S1336 of 2003 v Minister for Immigration
[2006] FMCA 750
•26 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1336 of 2003 v MINISTER FOR IMMIGRATION | [2006] FMCA 750 |
| MIGRATION – Review of RRT decision − where persecution claimed on grounds of ethnicity − whether RRT provided female applicant with private hearing under s.429 given presence of male applicant − whether failure to afford natural justice − where RRT found male applicant’s claims that his ethnicity amended on official documents not to be credible − where failure to put to male applicant adverse information regarding official documents − whether adverse information was credible, relevant and significant to decision-making process − whether female applicant provided with meaningful hearing under s.425. |
| Migration Act 1958, ss.429, 365, 425, 420, 424. |
| SZAFE v Minister for Immigration [2003] FMCA 410 SZAYW v Minister for Immigration [2005] 223 ALR 1 VEAL v Minister for Immigration [2005] HCA 72 QAAI v Minister for Immigration [2006] FCA 4 Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 Muin v Refugee Review Tribunal (2002) 190 ALR 601 WACO v Minister for Immigration [2003] 77 ALD 1 NAIS & Ors v Minister for Immigration (2005) 223 ALR 171 Hong v Minister for Immigration [2004] FCA 1308 |
| Applicant: | APPLICANTS S1336 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File number: | SYG771 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 May 2006 |
| Date of last submission: | 23 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones |
| Counsel for the Respondent: | Mr D Godwin |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
APPLICANT S1336/2003 – Male
THE COURT DECLARES:
That the decision of the Refugee Review Tribunal dated 6 January 1999 is invalid and of no effect.
THE COURT ORDERS:
The application be remitted to the Refugee Review Tribunal to be heard and determined according to law.
THE COURT NOTES:
That constitutional writs will be granted if requested.
APPLICANT S1336/2003 – Female 1
Application dismissed.
APPLICANT S1336/2003 – Female 2
Proceedings discontinued.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG771 of 2004
| APPLICANTS S1336 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings involve three applicants, a husband, a wife and a daughter. The daughter has withdrawn her application. The husband and wife were represented in the proceedings. They are both citizens of the Russian Federation but they have made separate claims for refugee status. In the case of the husband his claim for refugee status centres around his allegation of being considered a person of Chechen ethnicity. He claims that the persecution of which he gives evidence that he suffered within Russia, and his grounds for fearing that the persecution will continue if he returns to that country, arise out of his actual or imputed ethnicity of Chechen. In the case of the wife her claim arises out of an imputed ethnicity of Gypsy or Roma. The applicants arrived in Sydney on 27 January 1997. On 28 April 1997 they made applications for protection visas. They both completed Form C of the application for a protection visa (866). In other words, each had their own claim to be a refugee. On 19 June 1997 their claims were refused by a delegate of the Minister for Immigration & Multicultural Affairs. On 27 June 1997 they lodged an application with the Refugee Review Tribunal for a review of that decision. Both applicants attended an oral hearing before the Tribunal on 19 August 1998. On 6 January 1999 the Tribunal affirmed the decision not to grant the applicants protection visas.
The claims made by the applicants concerning their treatment within Russia were lengthy. The Tribunal’s decision commences at [CB 269] and concludes at [CB 324]. The Tribunal rehearses the claims made by the applicants at some length. It is not necessary for the purposes of this decision for me to repeat them in extenso.
The grounds upon which the applicants claim the Tribunal fell into jurisdictional error in the manner in which it came to its decision are twofold. Firstly, the wife argues that the Tribunal did not provide her with a private hearing pursuant to s.429 of the Migration Act 1958 (the “Act”). Secondly, they both argue that the Tribunal did not provide them with natural justice because at [CB 312] the Tribunal states:
“[T]his confirms that the entry on one’s birth certificate and internal passport is entered according to the nationality of one’s parents; and if the nationalities of both parents are different, then, that of the father is usually entered as the nationality of the recipient. This information also states that once the nationality is entered it remains fixed and cannot be changed [as cited from DIRB 1993 – research Information Request SUN132238, 1 March, REFINFO].” (Emphasis added.)
