VOAO v Minister for Immigration
[2004] FMCA 441
•20 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VOAO & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 441 |
| MIGRATION – Review of decision of Refugee Review Tribunal – use of country information – whether no evidence for finding made by Refugee Review Tribunal – whether finding lacking evidence was a critical step in the Refugee Review Tribunal’s ultimate conclusion – whether ultimate conclusion was affected or influenced by finding – whether Refugee Review Tribunal failed to adhere to rules of procedural fairness – whether applicant required to demonstrate that failure to adhere to rules of procedural fairness actually affected outcome of proceedings – discussion of meaning and effect of s.424A(3)(a) of the Migration Act – whether s.424A(3)(a) describes one or two criteria that must be met – whether Refugee Review Tribunal should have applied the definition of persecution as qualified by s.91R of the Migration Act – consideration of amendment to the Migration Act contained within the Migration Legislation Amendment Act (No.6) (2001), which introduced s.91R into the Migration Act. |
Migration Act 1958
Federal Magistrates Court Rules 2001
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
SFGB v MIMIA (2003) FCAFC 231
MIMIA v Rajamanikkam (2002) HCA 32
Kioa v West (1985) 159 CLR 550
WAEJ v MIMIA (2003) FCAFC 188
ex parte Miah (2001) 206 CLR 57
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NARV v MIMIA (2003) FCAFC 262
Re: Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Stead v SGIC (1986) 161 CLR 141
Ranginui v MIMIA (2003) FCA 1280
Dagli v MIMIA (2003) FCAFC 298
WAAJ v MIMIA (2002) FCAFC 409
VHAJ v MIMIA (2003) FCAFC 186
VHAP/2002 v MIMIA (2004) FCAFC 82
| Applicants: | VOAO & VOAP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 631 of 2003 |
| Delivered on: | 20 July 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 11 May 2004 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Farouque |
| Solicitors for the Applicant: | Pro Bono |
| Counsel for the Respondent: | Ms Moore |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 4 March 2003 is invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.
The respondent do pay the applicants’ costs fixed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 631 of 2003
| VOAO & VOAP |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Refugee Review Tribunal (“RRT”) made on 4 March 2003. The decision was handed down on 8 March 2003. The RRT affirmed the decision of a delegate of the Minister not to grant protection visas to the applicants.
I accept the following statement of background facts contained in paragraphs 2 to 13 (inclusive) of the written submissions prepared by Ms Moore on behalf of the respondent:
2.The applicant is a 39 year old male citizen of Kyrghyzstan who arrived in Australia on 4 June 1997. He was born in Bishkek, Kyrghyzstan and claims to be Jewish because his mother was a Ukrainian Jew, although his father was a Kyrghz Muslim. The applicant was married in November 1995. The applicant’s wife, now aged 33, travelled to Australia on 30 July 1997.
3.Both the applicant and his wife had departed Kyrghyzstan legally on valid Kyrghyz passports. The applicant entered on a Seven month Australian student visa. On 17 February 1998 he was granted a temporary resident visa valid until 20 June 1998.
4.According to his visa application, at the time of the application the applicant had a daughter (now aged 7) and a son (now aged 15) both of whom remain in Kyrghyzstan.
5.On 24 August 1998 the applicant lodged an application with the Department of Immigration and Multicultural Affairs (as it then was) (“the Department”) for the issue to him of a Protection Visa (Class AZ) pursuant to the Migration Act 1958 (Cth) (“the Act”). Accompanying the visa application was an undated statement by the applicant setting out his claims.
6.The applicant’s wife was included in the applicant’s protection visa application as a member of his family unit without claims of her own to be a refugee. Therefore, the fate of her application depends on the outcome of the applicant’s application…
7.On 22 September 1998 a delegate of the respondent refused to grant the applicant a protection visa and on 9 October 1998 the applicant applied to the Tribunal for review of that decision.
