SZECG v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 733
•13 JUNE 2006
FEDERAL COURT OF AUSTRALIA
SZECG v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 733MIGRATION – appeal – relevance of Art 1C(5) of the Convention – where Tribunal not satisfied that at time of its decision appellant then had a well-founded fear of persecution for a Convention reason – application of s 424A(3)(b) of the Migration Act 1958 (Cth) – evidence given to the Tribunal by a witness called at the request of the appellant – whether evidence was information given by the appellant for the purposes of the application – whether Tribunal failed to conduct review as required by the Act – whether appellant and family members prevented from giving evidence – Held: Tribunal failed to comply with s 424A.
Migration Act 1958 (Cth) ss 36(3) and 424A(3)(b)
Convention Relating to the Status of Refugees 1951 Art 1C(5)
Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 followed
NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60 considered
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 cited
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 considered
WABY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1091 referred toSZECG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 149 of 2005
BRANSON J
13 JUNE 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 149 of 2005
BETWEEN:
SZECG
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
13 JUNE 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Magistrates Court be set aside and in lieu thereof the decision of the Refugee Review Tribunal be quashed and the appellant’s application for a protection visa be remitted to the Refugee Review Tribunal to be determined according to law.
3.The first respondent pay the appellant’s costs of the appeal.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 149 of 2005
BETWEEN:
SZECG
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
BRANSON J
DATE:
13 JUNE 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The appellant is a Vietnamese national although he came to Australia in 1982 at the age of 11 and has lived here ever since. Immediately before coming to Australia the appellant spent eight months in Thailand in a refugee camp administered by UNHCR. He entered Australia on a ‘refugee’ visa – probably as a family member of a primary visa applicant.
Virtually all of the appellant’s close relatives are now Australian citizens. He has a 15 year old Australian son. The appellant’s failure to become an Australian citizen was described by the Refugee Review Tribunal as being ‘as a result of a number of complex circumstances, including alienation, lack of parental guidance, and an unfortunate lapse into teenage crime’.
The appellant has a significant criminal record. He came to the attention of the Department of Immigration and Multicultural Affairs (as it is now known) when he sought a re‑entry visa because he was contemplating an overseas holiday. Ultimately his substantive visa was cancelled on character grounds and he was detained.
The appellant thereupon sought a protection visa. His application was refused by the Minister’s delegate and that decision was upheld by the Tribunal. The appellant’s application to the Federal Magistrates Court for judicial review of the decision of the Tribunal failed. He has appealed to this Court from the decision of the Federal Magistrates Court.
The appellant was represented at the hearing of his appeal by counsel appointed under O 80 of the Federal Court Rules. Judgment on the appeal has been delayed pending the publication of the Full Court judgments in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 and NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60. I now have supplementary written submissions from the parties concerning these judgments.
GROUNDS OF APPEAL
The appellant sought to demonstrate that the learned Federal Magistrate erred in three ways:
(a)by failing to find that the Tribunal was obliged to assess the appellant’s claims in accordance with Art 1C(5) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees;
(b)by failing to find that the Tribunal did not comply with s 424A of the Migration Act 1958 (Cth); and
(c)by failing to find that the Tribunal did not review the decision of the delegate as required by the Act because it did not receive evidence sought to be given by the appellant’s father and brother.
CONSIDERATION
Article 1C(5) of the Convention
The significance of Art 1C(5) to a determination of entitlement to a protection visa was the subject of consideration by the Full Court in NBGM.
For the appellant to be entitled to a protection visa it was necessary for the Tribunal to be satisfied, relevantly, that he is a person in respect of whom Australia has protection obligations under the Convention (s 36(2)(a)). Ordinarily, Australia will have protection obligations in respect of an individual who, owing to a well‑founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Art 1A of the Convention).
Article 1C(5) of the Convention has been described as a ‘cessation provision’. It provides that the Convention shall cease to apply to any person falling under Art 1A if that person can no longer, because the circumstances giving rise to his or her recognition as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of his or her nationality.
