VAT and VAU v Minister for Immigration
[2004] FMCA 59
•12 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAT & VAU v MINISTER FOR IMMIGRATION | [2004] FMCA 59 |
| MIGRATION – Protection visa – whether jurisdictional error – whether breach of rules of natural justice – whether bona fide decision. |
Migration Act 1958
S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
NACL v Refugee Review Tribunal [2002] FCA 643 (22 May 2002)
Dan v Federal Commissioner of Taxation [2000] ATC 4350
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
| Applicants: | VAT & VAU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1171 of 2002 |
| Delivered on: | 12 February 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 May 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicants: | Mr B Cooney |
| Counsel for the Respondent: | Mr G Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Amended Application filed 30 September 2002 be dismissed.
The Applicants pay the costs of the Respondent fixed at $8,000.00 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1171 of 2002
| VAT & VAU |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
By an amended application filed 30 September 2002 the Applicants seek orders reviewing decisions made in respect of them by the Refugee Review Tribunal ("the RRT") on 4 October 2001.
In the amended application the grounds relied upon are as follows:
“[2.1] The Tribunal failed to carry out its task in accordance with the provisions of the Migration Act 1958 (the Act).
[2.2]In particular, in coming to its decision the Tribunal failed to comply with the provisions of section 420 of the Act.
[2.3]The Tribunal failed to deal with the applicant's case in a way which was fair and just.
[2.4]The Tribunal failed to act according to the substantial justices and the merits of the cases.
[2.5]The Tribunal brought a closed mind to its task.
[2.6]The Tribunal approached its task in a way which suggested that it did so with a predetermined mind.
[2.7] The Tribunal lacked in bona fides in going about its task.”
The applicants are husband and de facto wife who claim to be citizens of Vietnam. They arrived in Australia on 9 April 2001. On 24 July 2001 they lodged applications for protection (class XA) visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act").
A delegate of the respondent refused to grant protection visas on
23 August 2001. On 24 August 2001 the first applicant applied for a review of that decision. On 6 September 2001 the applicant's adviser informed the tribunal that the second applicant's name should have been on the application review form. In the circumstances, given that the second applicant had been included in the primary decision, it was presumed that she was included. In the circumstances the RRT found there had been substantial compliance with the form and the second applicant was included in the application before the RRT.
The RRT made its decision on 4 October 2001. In its decision the RRT set out under the heading Claims and Evidence the claims of the respective applicants. In summary, the RRT records that both applicants had escaped from Vietnam in 1990 and travelled to Indonesia. Both applied for refugee status, were assessed by the United Nations High Commissioner for Refugees (UNHCR) and rejected as refugees but remained in Galang camp in Indonesia for six years. Both were forcibly repatriated to Vietnam in August 1996.
It appears that the applicants became acquainted whilst at the Galang camp and although repatriated to the same parts of Vietnam met up again in Ho Chi Minh City where they began living together in October 2000. The claims of both applicants relate to alleged mistreatment and discrimination upon return to Vietnam. The second applicant has made a separate and distinct claim that she had difficulty practising her religion. The first applicant told the RRT that he suffers constant persecution in Vietnam because he has been labelled as a traitor because he illegally departed so many times. He believes if he returns to Vietnam he will be imprisoned for at least five years as it is the third time he has illegally departed from Vietnam. He had never been involved in any political activities in Vietnam and had attended church and had no difficulties practising his religion.
The second applicant claimed that her family home had been confiscated in May 1977 because they were accused of belonging to the "capitalist classes". Upon her return in 1990 she claimed to have been branded a traitor and harassed. She claims to have lost her rights as a citizen. She was able to return to Saigon because she had left Saigon. She did not have household registration in Saigon before she left Vietnam as she had illegally left the NEZ (New Economic Zone). She had approached the UNHCR for assistance and in 1998 they obtained a household registration for her and in 1999 an ID card. It is claimed that when UNHCR left Ho Chi Minh City the second applicant was again harassed by the local authority with her house being searched nightly and household registration checked.
She claims that she was constantly asked about her activities in Galang and the local authority is claimed to have threatened to put the applicant in jail if she met up with other people who had returned from Galang. She had to perform unpaid labour cleaning the local authority office which she did on many occasions. She was critical of the UNHCR assistance in relation to her forcible repatriation. The second applicant had made a separate and distinct claim that she had difficulty practising her religion.
