VHAO v Minister for Immigration - [2004] FMCA 218

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VHAO v MINISTER FOR IMMIGRATION

[2004] FMCA 218

MIGRATION – Application for a protection visa – review of a decision of the Refugee Review Tribunal – whether the material and evidence before the Tribunal raised a case of political persecution – whether applicant afforded natural justice – no reviewable error disclosed – application dismissed.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30

Re Minister for Immigration and Multicultural Affairs, Ex parte Cassim [2000] HCA 50
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502

Craig v State of South Australia (1995) 184 CLR 163
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361

Applicant:

VHAO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1189 of 2002

Delivered on:

17 February 2004

Delivered at:

Melbourne

Hearing Date:

17 February 2004

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr O'Donoghue

Solicitors for the Applicant:

Pro Bono Counsel for Applicant

Counsel for the Respondent:

Mr C.G. Fairfield

Solicitors for the Respondent:

Blake Dawson Waldron

ORDER

The application filed 25 September 2002 be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $7,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1189 of 2002

VHAO

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore decision.
The applicant was born in 1971. He is a citizen of the Hashemite Kingdom of Jordan and he arrived in Australia on 11 February 1998. He travelled on a Jordanian passport issued in Jordan on 18 July 1995 and which was valid to 18 July 2001.
On 24 March 1998 the applicant lodged an application for a Protection visa with the Department of Immigration and Multicultural Affairs. He had originally entered Australia on a Student visa. He is of Palestinian ethnicity and Islam religion.
On 18 May 1998 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a Protection visa and the applicant was notified of that decision in a letter of the same date. On 27 May 1998 he applied for a review of that decision to the Refugee Review Tribunal. On 28 September 2001 the Tribunal wrote to the applicant advising him that it was unable to make a favourable decision on the information before it. He was offered the opportunity to give oral evidence to the Tribunal which he did on 27 September 2001. That hearing was conducted with the assistance of an interpreter in the Arabic language. The applicant was assisted by his lawyer.
Section 65 of the Migration Act 1958 (Cth) (the Act) provides that if the Minister is satisfied that the prescribed criteria and other specified matters have been satisfied the visa is to be granted. If not, the visa is to be refused.
Section 36 of the Act creates a class of visa known as Protection visas and stipulates that an applicant for a Protection visa must be a non‑citizen to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them. The Convention relevantly provides at Article 1A(2) that a refugee is a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country or who, not having a nationality and being outside the country of his former habitual residence, is unable, or owing to such fear, is unwilling to return to it.
There are four key elements to this definition. Firstly, an applicant must be outside his or her country. In this case the Tribunal found that element not to be an issue in that the applicant claimed to be a Jordanian national and he made claims only against that country. Secondly, an applicant must fear persecution. The Tribunal noted that persecution has been referred to by Mason CJ in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 388 as requiring:
some serious punishment or penalty of some significant detriment or disadvantage
The applicant claimed to have suffered harassment amounting to persecution in the form of detentions, physical abuse while in custody and threats against himself and his family. He also claimed a serious level of discrimination as referred to by the Tribunal for reasons of his Palestinian ethnicity.
Thirdly, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution.
Fourthly, the applicant's fear of persecution for a Convention reason must be a well-founded fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In addition, an applicant must be unable or unwilling because of his or her fear to avail himself or herself of the protection of his or her country. The Tribunal noted that whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Following the applicant being advised of the outcome of his application before the Refugee Review Tribunal, such advice being contained in a letter to him of 30 August 2002, the applicant appealed from that decision seeking its review to the Federal Court of Australia. Such application for an order of review under Parts 7 and 8 of the Act and/or section 39B of the Judiciary Act1903 was filed on 25 September 2002.
In that application the applicant claimed to be aggrieved by the decision of the Tribunal on the basis that the decision was made without jurisdiction or was affected by an error of jurisdiction. It was further alleged that the decision was affected by an error of law; was so unreasonable that no reasonable decision-maker could have made it; was based on a finding for which there was no evidence on the material; took into account irrelevant considerations; failed to take into account relevant considerations; was an improper exercise of power conferred by the Act was otherwise contrary to law; and was made in bad faith. The particulars as to those claims were to be provided by the applicant at some future date.
Likewise, particulars were to be provided in relation to the additional claim of the applicant that the decision-maker failed to accord the applicant natural justice because the decision-maker:
a)was biased;
b)failed to follow the procedures required by the Act;
c)asked the wrong question or misconceived his or her duty.
Paragraph 3 was a pleading in the alternative, again with details to be provided at some future time.
When the matter ultimately proceeded before this Court only three grounds were relied upon by the applicant and as contained in the amended contentions of fact and law filed by the applicant.

