Nguyen Do Vinh v Minister for Immigration & Ethnic Affairs
[1997] FCA 420
•6 MAY 1997
CATCHWORDS
IMMIGRATION - application for review of decision of Refugee Review Tribunal not to grant protection visa - whether applicant a refugee - s 420(b) of Migration Act 1958 - whether Tribunal failed to act according to the "substantial justice" of case - applicant alleged he was denied the ability to properly put his case - failure of Refugee Review Tribunal to grant an adjournment - whether failure to comply with s 420(b) is properly a ground of review under the Migration Act 1958.
ADMINISTRATIVE LAW - Judicial review - correct approach of Court to findings of fact by original decision‑maker.
Convention Relating to the Status of Refugees 28 July 1951 as
amended by the Protocol Relating to the Status of Refugees 31 January 1967
Article 1A(2)
Migration Act 1958: s 36(2), s 420(2)(b), s 425(1)(a),
s 427(6), s 427(6)(a), s 431(b), s 476(1)(a),
s 476(1)(e), s 476(1)(g), s 476(2)(a), s 476(4)
Div 4, Pt 7
Administrative Decisions (Judicial Review) Act 1977: s 5(1)(a)
Migration Reform Act 1992
Veterans' Entitlements Act 1986: s 138(1)(b)
Migration Regulations 1994: Pt II, Sch 2, cl 866.211,
reg 2.04,reg 2.05
Migration Reform Bill 1992: s 166L(b) (now renumbered
s 476(1)(a))
Chan Yee Kin v Minister for Immigration and Ethnic Affairs
(1989) 169 CLR 379
Guo Wei Rong v Minister for Immigration and Ethnic Affairs
(1996) 64 FCR 151
Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission
(1993) 177 CLR 472
Warren v Coombes (1979) 142 CLR 531
Randhawa v Minister for Immigration, Local Government &
Ethnic Affairs (1994) 52 FCR 437
Eshetu v Minister for Immigration and Ethnic Affairs
(1997) 142 ALR 474
Sali v SPC Ltd (1993) 116 ALR 625
Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273
Che Guang Xiang v Minister for Immigration Local Government
and Ethnic Affairs (22 April 1994, Carr J, unreported)
Kioa v West (1985) 159 CLR 550
Luu v Renevier (1989) 91 ALR 39
Thanh Phat Ma v Billings J (1996) 142 ALR 158
Sarbjit Singh v Minister for Immigration and Ethnic Affairs
(unreported, Lockhart J, 18 October 1996)
Velmurugu v Minister for Immigration and Ethnic Affairs
(unreported, Olney J, 23 May 1996)
Wannakuwattewa v Minister for Immigration and Ethnic Affairs
(unreported, North J, 24 June 1996)
Zakinov v Gibson (unreported, North J, 26 July 1996)
Dai Xing Yao v Minister for Immigration and Ethnic Affairs
(unreported, Black CJ, Davies and Sundberg JJ,
18 September 1996)
Minister for Immigration and Ethnic Affairs v Ozmanian
(1996) 141 ALR 322
Zheng v Minister for Immigration and Ethnic Affairs
(unreported, North J, 21 November 1996)
Courtney v Peters (1990) 27 FCR 404
Haoucher v Minister of State for Immigration and Ethnic
Affairs (1990) 169 CLR 648
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Lek v Minister for Immigration, Local Government and Ethnic
Affairs (1993) 43 FCR 100
Dai Xing Yao v Minister for Immigration and Ethnic Affairs
(17 April 1997, Sackville J, unreported)
Mohideen v Minister for Immigration and Multicultural Affairs
(17 April 1997, Olney J, unreported)
Minister for Immigration, Local Government & Ethnic Affairs v
Xiang (12 August 1994, Jenkinson, Spender & Lee JJ, unreported)
Kumar v Immigration Review Tribunal (1992) 36 FCR 544
NGUYEN DO VINH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No VG 292 of 1996
GOLDBERG J
MELBOURNE
6 MAY 1997
FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION ) No 292 of 1996
B E T W E E N:
NGUYEN DO VINH
Applicantand
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM:GOLDBERG J
PLACE:MELBOURNE
DATE:6 MAY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application is dismissed.
The applicant pay the respondent's costs of the application, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules
FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION ) No 292 of 1996
B E T W E E N:
NGUYEN DO VINH
Applicantand
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM:GOLDBERG J
PLACE:MELBOURNE
DATE:6 MAY 1997
REASONS FOR JUDGMENT
Introduction and background
The applicant applies to the Court by way of application to review the decision of the Refugee Review Tribunal ("the Tribunal") on 1 May 1996 whereby the Tribunal decided that the applicant was not a refugee under the Convention Relating to the Status of Refugees 28 July 1951 ("the Convention") as amended by the Protocol Relating to the Status of Refugees 31 January 1967 ("the Protocol"). Accordingly the decision of the delegate of the Minister dated 28 July 1995 to refuse to grant the applicant a protection visa was affirmed.
