VGAN v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 391
•2 MAY 2003
FEDERAL COURT OF AUSTRALIA
VGAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 391
MIGRATION - application for protection visa – whether Tribunal’s finding that applicant an Ethiopian national disclosed jurisdictional error – whether Tribunal’s findings regarding applicant’s children inconsistent with country information – applicant provided Tribunal with document in support of her application – Tribunal found document to be “contrived” but did not afford applicant opportunity to comment upon that finding – whether Tribunal failed to afford applicant procedural fairness – s 424A(1) of the Migration Act 1958 (Cth) – s 424A(3)(b) engaged – common law requirements of procedural fairness – relevance of fact that Tribunal did not mislead applicant – discretionary considerations
Migration Act 1958 (Cth) s 420, 424A(1), (3), 474
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) s 422BRe Refugee Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 referred to
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 referred to
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 considered
Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred toAPPLICANT VGAN OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V548 of 2002
WEINBERG J
2 MAY 2003
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V548 OF 2002
BETWEEN:
APPLICANT VGAN OF 2002
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
2 MAY 2003
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V548 OF 2002
BETWEEN:
APPLICANT VGAN OF 2002
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
WEINBERG J
DATE:
2 MAY 2003
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a refusal by a delegate of the respondent to grant a protection visa to the applicant.
The applicant is an Ethiopian citizen born on 19 January 1955. She arrived in Australia on 15 July 1998, on a visitor’s visa. On 27 August 1998, she lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
On 30 October 1998, a delegate of the respondent refused that application. On 10 November 1998, the applicant applied to the Tribunal for review of that decision. On 5 April 2002 the Tribunal conducted a hearing in relation to that application. On 26 June 2002, the Tribunal affirmed the decision under review. On 23 August 2002 the applicant applied to this Court for review of that decision.
The applicant’s claims
In a statutory declaration lodged with the Department together with her initial application, the applicant claimed that she had been born in Addis Ababa, and was of Ago ethnicity. She said that she was a Muslim and that she spoke Amharic.
The applicant said that she had two sons and one daughter, all of whom lived in Ethiopia. Her husband, an Eritrean who resided in Ethiopia, worked in a bank. She claimed that on a date which she could not be certain of, but which was some time between 12 and 15 July 1998, her husband had been kidnapped. She did not know his current whereabouts.
In 1976 the applicant’s sister left Ethiopia for Italy. President Mengistu then came to power in Ethiopia, and the sister sought and obtained asylum in the United States.
The applicant’s father was part Eritrean and part Mekale. He grew up in Eritrea. He was accused by members of the Mengistu government of sponsoring the Eritrean People’s Liberation Front. He was arrested and died in prison in 1986. The applicant claimed that her mother had visited the prison in order to make inquiries about the applicant’s father. Her mother was detained and never seen alive again. The applicant claimed that the bodies of her parents had been taken to a burial site in boxes and that she had not been permitted to see the bodies.
The applicant said that after the death of her parents, the military made demands for money from her two brothers who were then living in the parents’ house. She claimed that her brothers made those payments.
The applicant said that in about 1998, the government confiscated her parents’ house. Her brother, Anwar, hid with the applicant and subsequently fled to Cairo. Her other brother simply disappeared. She said that the military came looking for Anwar on several occasions seeking to conscript him for military service in the Ethiopian army in its war against the Eritreans.
In 1997, Anwar, who by then had been granted refugee status in Australia, invited the applicant to visit him in this country. She left Ethiopia on 12 July 1998 and arrived in Australia several days later on 15 July 1998. She acknowledged that at that stage she was not experiencing any difficulties that would have made her consider leaving Ethiopia permanently. She was told by her daughter, upon arriving in Australia, that her husband had been arrested on 14 July 1998. Apparently the soldiers told her daughter that the applicant’s husband would be deported to Eritrea. They also said that they wished to question the applicant.
