Nicula, Andrei v The Minister for Immigration and Multicultural Affairs

[1997] FCA 1459

FEDERAL COURT OF AUSTRALIA

Migration - application for judicial review of decision of Refugee Review Tribunal - whether Tribunal acted unfairly in considering an event that occurred after the final hearing but before the publication of reasons - Chan test of “real chance” of persecution considered.

Migration Act 1958 - ss 420(1) and (2) and 476(1) and (2)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 - cons.
David v The Minister for Immigration and Ethnic Affairs, Wilcox J, 2 October 1995, unreported - cons.
Surendra Singh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 33 ALD 345 - appr.
Che Guang Xiang  v  Minister for Immigration, Local Government & Ethnic Affairs, Carr J, 22 April 1994, unreported - appr.
Kioa v West (1985) 159 CLR 550 - dist.
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 - cons.

ANDREI NICULA V THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 768 OF 1996

JUDGE:        BEAUMONT J
PLACE:        MELBOURNE
DATE:          22 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 768  of   1996

BETWEEN:	ANDREI NICULA APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		BEAUMONT J
DATE OF ORDER:		22 OCTOBER 1997
WHERE MADE:		MELBOURNE

ORDERS:

1. Application dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 768 of 1996

BETWEEN:	ANDREI NICULA APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	22 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION
The applicant, a Romanian national who entered Australia in May 1991, applied to the Minister for Immigration and Multicultural Affairs in 1992 for a determination of refugee status under the Refugee Convention and Protocol.  The applicant is a 55 year old married man with four adult children.  His wife is still in Romania.  One of their children is resident in Australia, another in the United States of America, another in Germany, and another in Romania.  The applicant worked as a miner in Romania. 

In support of his original claim for refugee status, the applicant said that he feared persecution in Romania on account of:  (1) his, and his sons', political opinions characterised as "anti-government" or "anti-communist";  (2) his orthodox Christian religious beliefs (a ground now no longer pressed);  and (3) his ethnicity as a gypsy.  The Minister's delegate decided that the applicant was not a refugee.  The applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).

The Tribunal heard his application in July 1996.  By its decision dated 26 November 1996, the Tribunal, constituted by Mr Andrew A. Endrey, determined that it was not satisfied that the applicant was a refugee, and affirmed the Minister's decision not to grant a protection visa.  The applicant now seeks judicial review of the Tribunal's decision. 

THE TRIBUNAL'S REASONS
Having described in considerable detail the material before it, relied upon by the applicant, the Tribunal said:

“I accept that the Applicant is reluctant to return to Romania because of the discriminatory treatment which he has suffered in the past arising out of antipathy and hostility towards him as a Gypsy.  The risk that he fears is based not on self-identification as a Gypsy but on the perceptions of the authorities and general population that he is one.  The Applicant’s fear is grounded in his own personal experiences in Romania as well as those of close family members.

I have found the Applicant generally to be a credible and honest witness on all material facts relating to his claims.  I indicate further in this decision those parts of his evidence which I believe to have been exaggerated or embellished upon.”

The Tribunal then cited the following observations by Professor Hathaway:

“Because ... refugee law is concerned only with protection from serious harm tied to a claimant’s civil or political status, persons who fear harm as the result of a non-selective phenomenon are excluded.  Those impacted by natural calamities, weak economies, civil unrest, war, and even generalized failure to adhere to basic standards of human rights are not, therefore, entitled to refugee status on that basis alone.”

The Tribunal then said:

“The issue, therefore, is whether the Applicant is differentially at risk due to [his] civil or political status or, as Professor Hathaway poses the question, whether the harm which the Applicant fears is the result of ‘non-selective phenomena’.”

The Tribunal next proceeded to consider the general situation of gypsies in Romania.  Having reviewed some of the literature in this area, the Tribunal said:

“There is no dispute that Romania has been denounced with justification in recent years for the dismal situation of the Gypsy minority in the country.  At the same time, however, objective sources reporting on the Romanian authorities’ treatment suggest that the Romanian government is taking important steps to improve its record.”