The Tribunal, which made its decision before the publication of NBGM, concluded that Art 1C(5) had no relevance to the appellant’s application for a protection visa because he had not, as an individual, been recognised as a refugee when he came to Australia. The Tribunal considered s 36(3) of the Act to be determinative of the appellant’s application. Section 36(3) provides:
‘Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’
The appellant contended that the Tribunal erred both in concluding that he had not previously been recognised as a refugee and in treating s 36(3) of the Act as determinative of his application. The appellant submitted that the Tribunal ought to have proceeded on the basis that, because he was recognised as a refugee when he came to Australia, Australia owes protection obligations in respect of him unless those obligations have ceased because of Art 1C(5) of the Convention. As I do not accept the Tribunal erred in treating s 36(3) as determinative of the appellant’s application, it is not necessary for me to reach a concluded view on whether he was recognised as a refugee when he entered Australia.
As mentioned above, the relevance of Art 1C(5) to a determination of whether an individual is entitled to a protection visa has recently been considered by a Full Court in NBGM. The Full Court was constituted by five judges. The differing views expressed by the members of the Full Court complicate the identification of guiding principles.
The appeal in NBGM was dismissed by a majority constituted by Black CJ and Mansfield and Stone JJ. Nonetheless, the appellant submits that I should follow the approach preferred by Allsop J, with whom Marshall J agreed, to the interaction of s 36(3) of the Act and Art 1C(5) of the Convention. Assuming the appellant to have been recognised as a refugee when he came to Australia, on the approach preferred by Allsop J, Australia will have protection obligations with respect to him unless Art 1C(5) applies to him.
I conclude that to accept the above submission would be to disregard [25] of the reasons for judgment of the Chief Justice in NBGM. Both Mansfield and Stone JJ expressed agreement with this paragraph. In [25] the Chief Justice noted that the majority of the Full Court agreed that, in considering an application for a protection visa, the decision‑maker must be satisfied that, at the time the decision is made, the appellant then has a well‑founded fear of persecution for a Convention reason.
The Tribunal was not satisfied that at the time of its decision the appellant had a well‑founded fear of persecution for a Convention reason. It was therefore not open to the Tribunal to be satisfied that the appellant was entitled to a protection visa whatever the operation, if any, of Art 1C(5) of the Convention in respect of the appellant.
Section 424A of the Act
The appellant claimed to fear persecution in Vietnam because the Vietnamese authorities would impute to him the political opinions of his father who had been a member of the South Vietnamese army. The Tribunal did not accept that the political opinion of the appellant’s father would lead to the appellant being persecuted in Vietnam. In its reasons for decision the Tribunal observed:
‘The evidence shows that his father had only low‑ranking involvement in the Vietnam War. It shows that the state considered his debt discharged and atonement complete after six months in re‑education. The Applicant’s father was allowed to return to the community and operate a small private business, however unrewarding, and was later allowed by the state to depart Vietnam.’
The evidence that the appellant’s father was allowed to return to the community and operate a small private business came from the appellant’s father. The appellant had asked the Tribunal to take evidence from his father.
Section 424A relevantly provides:
‘(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:
…
(b)that the applicant gave for the purpose of the application;’
The Minister conceded that the evidence of the appellant’s father was information that would be the reason, or a part of the reason, for affirming the decision under review (s 424A(1)(a)). However, the Minister contended that the evidence was information that the appellant gave for the purpose of his application so that s 424A had no application to it (s 424(3)(b)). I reject this contention.
The judgment of the Full Court in SZEEU does not support a narrow construction of s 424A. It does not, in my view, throw doubt on the approach taken later by Lee J, with whom Tamberlin J agreed, in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16. In that case both the appellant and her husband indicated a wish to give evidence to the Tribunal. The Tribunal characterised the husband’s evidence as ‘significantly discrepant’ from the appellant’s evidence on an important issue. Lee J at [99] said that, if the Tribunal relied on the alleged discrepancy as the reason or part of the reason, for its decision, it was bound to comply with s 424A(1).
Although the observations of Lee J in Applicant M164/2002 were obiter, I do not accept that his Honour made them per incuriam. His Honour set out in his reasons for judgment the terms of s 424A in their entirety. Nor do I accept that Tamberlin J may have overlooked Lee J’s observations and should be understood still to hold views expressed by him prior to the publication of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 in WABY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1091. Both Lee and Tamberlin JJ must be assumed to have read the reasons for judgment of Dowsett J who, in dissent, held that s 424A had no application because the evidence of the appellant’s husband was evidence put before the Tribunal by the appellant and thus information that the appellant gave for the purpose of the application.