According to the applicant, the soldiers returned several hours later looking for her. After some five days they allegedly returned with a summons requiring the applicant to attend a police station for questioning. A few days later, the applicant’s house was looted by the soldiers, and the family’s savings were confiscated.
The applicant claimed that she had heard nothing further from her husband, and her children had also heard nothing from him. When the children made inquiries of the police regarding their father they were told that the authorities had no knowledge of his whereabouts.
According to the applicant, her husband had been required to travel regularly to Eritrea as a bank manager. After leaving that position and becoming a farm manager, two years prior to his arrest, he had been to Eritrea once only, for a holiday. The applicant claimed that if she were required to return to Ethiopia, she would be detained immediately.
In a further statutory declaration, made on 4 May 2000, the applicant said that the Red Cross had been unable to find any trace of her husband. She said that her children were still being cared for by her neighbours.
At the hearing before the Tribunal on 5 April 2002, the applicant said that her husband had been born in Eritrea. However, he had an Ethiopian passport, and had lived in Ethiopia for over 25 years. She said that she had been to Eritrea two or three times, and that her husband had some family there. She said that her friends in Eritrea knew nothing of her husband’s whereabouts. She claimed that she had lost contact with her children and that the petrol station that they had owned had been sold.
The applicant said that, having been born in Ethiopia, she considered herself to be Ethiopian. That was notwithstanding the fact that her father was Eritrean and her mother half Eritrean, and half Tigrayan. She also described herself as an Amharic, and said that she spoke Haric and Tigrayan.
The Tribunal’s decision
The Tribunal accepted that, prior to the fall of the Mengistu regime in 1991, the applicant’s family had had problems. It also accepted that her father may have been imprisoned, and that her account of her parent’s deaths may have been true. It found that the applicant’s claim that she had been the subject of repeated demands for money was plausible. However, the Tribunal noted that she had travelled to the United States in 1990, and returned willingly to Ethiopia. It also noted that the Mengistu regime was overthrown in 1991. As a result, it did not accept that the applicant would face a real chance of persecution, based on any of these matters, should she now be required to return.
The Tribunal noted the applicant’s claim that her father had been involved in sponsoring the Eritrean People’s Liberation Front, and her submission that this had led to her “being imputed with a pro-Eritrean attitude”. However, the Tribunal rejected this submission as it found that her father’s activities had occurred too long ago for any such political opinion to be imputed to her.
The Tribunal found that when the applicant left Ethiopia in 1998, she intended to return. She came to Australia solely to visit her brother. At the time of the applicant’s departure she did not have a well-founded fear of persecution. The “past events” that had occurred prior to her departure, including those relating to her father’s activities and beliefs, did not alter the conclusion that the applicant did not face a “real chance of persecution” if required to return to Ethiopia.
The Tribunal noted the applicant’s claim that her husband had disappeared. Although he had lived in Ethiopia for twenty-five years, and had an Ethiopian passport, he was Eritrean. It accepted that Ethiopia had, at one time, deported significant numbers of Eritreans, and Ethiopians of Eritrean background. It considered that it was “at least possible” that her husband had a “high profile” and was, as a consequence, singled out for “particular treatment”. It noted, however, that there was nothing about the husband’s position as a bank manager, or his occupation as a farmer, that suggested that he would hold a “high profile involvement in politics”, and would therefore be “singled out for special treatment”. The Tribunal concluded that it was possible that the husband may have been deported, but did not accept that he had “suffered ongoing imprisonment” or that he had been killed.
The Tribunal then turned its attention to the applicant’s nationality. It noted, in particular, her statement that she considered herself to be Ethiopian. It also noted that she spoke Amharic and Tigrayan, and described herself as Amharic. It concluded that she was Ethiopian, notwithstanding the fact that her father was part Eritrean, and had been involved in Eritrean affairs, and her mother had “Eritrean blood”.
