VAAD v Minister for Immigration
[2003] FMCA 341
•5 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAAD & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 341 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – procedural fairness – whether applicants misled by letter from RRT about what would be taken into account – whether applicants deprived of an opportunity to put evidence and make submissions – whether RRT failed to take relevant material into account – whether decision based upon a fact which did not exist. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 476
Bax v Minister for Immigration [2003] FCAFC 55
Minister for Immigration v Yusuf (2001) 206 CLR 323
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NACM v Minister for Immigration [2002] FCAFC 405
Re Minister for Immigration; ex parte Applicant S20/2002 [2003] HCA 30
Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57
WACO v Minister for Immigration [2003] FCAFC 171
WAEJ v Minister for Immigration [2003] FCAFC 161
| First Applicant: Second Applicant: | VAAD VAAE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ251 of 2002 |
| Delivered on: | 5 September 2003 |
| Delivered at: | Sydney, via telephone to Perth |
| Hearing date: Final submissions received: | 1 August 2003 27 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr H Christie |
| Solicitors for the Applicant: | Christie & Strbac |
| Counsel for the Respondent: | Mr P Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
MZ251 of 2003
| VAAD, VAAE, VAAF, VAAG |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 28 November 2001 and handed down on 21 December 2001. The RRT affirmed a decision of a delegate of the Minister not to grant protection visas to the applicants.
There are four applicants. The first and second applicants are a wife and husband and the third and fourth applicants are their son and daughter. They are citizens of Sri Lanka who arrived in Australia on 1 March 1996. On 30 June 1997 they lodged an application for protection visas with the Minister's Department. On 28 August 1997 a delegate of the Minister refused to grant the protection visas and on 24 September 1997 the applicants applied for a review of that decision to the RRT.
The following background is drawn from the evidence and written submissions filed by the parties. Prior to the delegate making his decision, on 25 August 1997 a letter and various documents were faxed from the Federal member for Perth to the delegate. Included in that documentation was an untranslated copy of a letter in the Sinhalese language from the United National Party (UNP) dated 13 September 1995 (court book, page 122). This letter was among documents subsequently forwarded to the RRT. In June 1999 the applicant wife and applicant husband provided written statements to the RRT.
By letter dated 25 September 1997 the RRT wrote to the applicant husband and advised, inter alia, that:
The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department’s documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately. This is known as “review on the papers” (court book, page s 169-170 ).
By letter dated 4 November 1999 the RRT wrote to the applicant husband and advised, inter alia, that:
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.
The RRT invited the applicants to come to a hearing at the RRT on 10 January 2000 to give oral evidence and present arguments in support of their claims (court book, pages 194-195 ).
The applicant wife and the applicant husband gave oral evidence to the RRT by video conference on 10 January 2000, and gave further oral evidence in a subsequent video conference held on 21 February 2000. Their son also gave oral evidence on 21 February 2000 (court book, page 478).
On 13 March 2000 written submissions by the applicant wife and the applicant husband were provided to the RRT (court book, pages 371‑377).
By letter dated 5 September 2001 the RRT wrote to the applicant husband advising that the RRT had information that would, subject to any comments made by the applicants be the reason, or part of the reason, for deciding that the applicants were not entitled to protection visas. The RRT set out the information and why it considered it to be relevant, and invited the applicants to comment on the information by 1 October 2001. On 25 September 2001 the RRT wrote to the applicant husband and advised that it had extended the time for providing comments until 2 November 2001 (court book, pages 383–386 and 389).
On 1 November 2001 the applicant wife forwarded various documents to the RRT. One of the documents was a copy of the UNP letter dated 13 September 1995 and an English translation of that letter (court book, pages 402-403). The applicant wife forwarded further material to the RRT on 7 November 2001 (court book, pages 391–411 and 413–417).
On 7 and 9 November 2001 the applicant wife and the applicants’ lawyers, De Alwis & Associates forwarded further material to the RRT, including a letter from the United National Party dated 5 November 2001 (court book, pages 413–417, 418–469 and 499).
By letter dated 3 December 2001 the RRT advised the applicant husband that the RRT had made its decision, and that the decision would be handed down on 21 December 2001. On 21 December 2001 the RRT handed down its decision, which was made on 28 November 2001, affirming the delegate’s decision refusing to grant protection visas to the applicants (court book, pages 470–471, 475 and 476).
On 9 January 2002 the applicants lodged an application for an Order of Review with the Victorian Registry of the Federal Court of Australia seeking review of the RRT’s decision (“the application”). The grounds of the application are that:
Review of a Tribunal decision on grounds under section 476 of the Migration Act 1958. (Further details and amended application be forwarded).