The applicant, who was born in Vietnam on 19 February 1964, entered Australia on a student visa on 29 December 1994. On 14 June 1995 he applied to the Department of Immigration and Ethnic Affairs for a protection visa and on 28 July 1995 the delegate of the Minister refused to grant a protection visa. On 25 August 1995 the applicant applied to the Tribunal to review that decision. The hearing took place on 11 April 1996 and the decision of the Tribunal was given on 1 May 1996. The conclusion which the Tribunal reached was that:
"(A)t the time he left Vietnam the applicant was not in well‑founded fear of persecution for a Convention reason and there is no real chance that he would suffer persecution for such a reason if he were to return. Consideration of the applicant's claims on a cumulative basis does not lead to any different conclusion".
On 29 May 1996 the applicant filed an application in the Court for an order of review of the Tribunal' decision. An amended application for an order of review was filed on 2 September 1996 which specified three grounds for the application but at the hearing only the first ground was relied on. This ground was that:
"Procedures required by the Act to be observed in connection with the making of the decision were not observed within s 476(1)(a) Migration Act.
PARTICULARS
(a)The decision maker failed to alert the applicant at the hearing, or otherwise, of evidence which the Tribunal had sought out which related to the treatment of persons returned to Vietnam pursuant to the Memorandum of Understanding between the Vietnamese Government and the UNHCR (MOU), thereby denying the applicant the ability to comment on that evidence,
(b)The decision maker failed to alert the applicant at the hearing, or otherwise, of evidence which the Tribunal had sought in relation to the activities of the members of 'Movement to Unite the people and Build democracy' (pp13-15 of the Decision and Reasons for Decision), thereby denying the applicant the ability to comment on that material,
(c)the decision maker failed to grant a short adjournment which would have enabled the applicant to be represented before the tribunal,
(d)The decision maker erred in failing to grant the adjournment when the applicant indicated he was not aware of correspondence between the Department, the tribunal and his representative ..."
Section 36(2) of the Migration Act 1958 ("the Act") provides that a criterion for a protection visa is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Convention as amended by the Protocol. By virtue of the provisions of s 40 of the Act reliance is placed on reg 2.04 and reg 2.05 of the Migration Regulations (1994) Pt II and in particular on cl 866.211 of Sch 2. Australia has protection obligations if an applicant has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion: Article 1A(2) of the Convention.
The proceedings before the Tribunal
In order to put the ground of review in context, it is necessary to identify how the Tribunal went about its task. It commenced by identifying the material provided by the applicant. The applicant's initial application for a protection visa (14 June 1995) was made almost six months after the applicant entered Australia. In response to questions "Why did you leave your country, what do you fear may happen to you if you go back to that country, who do you think may harm/mistreat you if you go back, why do you think
they will harm/mistreat you if you go back, do you think the authorities of that country can and will protect you if you go back" the applicant wrote "Please see statement". However, no statement was attached or provided. On 19 June 1995 the Department invited the applicant to put forward any further information in support of his application but there was no response although the Department's file contained a document in Vietnamese apparently submitted at the time or soon after the application.
On 25 August 1995 and 29 January 1996 the Tribunal invited the applicant to send in any further documents or arguments upon which he wished to rely. No further material was provided by the applicant in response to those invitations. On 19 February 1996 the applicant's solicitor sought a further week to ten days in which to provide a submission which was granted. No further material was provided and on 14 March 1996 the Tribunal notified the applicant that a hearing was fixed for 11 April 1996. On 20 March 1996 the applicant's solicitor notified the Tribunal by telephone that he, the solicitor, would not be available for the hearing on 11 April 1996 or anytime in April and sought an adjournment to 1 or 2 May. This request was refused by letter dated 20 March 1997 which, although addressed to the applicant (and later returned to sender) and incorrectly copied to another firm of solicitors, was sent by facsimile transmission to the applicant's solicitor on the same day. It is apparent from subsequent events that the applicant and his solicitors were aware of the Tribunal's refusal to grant an adjournment. Ultimately, on 7 April 1996 the applicant's solicitor sent the Tribunal a statement by the applicant in support of the application which statement was received by the Tribunal on 9 April 1996.
In that statement material was set out which identified a history of family persecution in Vietnam. The applicant set out details of his involvement in, and membership of, the United National Democracy Movement ("the Movement") which was formed by well‑known dissidents. The statement referred to a conference organised by the Movement in December 1993 which was banned by the communist regime. The applicant said in the statement that:
"Due to the intolerable activities of the government and being subjected to arrest and ill-treatment by the government forces I was unable to continue living in Vietnam. Had I stayed in Vietnam my life would have been in danger. So, I decided to leave in early 1994 for Australia."
In the statement the applicant contended that if he were to return to Vietnam he would be arrested for his past anti‑government activities and also for making the application to obtain refugee status in Australia.