The Tribunal then considered the authenticity of a document purporting to be a summons submitted by the applicant in support of her application. As indicated earlier, that document required the applicant to report to a police station. It was dated 19 July 1998, one week after the applicant’s departure from Ethiopia. The Tribunal considered that it was most unlikely that the authorities would have caused a summons to issue at a time when the applicant had already left Ethiopia. It noted that by the time the summons was issued, the authorities had already detained her husband. It therefore concluded that the authorities would have known that the applicant was no longer in the country, particularly since she had obtained an exit visa approximately one month before she left Ethiopia.
The Tribunal then said:
“In the Tribunal’s view if the authorities genuinely wanted to question her they would have left an alert for her at border posts rather than issue a notice with a date for her to attend that even cursory inquiries would reveal she would be unable to keep. As a result the Tribunal does not accept that the document indicates that the police genuinely wanted to question the applicant. Whilst it is possible that the document was written by the policeman who signed it, the Tribunal does not accept that the contents of the document accurately reflect the applicant’s situation. The Tribunal considers that the document has been contrived to indicate that the applicant was wanted when in fact she was not wanted.”
Having found that the document was “contrived”, the Tribunal did not accept that the applicant was “genuinely required” to attend at the police station.
The Tribunal then concluded that it was unlikely that the applicant would be deported to Eritrea from Ethiopia if required to return to that country. The basis for that conclusion was its view that deportation was essentially reserved for those who had taken out Eritrean citizenship, and also for those who had voted in the referendum for Eritrean independence. There was no evidence that the applicant had taken out Eritrean citizenship or voted in that referendum.
Moreover, the Tribunal noted that the country information suggested that the Ethiopian government no longer engaged in widespread deportations to Eritrea. The applicant’s adviser conceded that, by and large, deportations had ceased, but submitted that the peace in Ethiopia was “fragile” and by implication that deportations might resume at any time. However, the Tribunal concluded that the peace accord in Ethiopia appeared to be holding and that, as matters stood, deportations had ceased. It therefore found that the applicant did not face a real chance of being deported in the reasonably foreseeable future.
The Tribunal accepted that the applicant may have lost contact with her children but said that, in the absence of evidence, it was not prepared to accept that anything untoward had happened to them. The Tribunal then said:
“Had the authorities wanted to deport them they would have arrested them with their father.”
The Tribunal also accepted that some of the applicant’s property had been confiscated by the Ethiopian authorities. However, it did not accept that the applicant could not “set herself up” again upon returning to Ethiopia. Nor did it accept that she would be denied a livelihood, or that she faced a real chance of persecution because of her background, race or any imputed political opinion.
Finally, the Tribunal accepted that the applicant suffered from a major depressive disorder. However, it concluded that it was likely that this condition arose from her separation from her children. It found that this was not of itself sufficient to amount to persecution for a Convention reason.
Legislative Context
The jurisdiction of this Court in relation to decisions under the Act derives primarily from s 39B of the Judiciary Act 1903 (Cth) which relevantly provides:
“39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b)arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”
The Act, following its most recent amendments, creates a class of decision described as “privative clause decision[s]”. These are defined in s 474(2). It is common ground that the decision of the Tribunal, which is the subject of judicial review in this case is, at least on its face, a “privative clause decision”. However, as will be seen, nothing turns upon that section of the Act in this proceeding.
It is also necessary to refer to s 424A of the Act. That section relevantly provides:
“(1) Subject to subsection (3), the Tribunal must:
(a)give 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 is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a)…
(b)that the applicant gave for the purpose of the application
(c)…”
The applicant’s submissions
In general terms, the applicant submitted that the Tribunal’s decision was vitiated by jurisdictional error in four separate ways. It was first submitted that the Tribunal had incorrectly characterised the applicant’s ethnicity as Ethiopian when she was, in truth, at least part Eritrean. It was next submitted that a finding on the part of the Tribunal regarding the applicant’s children was inconsistent with known country information. The third submission was that the Tribunal had misunderstood the position of the applicant’s husband when it concluded that, although it was possible he had been deported, he not had suffered ongoing imprisonment, or been killed. Finally, it was submitted that the Tribunal’s finding that the summons, produced by the applicant in support of her application, was “contrived” involved a breach of its obligation to afford the applicant procedural fairness, both under s 424A(1), and at common law.