The application was transferred to the Federal Magistrates Court, and on 20 May 2002 the Court ordered that an amended application giving particulars of any grounds founding relief under the Judiciary Act 1903 (Cth) (“the Judiciary Act”) be filed and served on or before 31 July 2002.
On 19 August 2002 the applicants, by their solicitors Christie & Strbac, filed a Minute of Proposed Substituted Application for Prerogative and Injunctive Relief Pursuant to s.39B of the Judiciary Act (“the substituted application”). The grounds of the substituted application are that:
(1)The Tribunal’s decision was not a bona fide exercise of the Tribunal’s power. [particulars omitted]
(2)The Tribunal erred in law which went to its jurisdiction and exceeded its authority. [particulars omitted]
(3)The said decision made on 28 November 2001 was void and of no effect.
The first ground was abandoned at the hearing before me. The second and third grounds were pressed on the following basis. First, the applicants assert that the RRT proceeding was procedurally unfair in that they were misled into thinking that all of the material before the delegate was considered by the RRT and they were deprived of the opportunity to give evidence and make submissions to the RRT in the knowledge that not all material had been put before the RRT. Secondly, the applicants assert that the RRT failed to take into account relevant material, namely the letter from the UNP dated 13 September 1995. Thirdly, the applicants assert that the RRT decision was based on a fact which did not exist, namely that the applicant wife had fabricated an English language translation of the letter dated 13 September 1995.
The applicants rely upon the application for review filed in court on 1 August 2003 with the exception of the bona fide ground set out in paragraph 5 and the particular of the alleged breach of natural justice set out in paragraph 5(c). The applicants also rely upon two affidavits by the applicant wife filed on 19 August 2002 and 11 March 2003. It was the applicant wife who claims a well founded fear of persecution on the basis of imputed political opinion in Sri Lanka and the other applicants claim a protection visa by membership of her family. The applicant wife was cross-examined on her affidavits.
Reasoning
The applicants’ claim of procedural unfairness is based principally upon the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. The applicants assert that the RRT did not receive from DIMIA and consider the documents referred to in part B of the delegate’s decision. Nevertheless, by letter dated 25 September 1997, the RRT undertook to the applicant to look at such documents, together with other documents on the applicants’ file when determining the applicants’ claims. Further, by letter dated 4 November 1999, the RRT subsequently informed the applicants that it had looked at all of the material relating to their application. The applicants were thereby misled, it is alleged. The applicants assert that if the RRT had not misinformed them, the applicant wife would have obtained relevant material from DIMIA and would then have brought to the attention of the RRT material in the delegate’s decision, which was favourable to the applicants.
There are a number of obstacles in the way of this part of the applicants’ claim. Unlike the situation in Muin and Lie there is in this case no statement of agreed facts. Therefore, the applicants bear the onus of establishing the facts necessary to prove procedural unfairness. I would need evidence that the RRT did not receive (or consider) the part B documents: NACM of 2002 v Minister for Immigration [2002] FCAFC 405. In this case, the part B documents identified in the delegate’s decision are set out at page 147 of the court book. This included the departmental file, the contents of a telephone interview with the applicant wife, country information, an earlier RRT decision and DFAT cable number CL37966; CIS number CX10078. On page 3 of her decision (court book, page 478), the presiding member says that the RRT had before it the departmental file which included the applicant’s protection visa application, written submissions in support of the application and a record of interview with an officer of the Department as well as written submissions in support of the application for review. On page 25 of her decision (court book, page 500) the presiding member refers to and quotes from DFAT cable CL37966; CISNET CX10078. It follows that there is evidence that at least some of the part B documents were before the RRT and were taken into account. I am unwilling to draw an inference in this case that the other part B documents were not before the RRT and were not taken into account simply because they were not referred to specifically by the presiding member. The applicants face a difficult task in establishing that particular part B documents were not received or considered by the RRT. On the state of the evidence in this matter, I cannot conclude that the applicants have discharged their onus.
Secondly, the applicant wife has failed to establish that she was misled by the RRT’s letters dated 25 September 1997 and 4 November 1999 or that she would have acted any differently if she had been made aware that any of the part B documents were not before the RRT. Under cross-examination the applicant wife admitted that she first saw the part B documents after the RRT had made its decision. She admitted that she did not know, prior to the RRT decision, that any of the part B documents were favourable to her claims. She also admitted that she would not have sought to put any of the documents before the RRT. Subsequently, when the significance of her evidence became apparent to her, the applicant wife sought to change her evidence. Her attempts to change her evidence under cross-examination and re-examination lacked credibility.