This information is used by the Tribunal at [CB 316] to make the finding:
“The Tribunal notes from the evidence cited above that it was not generally possible for people to have documents changed at will from that recorded in their original documents and that there could be severe repercussions if a person lost their identity documents already issued. In this instance the applicant wife claimed her mother had her ethnic identity changed to Russian when she was born, yet at the same time she alleged that it was widely known in the area that her maternal grandfather was a Gypsy.
…
In the light of this evidence the Tribunal is satisfied that the official identity documents of the applicant wife and applicant daughter stated that they are of Russian ethnicity.”
In regard to the applicant husband there is no specific reference to this independent country information. The Tribunal at [CB 314-315] comes to the view that his story about changing his official ethnicity from Russian to Chechen by the KGB was not credible. The Tribunal opined at [CB 315]:
“In light of the above claims and considerations the Tribunal is satisfied that the applicant was regarded officially in the USSR (and later in Russia) as being of Russian ethnicity – as this was the ethnicity of his father’s family and which, according to ethnic registration laws of the USSR, would have been the ethnicity attributed to him at his birth. The Tribunal is not satisfied that he ever had documents issued to him by the KGB as he initially alleged in his written claims – as he contradicted this in the Tribunal hearing by stating that he already had these documents at this time.”
The private hearing issue
The hearing before the Tribunal proceeded in the following way. The parties were represented by the same migration agent. The Tribunal called all the applicants (husband, wife and daughter) into the room and explained to them the nature of the hearing and what the Tribunal was required to be satisfied of in order to grant them a protection visa. The Tribunal then said:
“T:Your wife is also an applicant. Is there anything she would like to ask me about the meaning of the definition of the Convention which I have just explained?
W:I understood everything.
T:Okay, now who is going to be giving evidence today? There is the two applicants, the applicant and his wife. What about the daughter?
D:I would like to, I have something to add.
T:Do you want to give some evidence?
D:Yes.
T:Okay. What I am going to do then is I am going to ask the hearing officer to swear in the interpreter and then all the applicants and then I will ask the wife and daughter to leave the room while I speak to them individually.” [T4]
The Tribunal then questioned the husband in the absence of any one else other than the interpreter and the agent. At [T32] the Tribunal says:
“T:That is all the questions I have to ask you at the moment.
I intend to have a 10 minute break and I wish to speak to your wife. Hopefully I won’t be speaking to her for anywhere near like the time that we have just had to sit through. Then I propose to speak to your daughter. During the break I do not wish you to speak to your wife, okay?…
T:Okay. As I say, I will have a 10-minute adjournment. I would prefer it if you stayed in this room until I am ready to call your wife and at 10 past 1 we will come back, if that is all right.”
The applicant then asked whether he could have a cigarette and the Tribunal told him he had to go outside for this. At 10 past 1 the hearing continued.
“Mr X (advisor): Just before you kick off, W has asked whether if an answer is not comfortable for her does she have to answer or not and I said it is up to her but if she doesn’t want …. Quite happy to leave the room. Since we are heading that way.
T:Okay, Now I don’t know how I am going to go about this because I did want to interview them separately. I might actually bring her husband back in and ask the daughter to leave and then I will call her back in when I need her.
T:You are allowed to sit at the back of the hearing if you like…” [T 33]
The Tribunal then proceeded to question the wife in the presence of the husband.
The claim of a breach of s.429 is made in respect of the wife only (amended application dated 10 December 2004, ground 1). The wife relied upon the decision of Federal Magistrate Driver in SZAFE v Minister for Immigration [2003] FMCA 410 where in similar circumstances Driver FM said at [18]:
“Applicants are entitled to expect that they be able to present their claims to the RRT in confidence. That confidence would be imperilled if applicants were required to present their claims in the presence of other unrelated applicants.”
His Honour’s reference to “unrelated” did not mean physical relationship but relationship of claims.
