SZDVJ v Minister for Immigration - [2004] FMCA 769

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDVJ & ORS v MINISTER FOR IMMIGRATION

[2004] FMCA 769

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – notice of motion – no reasonable cause of action disclosed – notice of motion upheld – application dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.78B, 91S, 424(3)(a)
Australian Constitution, s.61

Muin v Refugee Review Tribunal (2002) 190 ALR 601
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141
Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1027
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57

Applicants:

SZDVJ, SZDVK, SZDVL & SZDVM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1833 of 2004

Delivered on:

12 October 2004

Delivered at:

Sydney

Hearing date:

12 October 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Ms B Boss

Counsel for the Respondent:

Ms D Watson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed under Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
The two (2) adult applicants are to pay the Minister’s costs and disbursements of and incidental to the application.
The first applicant, applicant SZDVJ, be appointed as litigation guardian for applicants SZDVL and SZDVM pursuant to Rule 11.11(1) of the Federal Magistrates Court Rules 2001.
The requirement to file an affidavit of consent under Rule 11.11(2) of the Federal Magistrates Court Rules 2001 be waived.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1833 of 2004

SZDVJ, SZDVK, SZDVL & SZDVM

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

By application filed on 22 September 2004 the respondent moves the Court for orders that proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 filed in the Sydney Registry of the Federal Magistrates Court of Australia on 15 June 2004. The respondent tendered and applied for an affidavit of Dale Jennifer Watson sworn on the 22^nd day of September 2004 (“the affidavit of Miss Watson”) to be admitted to evidence.

Background

The applicants are husband, wife and children who are citizens of India. They arrived in Australia on 17 October 2003 and lodged an application for protection (Class XA) visas. On 3 December 2003 a delegate of the respondent refused to grant the applicants protection visas. On 16 December 2003 the applicants sought a review of that decision which was refused by the Refugee Review Tribunal (“the Tribunal”) on 28 April 2004 (annexure A to the affidavit of Miss Watson).
The respondent’s solicitor raised the procedural issue that the third and fourth applicants are minors and should have a litigation guardian appointed pursuant to Rule 11.11 of the Federal Magistrates Court Rules. I will make the appropriate order.
The first applicant (SZDVJ) is the applicant for a protection visa who advanced claims. The other applicants are family members and included in the application for the protection visa. The first applicant will be referred to in this judgment as “the applicant”.

Grounds for review

In the application filed on 15 June 2004 there are two grounds of review:
1.That s.61 of the Australian Constitution imposes on the respondent an inexcludable requirement of due process including procedural fairness.
2.That s.424(3)(a) of the Migration Act is in breach requirement of due process and therefore ultra vires s.61 of the Australian Constitutions.
Particulars
The Tribunal erred in the degree of weight it attributed to unstead “Independent Country Information”.
The Tribunal erred in having regard to selected “Independent country Information” in circumstances where country files in their entirety held by the respondent are not available to the applicant.

