NASY v Minister for Immigration
[2003] FMCA 87
•26 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NASY & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 87 |
| MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – whether the RRT proceedings were unfair – whether the RRT received and took into account all relevant material – whether the applicants misled by correspondence from the RRT – whether the applicants were prejudiced by the loss of an opportunity to make submissions on certain material relevant to their cases – no reviewable error found. |
Migration Act 1958 (Cth), ss.66, 418, 474
Muin v Refugee Review Tribunal & Ors [2002] HCA 30
NAQR & Ors v Minister for Immigration [2002] FMCA 271
Plaintiff S157 of 2002v Commonwealth [2003] HCA 2
| Applicants: | NASY, NASZ, NATA NATM, NATN, NATO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ737 of 2002 SZ771 of 2002 |
| Delivered on: | 26 March 2003 |
| Delivered at: | Sydney |
| Hearing date: | 24 February 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Michael Jones, solicitor |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The applications are dismissed.
The applicants are to pay the costs and disbursements of and incidental to each application, fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ737 of 2002
SZ771 of 2002
| NASY, NASZ, NATA |
Applicants
NATM, NATN, NATO
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
In these proceedings two applications were heard concurrently, the first by applicants NASY, NASZ and NATA, having been filed on 26 August 2002, and the second by applicants NATM, NATN and NATO, having been filed on 30 August 2002. The applications raised the same issues and had earlier been heard concurrently on a preliminary issue of interrogatories: NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271. In each case the applicants seek review of a decision of the Refugee Review Tribunal (“the RRT”) which affirmed a decision of a delegate of the Minister not to grant to the applicants a protection visa. In each case the applicants allege that they were denied procedural fairness on the basis identified by the High Court in Muin v Refugee Review Tribunal & Ors [2002] HCA 30. The applications also asserted a lack of bona fides but that ground of appeal was not pressed. It was accepted that the outcome of the application by NASY & Ors would determine the outcome of the application by NATM & Ors.
The background in relation to the application by NASY & Ors is accurately set out in written submissions filed on behalf of the respondent Minister on 21 February 2003. The applicants are husband, wife and daughter who claim to be citizens of Fiji and were so accepted by the RRT. They arrived in Australia on 16 December 2000 and lodged applications for protection visas on 29 January 2001. The basis for their claims was that, as Indo-Fijians, they faced persecution at the hands of ethnic Fijians following the attempted coup by Mr George Speight and his followers in May 2000.
On 19 February 2001 a delegate of the respondent made a decision refusing to grant the applicants protection visas (court book, pages 64-71). In the notification of decision provided to the applicants under s.66(1) of the Migration Act 1958 (Cth) (“the Migration Act”) the delegate referred to evidence which was before her at the time of making her decision. That included an article from the Sydney Morning Herald on 14 July 2000 entitled Fiji Faces Isolation After Speight Win.
The applicant applied on 13 March 2001 to the RRT for review of the delegate’s decision (court book, page 72) on 14 May 2002 the RRT wrote to the applicants stating, amongst other things:
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.
That letter also invited the applicants to give evidence at a hearing which eventually took place on 18 June 2002.
The RRT handed down its decision on 18 July 2002 (court book, pages 126-137). The RRT’s critical findings were:
a)the RRT accepted that Fiji had, in the recent past, experienced civil unrest in which ethnicity and political opinion were significant elements and that there were inter-ethnic tensions which may have led to the incidents of threats, harm and intimidation between and within different ethnic groups as a result of the failed Speight coup (court book, page 134 at paragraph 38);
b)however, Fiji is now stable in terms of law and order and the new government is committed to equality and to the safety of all its citizens and there is nothing to suggest that such protection would be ineffective or that it would be withheld by the Fijian authorities (court book, page 135 at paragraph 39);
c)there is no risk or reports of institutionalised mistreatment of Indo-Fijians or of political figures (court book, page 135 at paragraph 40);
d)law and order has been established in Fiji, the police and army have succeeded in restoring confidence in public safety after the chaos of the May 2000 coup and the government is committed to stability, peace and tolerance regardless of ethnic or other backgrounds (court book, page 135 at paragraph 41);
e)the applicants’ eviction from their house was motivated by considerations of ethnicity and political opinion but the government does not condone nor is it powerless to prevent harm motivated by ethnicity or political opinion or any other Convention reason (court book, pages 135-136 at paragraph 44); and
f)effective protection is available and that protection might reasonably have been forthcoming to the applicants.