In any event, in the circumstances of this case, I doubt that it can be said that the appellant ‘gave’ the information implicit in his father’s evidence. The hearing before the Tribunal was not an inter partes judicial hearing; it formed part of an administrative inquiry. The appellant did not call his father to give evidence but rather advised the Tribunal that he wanted it to take evidence from his father. In answer to the question ‘What evidence will the witness give about your application?’ the appellant (or his agent) wrote:
‘Applicant’s father will give personal evidence about applicant and information about his fears for the applicant should he be returned to Vietnam.’
This answer does not suggest that the appellant was aware of precisely what information his father might convey to the Tribunal by his evidence. It may be the case (I express no view one way or the other) that specific information given to the Tribunal by a witness at the request of an applicant would be information given by the applicant for the purpose of the application. I have in mind a witness who gave evidence at the request of an applicant on a specific topic; for example, evidence as to the political affiliation of a particular politician or as to the political parties represented in a coalition government. However, I doubt that s 424A(3)(b) discloses an intention that every piece of information that the Tribunal gleans from the evidence of a witness called at the request of the applicant is to be treated as information given by the applicant for the purpose of the application. It is not necessary for me to reach a concluded view on this question.
The appellant additionally submitted that the Tribunal had failed to comply with s 424A in respect of information concerning whether he and his siblings had been the subject of individual determinations of refugee status when they came to Australia. This submission is linked to the contention that, because the appellant had earlier been recognised as a refugee, the Tribunal was obliged to assess his claim to be entitled to a protection visa by reference to Art 1C(5) of the Convention. The Tribunal adopted the approach that, irrespective of the operation of cessation clauses, it was s 36(3) of the Act which was determinative of the appellant’s claim to be entitled to a protection visa. The information concerning whether the appellant and his siblings had earlier been the subject of individual determinations of refugee status was not information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision (s 424A(1)(a)). Section 424A did not apply to it. For the same reason it is unnecessary to determine whether the Tribunal breached any operative common law obligation to afford the appellant procedural fairness in this respect.
Did the Tribunal review the decision of the delegate?
As I have already decided that the decision of the Tribunal should be quashed for jurisdictional error I need deal only summarily with the appellant’s third ground of appeal. The Federal Magistrate rejected the appellant’s complaint that he, and members of his family, were prevented from giving evidence to the Tribunal as it was not supported by evidence. The transcript of the Tribunal hearing was not before him.
A transcript of the hearing was received on this appeal. It shows that the appellant was represented by an adviser. She did not protest that her client had been prevented from giving evidence. At the close of the hearing the Tribunal authorised the adviser to make a written submission to the Tribunal within a fortnight. The adviser wrote to the Tribunal member within that time. Her letter conveyed the gratitude of the applicant and his family for the opportunity of providing further information to the Tribunal. It indicated that the additional information that they wished the Tribunal to have was attached to the letter. The letter expressed no relevant complaint about the fairness of the Tribunal’s hearing. I am not satisfied that the Tribunal denied the appellant a fair hearing or otherwise failed to conduct a review as required by the Act.
CONCLUSION
As mentioned above, a reason, or a part of the reason, for the Tribunal’s decision that the appellant is not entitled to a protection visa was that the applicant’s father had been allowed by the Vietnamese authorities to return to the community and operate a small private business. The Tribunal, as I have found, did not comply with s 424A in respect of this information. Its decision is thus invalid (SAAP).
The appeal will be allowed and the orders of the Federal Magistrates Court will be set aside. In lieu thereof it will be ordered that the decision of the Tribunal be quashed and the appellant’s application for a protection visa be remitted to the Tribunal to be determined according to law. The first respondent will be ordered to pay the appellant’s costs thus giving his counsel an entitlement to recover fees and disbursements (O 80 r 9(2)).
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 13 June 2006
Counsel for the Appellant: Mr M Leeming and Ms K Dawson Solicitor for the Appellant: Ebsworth & Ebsworth Counsel for the First Respondent: Mr P Braham Solicitor for the First Respondent: Blake Dawson Waldron The Second Respondent filed a submitting appearance. Date of Hearing: 3 May 2005, 14 June 2005, 11 August 2005 and 16 September 2005 Date of Final Submissions: 29 May 2006 Date of Judgment: 13 June 2006
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