Submissions

Ms Watson appeared for the respondent and filed written submissions in which it is submitted that while the two grounds are cast as breaches of the Australian Constitution, the grounds being advanced by the applicant, in truth, are contained in the particulars provided. The applicant seeks to challenge the degree of weight the Tribunal attributed to the independent country information and the procedural complaint appears to be that all the country files, whether relied upon by the Tribunal or not, were not made available to the applicant.
It is submitted that the applicant is asserting some right of inspection to all country information in the possession of the Tribunal under the rules of procedural fairness. This clearly exceeds the accepted requirements of procedural fairness. In dealing with information which is potentially adverse to the applicant and is intended to be relied upon by the decision-maker, the rules of natural justice will be satisfied provided that the applicant has been given the opportunity to deal with any material which is adverse to him. McHugh J in Muin v Refugee Review Tribunal stated at 631 that the content of the duty to afford the applicant procedural fairness was as follows:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. This does not mean that the source and nature of all material that 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”. What is required to discharge this duty depends on the circumstances of the particular case.”
It is submitted that to suggest that the applicant must have access to all material which the Tribunal may also have access far exceeds the duty to ensure procedural fairness as properly understood. Even by limiting the obligation to material upon which the Tribunal has actually relied on in this matter, this still states the duty in much higher terms than has been accepted.
It is further submitted that in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs, Allsop J (with whom Gyles and Conti JJ agreed) discussed the role of the Tribunal in dealing with country information:
In order to perform the task required of it by ss.36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance. (para 28)
The respondent solicitor also submitted that Gyles and Conti JJ found that there had been no breach of the rules of natural justice as “the country information related to issues which were clearly on the table to be addressed” by the applicant (see para 17). The Full Court of the Federal Court of Australia has reiterated on a number of occasions that the rules of natural justice will be satisfied if the substance of country information is disclosed to the applicant: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs, VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs.
It is also submitted that in the present case, the Tribunal accepted that several members of the applicant’s family had been killed while in police custody (see “Findings and Reasons” from p.18 Annexure A to the affidavit of Miss Watson) and that a number of police officers were convicted and sentenced. The Tribunal also found that the applicant’s return to his home country after arrival in Australia with his family indicated that he did not have a fear of persecution upon his return to India. It was further found that the applicant had been given considerable protection by the State and that his father was successful in accessing the Courts in pursuing this matter. The applicant’s claim his family had been targeted as a result of his association with the Khalsa was rejected on the basis that his claims did not fit the profile of a follower of such an extreme movement. The Tribunal discussed its concerns about this aspect of the applicant’s evidence and this is detailed under the heading “Political alignment” (p.11 of the Tribunal’s decision). The Tribunal rejected the applicant’s claim of a further attack against him on his return to India based on an assessment of his credibility (pp.20-21 of the Tribunal’s decision).
It is submitted as an alternative to the principal finding that the applicant did not have a well founded fear of persecution for a convention related reason, the Tribunal considered that the applicant could relocate to Delhi. This was also discussed with the applicant - see under heading “Relocation” (p.16. of the Tribunal’s decision). Therefore, the only areas where the Tribunal relied on country information in order to reject some of the applicant’s claims were raised and discussed with him at the hearing.
The respondent submits that there is no demonstrable breach of the rules of natural justice in the way in which the Tribunal dealt with the applicant’s claims. The applicant’s constitutional challenge only arises if, as a first proposition, it can be demonstrated that there is a breach of the rules of natural justice. Having disclosed no basis upon which such a finding could be made, the respondent submits the application should be dismissed as disclosing no reasonable cause of action.
It is submitted that it would appear that no s.78B notices have been issued in this matter, despite a direction that the applicant do so by

28 September 2004. However, as the Constitutional argument need only be considered if it is at least arguable that there is a breach of the rules of natural justice and that the applicant has been denied procedural fairness, the application for summary dismissal can be dealt with without such notices being issued if it is accepted that it the application does not disclose any breach of the rules of natural justice: Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs. In the respondent’s submission, no arguable case is disclosed that there has been a breach of the rules of natural justice and the application for review should be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules with an order that the adult applicants pay the respondent’s costs.
Mr B Levet of Counsel filed written submissions on behalf of the applicant on 11 October 2004 and Ms B Boss of Counsel appeared at the hearing. The applicants submit that the respondent exercises the administrative rather than the judicial power of the Commonwealth and in so doing it is circumscribed by s.61 of the Australian Constitution from doing so in other than a procedurally fair manner. It was submitted that it is acknowledged that this is a novel concept which would have far-reaching consequences in terms of a Bill of Rights being implied into the Australian Constitution, it is not a concept entirely devoid of judicial recognition.
Counsel submitted that, as their Honours Gaudron and Gummow JJ pointed out in Re Refugee Tribunal; Ex parte Aala, there is good reason that the executive power of the Commonwealth be subject to such an implication. This argument is set out in O’Hair on Judicial Process Volume 1at p.583:
“The theoretical foundations for natural justice – the choice between the statutory implication and the common law approaches – which had seemed completely settled in favour of the common law approach after the majority judgment in Annetts v McCann, were re-opened in Re Refugee Review Tribunal; Ex parte Aala. In that case, Gleeson CJ, Gaudron, Gummow and Kirby JJ indicated that the obligation of affording natural justice is a statutory implication, rather than a common law concept. Hayne J indicated that the common law approach had the support of the court’s previous authority and that it was unnecessary for the matter to be resolved in the instant proceedings. It remains to be seen whether the full implications of that approach will be followed through. Indeed, as Gaudron and Gummow JJ pointed out, there is good reason that the executive power of the Commonwealth Crown in s.61 of the federal Constitution should be held to be subject to such an implication and that would attractively impose an inexcludable due process requirement on the federal executive government in Australia, albeit, in the author’s view, acts of state, properly so called, are not relative to a foreigner out of allegiance, seen to trigger any such implication, as seen from the discussion of acts of state, hereinafter. But there is no rule that the implication must be conterminous with the whole ambit of the power, indeed, quite the contrary, as demonstrated above.
The status of rules of natural justice which Ilayek’s division into rules of just conduct and rules of organization is far from clear. Hayek pointed out the great difficulty of trying to characterize rules that pertain to judicial procedure. Indeed, these rules apply to judicial procedure, but determinately. The mirroring of these rules in relation to private, consensual tribunals, in recent times, tends to suggest that they are becoming rules of just conduct. More than that, the extension of such rules to private trade cartels, such as exemplified by Nagle v Feilden tends to support a delictual theory of obligation respecting breaches of natural justice, which would have presented an approach to modernization differing from Sir Garfield Barwick’s, albeit still principled.”
In answer to the respondent submissions, Counsel for the applicant say as follows:
a)As to paragraph 4, the comment by McHugh J in Muin v Refugee Tribunal is merely obiter;
b)As to paragraph 6, whilst it accepted that this Honourable Court is bound by the decision of the Full Court of the Federal Court in VHAP of 2002, for the purpose of protecting the applicant’s position in another place, it is submitted that such case, together with that of NAOA (paragraph 8 of the respondent submissions) was wrongly decided.
It is also submitted that whilst there is not an obligation on the Tribunal to make available country information which is otherwise publicly available, there is an obligation to make available documents which are not publicly available.

