30. The complaint concerns the way in which the Tribunal dealt with additional material concerning Peru that became available to it.  On 5 June 2002, the Tribunal wrote to the appellant relatively saying as follows:

    ‘Since the Tribunal hearing the Tribunal has identified specific country information relevant to your claims. Some of that material supports your claims to the effect that General Abraham Cano was chief of the southeast regional army command (or the Third Regional Command) and a close associate of Montessinos... 

    However the Tribunal now also has before it later independent information (from 2001) that might, subject to any comments you make, be the reason for deciding that you are not entitled to a protection visa. 

    That information indicates that General Cano was one of four generals officially accused by the Prosecutor in January 2001 of receiving bribe money from Montessinos,… and that he was one of two generals arrested on corruption charges in September 2001... 

    The Tribunal has been unable to find any reports that indicate that General Cano has been released from detention.

    This information is relevant because at the Tribunal hearing you indicated amongst other things, that you fear reprisals from General Cano because he remains powerful in the present government. 

    You stated that he is still responsible for the south command of the armed forces (which the Tribunal takes to be the southeast regional army command).  You also indicated that although he was formerly close to Montessinos, he turned on him and had survived within the new government.

    The latest information before the Tribunal, as outlined above…, does not support these claims and does not indicate that general Cano is part of the current government, but rather that he has already been targeted by them in their corruption investigation. 

    Given that General Cano has already been charged with corruption it seems unlikely that your evidence about your dealings with him would be required by the present government in their proceedings against him. 

    However even if you choose to give such evidence, other recent independent information before the Tribunal to suggest that this government would be keen to offer ‘witness protection’ to people in your position. 

    Subject to any comments you make that information might be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

    The information before the Tribunal is to the effect that witness protection was an important consideration when the Truth and Reconciliation Commission was established, and that it has been built into the investigations of the Commission.

    There is no evidence before the Tribunal that the present government which is attempting democratic and political change on many levels would not ensure the same protection to people who gave evidence as part of the corruption investigations. 

    This information is relevant because it suggests that, even if you were to speak against General Cano, the present government would be able and willing to offer you adequate protection.’

1. The appellant responded to that letter on 1 July 2002.  Her response comprises over four pages of handwriting, addressing the matters raised by the Tribunal concerning General Cano.  The letter finished by saying:

   ‘If you have any questions or need anything clarified please let me know. I will gladly come in and speak with you or send you more information.’

   There is a postscript saying, inter alia:

   ‘I will be receiving [certain] newspaper clippings in about 10 days and I will send them immediately.’

   In fact, no newspaper clippings were sent to the Tribunal.  The appellant informed the Court today from the bar table that, although they were expected by her, they were not received. 

2. The Tribunal’s decision was made on 24 July 2002, although it was not published to the appellants until 13 August 2002. The appellant’s complaint was that she had expected that the Tribunal would respond to her letter and give her a further opportunity to debate, in effect, the concerns that the Tribunal had.  The appellant did not refer specifically to any findings in the Tribunal's reasons that she says took her by surprise in relation to the material disclosed to her by the Tribunal. 

3. It may be that the appellant expected that the Tribunal would engage in further debate. However, her letter of 1 July 2002, apart from the intimation that newspaper clippings might be sent, purports to be a response to the Tribunal’s letter of 5 June 2002.  It does not say that further information will be given; it is simply an invitation to the Tribunal to let her know if it had any questions.  I do not consider that the failure by the Tribunal to engage in a further debate in any way constituted a denial of procedural fairness by the Tribunal. 

4. One further specific matter, about which the appellant made a complaint orally, was her assertion that, in Peru, there is a law that would permit General Cano to be released after some 30 days.  The Tribunal made no reference to such a law. However, nor does the appellant say that she drew the Tribunal's attention to any such law. The failure by the Tribunal to take account of something of which it had no knowledge is not a denial of procedural fairness. 

   CONCLUSION

5. I am not persuaded that there was any error on the part of Driver FM; nor am I persuaded that there was any error on the part of the Tribunal outside the grounds that were raised before the Federal Magistrates Court.  It follows, in my opinion, that the appeal should be dismissed. 

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             12 September 2005

The appellant appeared in person
Counsel for the Respondent:	Mr R. Beech-Jones
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30 August 2005
Date of Judgment:	30 August 2005