I find that the applicants have failed to establish that any of the part B documents were not considered by the RRT and the applicants have failed to establish that the applicant wife was misled by correspondence received from the RRT, or that the RRT proceedings were in fact unfair in that the applicant wife lost a real opportunity to put additional evidence or submissions before the RRT.
The applicants also claim procedural unfairness in that the applicant wife was not given the opportunity to comment upon adverse credibility findings made by the RRT. In particular, the presiding member found that the applicant wife had fabricated an English translation of the UNP letter dated 13 September 1995 that was sent to the RRT in 2001. On page 33 of her decision (court book, page 508) the presiding member says:
I refer to the letter from the UNP to the applicant wife dated 13 September 1995 that requests the applicant wife’s attendance at an interview on 30 September 1995 in relation to an application for nomination as a candidate for the Yatinuwara local government elections. As the applicant wife’s political profile has clearly been in issue from the date of her protection visa application, I consider it incongruous that this letter dated 13 Sept 1995 was provided to the Tribunal on 21 October 2001, and note that it was submitted after the applicants received the section 424A notice. When this consideration is added to the former President Wijetunga’s failure to refer to the applicant’s preselection as discussed in the preceding paragraph, and to the applicant wife’s unimpressive evidence at the hearing on 10 January 2000 concerning her UNP activities and UNP policies, I cannot be satisfied that the letter from the UNP dated 13 September 1995 is a genuine document.
In fact, as is conceded by the respondent, the letter dated 13 September 1995 had been provided in its original untranslated Sinhalese form to the RRT in the DIMIA file. Accordingly, the conclusion by the presiding member that the letter was a fabrication, because it had only been provided on 21 October 2001, after the applicant wife had received a s.424A notice from the RRT, was erroneous. The applicant wife was not given the opportunity to comment upon this credibility concern held by the presiding member. If she had been given the opportunity, presumably the error made by the presiding member would have been avoided. Whether this would have made any practical difference to the ultimate conclusion reached by the presiding member, namely that the applicant wife did not have a genuine fear of persecution, is extremely doubtful. The presiding member had numerous serious credibility concerns about the applicant wife’s claims. In particular, the presiding member formed the view that the applicant wife had fabricated claims of threats from the Janatha Vinukthi Peramuna (JVP) (an insurgent organisation in Sri Lanka that is now a mainstream political party) that it would harm the applicant. In addition, the presiding member found the applicant wife to be an unimpressive witness who did not display the knowledge of the UNP that she would expect from a UNP member with a high political profile. At page 40 of her decision (court book, page 515) the presiding member concluded:
I find that the applicant wife and the applicant husband have embarked on an elaborate process of fabricating evidence to support their claims for asylum in Australia. I do not accept that they genuinely fear being persecuted by supporters of the JVP or the PA for reasons of political opinion or particular social group upon returning to Sri Lanka. Accordingly, I find that they do not have a well-founded fear of being persecuted for a Convention reason.
Like the presiding member, I had the opportunity to assess the applicant wife’s credibility as a witness. I found her to be a most unimpressive witness; at turns vague, evasive, hesitant and uncertain. She approached the task of giving evidence like a chess player, attempting to see several moves ahead. In that she was unsuccessful, and was rapidly check mated.
Even if the applicant wife (or for that matter, the applicant husband) could have influenced the credibility concerns held by the presiding member if they had been given an opportunity to comment upon them, I do not accept that procedural unfairness flows from the failure to give them that opportunity. First, the applicants knew from a letter from the RRT dated 5 September 2001 (court book, pages 383-386) that the RRT had doubts about the credibility of their claims. Secondly, I accept Mr Macliver’s submission, on behalf of the respondent, that procedural fairness does not necessarily require that the RRT give notice to an applicant where it considers that a document provided by an applicant is not genuine or that other evidence is not to be believed. The fair hearing doctrine requires that an applicant be given the opportunity to comment upon adverse material. Further, as His Honour McHugh J observed in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 at [100]:
One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.
However, the fair hearing doctrine does not require that an applicant be given the opportunity to comment upon each and every adverse conclusion which a presiding member is minded to draw from the evidence, especially where the evidence is given in response to a credibility warning.