The Tribunal set out in considerable detail the evidence given by the applicant at the hearing before it. The applicant described his personal and political activities in Vietnam and in particular he was questioned about the organisation of the conference. He was asked to comment on the proposition that between November 1993 and his departure from Vietnam the authorities had the opportunity to arrest him if they wished to do so and he gave an explanation as to why he was not arrested. He was also asked to explain his delay in applying for refugee status after he arrived in Australia. The applicant was asked to recall the names of party members contacted by him on behalf of the Movement but he was reticent about doing so. In the course of the hearing he said that the name "Stephen Young" meant nothing to him although Young was a person apparently involved in the organisation of the conference. Three days after the hearing the applicant sent a letter to the Tribunal in which he said that on the way home from the Tribunal he did recall Young and he now remembered him as an American involved with "the party" (a reference to the Movement).
The Tribunal then identified the relevant legal principles which applied to the definition of a refugee by reference to Article 1A(2) of the Convention and the principles set out in court decisions: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151.
The Tribunal made findings based upon the evidence before it. It noted evidence that in 1995 the Vietnamese Government's human rights record continued to be poor and that the Government continued to repress basic political and some religious freedom and to commit numerous abuses. The Tribunal also noted that a Vietnamese court had given nine political activists substantial sentences for participating in the Movement to unite the people and build democracy. It noted that the plan to host the international conference to which the applicant had referred "was swiftly crushed by the government, which arrested Nguyen Dinh Hui and other leaders and expelled an American lawyer, Stephen Young, who was helping the group to arrange the conference". The Tribunal set out details from other sources as to the severe reaction the Government demonstrated to the persons involved with the Movement and the conference. It is apparent from that evidence that any person involved with the Movement and the conference would be regarded with extreme suspicion and concern by the Government.
The Tribunal rejected the applicant's claim that he was actively involved in the Movement and it did this against the background of the evidence to which I have referred after forming an adverse view on the credibility of the applicant. The Tribunal drew attention to the applicant's delay in applying for refugee status, his delay in submitting any substantive material to support his claims until shortly before the hearing, the minimal knowledge the applicant had about the Movement and its membership and, in particular, his lack of knowledge of Stephen Young during the hearing. The Tribunal also regarded as significant the applicant's lack of knowledge of names of members of the organisation apart from its well‑known leader and two other persons, and it regarded as significant the "vague and unconvincing" manner in which the applicant described his own political activities. The Tribunal regarded all these matters to which I have referred as sufficient to reject the applicant's claim that he was actively involved in the Movement.
The consequence of this according to the Tribunal was that there was no real chance that he would suffer persecution for the reason of his political opinion if he were to return to Vietnam because, in substance, he would not be seen to have been involved in the Movement. The Tribunal also observed that he had been involved in anti‑government activities which were known to persons and authorities but between June 1993 and the end of 1994, which was more than twelve months after the arrests of the Movement's members, he remained in Ho Chi Minh City, was thoroughly investigated prior to leaving the country and was not accused of membership of the Movement. The Tribunal also looked at the evidence in relation to his family, passport and applying for refugee status and concluded that none of those facts resulted in there being a real chance that he would be subjected to persecution for a Convention reason.
The Tribunal's ultimate finding of fact that there was no real chance that the applicant would be subjected to persecution for a Convention reason was based on an adverse finding as to the applicant's credibility. There are numerous authorities which make it clear that a court should not disturb a finding of fact of a Tribunal based on its assessment of the credit or credibility of a witness unless it is satisfied that the Tribunal did not take advantage of its opportunity to see and hear the witness or that the conclusions it reached were inconsistent with an overwhelming body of evidence or were glaringly improbable: Abalos v Australian Postal Commission (1990) 171 CLR 167, 178-9; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; Warren v Coombes (1979) 142 CLR 531, 537, 552-553. Nevertheless the Tribunal is still required to apply the "real chance" test and engage in speculation as to whether there is a real chance of persecution: Guo Wei Rong (supra) at 172-175, 191-193.
The fact that the applicant gave evidence of involvement with the Movement and the organisation of the conference does not mean that the Tribunal is bound to accept that evidence especially having regard to the fact that there was documentary evidence available to it which suggested that anyone involved with the Movement or the planning of the conference which the applicant had said he was, would have probably been the subject of active consideration by the Government. The Tribunal is not required to accept in an uncritical way the evidence given by the applicant but it is entitled to subject it to close analysis: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, 451.
The Tribunal finally concluded that there was no real chance that the applicant would suffer persecution in Vietnam because he had overstayed in Australia, whether or not he was seen as someone who had applied for refugee status. The Tribunal reached this conclusion on the basis of documentary evidence that there were no known cases of mistreatment of asylum‑seekers who return to Vietnam under the protection of the Memorandum of Understanding ("MOU") made between the Vietnamese Government and the United Nations High Commission on Refugees dated 13 December 1988. The Tribunal examined this evidence and noted that the applicant's situation was not directly covered by the MOU and that he might not receive the benefit of monitoring by the High Commission although the evidence appeared to indicate "at least a liberal official attitude to those returning to Vietnam in general" (page 18). The Tribunal also noted that there was no evidence that punishment for illegally staying abroad might amount to persecution and it said that it could not be said that the applicant's departure or his remaining in Australia was explicitly politically motivated.
Grounds of review
The only ground of review relied on at the hearing was that procedures required by the Act to be observed in connection with the making of the decision were not observed as required by s 476(1)(a) of the Act.