The Tribunal went on to say:

“One of the difficulties facing the Roma [i.e. Gypsy] community in Romania is the fact that it is a faction-riven minority lacking decisive central leadership.  Immediate past President Iliescu, while criticised by Romani activists and politicians for his shortcomings, was also generally viewed by Roma political leaders in relatively positive terms as more sympathetic than any other influential Romanian politician....

In this context, [an] article [in a specialist journal] notes that in a country such as Romania, where presidential authority is much stronger than in neighbouring parliamentary states, such as the Czech Republic, Hungary and Slovakia, the president can play an important role in supporting and upholding the rights of minorities and by directing the attention of politicians’ and the media to human rights abuses.

The Romanian government does not have a concrete minority or Romani strategy, although a number of institutional bodies advise the government and legislature on minority affairs.  Nevertheless, in recent years the government has taken positive steps in its policies toward Roma.  The improvements in Roma relations may be viewed in evolutionary rather than static terms.”

In a passage now much relied upon by the applicant in the present application for judicial review, the Tribunal said:

“A most recent development which may add further substance to the cautious optimism expressed above for improvement in the situation of Romania’s Gypsies is the election of Emil Constantinescu as Romania’s President in November 1996.  Mr Constantinescu succeeds Ion Iliescu, Romania’s leader since [the Communist leader] Ceausescu’s overthrow [in 1989] and a former senior official in the Communist Party.  Mr Iliescu had represented the continuation of communist-style rule to Mr Constantinescu and his centre-right supporters.

Mr Constantinescu has promised a complete break with the past and an irreversible swing to democracy, at the same time as strengthening ties with the West and reviving religion in Romania, which has been officially atheist for 45 years.  He has also pledged to be a president of national reconciliation.  (Jane Perlez, ‘Romania sheds communist past’, New York Times;  Mihaela Rodina, ‘President promises religious freedom, ties to the West’, AFP).”

The Tribunal expressed its conclusion on this aspect thus:

“I have concluded from the material surveyed above that, while Romania’s Gypsies have suffered considerable institutional and attitudinal discrimination in the recent past, an evolutionary change, particularly at the state level, is taking place to redress past injustices.  Although incremental improvements have been modest, the trends for building on these changes are favourable.”

The Tribunal next addressed the applicant's position.  The Tribunal said:

“I accept that the Applicant suffered discriminatory treatment in the past because of his Gypsy background.  The issue for determination is whether, in light of the evidence available to the Tribunal, he has well-founded fear of persecution in the sense of the Convention.

The point at which such discrimination constitutes persecution cannot be determined with any great degree of accuracy.  Nevertheless, the comments made by the High Court in Chan are helpful in narrowing the inquiry.”

Having cited the well-known observations in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, in this context, of Mason CJ (at 388) and of McHugh J (at 429-430), the Tribunal said:

“Although the court in Chan did not set out in exclusive or exhaustive terms what might amount to persecution, the discussion takes place in the context of notions of serious harm and serious violations of human rights.

Having viewed in their totality the experiences of discrimination suffered by the Applicant, I am unable to find that these have amounted to persecution in the context of the above discussion.”

After further discussing the applicant's claims, and some of the literature in this regard, the Tribunal expressed its conclusion thus:

“It is evident that  the Applicant has not had an easy life as a miner living much of his life to date under the repressive Ceausescu government.  I sympathise with him in his desire to continue the new life which he has commenced in Australia.  Nevertheless, I am unable to find on the available evidence that the difficulties which he faced in Romania amounted to persecution for a Convention reason.  There has been substantial and sustained improvement in his country of origin since his departure [in 1991] and many of the causes for his past grievances have been effectively removed.  While more progress needs to be made to eradicate fundamental human rights abuses of the Roma, in particular, the trends toward evolutionary structural change are promising.”