Conclusion

The Tribunal in its decision of 27 April 2004 was not satisfied that the applicant fears persecution by reason of his membership of his family as a social group under the Convention. The Tribunal acknowledged that it is well established that a family is capable of constituting a particular social group within the meaning of the Refugee Convention and quotes a line of authority supporting that view. However, the Tribunal qualified that position because of s.91S of the Act and the selective conclusion that a person who fears persecution because he is a relative of a person targeted for a non Convention reason does not fall within the grounds for persecution covered by the Convention definition. The Tribunal, in its reasons, explains its findings relating to the past harm suffered by the applicant’s family was due to revenge and not Convention reasons. That consideration led to the finding that pursuant to s.91S, the Tribunal found that the applicant did not have a well-founded fear of persecution for the reasons of membership of a particular social group, being the applicant’s family.
The applicant is seeking to challenge the Tribunal’s decision based on a claim that related to the degree of weight which the Tribunal attributed to independent country information. The procedural complaint appears to be that those files were not made available to the applicant. Ms Watson’s submissions, supported by authority, state that a right of inspection of all country information in the Tribunal’s possession in order to satisfy the question of whether procedural fairness is followed, clearly exceeds the accepted requirements in this respect. The rules of natural justice will be satisfied provided the applicant has been given an opportunity to deal with any material which is adverse in that country material. In the Tribunal’s decision under the heading of “Hearing”, the Tribunal goes to consider the length and record all of the issues that they canvassed with the applicant during that hearing process. These are quite clearly set out under a number of sub-headings, which detail the issues that were put to the applicant and how he responded.
A fair minded reading of the findings and reasons within the Tribunal’s decision, indicate that the conclusions drawn come from the issues that were addressed with the applicant and are specifically recorded within the decision under the heading of “Hearing”. In this respect I accept the reasons and the line of authority submitted to me by Ms Watson which has been substantially reproduced above.
Turning to the submissions made on behalf of the applicant, the proposition is put forward that the issues they are challenging are not concepts entirely devoid of jurisdictional recognition. However, there is no substantive submission made out to support this contention nor is there any reference to the line of authority to which they infer. The other submissions made by the applicant challenge those of Ms Watson but provide no substantiation or line of authority to support that challenge. Finally, there is a partial concession by the applicant as to the frailty of his remaining contention, in that it is not supported by argument or line of authority. This position was not enhanced during oral submissions by the presentation of any substantive argument.
I support the view that the application does not disclose a reasonable cause of action and consequently the proceedings should be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 12 October 2004