In its findings and reasons the RRT analysed the factual material and noted that the applicants had returned on a previous occasion after the official conclusion of the CPA and neither of them were punished for illegal departure. The RRT concluded that in those circumstances "it is unlikely that any penalty will be imposed on this occasion". The RRT went on to say:
“Further any penalty that may be imposed would be as a result of the non discriminatory application of a law of general application and would not amount to persecution within the meaning of the Convention.”
Reference was made to statistics which reveal that "over 13,000 people were forcibly repatriated" and "despite extensive monitoring by the UNHCR there had been no reports of returnees being persecuted". The RRT significantly made the following finding:
“The Tribunal finds based on the fact that they were not persecuted on the last occasion they returned to Vietnam and the country information about the treatment of people who departed illegally and returned that there is no real chance that they will be persecuted in the reasonably foreseeable future if they return to Vietnam therefor, their fear of persecution is not well-founded and they are not refugees within the meaning of the Convention.”
During the course of its findings the RRT noted that the second applicant gave conflicting evidence about being able to attend church. The second applicant had initially stated that she could and then claimed that she had difficulties practising her religion.
The RRT then made a finding that it was not satisfied that the second applicant had been prevented from practising her religion or that there is a real chance that if she returned to Vietnam she would be prevented from practising her religion in the reasonably foreseeable future. The RRT had also rejected the claim by the first applicant that he will be imprisoned for five years, particularly in circumstances where he could not explain why he believed it would be for that length of time. Reference was made to article 89 of the Vietnamese Penal Code and concludes that on a proper analysis of that article, together with article 85, which punishes illegal departure or remaining overseas illegally with the intent to engage in anti-government activities, that the maximum penalty that the applicants could be subjected to is two years imprisonment.
However, it is noted that "prosecution under these provisions was waived as part of the CPA of people returning to Vietnam". Although the CPA had officially come to an end in June 1996, the RRT noted that the applicants returned on a previous occasion after the official conclusion of the CPA and neither were punished for illegal departure as mentioned earlier in this judgment.
Both counsel had raised the appropriate issue of the law which now applies following the decision of the High Court in S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24.
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant:-
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
The submissions to some extent departed from the Amended Grounds of Appeal. The two matters relied upon in oral submissions were that the Applicants were both members of a social group namely a group that fled from Vietnam and then were returned forcibly from Indonesia and as a result of being returned have been subject to persecution by reason of their membership of that group. It was further submitted that both Applicants may suffer persecution not for their political activity but for their perceived political activity. There is the further element of the religious practices of the Second Applicant relied upon. Reliance was otherwise placed upon submissions which had been forwarded by the solicitors acting for and on behalf of the Applicants to the RRT by letter dated 14 September 2001 (see Court Book pp 91-115).
Those submissions raise issues concerning the arguments that the Applicants had a well founded fear of persecution should they return to Vietnam and provided details in relation to the detention of the Applicants at the Galang Refugee camp in Indonesia and what had occurred upon return. Further reference was made to country reports. Specifically reliance was placed upon the concept that a fear of persecution may arise for reasons of political opinion (both actual and imputed) along with membership of the particular social group being the group comprised of individuals forcibly repatriated to Vietnam after seeking asylum in another country. Reference was made to the statement of both Applicants appearing at pages 56 and 59 of the Court Book. Otherwise reference is made to the experience of both Applicants in Vietnam with reference again to matters set out in the Court Book which were properly before the RRT.
It was specifically argued both before this Court and in the written submissions relied upon that the RRT had taken a wrong approach to the criminal conduct. Reference was made to the RRT’s decision where under the heading “Claims and Evidence” the following appears:-
“The applicant agreed that he received a re-settlement allowance of US$240 from the UNHCR. The applicant was asked if he tried to bribe the local authority to lift the restrictions and he stated he did not have any money and he was afraid of being caught offering a bribe. It was put to the applicant that he had enough money to buy a motor cycle and he had his re-settlement allowance. He stated that money was earned Galang and US$240 does not go very far in Vietnam. It was put to the applicant that the UNHCR monitored returnees because it wanted to ensure they integrated and had employment and could support themselves. They would have intervened if he had been prohibited from working. He said he only knows what happened to him personally.”
Counsel for the Applicants had referred to transcript of the RRT proceedings where the firstnamed Applicant had been asked questions concerning the issue of trying to bribe local authorities to lift restrictions. The reference to the transcript did not advance the argument any further in my view though did confirm that the issue had been agitated as described by the RRT in the extract to which I have already referred. It was submitted in the context of that exchange that it is against public policy to use the failure of a person to commit a crime as evidence against him or her and further that there is nothing in the Migration Act which would allow the RRT to hold that a failure of an asylum seeker to commit what is a crime in his own country and what would also be a crime if carried out in Australia as evidence of lack of credibility or as material which could be used against an Applicant in denying a visa application.