In reaching this conclusion I have taken into account the decisions of the Full Federal Court in Bax v Minister for Immigration [2003] FCAFC 55 at [15] – [17] and WAEJ v Minister for Immigration [2003] FCAFC 161 at [50] – [57], to which I was referred by Mr Christie in supplementary written submissions. I do not consider that these authorities assist these applicants. Bax does no more than state the general fair hearing rule, with which I would not disagree. In respect of WAEJ, it appears that the observations of the Full Court were obiter in the context of that case. The Court did not reach a conclusion that procedural fairness required that the RRT give an opportunity to comment on its concerns about the genuineness of the document at issue in that case. The most that can be said is that in some circumstances, hypothetically, procedural fairness might require an applicant to be given an opportunity to comment upon a credibility concern arising from a particular document. In this case, the RRT’s procedural fairness obligations, arising from the presiding member’s concerns about the credibility of the applicant wife’s claims, were met by the letter from the RRT dated 5 September 2001. In this case, even if a further procedural fairness obligation could be said to arise in theory in respect of the translation of the letter dated 13 September 1995, there was no practical unfairness because the RRT concluded that the applicant wife’s claims had been fabricated in their totality, and the document in issue was but a small part of a larger scheme of fabrication. That conclusion made by the RRT was reasonably open to it on the material before it.
Since preparing the foregoing reasons I have become aware of the decision of the Full Federal Court in WACO v Minister for Immigration [2003] FCAFC 171. That judgment at [38] – [58] lends some support to the submissions of both parties in this case, but particularly the applicants. I distinguish this case on the facts. In my view, this case falls within the parameters of the principle set out by their Honours at [46]. The applicants were put on notice of what concerns they had to deal with in order to satisfy the RRT about their claims. They put forward additional evidence. They cannot now complain that one item of the additional evidence put forward was erroneously rejected without notice. I reject this ground of review.
The next ground of review in the application is that the RRT failed to have regard to relevant material, being the letter from the UNP dated 5 November 2001 (court book, pages 414-417). This assertion is wrong in fact. The RRT referred to this letter at page 499 of the court book. It is plain from the reasons for decision of the presiding member that she was unpersuaded by its contents.
However, at trial, Mr Christie, for the applicants, amended the particular of this ground to specify instead the letter from the UNP dated 13 September 1995. This was the letter in the Sinhalese language provided to the delegate. It does appear that the RRT failed to have regard to this letter, even though it was before it, because if the RRT had had regard to this letter, it would not have made the error made at page 508 of the court book, in finding that the English translation of that letter was a fabrication. I accept Mr Christie’s submission that a failure to take into account a relevant consideration is a jurisdictional error. I also accept that a failure to take into account “relevant material” is also a jurisdictional error: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [78]. However, I reject Mr Christie’s submission that “relevant material” means particular items of evidence. In my view, provided that the RRT considers all “elements or integers” of the applicants’ claims, no jurisdictional error will have been committed. It was an “element or integer” of the applicant wife’s claim that she had been a UNP candidate in 1995. Clearly, that claim was considered (and rejected) by the RRT. The failure by the RRT to take into account the original letter in Sinhalese from the UNP concerning her attendance at a candidate’s interview was not a jurisdictional error.
The final ground of review advanced by the applicants is that the RRT based its decision on a fact that did not exist, namely that the applicant wife had not provided the letter from the UNP dated 13 September 1995 to the RRT prior to the RRT’s letter to the applicant husband dated 5 September 2001. As I have already observed, the basis upon which the presiding member rejected the authenticity of the letter from the UNP was erroneous. The letter was not produced following the s.424A notice. It had been produced in its original Sinhalese form in 1997 and it was the English translation which was produced in response to the s.424A notice. The question here is whether the RRT committed a jurisdictional error in its fact finding process. I accept that a jurisdictional error would be committed if the decision of the RRT were unreasonable in its determination of a jurisdictional fact: Re Minister for Immigration; ex parte Applicant S20/2002 [2003] HCA 30 at [36]-[37].
In this case the decision of the RRT was erroneous on the issue of the fabrication of the letter but was not irrational, illogical, absurd or perverse on the question of whether the applicant wife had a genuine fear of persecution. There was ample other material before the RRT on which the presiding member could properly satisfy herself, for the purposes of s.65 of the Migration Act 1958 (Cth). An error of fact was made by the presiding member but this does not constitute jurisdictional error.
It follows that no jurisdictional error has been established by the applicants. The Hickman provisos to the privative clause of s.474 of the Migration Act are satisfied. Accordingly, the decision of the RRT is a privative clause decision. I will dismiss the application.
As to costs, the applicants have been wholly unsuccessful and the Minister wholly successful. He should therefore receive an order for costs. Consistently with my usual practice I will fix an appropriate amount for costs. This was a matter of somewhat more than usual complexity. A number of legal issues were raised by the applicants and the presentation of those legal issues changed over time. A substantial amount of preparation was also required in the preparation of relevant material. I have concluded in this matter than an order for costs fixed in the sum of $5,000, on a party/party basis is appropriate.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 September 2003
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