QAAC of 2004 v Refugee Review Tribunal
[2004] FCA 1322
•14 OCTOBER 2004
FEDERAL COURT OF AUSTRALIA
QAAC of 2004 v Refugee Review Tribunal [2004] FCA 1322
MIGRATION – decision of the Refugee Review Tribunal to affirm decision to refuse grant of protection visas – citizens of Fiji of Indian ethnicity and of the Muslim religion – privative clause decision – whether failure of Tribunal to deliver or explain particular material constituted a denial of procedural fairness – ample opportunity for applicants to have presented material showing that the material relied on by the Tribunal was erroneous – whether previous application for a carer visa relevant to credibility of applicants’ fear of persecution on a Convention ground – whether migration adviser’s conduct amounted to a denial of procedural fairness – whether applicants denied procedural fairness due to lack of education and English skills
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 475APlaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to
Craig v South Australia (1995) 184 CLR 163 referred to
WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 referred to
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 applied
Re MIMA; Ex parte “A” (2001) 185 ALR 489 appliedQAAC OF 2004, QAAD OF 2004 AND QAAE OF 2004 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
No Q 49 of 2004
SPENDER J
BRISBANE
14 OCTOBER 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 49 OF 2004
BETWEEN:
QAAC OF 2004, QAAD OF 2004 AND QAAE OF 2004
APPLICANTSAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
14 OCTOBER 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants pay the costs of the second respondent, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 49 OF 2004
BETWEEN:
QAAC OF 2004, QAAD OF 2004 AND QAAE OF 2004
APPLICANTSAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT
JUDGE:
SPENDER J
DATE:
14 OCTOBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application made under s 39B of the Judiciary Act 1903 (Cth), with reference to s 475A of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 January 2004, and handed down on 6 February 2004, where the Tribunal affirmed a decision of a delegate of the Minister not to grant protection visas to the applicants.
The applicants are husband, his wife and their son. The husband was aged 45 years at the time of the Tribunal’s decision, is of Indian ethnicity and an adherent of the Muslim religion. His wife, then aged 46 years, is also a citizen of Fiji, of Indian ethnicity and of the Muslim religion. Their son, aged 11 at the time of the Tribunal’s decision, is also a citizen of Fiji. All three family members arrived in Australia on 25 January 1999 travelling on Fijian passports. The husband’s and wife’s passports were issued on 19 October 1995, and the son’s was issued on 29 October 1998.
On 2 April 2003 the applicants lodged applications for Protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. Only the husband made specific claims under the Refugees’ Convention, his wife and son relying on their membership of his family.
On 3 June 2003 a delegate of the Minister refused to grant protection visas. On 4 July 2003 the applicants sought review of that decision before the Tribunal. A hearing was held on 2 October 2003 and the Tribunal, on 15 January 2004, affirmed the decision not to grant protection visas.
The application filed in the Federal Court on 11 March 2004 seeks a writ of mandamus issue out of the Federal Court directed to the Tribunal, requiring the Tribunal to hear and determine according to law the applicants’ application to review the decision of the delegate of the second respondent made on 3 June 2003; a writ of certiorari directed to the Tribunal to quash the Tribunal’s decision of [15 January 2004]; and a writ of prohibition directed to the Minister restraining her from acting on the decision of the Tribunal.
The grounds of the application are:
‘(a)In the Tribunal Decision there were certain materials referred to that were not delivered to me nor explained to the applicants prior to the decision being made. These materials were:
(i)DFAT, 2001 Country Information Report No 104/01 – Fijian asylum seekers in Australia, 2 April 2001;
(ii)DFAT, 2001 Country Information Report No 270/01 – Fiji Asylum Seekers in Australia, 2 October 2001;
(iii)DFAT, 2002 Country Information Report CX 70548 – Current Security Situation, 25 November 2002;
(iv)DFAT, 2002 Country Information Report No 279/02, 23 August 2002 – Situation / treatment of Indo-Fijians, CISNET Fiji CX 66854;
(v)US Department of State 2002, International Religious Freedom Report – Fiji, October.
(b)The materials referred to in paragraph (a) above were generalised, not contemporaneous, gave an imbalanced view of the true state of affairs in Fiji and were not directly relevant to the issues raised in the application nor had any direct bearing on the proper considerations for a Convention ground. Had the applicants been aware of these materials before the Tribunal they would have been able to source and present material that would have thrown a more true light on his situation and the state of affairs in Fiji from the viewpoint of members of an oppressed race and not from the perspective of a foreign journalist as these materials were.
(c)The Tribunal identified a wrong issue or alternatively relied on irrelevant material in a way that affected the exercise of its power in that at page 15 of the Decision it relied on the previous application for carer visa to find that there were no grounds for a protection visa at the relevant time.
(d)The applicants were denied procedural fairness in that the decisions of both the first respondent and the delegate of the second respondent were based on applications prepared from advices from a migration adviser that were not competent in that the applications did not address the Convention reasons.
