S302 of 2002 v Minister for Immigration - [2004] FMCA 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S302 of 2002 v MINISTER FOR IMMIGRATION

[2004] FMCA 691

MIGRATION: Application to review decision of Refugee Review Tribunal – whether lack of procedural fairness – whether Tribunal under a duty to make inquiries or put its doubts to an applicant.

WAGP v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276
Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Kioa v West (1985) 159 CLR 550
Minister for Immigration v SGLB (2004) 207 ALR 12

Applicant:

APPLICANT S302 of 2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1092 of 2004

Delivered on:

28 September 2004

Delivered at:

Sydney

Hearing date:

28 September 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr C de Robillard

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1092of 2004

APPLICANT S302 of 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for a review of a decision of the Refugee Review Tribunal handed down on 7 August 2002, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. These proceedings were commenced by the applicant filing an application for an order nisi in the High Court on 4 September 2002. On 16 September 2002 he filed an amended draft order nisi.
On 6 February 2003 Gaudron J remitted the further proceedings in this application to the Federal Court of Australia and on 28 February 2004, Whitlam J transferred the matter to this Court.
The amended draft order nisi relied on three grounds. At the commencement of the hearing Counsel for the applicant indicated that the only ground relied upon in these proceedings was as follows:
Denial of natural justice. The Tribunal made finding as to the credit adverse to the applicant without giving the applicant the opportunity to answer the Tribunal's unexpressed concerns.
The background to these proceedings is that the applicant, who is a citizen of Ghana, arrived in Australia on 9 October 2000. On