The first two particulars relied upon under this ground were that the Tribunal failed to alert the applicant to evidence which the Tribunal had sought out relating to the treatment of persons returning to Vietnam pursuant to the MOU and relating to evidence about activities of members of the Movement to unite the people and build democracy. The refusal of the Tribunal to grant an adjournment to enable the applicant to be represented was also relied upon as was its failure to grant an adjournment when the applicant indicated he was not aware of correspondence between the Department, the Tribunal and his representative.
Ms Boddison, who appeared for the applicant, submitted that procedures required by the Act to be observed in connection with the making of the decision were not observed within s 476(1)(a) of the Act in breach of the requirement that the Tribunal act according to substantial justice and the merits of the case. She submitted that this requirement was to be found in s 420(2)(b) of the Act and that the Tribunal had failed to act according to substantial justice and the merits of the case.
Did the Tribunal err in not granting an adjournment?
Ms Boddison submitted that having regard to the position of the applicant the dictates of substantial justice required that he should have been allowed an adjournment to enable his adviser to attend the hearing and represent him. She submitted that during the hearing it was apparent that the applicant in fact suffered a detriment by being unrepresented and she identified various passages in the transcript of the hearing to make good this submission. For example, in the course of the hearing the Tribunal asked the applicant (through an interpreter) whether he received two letters from the Department dated 19 June 1995 and his response was that all the documents were kept by his lawyer and he thought his legal representative was aware of "this document". He said he had not seen the documents referred to. I was informed that these documents were proforma documents from the Department inviting the applicant to provide further information. Ms Boddison submitted that if the applicant's adviser had been present he could have clarified the issue.
The Tribunal also referred during the hearing to the fact that the application lodged by the applicant on 14 June 1995 referred to a statement but the Tribunal had never been able to find a statement and asked whether there was a statement. The applicant said he had prepared a draft copy and sent it to his solicitor. The significance of these issues according to Ms Boddison was that in its decision the Tribunal stated that it was "in a state of positive disbelief" of the applicant's claims and that if the applicant's representative had been present at the hearing and able to give him assistance in relation to the explanation of the delays in supplying material this might have impacted upon the Tribunal's assessment of the applicant's credibility. Ms Boddison also referred to questions asked by the Tribunal as to the activities with which the applicant had been involved in in Vietnam in response to which the applicant had said he could not go into detail. The questions and answers were:
"MR BILLING: Have you told me everything that you have done in Vietnam?
THE INTERPRETER: I cannot go into detail because if I go into detail I have many things to tell. It would take a long time because during my process I work in and being involved with the party I have many contacts with people and I know about many things. It's a long time to mention details.
MR BILLING: Are all the details mentioned in your statement that you submitted recently?
THE INTERPRETER: Some details I didn't mention such as how we opposed different - during crises. Because if I mention those I have to go into detail with days and months and events. I only mentioned the Chandra activities I was involved including my political opinions and activities."
She submitted that if the applicant's adviser had been present the applicant would have had the benefit of legal advice that this was the time to provide the details and that in the absence of such advice he prejudiced his own case.
Ms Boddison also referred to passages in the transcript where the Tribunal informed the applicant that it had certain information about activities and the situation in Vietnam on which it invited the applicant to comment.
She submitted that if the applicant had legal representation available to him he would have, or could have, answered the questions. She submitted that only a summary of the documents was put to the applicant; that he should have been shown the documents; and that if his legal adviser had been present he would have called for the documents and examined them with the applicant. She demonstrated by reference to the Tribunal's decision that there were matters relied upon by the Tribunal in its decision which she said had not been drawn to the applicant's attention in a meaningful way so that he could understand the importance of the information and that the failure of the Tribunal was exacerbated by the fact that the applicant was not legally represented.
Mr Mosley, who appeared for the respondent, submitted that any prejudice to the applicant should be considered in the light of the history of his application. He noted that in the initial application filed by the applicant on 14 June 1995 no details of any Convention related claims were given and the statement referred to in the application was not in fact attached. He noted that it was not until 7 April 1996 that the applicant submitted the grounds of his entitlement to a protection visa and he also drew attention to the fact that the application for a protection visa had not been lodged until just on six months after the applicant's arrival in Australia, which was just before the expiry of his student visa. He submitted that the refusal to grant the adjournment was not in fact a denial of substantial justice when placed in context. He said it was apparent that from the date of the initial application, the applicant had been represented as his solicitor's address was specified in the initial application as the address to which correspondence was to be sent. He noted that in its letter of 20 March 1996 the Tribunal refused to grant an adjournment as the reasons given by the solicitor were considered to be inadequate and the length of the adjournment was excessive in the circumstances. Accordingly it was submitted that once the applicant and his solicitors became aware of the refusal of the adjournment there was an opportunity to arrange with some other person to attend the hearing. It was said that the Tribunal had given fair warning on 20 March 1996 that it intended to proceed with the hearing on 11 April 1996 and the situation was not one of "a last minute scurry" to find alternative representation.