Driver FM’s views may have been the law when the amended application was filed, but in SZAYW v Minister for Immigration [2005] 223 ALR 1 a Full Bench of the Federal Court considered another decision of his Honour following the interpretation of s.429 that he had made in SZAFE, and allowed the appeal by a majority holding that the words “in private” should not be interpreted restrictively. Moore J at [14], after comparing s.429 with s.365 of the Act which refers to a public hearing, stated:
“However, it created an instructive dichotomy between a public and private hearing. This provision fairly clearly indicated that a private hearing, for the taking of oral evidence was a hearing which was not a public hearing. The ordinary meaning of the word “public” would, in this context, have suggested a hearing that members of the public could have attended to listen to and see what occurred. Accordingly, a private hearing was one where members of the public could not attend. No greater limitation on how the hearing was to be conducted was suggested by the use of the word “private”. Whilst it is not an approach to be adhered to rigidly, it can be assumed, nonetheless, that the legislature would use words uniformly in the same legislation.” (Authorities cited)
And at [18]:
“There are other practical considerations that suggest the legislature did not intend that the notion of "private" hearing was as narrow as suggested by the Federal Magistrate.”
And at [19]:
“In my opinion, the requirement created by s.429 was satisfied in this matter. The section required that the hearing be closed in the sense that members of the public were not permitted to enter the hearing room while evidence was being given. There is no evidence to suggest that in this matter, members of the public were permitted to hear the evidence of the applicant or other witnesses.”
Weinberg J agreeing with Moore J said at [28]:
“The claimants in the present case had a significant advantage by being able to be present throughout the evidence given by each of them. The only exception was that they were not present during the evidence given by the first claimant. The fact that the respondent to this appeal was questioned in the presence of the other claimants, and that they in turn were questioned in his presence, does not mean that the hearing did not take place "in private". The fact that it did not take place ‘in public’ meant, for the purposes of s.429, that it did take place ‘in private’.”
Mr Jones argues that in this case the presence of the applicant’s husband during the hearing of his wife’s evidence served no apparent purpose connected with her application and that he should be considered a “member of the public” for this purpose. I cannot see how this can be right. There are a number of areas in which the husband and wife’s claims overlapped. For example at [22] in the husband’s statement he states:
“Because I supported my wife ‘a gypsy’ I was also being harassed again, and we were soon destitute.”
The wife claimed that she thought her marriage would save her from sexual harassment in her place of work but this had not happened. It seems to me that if I am unable to distinguish this case from those decided by FM Driver then I am bound by the views of the Full Court in relation thereto. I note that Mr Jones argues that SZAYW, which is the subject of an appeal to the High Court, was wrongly decided. I cannot see the distinction Mr Jones draws. I would not find jurisdictional error on this ground.
The failure to afford natural justice issue
It is the essence of both applicants’ claims that they were persecuted because of their ethnicity. The husband claimed that his mother was a Chechen. He claimed that his parents were both killed when he was about five years of age. He was placed in an orphanage where he was badly treated and from where he escaped at about the age of fourteen and went into Latvia. Whilst in Latvia he was classed as a Russian and suffered from that association. He became homeless and whilst in that situation was picked up by the KGB who changed his papers from being a person of Russian ethnicity to a person of Chechen ethnicity. This status followed him until shortly before he left the country when he paid $2,500.00 to change the papers back to Russian. The Tribunal deals with the question of the applicant’s actual or imputed ethnicity at [CB 314-315]. The Tribunal certainly put to the applicant that during the Soviet period his ethnicity would be determined by that of his father [T8]. In the findings and reasons at [CB 314] the Tribunal says:
“Also, the Tribunal notes the above evidence which states that in the time of the Soviet Union ethnicity was recorded on a person’s identity documents and that this was noted as being that as derived from their parents. Ethnic nationality was recorded on the birth certificate and then on the internal passport (since to obtain this document a birth certificate was required). The internal passport was then necessary in order to obtain other official document such as work-books, military service books, and external passports. However, the applicants in this case were not able to produce their birth certificates nor copies of their internal passports or any other document which would have confirmed they were of the various ethnicities they allege.”
The Tribunal never puts forward as a reason for disbelieving the applicant’s story about him being provided with papers indicating his Chechen ethnicity the fact that papers could not be altered. This was the one matter not put to the male applicant.