Consideration

The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal was satisfied that the applicant did not face a real chance of persecution for the reasons he claimed should he return to Jordan. The Tribunal was satisfied that the applicant's claimed fear of persecution for reasons of his ethnicity and political opinion or imputed political opinion was not well-founded. It concluded he was not a refugee.
The first submission made by the applicant was that the Refugee Review Tribunal (RRT) asked itself the wrong question in that it did not apply the test as to whether Australia had protection obligations to the applicant under the 1951 Convention as amended by the 1967 Protocol in that it failed to consider subsection 91R(1) of the Act. Further, the applicant submitted, that the RRT applied a test contrary to section 91R(1). The applicant contended that that section requires that the Refugee Convention reason be the essential and significant reason for the persecution and the Tribunal disregarded this. That submission was made because contained in the reasons was the following:
It is enough if race, religion, nationality, membership of a particular social group or political opinion is but one of several reasons for the persecution feared. The applicant has claimed that he has suffered and would suffer again persecution for reasons of his Palestinian identity; that is, his ethnicity and his political opinion (page 4 of the Reasons).
Section 91R(1) of the Act is as follows:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
Section 91R(2) states:
(2) Without limiting what is serious harm for the purposes of paragraph 1(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
I reject the submission made by the applicant in this regard. The Tribunal clearly did apply in a material sense the elements canvassed in section 91R of the Act.
By the insertion of section 91R of the Act, Parliament has sought to limit the circumstances in which a visa applicant will meet the criterion in section 36(2) of the Act. The section functions as a restriction on the grant of Protection visas rather than an extension of that jurisdiction. It is clear from the Tribunal's reasoning that it engaged in a process of analysis which addressed each of the criteria set down in subsections 91R(1) and (2). I accept the contentions of the respondent that, in particular, the Tribunal:
a)noted that the applicant was able to enter and leave Jordan using valid papers;
b)considered the applicant's claim that he was discriminated against in education and employment and compared that claim to the freedoms accorded to himself and his family members and to the fact that his academic record suggested a ‘normal’ pattern of life for the applicant and that he was employed (in a country with high unemployment) in employment which he enjoyed and where he was liked by his employer;
c)assessed each of the claimed periods of detention, plainly referring in each instance to the question of whether the applicant had suffered threats to his life or liberty and whether he had been harassed or ill-treated.
I note further counsel for the applicant conceded that, even if the Tribunal did commit an error that would have affected the exercise of its power in its lack of consideration of section 91R of the Act, such error would have made no difference to the outcome of the proceedings before the RRT.
The second submission made by the applicant was that the RRT ignored relevant evidence in that it failed to consider the evidence of a witness called, namely, a Mr B. That witness gave evidence in support of the applicant's claim that he was arrested in 1997 as a result of attempting to establish a youth association in a Palestinian refugee camp. The applicant asserts that evidence was not dealt with by the Tribunal and in being silent in its reasons about the evidence given by this witness it committed a jurisdictional error. I reject that submission.
It is true that there is no reference to the evidence given by Mr Badran in the reasons for decision. The Tribunal however clearly stated in its analysis of the 1997 incident, that it was the reasoning behind the detention which it did not accept. The Tribunal:
a)did not find the applicant’s account of being a leading person in one of the major Palestinian refugees camps plausible;
b)did not accept that the applicant with some friends became a target for harassment by the authorities for proposing to establish a youth group; and
c)rejected the applicant’s claim that he was detained for proposing a youth association within the refugee camp.
The Tribunal relied on country information and on its findings adverse to the applicant as to his credit, in concluding that the activities of the applicant such as it found, did not attract persecution at the hands of the Jordanian government. The Tribunal considered the claims of the applicant to have been detained in 1990, 1993, 1996 and 1997 and tested those claims for their plausibility, internal consistency and their correspondence with country information. The Tribunal concluded that it was not implausible that the applicant could have at some time been detained. The question for the Tribunal was whether the applicant was detained in the manner and with the frequency which he had described.