In short it was put that as the applicant had been represented from the start by a legal representative he had had adequate time to prepare his case and adequate time to rearrange the solicitor's schedule to obtain some other representative after notification of the refusal to grant the adjournment on 20 March 1996. It was also noted that the applicant had been provided, at his request, with a Vietnamese interpreter.
Assuming for the moment that a ground of failing to act according to substantial justice and the merits of the case is open to the applicant as a ground of review, I am not satisfied that there was such a failure in fact. It was a matter for the Tribunal to determine whether or not it should grant an adjournment and to determine whether injustice might be occasioned to the applicant if no adjournment was granted: cf Sali v SPC Ltd (1993) 116 ALR 625. The role of any legal representative at the hearing would have been limited as s 427(6) of the Act provides that a person appearing before the Tribunal to give evidence is not entitled to be represented before the Tribunal by any other person. As Moore J pointed out in Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 at 285 it does not follow from s 427(6) (then s 166DD(6)(a)) that the Tribunal was entitled to disregard the desire of the applicant for legal representation either in a hearing or at any other point in the process of considering an application. However the section does indicate that the role of the representative is limited. The applicant had a substantial period of time within which to prepare his case and the fact that the statement upon which he wished to rely was only filed on 7 April 1996 was not a matter brought about by the refusal of the Tribunal to grant the adjournment. Once the applicant knew on or about 20 March 1996 that the hearing was proceeding on 11 April 1996 come what may, he had an opportunity to attempt to make alternative arrangements. The situation is quite different from the situation confronting Moore J in Xiang Sheng Li (supra) where the applicant was awaiting the outcome of an attempt to obtain legal aid. In that case the applicant had never had any legal representation.
Notwithstanding the dicta of Moore J in Xiang Sheng Li (supra), I do not consider that in the circumstances before me the Tribunal did not act "according to substantial justice" (whatever the content of that obligation may be) in refusing the adjournment sought on 20 March 1996. I have some hesitation in accepting that the period of the adjournment sought, of the order of 21 days, was excessive as the Tribunal stated but I consider that it was open to the Tribunal to determine that the reason advanced for the adjournment, namely the unavailability of Mr Pilai, was inadequate. The background against which that decision was made was that the applicant had a substantial period of time within which to prepare his case, on 19 February 1996 the applicant's legal adviser had requested "another week - to 10 days" to make a written submission and that by 20 March 1996 no submission had been forthcoming.
The circumstances before Moore J in Xiang Sheng Li (supra) are distinguishable because in that case the applicant had never had any legal representation although an application for legal aid was pending. In that case no application for an adjournment had been made and refused prior to the hearing and what was involved in that case was the proposition that the Tribunal should have deferred further consideration of the case or at least the determination of the matter until resolution of the issue whether the applicant would obtain legal aid. Another issue in that case was that the applicant had been deprived of the opportunity, if his application for legal aid was successful, of obtaining legal advice to respond to matters raised by the Tribunal where he might have been assisted by that advice. In the instant case the applicant had the opportunity to prepare a statement in support of his application in conjunction with his legal adviser which was in fact sent to the Tribunal by his legal adviser. In any event the issue before Moore J was based upon the specific ground that a breach of natural justice had occurred relying on s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977. There is no comparable provision in that Act to s 476(2)(a) of the Act which precludes a ground of review based upon a breach of the rules of natural justice occurring in relation to the making of the relevant decision.
I reach the same conclusion in relation to the fourth particular relied on, which relates to the failure of the Tribunal to grant an adjournment when the applicant said he was not aware of correspondence between the Department, the Tribunal and the applicant's solicitor. No specific adjournment was sought in this respect and the issue is rather a consequence of the earlier refusal to grant an adjournment. In any event the applicant's solicitor had been given every opportunity to respond to the correspondence from the Department and the Tribunal.
Did the Tribunal fail to put material to the applicant?
Material concerning the Memorandum of Understanding
I do not consider that the ground is made out that the Tribunal failed to alert the applicant to evidence which it had sought relating to the treatment of persons returned to Vietnam pursuant to the MOU. The Tribunal put to the applicant the information it had in relation to people returning to Vietnam under the MOU in the following terms:
"MR BILLING: The tribunal has information that since the - emanates from the United Nations high Commissioner for Refugees, among other sources - and that information is to the effect that since the late 1980s approximately 72,000 Vietnam asylum seekers have been repatriated to Vietnam and that there are no substantiated cases of mistreatment of any of them. There is further information from the Australian Department of Foreign Affairs that none of those people have been - there are no reports of any of those people being punished for overstaying their time abroad. And finally that the United States Department of State has reported that the punishment for overstaying may be that a person is prevented from going abroad again for another three to five years. Now, on the face of it at least some of that information is different to your case because the people who have repatriated are boat people. But apart from that difference and apart also from the specific political problem that you have been discussing this morning is there any reason why you think that you would be treated any differently to all those other people who have been able to go back without problems?