8.On 9 October 1998 the applicant lodged an application with the Tribunal for review of the delegate’s decision.
9.On 25 May 1999 the applicant’s then legal advisers filed written submissions with the Tribunal to support his application for review.
10.On 16 May 2002 the Tribunal held a hearing at which the applicant and his wife gave oral evidence, with the assistance of a Russian interpreter.
11.On 4 March 2003 the Tribunal decided to affirm the delegate's decision. It handed down its decision on 28 March 2003. The applicant was notified of the Tribunal's decision in writing on 28March 2003.
12.On 17 April 2003 the applicant filed an application for review of the Tribunal's decision with the Federal Court of Australia. The application was filed within the time limits imposed by the Act. No amended application has been filed.
13.The proceeding was transferred to this Court pursuant to consent orders made by Justice North on 10 June 2003.
The applicants’ claims are summarised in the written submissions filed on their behalf and on behalf of the respondent. There is no material difference between the two summaries. For the purpose of these Reasons, however, I accept the following summary of the applicants’ claims as set out in paragraphs 15 to 17 (inclusive) of Ms Moore’s written submissions:
15.The applicant claims that prior to departing Kyrghyzsatan he worked at the New Corporatised Consulting Centre — the Mass Privatisation in Kyrghyzstan (“the NPACC”) and prior to that as an assistance manager with Price Waterhouse in Kyrghyzstan where he was involved in implementation of privatisation programs.
16.He claims to fear persecution for reason of his religion (being a Jew in Muslim Kyrghyzstan) and for reason of his political opinion. The applicant’s claims in his visa application may be summarised as follows:
(a)his mother was born in the Ukraine to the family of a Jewish woman and a Ukrainian man and that during the second world war she and her sister were separated from the rest of her family as they fled to Moscow;
(b)a couple of months before his departure from Kyrghyzstan his mother gathered information through official channels about her Jewish roots and somehow the word spread that she was a Jew and that she now wanted her children to change their religion;
(c)within a month “a wall of cold enmity and non-acceptance had risen” between him and his colleagues and counterparts;
(d)just before he left for Australia a special decree of the President of the Republic of Kyrghyzstan declared the mass privatisation a complete failure and appointed a board of inquiry led by the country’s prosecutor and alleged that prices in privatisation projects had been purposely underestimated; ;
(e)he and his group at the NPACC were being targeted as the ones to blame for any malfunction that might have happened within the “entire privatisation chain”; and
(f)much of the enmity against him could be attributed to his Jewish ancestry which neither his immediate business environment nor his formal peers in the “top Government echelons” would possibly tolerate.
17.In written submissions to the Tribunal the applicant’s then legal adviser claimed that the applicant faced the possibility of charges in Kyrghyzstan, that he would not to have access to a fair process and might face criminal action rather than civil action because he believed what he would say would be regarded as defamation.
The RRT's Findings and Reasons for Decision
Once again, I accept the summary of the RRT’s findings (and Reasons) contained in paragraphs 18 to 23 of Ms Moore’s written submissions:
18.When making its decision the Tribunal had before it the Departments file which included the protection visa application and the delegate's decision. It also considered independent country information. Ultimately, having considered all the evidence before it, the Tribunal decided that it was not satisfied that the applicant is a person to whom Australia has protection obligations under Convention. The Tribunal found that the applicant does not have a well founded fear of persecution for any Convention reason, now or in the reasonably foreseeable future, should he return to Kyrghyzstan.
19It found that although the independent country information pointed to some resentment towards them, there was no evidence of persecution against Jews in Kyrghyzstan.
20.Tribunal did not accept the applicant’s claim that an inquiry by his mother would have produced the effect he claimed. It considered it “far fetched” and “illogical” that his mother’s searches would be of such import that his place of work would be apprised of it and that the conclusion that would be drawn was that her children would be forced to change their religion — especially given that the applicant had not claimed of being anything other than of the Jewish religion.