(e)The applicants were denied procedural fairness in that their lack of education and English language skills were not taken into account by the first respondent or the delegate of the second respondent.’
7The effect of s 474(1) of the Migration Act and the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 is that the Court has jurisdiction to grant relief only where there has been a jurisdictional error made by the Tribunal. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”), McHugh, Gummow and Hayne JJ at 351 referred, with approval, to a passage of the judgment of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179, where the Court held that where an administrative tribunal:
‘…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error that will invalidate any order or decision of the tribunal which reflects.’
In Yusuf, McHugh, Gummow and Hayne JJ said at 348:
‘This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision- maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.’
The first two grounds of this application are complaints that the applicants were denied procedural fairness, in that certain material referred to by the Tribunal were not delivered to them or explained to them prior to the decision being made.
Section 422B of the Migration Act applies to all applications for review made on or after 4 July 2002. The application for review to the Tribunal by the present applicants was made on 4 July 2003, so s 422B of the Migration Act applies in the present case.
Section 422B(1) provides:
‘This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’
Section 424A deals with the provision to applicants of adverse information. It relevantly provides:
‘424A (1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application;or
(c) that is non-disclosable information.’
In my opinion, the country information of the kind complained about in this case is information which is ‘… not specifically about the applicant or another person’. In my opinion, the effect of s 424A is that there was no requirement of natural justice to bring that information to the attention of the applicants.
In WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 (“WAID”), French J was concerned with a claim that the Tribunal had specifically relied upon country information which had not previously been referred to the applicant in that case. French J held at par 57:
‘When read with s 422B, in my opinion, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant’s right to comment on adverse material which is known to and is to be relied upon by the Tribunal. I am bound by WAAJ to conclude that the latter section does not extend to the provision of country information of the kind complained about in this case. Such information is “… not specifically about the applicant or another person”.’
I respectfully agree with the judgment of the Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (“VHAP”). Gyles and Conti JJ (with whom Allsop J agreed) rejected the contention that the reference in subs 424A(3)(a) to ‘information … that is just about a class of persons of which the applicant or other person is a member’ is not another criterion of exemption, but is designed to underline the specificity required of the information by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. The information in question in VHAP was ‘correctly described as general information about the country’, and the Court was of the view that there was no denial of natural justice in not disclosing that information to the applicant.
The same position, in my opinion, applies in respect of the country information in the present case.
The pre-hearing submissions prepared by the applicants’ solicitor and migration agents referred specifically to the circumstances in Fiji, and in terms refers to the US Department of State report March 2003, the Amnesty Report 2002 and the US Department of State Country Report released in March 2002. Those submissions also contained reports in the ABC News Online of 6 April 2001, press report of 31 December 2002 by Agence France-Presse, a BBC News Report of 12 July 2000 and a report from the Fiji Times of 24 January 2003. All this material addressed the questions of what the actual circumstances were in Fiji and whether there was a real chance of persecution of the husband applicant should he be returned to Fiji.
The country information referred to in the five reports seems to me to have a direct relevance to a consideration of the grounds for a protection visa that the applicant advanced before the Tribunal.
The use that the Tribunal made of the country information appears from the following passages from its reasons:
‘In light of the independent country information set out above, I accept that there has been longstanding tension between native Fijians and Indo-Fijians and that this has involved disputes over land tenure involving evictions and unlawful resumption of land by native Fijian landowners. I accept, too, that following the Speight coup in May 2000 there have been instances of harassment and assaults upon Indo-Fijians, as well as destruction of their property and agricultural crops, by native Fijians. I further accept that there is material which suggests that crimes against Indo-Fijians were not always investigated adequately or at all.
However, the thrust of the available country information is to the effect that the incidence of crimes against Indo-Fijians has reduced somewhat since the failure of the Speight coup and the political and legal events since that time. I am satisfied that the level of such crime is now much reduced and that the general security situation in Fiji is such as to afford effective protection for Indo-Fijians including the applicant, from the types of harm that he claims to fear from native Fijians should he return to Fiji now or in the reasonably foreseeable future. It follows that I do not accept that if the family were to return to Fiji there is a real chance that the applicant would suffer persecution by reason of his race or for any Convention reason.’
The grounds of the application complain that had the applicants been aware of the five specific reports identified in the first round of this application, they claim that:
‘… they would have been able to source and present material that would have thrown a more true light on his situation and the state of affairs in Fiji from the viewpoint of members of an oppressed race and not from the perspective of a foreign journalist as these materials were.’
However, the decision of the Tribunal was given on 15 January 2004 and handed down on 6 February 2004. In my opinion, there has been ample opportunity for the applicant to have presented evidence to the Court at the hearing of this application on 16 July 2004 to show that the information used by the Tribunal was erroneous.
Kirby J in Re MIMA; Ex parte “A” (2001) 185 ALR 489 said at 501:
‘… the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.’
