Secretary, Department of Foreign Affairs v Boswell (No 2)

[1992] FCA 629

IN THE FEDEW COURT OF AUSTRALIA ) JUDGMENTNO. ob2! ,,,,,, ,,,,,.,,,.,, 42

VICTORIA DISTRICT REGISTRY	1
GENERAL DIVISION	) NO. VG 289 of 1992
B E T W E E N :

IZET RUSHIDOVSKI

Applicant

- and -

THE MINISTER FOR IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC AFFAIRS

Respondent

m:	Olney J
Place:	Melbourne
Date:	7 August 1992

EX TEMPORE DECISION

The applicant arrived in Australia on 24 February 1991 and at the time obtained an entry permit which permitted him to remain in Australia for a period of two months. He did not return to his country of origin, Yugoslavia, and has remainedin Australia ever since. Since the expiration of his entry permit he has been an illegal entrant. He was detained in custody by the immigration authorities on 2 April 1992 and has been in custody ever since. On 5 August, a matter of two days ago, a deportation order was made pursuant to section 60 of the Migration Act.

applicant sought recognition as a.-refugee and sought an	In the period intervening between 2 April and 5 August, the
appropriate authority to remain in Australia. That recognition was denied him by the delegate of the Minister and on the basis that he had no legal entitlement to remain, the deportation order was made.
The matter presently before the Court is an application seeking the review of the decision to refuse to grant refugee status and the decision to order the deportation. As to the latter, I have reached the firm view that on the basis that refugee status was denied and there being no other legal entitlement to remain in Australia, the procedure followed in respect of the making of the deportation order was consistent with the statute and in my view there is no serious question to be tried touching upon the validity of the making of that order. If there was some flaw in the procedures relating to the application for refugee status then the question of the deportation order would need to be reconsidered.
I turn now to deal with the application for refugee status and
the events that took place in relation to it.
The applicant applied for refugee status on 6 April 1992. His application was considered by an officer of the Department of Immigration, Local Government and Ethnic Affairs on 28 April 1992 and a recommendation was made that refugee status be not granted and on the same day the Minister's delegate refused to grant refugee status.
On 4 May 1992, the applicant applied for review by the Refugee Status Review Committee, and at that time provided information additional to the material that had been put before the department in April. He was interviewed on 19 June 1992 in order to clarify his claims regarding participation in demonstrations in Kosovo and subsequent to that, in a letter dated 30 June 1992, his solicitors provided quite extensive comments in relation to the primary assessment that had been made.
The Refugee Status Review Committee unanimously recommended that the applicant be not granted refugee status and a copy of the summing up of the committee's deliberations was sent to the applicant for his comment on 17 July 1992. Subsequently, on
24 July 1992, the applicant's solicitors wrote at length in
response to the material that had been received in relation to the RSRC deliberations and recommendation. The delegate of the Minister dealt with the application on 3 August 1992.
The delegate's assessment, and the record of his decision, is contained in a document under his hand bearing date 3 August
1992. In that document he outlined the earlier steps to which I have just adverted, and indicated the evidence or other material on which he based his findings, and it is fair to say that, in that material is included all of the matters to which I have referred above. The delegate then set out the reasons for
his decision. Initially, reference is made to the 1951 United Nations Convention and the 1967 Protocol Relating to the Status

!

l of Refugees particularly the def initidn of the term refugee .

-.

The delegate also referred to the High Court decision in Chan v The Minister for Immiqration and Ethnic Affairs, where it was held that the appropriate test to determine whether there was a well-founded fear of persecution is whether or not there is a real chance that the applicant will be persecuted if he or she returns to his or her country of nationality. And the delegate indicated that this is the test that he must apply in consideration of the applicant's claim to refugee status. The delegate's reasons then indicate that the applicant's claim to refugee status is based upon his Albanian ethnicity, his religion, and his participation in political demonstrations. He then canvassed in some detail the evidentiary material before him, and expressed his conclusions in relation to that material, including his conclusions based upon his view of the applicant's credibility. Much of the material that had been put before the delegate was of course, as tends to be the case, anecdotal; much of it amounted to assertion; and some of it appears to represent what can be called common knowledge in respect of current affairs. In the course of his reasons, the delegate made