21.The Tribunal also noted that the applicant had implied that he left Kyrghyzstan in fear of religious persecution but, according to him, his “jewishness” was only relevant “a couple of months” before his departure for Australia in June 1997 when his mother made her enquiries, yet he had visited the Australian Consulate on 2 February 1997, some months before his mother's enquiries.
22.In relation to the applicant’s claims of enmity towards him because of the failure of the NP ACC, the Tribunal found that on the applicant's evidence the problems with the program (real or imagined) had been ascribed to a number of people who used to work with the applicant as well as to him and that this was not an indication that he was individually targeted, let alone for reasons of his religion.
23.In relation to the applicant’s claims that he would be unable to receive a fair process were he to answer the charges levelled against him for the poor results of the privatisation program, the Tribunal found that the harm feared was not for any of the Convention reasons. Instead, it found that the harm would be because of his perceived lack of competence in carrying out his job. It held that there was no evidence before it that would lead it to the conclusion that the applicant would not receive a fair hearing or process because of his religion or any other Convention reason.
Grounds for Review
The applicants' application for review contains a number of general, formulaic grounds. No particulars are provided, although the application records that "details of the error will be provided in accordance with the directions of the court." Notwithstanding that statement, no such details were presented in the form of amended application or otherwise.
Notwithstanding the lack of detail in the application, the parties accepted that the applicants’ case involved three contentions:
a)Firstly, that there was no evidence to support the RRT's finding that the country information referred to in its decision did not contain any mention of either an event or an attitude which would support the male applicant’s claim that he was and would be persecuted as a Jew in Kyrghyzstan.
b)That the RRT breached the rules of natural justice or procedural fairness by failing to draw the applicants’ attention to a 2002 US State Department Report which was published after the date of the hearing in the RRT, but before it handed down its decision.
c)That the RRT, in effect, asked itself the wrong question when it sought to apply the provisions of s.91R of the Migration Act.
I shall refer to the above grounds as “the No Evidence Ground”, “the Country Information Ground” and “the s.91R Ground”. I shall also refer to the male applicant as “the applicant”.
The No Evidence Ground
In its decision, the RRT referred to and reproduced a lengthy extract from the International Religious Freedom Report 2002 released by the Bureau of Democracy, Human Rights and Labour of the United States Department of State (“the 2002 Report”). The 2002 Report was released on 7 October 2002 (after the hearing before the RRT had been completed, but before its decision was handed down).
The extract from the 2002 Report appears under the heading "Independent Information" on pages 76 to 80 of the Court Book. It is prefaced by the following statement:
The following information is relevant to the applicant's claims:
The extract from the 2002 Report included the following passage (at page 80 of the Court Book):
In March 2002, members of the country's Jewish Cultural Society reported that they had heard calls for violence against Jews issued in Russian and Kyrgyz from a loud speaker at a Mosque in central Bishkek. According to the Israeli Embassy in Almaty, the Government is investigating.
I shall refer to this passage as “the first passage”.
The RRT's decision is brief. It comprises 10 pages — the first three of which set out the legal framework for the application (according to the RRT). Extracts from the 2002 Report occupy approximately four pages of the decision.
Almost immediately after the recitation of the extracts from the 2002 Report, and under the heading "Findings and Reasons" appears the following:
The applicant claims fear of persecution for reason of religion, being a Jew in Kyrghyzstan. The applicant also claims that he will be persecuted because of an investigation over the fate of the organisation in which he was a manager.
RELIGION
The Tribunal notes the country information above and remarks on the absence of any mention of either an event or an attitude that would support the applicant’s claim that he was and would be persecuted as a Jew in Kyrghyzstan. [emphasis added]
Prima facie, the sentence commencing “The Tribunal notes…” quoted in paragraph 12 above (which I shall refer to as “the second passage”), appears to be inconsistent — and obviously so — with the first passage. Such discordance is clearly apparent from the plain and ordinary meaning of the words contained in the two passages (and, in particular, when regard is had to the words upon which I have placed emphasis in the second passage).