The applicant relies on what fell from the High Court in VEAL v Minister for Immigration [2005] HCA 72, which was applied in QAAI v Minister for Immigration [2006] FCA 4. In VEAL a “dob in” letter highly prejudicial of the applicant was provided to the Tribunal. Although the Tribunal expressly disregarded the letter the court said at [17-18]:
[17] [T]he decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
[18] It follows that the Tribunal's statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness.”
Mr Jones argues that the claim that it was not possible to alter a person’s nationality under Soviet law was clearly credible, relevant and significant information about which he states:
“Unlike the case in VEAL it is apparent that it was taken into account by the Tribunal.” [Here he is referencing to the wife’s situation.]
The Minister argues that as the information was not personal information about the applicant husband or wife the decision in VEAL is distinguishable because:
“That case concerned allegations personal to the applicant.”
The Minister argues that where the information is not personal a decision as to whether or not it should be revealed should be considered by reference to the two cases of Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 and Muin v Refugee Review Tribunal (2002) 190 ALR 601. The Minister refers to what fell from McHugh J in Miah at [140]:
“A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. This does not mean that all material which comes before the decision-maker must be disclosed but, in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
Miah was a case where the relevant piece of information, that a change of government had occurred in Bangladesh which would have repercussions for the applicants’ claims, was a matter considered by the Tribunal in a way that indicated that it was of:
“Crucial importance, even determinative for the outcome of the application.”Per Kirby J at [193]
It is suggested by the Minister that the decision in Muin was made on the basis of agreed facts that the information involved could be decisive of the outcome of the review. The importance of raising critical issues was reinforced by the court in WACO v Minister for Immigration [2003] 77 ALD 1 at [33]:
“The Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard upon them. “
Miah and Muin were not mentioned by the High Court in VEAL, which would seem to indicate that the court did not consider they were departing from any of the views expressed in those cases in the later case. But there is no indication in VEAL that the information that has to be put to an applicant where such information is not personal to him/her is only information that is likely to be determinative. The court defines credible, relevant and significant information in VEAL at [16-17]:
“[16] What is meant by "adverse information that is credible, relevant and significant to the decision to be made"? As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about "information that is credible, relevant and significant" takes its meaning from the point his Honour had made[12] only a few sentences earlier: that "[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made". Moreover, what is meant by "credible, relevant and significant" must be understood having regard also to the emphasis that his Honour had given earlier in his reasons[13] to the fundamental point that principles of natural justice, or procedural fairness, "are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise". Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.
[17] It follows that what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.”
In the case of these applicants the information is undoubtedly credible, and certainly relevant. But could it be said to be significant? As I read VEAL a conclusion about significance is arrived at by looking at all the evidence that the Tribunal might have relevant to the application and weighing up the significance of this particular piece of evidence in the context of the whole. But this exercise must be undertaken before the Tribunal considers the value of any evidence otherwise the decision made might depend:
“upon the characterisation of the information the decision maker may later have chosen to apply to it.” VEAL at [17].
The piece of information which the Tribunal was here considering was that an original entry into an internal passport of a person’s ethnicity could not be changed. It seems to me that this information was significant because the applicant claimed that his internal passport had been changed at the behest of the KGB. It was the existence of the Chechen designated ethnicity in the internal passport that the applicant blamed for his problems thereafter. At a stage prior to making up its mind as to the veracity of the applicant’s statements a piece of evidence of this nature must be significant. The fact that the Tribunal disbelieved the applicant’s history about the KGB because of the confusing stories that the applicant gave concerning the changes in his documentation from Russian to Chechen and back to Russian again would not make the evidence any less significant. “Significant” cannot be equated with “determinative” because the information in VEAL was disregarded by the Tribunal.
Looked at in this way it would seem that as regards to the husband the additional piece of information that once nationality is entered into an internal passport it remains fixed and cannot be changed should have been put to him. It was not. The discussion between the Tribunal and the applicant concerning nationality and internal passports centred around the information that the nationality that was entered on an internal passport was the father’s nationality. When the applicant spoke to the Tribunal about the KGB changing his internal passport no reference was made by the Tribunal to the possibility that this was not permitted to happen as mentioned in the independent country information referred to at [CB 312] and extracted at [3] of these reasons.