THE INTERPRETER: I would like to mention my national history in relation to the - in relation to my involvement in political activities compared with those who left the country before. They left in the mass - it was a mass influx of people abroad and they were opposed to the regime but they did not have concrete, specific activities against the government and now they return they (sic) government would not have any proof against them apart from different ideology. With me I left the country because I had been involved with some activities and I am fearful that they will find out about those activities and if they find out I would not be safe."
The Tribunal specifically said that some of the information was different to the applicant's case because the people who had been repatriated were boat people but the applicant was asked a specific question whether there was any reason why he would think that he would be treated any differently to the other people who had been able to return to Vietnam without problems. The applicant responded to that question and invitation. The reasoning of the Tribunal which refers to and relies upon the evidence in relation to the MOU refers to and repeats the substance of what the Tribunal put to the applicant. I consider that the applicant was given an opportunity to respond to the factual issues raised by the Tribunal and upon which it relied notwithstanding the fact that he was not given the opportunity to read the documents containing the information referred to.
Material concerning the Movement
The issue concerning material relating to the activities of the members of the Movement is more complex. I was directed to the transcript of that part of the hearing where the Tribunal referred to the sources of the information which it had obtained about the Movement and invited the applicant to comment on what the Tribunal had said. The questions and answers were:
"MR BILLING: The tribunal has got information about this organisation from a number of sources and I want to convey that to you so that you may comment on it if you want to. The sources include Human Rights Watch, being a human rights organisation; Amnesty International and various media sources such as the Far Eastern Economic Review and South China Morning Post. Among other things those sources report that this conference that you have talked about was due to be held in November 1993.
THE INTERPRETER: '93?
MR BILLING: Yes, '93, and that Stephen Young was one of those involved in organising the conference; that nine activists were arrested at about that time and sentenced in August 1995. It is also reported that Nguyen Dinh Huy founded the movement six months after he was released from re‑education in 1992 although at this point I want to add that I have seen a United States press report which indicated
that he was imprisoned for 13 years which would mean that he was released in 1988, which is what you say.
THE INTERPRETER: He was in prison for 13 months?
MR BILLING: Thirteen years, which would mean he was released in 1988. Is there any comment that you want to make about any of that information?
THE INTERPRETER: About the conference I think the time is correct because I think it was changed - intended to be held in November and then changed to December so the time is correct. And one detail I would like to add is that it was intended to be held at the Metropole Hotel on Dukendow Street. About Professor Huy and Mr Van Ho they were arrested and released roughly at the same time and I think the detail is also correct. And about the number of those being arrested I do not know because the figure presented is the figure for court hearings and there could be more numbers being arrested without having a trial."
In substance the Tribunal put to the applicant that persons involved with the Movement and the conference were arrested and it referred to the involvement of Stephen Young. The applicant acknowledged in effect that a number of such persons had been arrested. The material referred to and relied upon by the Tribunal in its reasons set out details of the convictions of persons involved in the Movement and the conference identifying various names and sentences and the involvement of Stephen Young (pages 13-15).
It is apparent that the Tribunal used this material to justify a conclusion that anyone involved in the Movement to the extent claimed by the applicant would have been at substantial risk of arrest during the period up to the time the applicant left Vietnam and that as he was not the subject of any interest by the Government the Tribunal excluded "the Applicant's claim that he was actively involved" in the Movement (page 16).
In my opinion the Tribunal put to the applicant, albeit in an abbreviated form, the substance of the material referred to in its decision and gave the applicant the opportunity to comment on the material which he did.
Mr Mosley submitted that even if there was an obligation of procedural fairness cast upon the Tribunal in relation to the information it had before it, there was no obligation to provide the applicant with copies of the documents unless there was something in them which was personal to the applicant which would require him to be given an opportunity to comment on the information. Mr Mosley relied on Che Guang Xiang v Minister for Immigration Local Government and Ethnic Affairs (22 April 1994, Carr J, unreported) which supported this proposition. That decision was affirmed on appeal (Minister for Immigration, Local Government & Ethnic Affairs v Xiang (12 August 1994, Jenkinson, Spender & Lee JJ, unreported)) but not on this point. There is also support for Mr Mosley's submission in Kioa v West (1985) 159 CLR 550, 587 per Mason J and Luu v Renevier (1989) 91 ALR 39, 45. However in Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, Wilcox J (at 128-129) saw no reason in principle to draw a distinction between information personal to an applicant and information pertinent to the decision. In the circumstances before me I do not need to determine whether it is appropriate to draw this distinction. Although there was no reference to the applicant in the material referred to by the Tribunal the Tribunal used the material in conjunction with other material put to the applicant to form a view on his claim to have been involved actively with the Movement. Having regard to the material which was put to the applicant and in respect of which he was given the opportunity to comment there was no denial of procedural fairness in this respect.
Does a breach of s 420 of the Act give rise to a ground of
review under s 476(1)(a) of the Act?