Notwithstanding what I consider to be the obvious inaccuracy or incongruence of the second passage, Ms Moore’s submission was to the effect that to proceed to consider the applicant’s contention that there was no evidence to support the finding contained in the second passage “…is to require this court to undergo an over-zealous scrutiny of (the RRT’s) reasons, one which would require an eye too keenly attuned to the perception of error” — which approach would be contrary to the well known warning in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. I reject Ms Moore’s submission in that regard. Indeed, in my opinion, the respondent’s suggested interpretation of the second passage — as expanded upon in paragraph 28 of Ms Moore’s written submissions — itself requires a significant over-analysis of a passage which, on its surface, appears perfectly clear.
Paragraph 28 of Ms Moore’s written submission is as follows:
… the applicant’s submission is based on an interpretation of the Tribunal's finding that requires a selective emphasis on the words “absence of any mention of an event or attitude” without proper or equal reference to, or emphasis on, the words “that would support the applicant's claim that he was persecuted”. The respondent submits that a fair reading of the Tribunal’s passage is that it was not saying that there were no events or attitudes at all.. Rather, it was saying there was an absence of any mention of an event or attitude that would support the applicant's claims of persecution. It does not mean that there was no mention of anything at all. This can be seen when the passage relied upon is read with the surrounding findings. In the same paragraph, the Tribunal refers to the country information provided by the applicant in his submissions (although the Tribunal incorrectly refers to those submissions as the 1 May 1999 submissions instead of the 21 May 1999 submissions). That country information is at CB 60-71. That country information does refer to events or attitudes towards Jews (see, for example, reference to vandalism of a cemetery and publication of xenophobic newspaper articles at CB 60), but the Tribunal finds that they were forms of “resentment”, not persecution. That is, although mention is made of events or attitudes, those events or attitudes are absent anything that would support the applicant’s case. The same can be said of the passage in the country information at CB 80. Although there is mention of a report (although not proven) in March 2002, it was not an event or attitude that would support the applicant’s claims, as he made them, before the Tribunal.
To the extent that it is possible to understand paragraph 28 of the respondent’s written submissions, I disagree with the arguments set out therein. In my opinion, the inaccuracy of the second passage is apparent without “a selective emphasis” being placed on any part of it. Further, the reference to the May 1999 submissions is unhelpful. Finally, the assertion that “although there is mention of a report (although not proven) in March 2002, it was not an event or attitude that would support the applicant’s claims, as he made them, before the Tribunal” is untenable when regard is had to the RRT’s description of the applicant’s claim as “fear of persecution for reason of religion, being a Jew in Kyrghyzstan” appearing on page 81 of the Court Book — and effectively “sandwiched” (as it were) between the two passages discussed above.
Ms Moore argued that the second passage should be read in its proper context and that, if it is so read, then it becomes unexceptionable.
Ms Moore also submitted that the no evidence ground is “…in effect, a disagreement with the RRT’s process of reasoning on issues of fact and is an invitation to the Court to enter into the impermissible realms of merits review”.
Ms Moore argued that no basis for review exists (even if a privative clause did not exist) simply because the Court disagrees with the weight given by the RRT to the various factors relevant to its decision. Nor can the Court set aside a decision merely because it regards the RRT as having followed a process of logical reasoning with which the Court has discomfort. The RRT’s process of reasoning (leading to a finding of fact) is not reviewable simply because the Court may disagree with it — even if it considers that it was illogical or unreasonable to attribute weight to that factor.[1]
[1] See Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 180 ALR 402 per Gleeson CJ at [42]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per McHugh J at 587 [40], Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 35-36
Ms Moore also made reference to the following passage of the decision of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356[2]:
…At common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
[2] See also NAMM of 2002 v MIMIA (2003) FCAFC 32 at paragraph 46
In my opinion, the arguments referred to in the previous paragraphs of these Reasons are of little relevance to the application now before me. The applicants do not complain of “want of logic” in the second passage. They do not complain of inferences which may have been drawn. They do not urge the Court to give different weight to factors deemed relevant by the RRT. They say, quite simply, that the second passage is wrong and, to the extent that it may constitute a finding, there is no evidence for it. It is not illogical because it is not reasoned. It is simply wrong, and I agree with them.