Criteria for Determining Refugee Status which is a document	reference on several occasions to the Handbook on Procedures and
published by the United Nations High Commission for Refugees, and which is intended as a guide book, as it were, to the Convention

i	and Protocol.
i
The delegate's conclusion, as expressed in the final paragraph of his reasons, was:

After careful consideration of all the available evidence, I conclude that the applicant does not have a real chance of persecution should he be returned to Yugoslavia (Macedonia). His fear of persecution is therefore not well founded. Accordingly I determine that the applicant is not a refugee within the meaning of the convention and protocol.

This finding is attacked on a number of grounds, but for the most part on grounds that can be lumped under the general heading of a denial of natural justice. Some aspects of that claim touch upon the procedures that were followed in obtaining the information upon which the delegate acted, some are said to relate to the failure of the delegate to take into account relevant matters and some are said to relate to the taking into account of irrelevant considerations.

Under the ADJR Act the taking into account of irrelevant considerations and the failure to take into account relevant considerations are separate heads under which review can be claimed, but it is common and quite usual that all of the matters that arise under those heads can also, in a general sense, be classified as a denial of natural justice or a failure to provide

procedural fairness. It is said in the application that the	respondent also committed an error of law in the making of the
deportation order. It is not said that the Minister or his delegate committed any error of law in relation to the refusal to grant refugee status.
I have already indicated my view with respect to the making of the deportation order, and repeat that in my view there is no serious question to be tried in relation to that. At the end of the day, it is clear to me on the material that has been put before the Court (which material I note comes from the applicant's advisers rather than from the applicant personally so that it can be assumed that the material has been put in the most favourable manner possible) that the real attack that is made on the decision of the delegate is that he erred in reaching findings of fact contrary to the assertions made on behalf of the applicant. The only significant issue in relation to the denial of natural justice appears to be the claim that in the interview of 19 June 1992 the applicant was not afforded adequate opportunity to consult with his advisers and to make considered responses to some of the questions. In part, but not entirely, upon the basis of that interview, the delegate formed an unfavourable view as to some aspects of the applicant's credibility. But that aside, it appears to me that there were many issues that were considered by the delegate, and in the overall consideration of the matter he nevertheless had before him the extensive submission put by the applicant's solicitors in the letter dated 24 July 1992 which he has indicated is one of the matters he took into account.
is essentially one disputing the conclusions reached as matters I am of the opinion that the attack which is made on the decision
of fact. In my opinion there is no serious question to be tried which would entitle the applicant to a review of the decision in question, and accordingly I would not grant the application to interfere with the putting into effect of the deportation order.
It seems to me that it is appropriate to refer the matter to the

..

next immigration directions list which is on the twelfth of this month. Whether or not the deportation order is put into effect before then does not alter the fact that there is current application which ought to be processed. I have made a decision on the material before me, but that does not mean to say a different decision would not be forthcoming if the matter were fully tried on more extensive evidence.

It would be consistent with general policy to order that the applicant pay the costs of the unsuccessful application today.

I propose therefore the following orders:

1.    That the notice of motion filed 6 August 1992 be dismissed;

2.    That the respondent's costs of the notice of motion and hearing, be taxed and paid by the applicant;

3.   That the application be listed for directions in the immigration list on 12 August 1992.

I certify that this and the preceding 6 pages is a true copy

of the Ex Tempore Decision of the

Honourable Mr Justice Olney

7

Associate: -Q&-

Dated: 27 August 1992

Mr P. Baker (solicitor) (instructed by Juliano Ford & CO)

appeared for the applicant.

Mr R. Downing (instructed by the Australian Government Solicitor)

appeared for the respondent.

Date of Hearing:	7 August 1992
Place:	Melbourne
Date of Judment:	7 August 1992