The respondent’s submissions
The respondent first submitted that the applicant had made it clear to the Tribunal that she considered herself to be Ethiopian. It was next submitted that the Tribunal had dealt properly with each of the applicant’s claims, and with the evidence in support of those claims, and that there was no inconsistency between the country information and the finding regarding the applicant’s children. Thirdly, it was submitted that the Tribunal had not misunderstood the position of the applicant’s husband when it accepted the possibility that he had been deported, but rejected the allegation that he had been imprisoned or killed.
Finally, it was submitted that there had been no breach of the requirements of procedural fairness. There were two aspects to this submission. The summons was “information given for the purpose of the application” within s 424A(3)(b) and was therefore exempted from the requirements of s 424A(1). Alternatively, even if the matter were approached from the point of view of the requirements of procedural fairness, as laid down by the common law, and not s 424A(1), any breach of those requirements that might have occurred was not sufficiently serious to amount to a failure to exercise jurisdiction. The applicant did not suffer any practical injustice, and relief should be refused in the exercise of the Court’s discretion.
Conclusions
In my opinion, none of the grounds upon which the applicant relies, in support of her claim that the Tribunal’s decision should be set aside, have been made out.
The Tribunal was obviously well aware of the conflicting evidence before it regarding the applicant’s nationality. It ultimately found that she was Ethiopian. That was a finding of fact which was plainly open on the evidence. After all, during the course of the hearing the applicant herself had said, in response to a direct question, that she considered herself to be Ethiopian. In addition, of course, the applicant was born in Ethiopia, and held an Ethiopian passport.
Any confusion regarding the applicant’s nationality was brought about by her own evidence which was, to say the least, difficult to follow. Nothing said on the applicant’s behalf suggests that the Tribunal fell into jurisdictional error regarding this issue.
I also reject the applicant’s second submission. That submission largely turned upon the Tribunal’s finding that the applicant’s children would have been arrested, together with their father, had the authorities intended to deport them. That finding was said to be inconsistent with a report prepared by Amnesty International which suggested that the male head of any family was usually deported first, with the remaining members of the family following some weeks or months later.
The Tribunal dealt with the applicant’s children upon the basis that it was unwilling, in the absence of evidence, to conclude that anything untoward had happened to them. The comment upon which the applicant focused was nothing more than a digression from that conclusion, which in turn led to the Tribunal’s ultimate finding that she did not have a well-founded fear of persecution. In my opinion, the Tribunal did not fall into jurisdictional error in making the observation that it did.
There is equally no merit in the applicant’s third submission. The critical aspect of the Tribunal’s reasoning was not whether her husband, after being deported, had been imprisoned or killed, but whether the applicant, not being an Eritrean citizen, or a person who had voted in the referendum for Eritrean independence, was likely herself to be deported. The Tribunal did not fall into jurisdictional error on this issue.
On its face, the applicant’s fourth submission requires more detailed consideration. It is clear from the Tribunal’s reasons that it found the summons to be “contrived”. Curiously, having regard to that finding, the Tribunal accepted that it was possible that the summons had been “written by the policeman who signed it”. Nonetheless, it concluded that the summons was not a “genuine” document, and that the authorities had no real interest in questioning the applicant.
There is no dispute about the fact that the Tribunal did not inform the applicant, during the course of the hearing, or at any stage prior to the publication of the reasons for its decision, that it might ultimately conclude that the summons was “contrived”. Nonetheless, its failure to have informed the applicant that it might come to that conclusion did not constitute a breach of s 424A(1). The summons was provided by the applicant to the Tribunal in support of her application. It was therefore “information” which fell within the exception contained in s 424A(3)(b).