Finally, the Tribunal said:

“Viewed in their entirety, the circumstances of the Applicant’s case are such that I conclude that there is not a real chance, in terms of the test laid down by the High Court in Chan, that he would be persecuted on the grounds of his race or imputed political opinion upon return to Romania at this time or within the reasonably foreseeable future.

In light of all the evidence, I consider there to be no viable alternative version of the facts which reveals a real chance of persecution for a Convention reason facing the Applicant on return to Romania today or within the reasonably foreseeable future.”

THE APPLICANT'S GROUNDS FOR JUDICIAL REVIEW
The applicant's grounds for judicial review were outlined by his counsel in written submissions as follows:

• The Tribunal based its decision on a fact which occurred between the date of the final hearing on 15 July 1996, and the date of the publication of its reasons on 26 November 1996.  This was the election of Mr Constantinescu as Romania’s President in November 1996.  This was an event which was not in contemplation at the time of the hearing.  Using this fact as a basis for decision, without allowing the applicant the opportunity of comment on the evidence (as Wilcox J held in David v The Minister for Immigration and Ethnic Affairs, 2 October 1995, unreported), satisfied the ground set out in s 476(1)(a) of the Migration Act 1958 (“the Act”), that is, a failure to observe required procedures.

• The Tribunal in its delay, and then reliance upon new material, has acted so unfairly as to deny the applicant “substantial justice”. This constitutes a failure to observe procedures required by the Act. “The Migration Act has substituted for the rules developed by the common law and the rules incorporated in the ADJR Act rules of its own. Section 420 provides that the mechanism of review shall be ‘fair, just, economical, informal and quick’ and shall be directed to arriving at the ‘substantial justice and merits of the case’. If the procedures of the Tribunal have not met that prescription, the decision of the Refugee Review Tribunal may be set aside. It matters not that the breach may also have amounted to a breach of the rules of procedural fairness developed by the common law. The matter is to be determined not by the common law but by the words of the statute. A breach of the statute is not saved by s 476(2)” (per Davies J in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 at 625-626).

• The Tribunal failed to observe procedures and these are grounds for review which, whilst they may overlap with common law grounds for an application for review of an administrative decision, are nevertheless open to the applicant, notwithstanding the restrictions of s 476(2).  To use s 476(2) to “restrict any other ground... would be to give an extended meaning to a privative clause” (per Burchett J in Eshetu, at 636).

• The neglect of the Tribunal to give the applicant an opportunity to respond to a change in circumstances, which may have been remote or unforeseeable at the date of the hearing, may constitute a breach of natural justice; but it is also a breach of the procedures which are required by the provisions of the Act. It would be wrong to deny a ground under s 476(1) on the basis that it overlaps “with an aspect of the principle of natural justice” (per Burchett J in Eshetu, at 642).

• Further, the Tribunal made an error of law in that it incorrectly applied the law to the facts as found;  see s 476(1)(e).  The Tribunal cited rightly from Chan’s case, but misapplied those observations.  The Tribunal accepted that the applicant was a credible witness.  The Tribunal stated that it was necessary to examine whether the discrimination which the applicant had suffered in the past was sufficiently grave to constitute persecution.  The Tribunal found as a fact that “the applicant suffered discriminatory treatment in the past because of his gypsy background”.  The Tribunal then went on to find that the “discriminatory treatment” suffered did not amount to persecution “in the context of the above discussion” (of Chan’s case).  The applicant had suffered systematic maltreatment for reasons of race and political opinion, but the Tribunal failed to submit these instances to the test in Chan’s case (see Lal v Minister for Immigration and Ethnic Affairs (1996) 42 ALD 535).

• Alternatively, the error made by the Tribunal amounted to an error of law, in that the Tribunal applied a test which was too high.  The Tribunal required the applicant to show that he had a greater than 50% chance of persecution;  moreover, the Tribunal also applied to the discriminatory treatment which it had found to have occurred in the past, a test which was too high.