Kirby J concluded, at 501:
‘… On the facts of the present case, I am unconvinced that the applicant has established, as reasonably arguable, the proposition that the tribunal denied him procedural fairness by its use of the DFAT country information on Burma not provided to the applicant.’
Even if I am wrong in concluding that there was no failure to accord the applicant natural justice in respect of the country information, the applicant has not provided any evidence as to what further information might have been available to controvert the independent country information on which the Tribunal relied. His failure to explain how he has been adversely affected by being deprived of the opportunity to make submissions in respect of the documents is relevant to the present application. In my opinion there has been sufficient opportunity for the applicant to have presented evidence as to precisely what he would have done to controvert the independent evidence on which the Tribunal relied, and what evidence he would have presented to advance his case. He has not done so, and I am left to conclude that even if there had been a denial of natural justice at the Tribunal hearing in respect of the country information, no practical injustice has been demonstrated.
The third ground of the application alleges that the Tribunal impermissibly relied on the circumstance that there had been a previous application for a carer visa, in reaching its conclusion that there were no grounds for a protection visa at the relevant time. The application for a carer visa was considered in the context of assessing the believability of the applicant’s claim that he had suffered harm at the hands of native Fijians, and on the question of whether he did in fact fear persecution on a Convention ground. The chronology and grounds advanced for a carer’s visa, and for a protection visa, were not irrelevant considerations in assessing the genuineness of his claim to have suffered harm at the hands of native Fijians, and his claim that he did in fact fear persecution on a Convention ground.
The Tribunal dealt with the matter comprehensively in its reasons:
‘The applicant arrived in Australia on 25 January 1999. His application for a protection visa was not made until 2 April 2003 and was made only after his claims to remain in Australia on grounds other than that he was a refugee had been rejected, and following the failure of his appeal to the Migration Review Tribunal and then to the Minister.
In his written application to the Tribunal for review lodged on 4 July 2003 the applicant raised, for the first time, a claim that before he departed Fiji in 1999 he had been attacked by native Fijians, his house had been damaged, his property forcibly taken away and his family threatened with violence. These matters, if true, were clearly matters that the applicant might have been expected to raise in his application for a protection visa.
At the hearing, however, the applicant confirmed his statement in his application for a protection visa that his reason for coming to Australia was to care for his daughter and to assist her in caring for her children. If the applicant had indeed suffered the harm at the hands of native Fijians that he now claims, he might have been expected to make a claim for a protection visa at the time of his arrival in Australia, not 4 years later, rather than to pursue a right to remain in Australia as his daughter’s carer.
Rather than rely upon his claim that he had previously suffered harm at the hands of native Fijians, in his protection visa application the applicant founds his claim for refugee status upon the interracial violence that occurred at about the time of the attempted coup by George Speight and others on 19 May 2000, without reference to any direct or indirect personal experience of harm he had himself previously suffered at the hands of native Fijians. Despite the pivotal reliance upon the coup in support of his claim to be a refugee, the applicant did not make any application for a protection visa at or soon after the attempted coup.’
In my opinion it was clearly open to have regard to the nature of the grounds for, and the timing of the application for a protection visa, and the timing and the grounds of the application for an earlier carer visa in the context of considering whether the applicant was to be believed about his claim that he did in fact fear persecution on a Convention ground. I do not ignore the contention that the applicant was the victim of poor advice in the earlier stages of his migration litigation.
The fourth ground of the application complains that the original applications for protection visas were ‘prepared from advices from a migration adviser that were not competent in that the applications did not address the Convention reasons’. The application for review to the Tribunal was undertaken by a migration agent and solicitor acting for the applicants. Extensive, relevant and very detailed submissions were provided by that agent, who represented the applicants at the hearing before the Tribunal. There is no basis for thinking (and in fact the contrary is the case) that the representation by the migration agent and the submissions by him were in any way incompetent. The representation and submissions were thorough and comprehensive. There is no basis for thinking that the applicant was denied an opportunity to present his case to the Tribunal as he wished. There is no error, let alone jurisdictional error, based on this ground that has been demonstrated.
The final ground complains that the applicants were denied procedural fairness because of their lack of education and English language skills was not taken into account by the Tribunal. The fact is that the applicants were represented (and well represented) by their migration agent before the Tribunal. The first applicant was assisted by an interpreter at the hearing. I have considered the transcript of the oral hearing before the Tribunal. There is nothing in the transcript of the proceedings which gives any credence to the claim that the applicants were denied procedural fairness because their lack of education and English language skills were not taken into account by the Tribunal. This ground is not made out.
For the above reasons, the application is dismissed. The applicants should pay the second respondent’s costs, to be taxed if not agreed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate:
Dated: 14 October 2004
Counsel for the Applicant: Mr M. Wilson Solicitor for the Applicant: Sharma Lawyers Counsel for the Respondent: Mr M. Brady Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 16 July 2004 Date of Judgment: 14 October 2004