It was submitted, however, that the Tribunal’s failure to give the applicant an opportunity to comment upon its finding that the summons was “contrived” constituted a breach of the common law requirements of procedural fairness. It was common ground that, at least at the time of the hearing, in April 2002, the Tribunal was obliged to afford the applicant procedural fairness: Re Refugee Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74.
The Tribunal’s decision was given on 26 June 2002, approximately one week prior to the introduction of s 422B on 3 July 2002. That section, introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), seeks to limit the “natural justice hearing rule”, and to restrict the requirements of procedural fairness to those expressly set out in the Act. However, s 422B has no retrospective application, and is therefore not relevant to this proceeding.
The content of the common law requirement to accord procedural fairness must now be considered. In Aala Gaudron and Gummow JJ said at [76]:
“There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial. The requirement of procedural fairness did not require the Tribunal when, pursuant to par (a) of s 425(1), it gave the prosecutor the opportunity to appear before it to give evidence, to treat what transpired ‘as though it were a trial in a court of law’”.
Similarly, the Tribunal cannot be expected to put to an applicant each and every concern it might have over the authenticity of evidence put before it. As stated in Aala, the Tribunal’s procedure is inquisitorial. Its procedures are, unlike courts, designed to provide a process of review that is “fair, just, economical, informal and quick”: see s 420(1).
It is significant that in this case the Tribunal did not, in any way, mislead the applicant: see Muin v Refugee Review Tribunal (2002) 190 ALR 601. It simply concluded, after considering the evidence in its entirety, that the summons was a “contrived” document. That conclusion was open on the material. While some aspects of the Tribunal’s reasoning might be described as lacking persuasiveness, in particular its observation that, though not genuine, the summons might have been prepared by a police officer, the question of the authenticity of that document was essentially a question of fact.
There was nothing said by the Tribunal during the course of the hearing that suggested that it regarded the document as genuine. Indeed, the Tribunal implied at one point that it had doubts as to whether the police had come to the applicant’s house, as she claimed. If the Tribunal had doubts about that matter, it must also have had doubts as to whether a summons had been delivered, whether on that occasion, or subsequently.
In addition, it is clear from the passages in the transcript to which I was taken, that the Tribunal questioned the applicant extensively regarding the dangers which she professed to fear if required to attend the police station for questioning. The Tribunal plainly considered these fears to be exaggerated. It is therefore obvious that even if the summons had been accepted as genuine, the outcome of the Tribunal’s deliberations would have been the same.
The applicant’s case was, in truth, based almost entirely upon the “past events” involving her family leading up to her departure from Ethiopia, and her fear that, if returned to that country, she would be deported to Eritrea. The summons was, at most, an incidental matter, and one which counted for little, when it came to the final decision.
I should add that even if the applicant had received a summons to attend for questioning in 1998, as she claimed, it is difficult to see how that fact could lead to the conclusion, four years later, that she had a well-founded fear of persecution for a Convention reason. Contrast in that regard the critical importance of the information regarding the availability of Afghan passports from a Consular office in Canberra which gave rise to a finding that there had been a breach of the requirements of procedural fairness in VAAC (supra).
Accordingly, even if I were satisfied that there had been a failure on the part of the Tribunal to accord the applicant an opportunity to comment upon the genuineness of the summons, I would not be minded to set aside its decision in the exercise of my discretion. Any such failure did not vitiate the Tribunal’s decision.
I therefore dismiss the application and order that the applicant pay the respondent’s costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate:
Dated: 2 May 2003
Counsel for the Applicant: Ms N Karapanagiotidis appeared pro bono Counsel for the Respondent: Ms H Riley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 March 2003 Date of Judgment: 2 May 2003
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