Consideration and findings
In Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 the High Court decided that the privative clause in s.474 of the Migration Act 1958 (Cth) (“the Migration Act”) would not apply if the RRT exceeded its jurisdiction. The High Court specifically held that procedural unfairness amounts to jurisdictional error. Thus, in addition to circumstances where the so called Hickman provisos are not satisfied, if an applicant can establish procedural unfairness the privative clause will not protect the decision of the RRT.
Mr Jones, who appeared for the applicants, relied on his written submissions in the matter of NASY filed on 3 December 2002 and also made oral submissions. He submits that:
a)pursuant to s.418 of the Migration Act, the RRT must notify the Secretary [of the Minister’s Department] as soon as practicable of the making of an application for review. The Secretary must, within ten working days of such notice, give the RRT a statement setting out the findings of fact made by the person who made the decision, referring to the evidence on which those findings were based, and giving reasons for the decision;
b)the delegate’s decision lists a number of documents (“the part B documents”) which the delegate clearly considered were relevant to the making of the decision;
c)a majority of the High Court in the Muin and Lie cases found that both Muin and Lie had been denied procedural fairness despite significant dissimilarities in the facts of the two cases, because of what can only be described as systemic failure on the part of the RRT to have regard to what are known as the “part B documents” in the decision of the Minister’s delegate, while at the same time misleading the applicant into believing that those documents had been taken into account. A reasonable applicant who was made aware that that the RRT had not taken those documents into account could have sought to bring to the RRT’s attention any material in them that supported the applicant’s case. In those cases, the High Court was not concerned with a decision that involved the operation of the privative clause. The finding that the RRT’s procedures involved a failure to accord procedural fairness was therefore sufficient to dispose of the matter;
d)the Sydney Morning Herald article referred to was not sent to the RRT;
e)the RRT did not consider the Sydney Morning Herald article; and
f)the applicants were denied procedural fairness because, had they been aware that the relevant statement contained in the letter of 14 May 2002 was not factually correct they, or their migration agent acting on their behalf, would have taken steps to ensure that all relevant material in those documents was placed before the RRT.
Applicant NASY swore an affidavit in which he deposed that if he had known that the Sydney Morning Herald article had not been given to the RRT he would have made submissions in respect of its contents. He was cross-examined on his affidavit. Mr Smith, for the Minister, made valiant attempts to demonstrate through that cross-examination that what the applicant had put in his affidavit lacked credibility. He was hampered by the fact that no interpreter had been arranged and the applicant, though he spoke and understood English, is not proficient in English and he appeared not to fully understand the questions being put to him, and was not clear in his answers. I formed the view that the cross‑examination was not productive. The perceived need for that cross-examination arose because, unlike the situation in Muin, there is in this case no agreed statement of facts. The respondent does not concede that the document in question was not “sent to the RRT” and does not concede that the document was not referred to by the RRT. The respondent disputes that applicant NASY (or any other of the applicants in these proceedings) had any concern about the Sydney Morning Herald article and disputes that the applicants would have had any interest in making submissions to the RRT about the article.
In my view, it is sufficiently clear from the terms of the delegate’s decision that the Sydney Morning Herald article was relevant to her decision. On that basis, it seems to me that s.418(3) required the document to be sent to the RRT, assuming that it was in the possession or control of the Secretary. However, consistently with the outcome of the proceedings in Muin this case was not argued on the basis that any breach of s.418 provided a ground of review open to these applicants. The case was argued on procedural fairness grounds.