The situation of the wife is somewhat different. At [CB 316] the Tribunal says:
“Regarding this issue, the Tribunal notes from the evidence cited above that it was not generally possible for people to have documents changed at will from that recorded in their original documents and that there could be severe repercussions if a person lost their identity documents already issued. In this instance the applicant wife claimed her mother had her ethnic identity changed to Russian when she was born, yet at the same time she alleged that it was widely known in the area that her maternal grandfather was a gypsy … In the light of this evidence the Tribunal is satisfied that the official identity documents of the applicant wife and applicant daughter stated that they are of Russian ethnicity.”
This finding by the Tribunal would appear to indicate that the information about changing of documents was not only credible and relevant but it was certainly significant and even determinative. However, the wife never claimed that her documents were changed. In the transcript the following exchange takes place:
“T:Thank you. Okay. Now you claim separately from your husband that you had problems when you were growing up because of your mixed ethnicity.
“W:Yes, I had problems because of my mixed ethnicity.
T:You said that it was your maternal grandfather who was a gypsy.
W:Yes, my grandfather, my mum’s father.
T:Now as I understand it, in the former Soviet Union regulations about registering people’s births and their nationality, the ethnicity stated on those certificates would follow the father’s nationality or ethnicity.
W:In Russian national ethnicity in documents was registered according to mother’s ethnicity. According to the mother’s ethnicity.
T:That is the information I have. The information that I have is that the only people’s whose ethnicity was registered in terms of their mother’s were people who were Jewish and that hence your father was Russian, your mother being half Russian would suggest that your documentation would have suggested that you were in fact Russian.
W:In documents, yes, yes, as a Russian.
T:Now how then would anyone have known if your documents said that you were Russian and your father is Russian, that you in any way had anything but Russian ethnicity?
W:By word of mouth they found out. From people who have known me since I was born, they found out. Because for 40 years I lived in the same area. I never travelled around the country, I never moved around the country. I stayed put.
T:Okay. So this means that all your official documentation that stated your ethnicity as being Russian but it was around, known by the town that your grandfather on your mother’s side was Roma, is that correct?
W:They just called me gypsy and it was known, it was passed on from one to another in the course of all those years. A lot of people knew our family. That was how it came about. We were in the public eye, as it were, throughout the years I lived there.”
The wife’s problems were clearly that of imputed ethnicity. The wife complained of the effects upon her of discrimination arising out of her gypsy connections because those connections were known in the area in which she lived. This contrasts with the husband’s ground for being discriminated against on the grounds of his imputed Chechen ethnicity which was based upon the entry in his internal passport. It would seem to me that because of this difference the evidence concerning the inability to change an internal passport was in reality neither relevant nor significant. It was not relevant because the internal passport was not actually changed and it was not significant because the applicant made no claims that persecution arose out of the nomination of that ethnicity within the internal passport.
During the course of the proceedings I raised with Counsel the question of whether or not the wife had been given a meaningful hearing under s.425 of the Act. I expressed concern that the Tribunal had obtained most of the evidence about the wife from the husband and had spent considerably less time in interviewing her. Certainly if the Tribunal proceedings had been adversary proceedings conducted in a court the approach would be open to criticism but that is not the case. The Tribunal proceedings are inquisitorial and the Tribunal is able to obtain evidence from a variety of sources. This is in accordance with ss.420 and 424 of the Migration Act (see also NAIS & Ors v Minister for Immigration (2005) 223 ALR 171 as per Kirby J at [74]; Hong v Minister for Immigration [2004] FCA 1308 as per Finn J at [40]; QAAI v Minister for Immigration [2006] FCA 4 as per Greenwood J at [101]). The Tribunal did put to the wife those matters where there was some discrepancy or confusion between her evidence and that of her husband and I am satisfied that the Tribunal complied with the provisions of s.425.
In the circumstances the orders which I will make are to declare the proceedings in respect of the husband to be invalid and of no effect and to refer the matter back to the Tribunal to be heard and determined according to law. In regard to the applicant wife I dismiss her application. The parties were represented by the same solicitor. The arguments made were made for both of them. The husband was not party to the argument concerning the failure to provide a private hearing. I think in the circumstances the fairest order for costs that I can make is that there be no order.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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