Even if I am wrong in my conclusion that the Tribunal did not fail to act according to substantial justice and the merits of the case in refusing the adjournment and in the manner in which it put the information in its possession to the applicant, I do not consider that such a failure to observe these requirements in s 420(2)(b) of the Act gives rise to a ground for review under s 476(1)(a) of the Act. Section 476(2)(a) denies a breach of the rules of natural justice as a ground for an application of review and I do not consider that a failure to act as required by s 420(2)(b) is a failure to observe a procedure required by the Act to be observed in accordance with s 476(1)(a). I would adopt the analysis of Drummond J in Thanh Phat Ma v Billings (1996) 142 ALR 158 where he concludes that a failure to comply with s 420 cannot be corrected by the Court. Drummond J's analysis was also adopted by Sackville in Dai Xing Yao v Minister for Immigration and Ethnic Affairs (17 April 1997, unreported) and Olney J in Mohideen v Minister for Immigration and Multicultural Affairs (17 April 1997, unreported). In Thanh Phat Ma v Billings (supra) Drummond J confronted the "apparent conflict" between the duties imposed on the Tribunal by s 420 and s 425 of the Act and the limited review jurisdiction vested in the Court by s 475 and s 476 of the Act. Although there is an attraction in the proposition that because Parliament used two different expressions, namely "substantial justice" in s 420(2)(b) and "natural justice in s 476(2)(a) there was an intention to refer to two different concepts, it is not easy to see what those two different concepts are in the context in which they appear in the Act. Both expressions in their context are directed to procedural matters. I agree with Drummond J that Parliament must have intended that any breach of s 420, insofar as it involved a denial of natural justice, was not to be reviewable by the Court.
I am conscious of a dictum to the contrary by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (unreported 18 October 1996). In that case Lockhart J was faced with a submission of a failure to act according to substantial justice and the merits of the case as required by s 420(2)(b) and thus a failure within s 476(1)(a). The issues before Lockhart J did not involve the applicant seeking a review of the merits and His Honour found that there was no failure to comply with s 420(2)(b). However, in an obiter dictum Lockhart J said that if he had found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant so that there had been a failure to comply with s 420(2)(b) that would have constituted a failure to observe procedures required by the Act for the purposes of s 476(1)(a). The difficulty I have with this dictum is that it does not reconcile the apparent conflict which then arises with s 476(2)(a). In any event His Honour did not need to consider whether the content of "substantial justice" in the context of s 420(2)(b) was different from the content of "natural" justice.
Ms Boddison submitted that the obligation to accord substantial justice involved a minimum standard less than natural justice, namely an ability to present a case properly. Ms Boddison submitted that in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 Hill J concluded that the content of the concept of "substantial justice" was different from the concept of "natural justice". In that case His Honour he found no breach of the obligation to accord substantial justice but analysed the background to the introduction of s 420 and s 476 into the Migration Act 1958. His Honour noted that the relationship between s 420 and s 476(1) had been discussed in a number of cases and he referred to Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996) in which Olney J suggested that s 420(2)(b) did no more than require the Tribunal to proceed fairly. That case is distinguishable from the present case because there the applicant in effect sought a review on the merits which, on any view, was not open to him under s 476(1). Hill J also noted that North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, 24 June 1996) and in Zakinov v Gibson (unreported, 26 July 1996) had found it unnecessary to decide whether s 420 established procedures for the purposes of s 476(1)(a) because, even assuming that it did, His Honour held that no error appeared, or that what was really sought was a merits review.
In Dai Xing Yao v Minister for Immigration and Ethnic Affairs (unreported, Black CJ, Davies and Sundberg JJ, 18 September 1996) the Full Court considered, inter alia, whether the Migration Reform Act 1992 had ousted the jurisdiction of the Court. The Court concluded that this was not the situation but in the course of his reasons Davies J said:
"It is plain from such provisions (s 420) that, not only does the Migration Act provide for review on the merits of the Refugee Review Tribunal, but it intends that the 'mechanism of review' will be fair. Although s 420(1) specifies only an objective, the Migration Act intends that the procedures adopted by the Refugee Review Tribunal will be 'fair' and 'just'. If this has not occurred in the present case the applicant will be entitled to seek relief under s 476(1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed." (at 17)
As Hill J observed in Eshetu (supra) (at 484) His Honour's comments were dicta but it does not appear that in making those observations His Honour had turned his attention to the apparent conflict between s 420(2)(b) and s 476(2)(a).
In Eshetu (supra) Hill J noted that in Minister for Immigration and Multicultural Affairs v Tosn Ozmanian (1997) 141 ALR 322 Sackville J (at 346) did no more than comment that there may be a question of the relationship between s 420 and s 476(1)(a) referring to Dai and Velmurugu. Sackville J had noted (at 344) that a procedural challenge to a judicially‑reviewable decision was confined "to a failure to observe the detailed requirements laid down by the Migration Act, or the regulations for the making of the decision: Migration Act, s 476(1)(a)". Later (at 346) Sackville J referred to s 476(1)(a) as containing a ground including "a failure to conform to the prescribed procedures". It seems to me that in referring to "the detailed requirements" and the "prescribed procedures" His Honour was not referring to the provisions in s 420 but rather to provisions such as are found in Div 4 of Pt 7 of the Act headed "Conduct of review" which includes provisions such as s 425(1)(a) which provides that, the Tribunal must give the applicant an opportunity to appear before it and give evidence where a review "on the papers" is not available and s 431(b) which requires the Tribunal to set out its reasons for its decision. (cf Zheng v Minister for Immigration and Ethnic Affairs (North J, unreported, 21 November 1996). This view of Sackville J's reasoning in Ozmanian (supra) is confirmed by His Honour's decision in Dai Xing Yao v Minister for Immigration and Ethnic Affairs (17 April 1997, unreported).