7 November 2000 he lodged an application for a protection visa. He claimed to have a fear of persecution because a friend of his, Sallassie, had been mistreated, attacked and assaulted for breaking off his engagement to the eldest daughter of the then President of Ghana, J.J. Rawlings. The applicant claimed to fear being arrested because Sallassie may have told him too much about the President and his family, which was a threat to the security of the presidential family.
The applicant claimed that he had been a friend of Sallassie, that in 1997 he had been visited once by Sallassie and his then fiancée and bodyguard. In 1999 his friend had told him that he intended to break his engagement with the President's daughter in view of her promiscuity. He had told the applicant that the President knew that his relationship with his daughter was over. The applicant also claimed that in November 1999 Sallassie had been knocked off his motor bike by a hit and run driver, had been charged with reckless driving and had been detained at the President's residence and mistreated. The applicant's parents had publicised his arrest and he was released.
It was also claimed that Sallassie’s parents had been tried for assaulting a public officer and offensive conduct in August 2002, and that the President had caused difficulties with their business. There was evidence before the Tribunal that Sallassie's parents were acquitted on appeal in October 2001.
The applicant also claimed that after Sallassie was released he had warned him that he should deny knowing him. In September 2000 an unknown man had allegedly looked for the applicant at his apartment, claiming to be a friend of Sallassie. He had asked the applicant to accompany him to a hotel to collect a parcel from Sallassie. The applicant claimed that he had denied knowing Sallassie and had left for work. Later a neighbour had told him that this unknown man had been seen on several occasions in the area. The applicant left his apartment and stayed with a friend. The applicant claimed that later his flatmate had been taken by two men to a car believed to contain the same unknown man. This man had said that the flatmate was “not the one”. The flatmate had sent word to the applicant that he should escape for his life.
The Tribunal accepted certain aspects of the applicant's claims. It accepted that he was a friend of a man called Sallassie and that Sallassie had introduced him to his then fiancée, the daughter of the President, on one occasion in mid-1997. The Tribunal also accepted on the basis of independent evidence that Sallassie and his parents had experienced problems with the President's family after Sallassie broke off the engagement. Based on the lack of any reports of harm to others the Tribunal was not satisfied that the adverse attention of the President and his family extended to others. It was satisfied that it was directed only towards Sallassie and his parents, not the wider circle of family and friends.
It was satisfied, in particular, that there was no adverse attention directed towards the applicant who was tangential to the situation. He had met the fiancée only once at the beginning of the relationship with Sallassie and his own friendship with Sallassie over the next two and a half years had been confined to a few telephone calls, the last of which was in November 1999. The Tribunal went on to say that it followed from this that it did not accept that the applicant was the target of adverse attention in September 2000 (the story of the strange man coming to the apartment, and the subsequent taking of his flatmate). The Tribunal stated the story was, in any case, unconvincing, relying on chats with a neighbour to ascertain that the man had been hanging around the neighbourhood before approaching the applicant; and that a man in the back of a car at the time of the “arrest” of the flatmate was indeed this same man.
The Tribunal was satisfied that the matter of government attention towards Sallassie and his family had been finalised. It gave reasons for this finding including, in particular, that President Rawlings was no longer in power. It concluded that the applicant had not been harmed in relation to this matter in the past, and that the chance of harm, let alone harm amounting to persecution in the future in relation to this was remote.
The Tribunal also noted that the applicant had been involved in a long and orderly process of organising his credentials so that he could work in New Zealand, but that unfortunately there had been a mistake in the process and that he had arrived with the wrong visa and was turned away from New Zealand. The applicant had said that he did not think about asking for asylum in New Zealand and did not know anything about this process which had been explained to him at a later stage. The Tribunal suggested that this position appeared to contradict his claim that he left Ghana hurriedly and for his own safety conscious of the need to go to a place where he would be safe.
The Tribunal was not satisfied that harm amounted to persecution for a Convention reason had befallen the applicant in the past, nor that the chance that such harm would befall him in the reasonably foreseeable future was greater than remote. Hence it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The only ground relied on before the Court is denial of natural justice. No written submissions were filed on the applicant's behalf. His Counsel made oral submissions in the course of the proceedings.
It was contended, in particular, that a lack of procedural fairness was apparent from that part of the Tribunal reasons for decision, which dealt with the so-called incident of September 2000. It was contended that the Tribunal had a duty to invite the applicant in some way to address the doubt in the Tribunal's mind about this aspect of his story, or to provide it with further information. Alternatively the Tribunal was under an obligation to obtain further information. In particular, it was submitted that as the applicant had (in the statement provided in connection with his application for a protection visa) identified by name and place of employment his next door neighbour, the Tribunal was under an obligation to contact this person, or to obtain other information in order to afford procedural fairness to the applicant before rejecting this aspect of his claims. It was contended generally that the Tribunal should have asked the applicant some questions about these matters and allowed him to make further submissions, and that the applicant was entitled to expect that he would be given an opportunity to clarify his case before the Tribunal decided not to accept this aspect of his story.
It was also contended, apparently not on the basis of a separate ground, and expressly not on the basis of any claim of Wednesbury unreasonableness, that the Tribunal reasons for decision were inadequate and revealed that there had been a lack of procedural fairness. It was said that the reasons for rejecting the applicant's claims in this respect were not apparent from the Tribunal reasons. It was contended that while it was not the case that the Tribunal must accept all that an applicant says, it was obliged to consider properly whether or not what was being said was true, and that if the applicant’s credit was to be rejected it ought to be apparent from the reasons for decision that there was a reasonable basis for such rejection. In this case it was said that the reasoning process of the Tribunal in this respect was not exposed.