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW
I have difficulty accepting any of the applicant's arguments.  As has been seen, the arguments broadly fall into two main groups and it will be convenient to deal with those groups separately.

With respect to the first submission, which is based on an alleged lack of fairness on the part of the Tribunal, I will proceed in favour of the applicant upon the basis that I should accept as authoritative the majority reasoning in Eshetu, above.  In my opinion, even if this assumption were made in the applicant's favour, it cannot be said that the reference by the Tribunal to the election of the new President amounted to unfair treatment.  As has been noted, reliance is placed by the applicant upon the reasoning of Wilcox J in David, above. 

In that case Wilcox J said:

“23.If the information accepted by Ms Smidt is correct, there were major developments in the Sri Lankan situation during the period between the written submissions and her decision.  Although Ms Smidt seems to have accepted that Ms David had a fear of persecution, it is apparent from her reasons that she placed considerable weight on these developments in rejecting the claim that the fear was well-founded.  Having regard to that chain of reasoning, it was not sufficient that Ms Smidt get accurate information about the developments as she may have done, though this is disputed.  If procedural fairness was to be provided, it was necessary for Ms Smidt to give Ms David the opportunity to point out any errors in the information she had received and to state any additional relevant facts.”

Earlier in his reasons Wilcox J had said:

“21.I do not think the obligation to reveal relevant information is as limited as Ms Henderson suggests.  In Kioa the relevant information was personal to the applicant;  consequently, it was natural for Mason J to use the language he did.  Neither Wilson J nor Deane J indicated the nature of the information that must be revealed.  But the other majority Justice, Brennan J discussed the content of the obligation in a way that does not support the suggested limitation.  He referred at 612-613 to the chameleon-like quality of natural justice and quoted the well-known statement of principle by Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:

‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth’.

Brennan J also quoted the statement of Lord Morris of Borth-y-Gest in Furnel v Whangarei High Schools Board (1973) AC 660 at 679 about natural justice being ‘but fairness writ large and juridically. It has been described as ‘fair play in action’’. Brennan J added other citations, including from earlier decisions of the High Court of Australia. The point he was making was that the best way of determining what is required in a particular case is to ask oneself what would be fair, having regard to the nature of the decision and the circumstances under which it must be made. If that approach is taken it seems erroneous to limit the present disclosure obligation to matters personal to Ms David.”

However, other members of the Court have approached the matter differently.  In Surendra Singh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 33 ALD 345, a similar question arose. Foster J said (at 358-359):

“First, he complained that the delegate had indicated a view that the newspaper clippings that had been provided in support of the applicant’s case were ‘selective’.  It was submitted that, insofar as this view involved some criticism, it should have been referred to the applicant for further comment.  It was not indicated to the Court what that further comment might have been.  No doubt that applicant had forwarded newspaper clippings which supported his contention that there was some breakdown of law and order and potential physical danger in Fiji.  It is clear that the delegate considered them and indeed made some evaluation of them.  In the circumstances of the case, I do not regard the comment as an unfair one, nor the failure to afford an opportunity to comment as an error requiring curial intervention.

The second complaint was to the effect that the applicant should have been made aware by the delegate that she was having regard to the information obtained from the Embassy and in the digest.  This information tended to play down the degree of social and political problems in Fiji resulting from the coups.  It tended to show that the situation was returning to normal.  I do not feel that there is any substance in this complaint.  It would surely have been recognised that the Department would have regard to information coming from other sources bearing upon the general situation in Fiji and that it would have access to such information.  It is clear that there was nothing in the information which was personal to the position of the applicant or his family such that it would have been unfair for them not to have been afforded an opportunity to reply to it.  I am satisfied that no reviewable error has been demonstrated in this respect.”