Support for the proposition that s 476(1)(a) was intended to relate to particular or specific procedures set out in the Act or regulations rather than the general standards or objectives identified in s 420 is found in the explanatory memorandum for the Migration Reform Bill 1992 which, inter alia, inserted s 166LB (now renumbered s 476(1)(a)) into the Act. The explanatory memorandum explained the purpose of s 166LB (now s 476(1)(a)) as follows:
"This ground of review is complementary to the new sub‑section 166LB(2) [now s 476(2)(a)], which provides that an application for judicial review of a decision may not be made for a breach of the rules of natural justice, or as it is now called, procedural fairness. The Scheme of decision‑making under the amendments made in this Bill will set out with greater certainty the procedural requirements to be followed to ensure that applicants are provided with the protection necessary to receive a fair consideration when decisions are made affecting their right to enter or remain in Australia. The procedural requirements under the existing regime have been governed by the common law rules of natural justice and these rules have not provided the certainty needed for effective administration of the migration program. Accordingly, these common law rules will be replaced by a codified set of procedures which will afford the same level of protection to individuals but will have the additional advantage of greater certainty in the decision‑making process. For example, at common law prior notice of an adverse decision is required. Under the procedures established in this Bill, new section 26Y [now s 63], the Minister is not to refuse an application until the applicant has responded, has indicated that he or she will not be responding or the time for responding has passed. The Bill provides for an application for review of a decision where procedures such as these are not observed."
For these reasons I would venture to differ from Hill J in Eshetu (supra) (482-485) that as a matter of construction s 420 specifies "at least one of the procedural requirements to which s 476(1)(a) refers". I do not consider that either Lockhart J in Singh (supra) or Davies J in Dai Xing Yao (supra) explicitly concluded that s 420 specified a procedural requirement of the type contemplated by s 476(1)(a). Even if I am wrong on that issue neither of Their Honours addressed the issue of the apparent conflict which would then arise with s 476(2)(a). If the concept of "substantial justice" in s 420(2)(b) is no different from the concept of "the rules of natural justice" in s 476(2)(a) then the failure to act as required by s 420(2)(b) is not reviewable under s 476(1). This was recognised by Hill J in Eshetu (supra) (485). However, His Honour observed that "the procedural specification in s 420 is somewhat vague" and he concluded that s 476(2) so narrowed the ambit of s 420 as to leave little scope for its operation. Nevertheless, His Honour thought that s 420 had some role although the criterion it contained was "of considerable vagueness" (485). His Honour acknowledged that that vagueness stood in contrast to the explanatory memorandum comment that the aim of the 1992 amendments was certainty but he was not prepared to ignore the language in the section simply to produce "a good fit" with the explanatory memorandum. Thus, Hill J did not identify the extent to which there was a content in the concept of "substantial justice" which was not found in the "rules of natural justice". In my view there is no difference between the two expressions in the context in which they appear in the Act. I do not accept Ms Boddison's submission that substantial justice involves a minimum standard less than the rules of natural justice which is an ability to present a case properly. In my view such a concept is included within the rules of natural justice.
In Courtney v Peters (1990) 27 FCR 404 Lee J was faced with s 138(1)(b) of the Veterans' Entitlements Act 1986 which required the Veterans' Review Board to act "according to substantial justice and the merits and all the circumstances of the case ...". His Honour said (411):
"Exactly what 'substantial justice' imports is unclear. It is not defined in the Act and it is not a term supported by a body of common law. It is arguable that it requires at least that the standards of procedural fairness be met."
(cf: Kumar v Immigration Review Tribunal (1992) 36 FCR 544, 555).
The content of the rules of natural justice are not rigid and inflexible and will depend upon the context in which their application arises: Kioa v West (supra); Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 341, 367. I am unable to find, with any degree of precision, any provision of procedural fairness contained within the concept of acting "according to substantial justice" which is not found in "the rules of natural justice". Certainly the minimum standard of an ability to present one's case properly, as submitted by Ms Boddison, is found in each concept in my view.
It follows therefore that a complaint that the applicant was not allowed the ability to present his case properly because he was not given an adjournment to enable his legal representative to be present at the hearing where he was to give evidence does not give rise to a ground of review under s 476(1)(a) of the Act.
The application will be dismissed with costs.
Counsel for the applicant: Ms W Boddison
Solicitors for the applicant: Jay and Co
Counsel for the respondent: Mr W Mosley
Solicitors for the respondent: Australian Government Solicitor
Date of Hearing: 16 April 1997
Date of Judgment: 6 May 1997
I certify that this and the preceding thirty (30) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg
Associate:
Date: 6 May 1997
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