In my view, this application fails because the applicants have been unable to satisfy me that the Sydney Morning Herald article was not considered by the RRT. In the first place, the Sydney Morning Herald article was specifically identified in the decision of the delegate which was before the RRT. Although the article may not have been physically sent to the RRT, it was sufficiently identified in the delegate’s decision and it would have been a simple matter for the presiding member to obtain a copy of it. Secondly, the RRT wrote to the applicants on 14 May 2002 stating that it had looked at all of the relevant material. On its face, that letter is evidence that the RRT did look at the Sydney Morning Herald article. Thirdly, although the article is not specifically mentioned in the RRT decision, the presiding member made a finding that was precisely consistent with it. That finding appears at paragraph 38 of the reasons for decision of the RRT (court book, page 134) where the presiding member said:
I accept that Fiji has in the recent past experienced civil unrest in which ethnicity and political opinion were significant elements. I accept that there were inter-ethnic tensions which might have led to the incidents of threats, harm and intimidation between and within different ethnic groups as a result of the failed Speight coup.
Mr Smith, in his written submissions at paragraph 12, submits that the article was irrelevant to the RRT decision because the RRT based its ultimate conclusions on findings as to the changed situation in Fiji since the article was written. I disagree. The article was highly relevant to the finding at paragraph 38 and the finding is entirely consistent with what was in the article. The article relates to the period when, shortly after the coup led by Mr George Speight, there was no government and the President of Fiji (the candidate of choice for Mr Speight) was shortly to appoint an interim civilian government. The article expresses the concerns of the governments of other countries in the region regarding the nationalistic tendencies of those involved in the coup and their fears that Indo-Fijians were being discriminated against and that Fiji was “sliding towards anarchy”.
I regard the content of the article as entirely consistent with the finding at paragraph 38 of the RRT reasons and it is, in my view, probable that the presiding member did consider the article before reaching that finding.
However, the article was not relevant to later findings by the RRT as to the changed situation in Fiji in more recent times. How could it be? The author of the article was referring to circumstances as they were at the time the article was written, not circumstances as they turned out to be after the article was written.
In addition, I am not satisfied that applicant NASY or any other applicant in these proceedings has suffered a detriment as a result of the receipt of the letter from the RRT dated 14 May 2002. Applicant NASY was not misled by the letter. The letter clearly gave him notice that the RRT was not willing to grant him a protection visa on the strength of the documentary material put before it. He was invited to appear before the RRT and accepted that invitation. The applicant had an opportunity at the RRT hearing to specifically address the RRT on the Sydney Morning Herald article (if he had regarded it as important), and I do not understand why he would have refrained from referring to it on the strength of the RRT letter of 14 May 2002. Further, even if the RRT letter did cause the applicant to forego the opportunity to make submissions to the RRT about the article, I see no possibility that any submission that the applicant could have made about the Sydney Morning Herald article could have made any difference. Any submissions that the applicant could have made could only serve on reinforce the finding made by the RRT at paragraph 38 of its reasons. Submissions from the applicant about the Sydney Morning Herald article could not alter the findings made by the RRT about the improved situation in Fiji since the article was written. Those later findings were based properly on reliable country information and I see no possibility that the RRT could have been persuaded to give more weight to an article written in the year 2000.
I find that the RRT made a relevant finding consistent with the Sydney Morning Herald article and that the article was probably considered by the presiding member, consistently with what was said in the RRT letter of 14 May 2002. In any event, I find that applicant NASY suffered no detriment as a result of any inaccuracy in that letter because there is no possibility that any submission that he may have made to the RRT about the Sydney Morning Herald article could have altered the outcome of the RRT proceedings.
I will dismiss the application.
I will hear the parties as to costs.
The applicants in proceedings SZ771 of 2002 are in a weaker factual position than the applicants in proceedings SZ737 of 2002. The applicants in proceeding SZ771 of 2002 have not identified any document allegedly not sent to the RRT about which they would have wanted to make submissions. In the circumstances, that application should also be dismissed and I will hear the parties as to costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 March 2003
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