This approach appears also to have been taken in Che Guang Xiang  v  Minister for Immigration, Local Government & Ethnic Affairs, Carr J, 22 April 1994, unreported.  Carr J there said:

“25.In relation to Cables 541 and 109 it was submitted that the applicant was aware that regard was being had to material in those cables and was given the opportunity to make any submissions or comments. It was further submitted that, in terms of procedural fairness there was no obligation to provide the applicant with copies of these cables unless there was something raised in them that was personal to the applicant which would require the applicant to be given an opportunity to comment on that material. Reliance was placed on Kioa v. West (1985) 159 CLR 550 at pp 587, 634; Luu v. Renevier (1989) 91 ALR 39 at p 45; Perera v. Minister for Immigration, Local Government and Ethnic Affairs (unreported decision of Keely J No. VG 122 delivered 17/2/92) at p 7 and Singh v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, Foster J No. NG 268 of 1991 delivered 26/2/93 at p 33). I agree with that submission. There was nothing personal to the applicant in those cables. On the contrary, the information contained in those cables was as to the general situation prevailing in the PRC.”

It is possible to reconcile these three decisions by treating each of them as no more than a case which depends upon its own particular circumstances.  It is, of course, trite law that the application of the rules of natural justice does depend upon the particular circumstances of each case.  It may be then, that it is not possible to extract any broader principle from those cases.  Of course, in Kioa, the High Court was concerned with information which could properly be described as “personal”, rather than information of a more general kind.  For that reason alone, Kioa's case may be distinguished for present purposes.  If, however, there is a broader principle to be extracted from the authorities cited, then I would, with respect, prefer the approach taken by Foster and Carr JJ.  One can readily appreciate why information of a personal kind should, as a matter of fairness, be disclosed.  If one moves beyond specific personalised material to information already in the public domain, and which is also generally available, then in terms of assessing whether a body or Tribunal has, or has not, acted in a way that is unfair, it must, in my view, be material to consider the character of the information in question. 

In any event, the circumstances of the present case, indicate that there was no lack of fairness in the way in which the Tribunal proceeded.  The election of the President in 1996 was a public and notorious fact.  Moreover, the Tribunal's reasons for its ultimate conclusion did not depend upon that fact in any sense.  If anything, the election did no more than serve to reinforce the emerging trend towards liberalisation in Romania, previously mentioned by the Tribunal.  In other words, the election was no more than a further indicia of that trend which had been developing for many years.  It should not be overlooked that the ingredient of fairness that is relevant in the present case was the need to provide the applicant with an adequate opportunity to present his own case and, as a necessary aspect of this, the need for the applicant to know the case which he had to meet.  I am not satisfied that the applicant, who appeared before the Tribunal with an adviser on the two hearing days in July 1996, was unfairly deprived or had an inadequate opportunity to present his case.

The other main ground of challenge, as has been seen, is that the Tribunal, it is said, erred in law by misapplying the Chan test of the "real chance" of persecution.  Again, I have real difficulty in accepting this argument.  The material before the Tribunal had its own complexities, but it is clear that the Tribunal not only cited the relevant observations in Chan by guiding itself to address the correct legal questions, but also that the Tribunal gave its earnest consideration to a matter which, in some aspects, clearly troubled the Tribunal, as evinced by reading its careful and detailed reasons.

Both the Parliament and recent decisions of the High Court of Australia have emphasised, in the clearest possible terms, the constraints imposed upon the jurisdiction of this Court in this kind of application.  I would regard it as a trespass upon the territory laid down by the Parliament as the domain of the Tribunal if I were to interfere with the decision made by this Tribunal on the question now sought to be agitated.  It must follow that the application should be dismissed. 

The application is dismissed with costs.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            22 October 1997

Counsel for the Applicant:	Mr Rowland
Solicitor for the Applicant:	Baker & Armstrong
Counsel for the Respondent:	Mr Mosely
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 October 1997
Date of Judgment:	22 October 1997