In making its assessment the Tribunal kept in mind whether the applicant would have been under surveillance; detained on five occasions, whether the security agency would have accurate information on what the applicant had been doing; and noted that no charges were laid and nor were detentions prolonged. In its findings as to what occurred in 1997 the Tribunal referred to country information indicating that issues of Palestinian politics were widely discussed in Jordan and any move by Jordan to make peace with Israel on anything but Palestinian terms was publicly protested. The Tribunal noted that it had regard to readily available facts such as contained in a 1999 DFAT advice:
Jordan has good relations with the PLO generally and there is a Palestinian embassy here in Amman. The Jordanian authorities tolerate some local activity by Fatah and other Palestinian groups.
The Tribunal went on to note that did not mean that the Jordanian authorities were not concerned about support for Palestinians which went against government policy and Jordan's interests. The Tribunal stated that there had been a time of acute conflict between Jordanians and others, as seen in the applicant's own reference to the troubles of 1970. This Court notes the applicant's references to matters of history and readily available facts were voluminous and contained in the court book and were presented to the Tribunal. The Tribunal stated that there is no doubt that:
known extremists are kept under close surveillance -
referring to a DFAT cable of 2 August 1994. However, that same cable stated that radical Palestinian groups such as Fatah had offices freely operating in Jordan. The Tribunal found that mere support for, or even some active support for, Palestinian causes did not of itself mean that a person was under suspicion by the Jordanian authorities. The Tribunal went on to say that in 1997, the year in which the applicant claimed to have been detained for his activities in a refugee camp, there were elections in Jordan which were openly boycotted by many parties. During that time even the Palestinian organisations of a more violent kind, such as Hamas, were able to have offices in Amman. The Tribunal rejected the applicant's claim that he was detained for proposing a youth association within the refugee camp.
I accept the submissions of counsel for the respondent that the evidence provided by the witness was merely a repeat of the evidence of the applicant which the Tribunal in large part found not to be plausible. The evidence given by the witness was simply a piece of evidence in the totality of the evidence put by the applicant before the Tribunal. There was no statutory requirement that this piece of evidence be referred to in the Tribunal’s reasons. Its absence cannot result in jurisdictional error having been committed by the Tribunal.
In VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 in a Full Court determination Sundberg, Marshall and Weinberg JJ considered whether the RRT's failure to consider evidence given by an appellant's brother resulted in the decision of the RRT being affected by legal error. It affirmed the earlier decision of Gray J that there was no error of law of the kind identified in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30.
The Tribunal is not obliged to take into account particular evidence available to it. I reject the submission that the RRT was bound to take into account the evidence which it is said is ignored because of its failure to be referred to in the reasons. The ignoring of such material if indeed there was, has not been in a way that affects the exercise of power.
The third submission made by the applicant was that the RRT had failed to afford the applicant procedural fairness. This was said to be because certain parts of country information had not been put to the applicant. I reject this submission also. There has been no practical unfairness to the applicant. There is no obligation upon the Tribunal to put this information which was in the public domain. The country information was but one part of the many reasons proffered by the Tribunal for its rejection of the applicant's case. I rely upon Re Minister for Immigration and Multicultural Affairs, Ex parte Cassim [2000] HCA 50 at 214 per McHugh J:
The rules of natural justice do not require the Tribunal to reveal to an applicant that it intends to act on information that is in the public domain or on information of which the applicant is or should be aware.
Nowhere does the applicant show in the proceeding before me that he has lost an opportunity to put any information or argument to the decision-maker or otherwise suffered any detriment as a result of this alleged breach of obligation.
The applicant does not demonstrate before me that there is any material he might have put to the RRT which would have influenced it to decide its case differently (See Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 per Callinan J at 539).
There is no suggestion that the RRT has in the course of the proceedings in any way misled the applicant. The country information to which it referred was not of recent origin, did not suggest a change in the political environment and was readily available to all. The applicant provides no clear indication of the evidence or material he would have placed before the Tribunal if country information had been made available. Any omission has not been shown to have had any material affect on the outcome of the application before the RRT. Accordingly, I am not persuaded that the applicant has established a denial of procedural fairness. It follows that there is no jurisdictional error as within the principles stated in Craig v State of South Australia (1995) 184 CLR 163 at 179 (see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361).

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 7 May 2004