There was also a general claim made in oral submissions by the applicant’s Counsel that the Tribunal decision was made at a time when what was described as the “children overboard” issue was relatively recent. It was contended that that was a factor of some relevance, given the timing of the hearing (9 July 2002), but this claim was not elaborated upon. If this is intended to raise a claim of bias, no bias, actual or apprehended is established on the material before the Court.
Counsel for the respondent conceded that s422B of the Migration Act was not relevant but contended that there was no lack of procedural fairness for a number of reasons.
First, in relation to the claim that the applicant was not given an opportunity to comment on the matters of concern which led the Tribunal to reject the claims in relation to the events of 2002 or, indeed, to make the other findings that it made, Counsel for the respondent pointed out that the only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal reasons for decision. There is no transcript of the Tribunal hearing before the Court. Moreover it is apparent from the Tribunal reasons for decision that the applicant had the opportunity to put evidence before the court in relation to this particular issue.
In the absence of a transcript and in the circumstances of this case it is not possible for me to be satisfied that matters were not raised with the applicant in the course of the Tribunal hearing, as was contended by counsel for the applicant. More generally, however, there is no obligation on the Tribunal to forewarn an applicant of adverse credit findings, deficiencies in his evidence or of its thinking. As the Full Federal Court stated in WAGP v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]:
To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature.
Moreover as the Full Court of the Federal Court had said in the earlier decision in Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 591-2:
A decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
Also see in that respect Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at 331 [22]. Moreover as was said in Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 by McHugh J, credibility findings are a matter for the Tribunal par excellence and as stated at [67].
If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision …
Furthermore in this case the Tribunal has not only given reasons for its decision, it has, in fact, given reasons for rejecting this aspect of the applicant's claims. It had regard to the evidence before it which led it to conclude that adverse attention was directed only towards Sallassie and his parents, and not a wider circle of family and friends. It also took into account the applicant’s tangential relationship to the situation, bearing in mind his limited relationship, not only with the daughter of the President but also with Sallassie given the limited extent of his contact with Sallassie after meeting the fiancée in 1997 and the break-up of the relationship. It was said by the Tribunal that it followed from those matters that the Tribunal did not accept that the applicant was the target of adverse attention in September 2000.
In relation to the particular circumstances said to have occurred in September 2000 the Tribunal gave reasons for its conclusion that the claim was unconvincing, referring to the fact that the claim relied on chats with a neighbour and an assumption that a man in the back of a car at the time of the so-called “arrest” of the flatmate was, indeed, the same man who had called for the applicant on an earlier occasion. The Tribunal has given reasons for its decision which satisfy any obligation upon it in that respect (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 in relation to the extent of the Tribunal's obligation.)
Insofar as it is contended that the applicant was denied procedural fairness because the Tribunal was under a duty to inquire, no authority was cited to me in support of that proposition other than the general principle in Kioa v West (1985) 159 CLR 550. The Tribunal reasons for decision suggest that the events of 2000 were, in fact, discussed with the applicant in the hearing and that he had an opportunity to make claims in that regard. The Tribunal was not, in the circumstances of this case, under a duty to inquire in the manner contended. There is nothing in the material before me to suggest that the Tribunal undertook to make any further inquiries, or that this is a case in which it was necessary or appropriate for the Tribunal to make any such inquiries. It is for the applicant to make his case. He had an opportunity to do so. He was invited to and did attend a hearing. He had the assistance of a migration agent at that time (see Minister for Immigration v SGLB (2004) 207 ALR 12 as to the absence of a general duty on the Tribunal to inquire.)
The respondent contended that in any event the applicant had an opportunity to have any potential witnesses accompany him to the hearing and to request the Tribunal to take evidence from particular witnesses. This is not of particular relevance in this instance where the applicant contends that the Tribunal should have taken evidence from his former neighbour in Ghana. Nonetheless it was for the applicant to establish his case. He was given a hearing. Consistent with the Tribunal obligations in section 425 he had an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. Had he wished to rely on evidence from his neighbour it was for him to put it to the Tribunal or, at the least, to seek that the Tribunal consider obtaining evidence from the neighbour. The harm that he complained of consisted in a large part on the events that had occurred in September 2000. It was clear that this was a matter in issue, and the applicant had the opportunity to make claims in relation to this and other matters.
I am not satisfied that the Tribunal was under an obligation to forewarn the applicant that it did not accept an aspect of his claims, or that there was a denial of procedural fairness in the manner contended for by the applicant. Nor am I satisfied that the submissions addressing the adequacy of the reasons of the Tribunal and the timing of the children overboard events in any way establish that there has been a jurisdictional error, either constituted by a denial of procedural fairness or in any other manner.
Accordingly, the application must be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The application for costs should succeed. The applicant has been unsuccessful and should meet the costs of the respondent. It is conceded that the amount of $4500 is appropriate.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 15 October 2004