During the course of submissions Counsel for the Applicants was critical of country information and the inability to test that information. The matter did not seem to be pressed and nor could it be upon judicial review given that the RRT is entitled to rely upon country information and it cannot be suggested that all that information needs to be tested in the same way as other evidence may be tested in a court of law.
There was further criticism of the RRT’s failure to put specifically to the Applicants the prospect of two years imprisonment under Article 85 of the Vietnamese Penal Code rather than simply criticise the Applicant for failure to explain the suggestion that he may be exposed to a “five year penalty”. As I understand the submission this failure again would constitute denial of procedural fairness which would attract judicial review.
The Respondent submitted that there is no error of a kind which would justify judicial review in these applications. Specifically it was submitted that the RRT’s decision could not be said to provide a basis upon which it could be argued that there has been a failure to make a bona fide attempt to exercise its power and noted that lack of bona fides is a “serious allegation and not one likely to be made” (see NACL v Refugee Review Tribunal [2002] FCA 643 (22 May 2002) at paragraphs [21] and [22]) and that it “necessitates proof of extreme circumstances” (see Dan v Federal Commissioner of Taxation [2000] ATC 4350 at 4356).
In dealing with the Applicants’ capacity to provide evidence and country information it was noted that very detailed submissions had been provided for and on behalf of the Applicants by their then legal representatives. Comprehensive submissions were made to the RRT referring to a range of country information. Reference was also made to another RRT decision which in turn referred to relevant country information. It was submitted the RRT dealt thoroughly with each of the Applicant's claims and referred to relevant country information from a number of sources. Adverse findings were made as to the credit with reference being made to inconsistencies, exaggeration and conflicting evidence. It was submitted these findings were open to the RRT as part of its role to determine the facts and that no error in its reasoning process has been revealed (see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547.
It was submitted the Tribunal’s decision on the facts did not reveal any error. During the course of oral submissions it was submitted that criticism of the RRT in terms of the manner in which it dealt with evidence effectively invited the Court to engage in a merits review which is not appropriate.
Reasoning
In my view applying the relevant principles which may now be available in relation to jurisdictional error, I can see no error of a kind by the Tribunal in its reasoning process based on the grounds in the Amended Application or arising from the further matters advanced for and on behalf of the Applicants. I am satisfied that the Tribunal has embarked upon its process in an appropriate manner and I cannot see any evidence of a lack of bona fides. I am satisfied that in the present case there is no evidence which would establish a lack of bona fides which I am satisfied normally requires proof of extreme circumstances and is indeed a serious allegation as noted in the authorities relied upon by the Respondent.
Whilst it may be true that there was an exchange which dealt with the issue of whether the first Applicant had tried to bribe a local authority to lift restrictions, it is my view that the context of that exchange was simply part of the overall material concerning the financial circumstance of the Applicant and whether indeed there was truly a restriction imposed. It was not put in the context that the Applicant should in fact bribe local officials or that he should be judged adversely for failing to do so. Rather it was part of the investigation open to the RRT in testing the credibility of the Applicant as to his financial resources and the use he made of those resources if he genuinely and truthfully believed that restrictions had been placed on him upon return.
Likewise in my view I cannot see any denial of natural justice and/or procedural fairness of a kind to attract jurisdictional error arising from the failure of the Tribunal to specifically refer to the potential period of imprisonment which the Applicants may face in Vietnam. The RRT is entitled to consider the reality of the background of the Applicants’ circumstances and in particular is entitled to consider the role of the UNHCR based upon information before the RRT. The assessment of the risk and consideration of submissions made by the Applicants together with their evidence before the RRT was dealt with in my view appropriately by the RRT.
The findings of the RRT relate more to the prospects of imprisonment rather than the length of any potential imprisonment. The RRT was perfectly entitled to analyse as it did those prospects and draw conclusions of fact then open to it having regard to country information and the available evidence.
There is no requirement on the RRT to permit further analysis of the country information or to permit the basis for that information to be tested as it may be tested in a Court of law.
In its conclusions the RRT had found that neither Applicant would face a real chance of being persecuted and properly took into consideration inconsistencies in relation to the issue of religion which was particularly relevant to the second Applicant. It further properly took into account in reach its conclusion the fact that on the last occasion the Applicants returned they were not persecuted.
In all the circumstances I otherwise accept the submissions made for and on behalf of the Respondent and in my view it is appropriate that both applications be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 February 2004
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