It was also argued on behalf of the respondent, that, even if the finding contained within the second passage lacked evidence to support it, the finding was not “a critical step” in the RRT’s ultimate conclusion.
This argument is exemplified in the following extract from SFGB v MIMIA (2003) FCAFC 231, where the Full Court said[3]:
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was “Wednesbury” unreasonably or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error…
On the other hand, if there is sufficient evidence or other information before the Tribunal upon which is could reach the conclusion that it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a “jurisdictional fact”, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact…It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a “bright line”, but it is nevertheless an essential one…
[3] See paragraphs 19 and 20
The relevant conclusion reached by the RRT in relation to this issue was “…that the applicant does not face a real chance of persecution for the convention reason of religion, should he return to Kyrghyzstan”.[4] The question to be determined, therefore, is whether the finding contained in the second passage was a critical step in the RRT’s conclusion as just described. I have already found that there was no evidence to support the finding contained in the second passage.
[4] See Court Book page 81
The RRT’s findings and reasons as they relate to the applicant’s assertion that he fears persecution for reason of religion are as follows:
Religion
The Tribunal notes the country information above and remarks on the absence of any mention of either an event or an attitude that would support the applicant’s claim that he was and would be persecuted as a Jew in Kyrghyzstan. The country information submitted by the applicant with the 1 May 1999 submission only points to some resentment and there is no evidence of persecution against Jews in Kyrghyzstan. The Tribunal does not accept his claim that an inquiry by his mother would have produced the effect he claims; the claim that her mother’s search for her sister or relatives either in Russia or the Ukraine would firstly be of such import that the applicant’s place of work would be appraised of this fact and that, further the conclusion would be drawn that her children would be forced to change religion, is not only far fetched but is also illogical, given that the applicant has not claimed of being anything other than of Jewish religion. The Tribunal is unable to discern what the mooted conversion amounts to. In addition, the applicant has implied that he left the country in fear of this religious persecution but, according to him, his “Jewishness” was only relevant “a couple of months” before his departure for Australia when his mother made the enquiries; the applicant had already visited the Australian Consulate in Alma Ata, as he stated, on 2 February 1997, that is, before his mother’s inquiries.
The applicant has claimed that the enmity against him and in particular his being blamed for the ‘failure’ of the privatisation program was because of his Jewish faith. However, by his own account, the problems with the privatisation program, real or imagined, have been ascribed to a number of people who used to work with him as well as him. This is not an indication that he was individually targeted, let alone for his being a Jew.
The Tribunal finds that the applicant does not face a real chance of persecution for the Convention reason of religion, should be return to Kyrghyzstan.
It is immediately apparent that the second passage is the first sentence of the RRT’s findings and reasons dealing with this subject. The sentence which follows the second passage refers to earlier country information — which is clearly intended to be contrasted with the later country information referred to in the second passage. The remaining sentences of the RRT’s finding and reasons relating to this subject deal with specific factual issues raised by the applicant, and have not been specifically targeted by the grounds of review or the submissions of Mr Farouque (for the applicants). Nevertheless, it is impossible to accept that the ultimate conclusion was not affected or influenced by the second passage. The proposition that the ultimate conclusion was not so affected can be tested by considering how the RRT would have approached the issue if the finding made in the second passage had recognised and alluded to the event and attitude described in or to be logically inferred from the first passage. In order to reach the ultimate conclusion that it did in relation to this issue, the RRT would have had to qualify or explain the matters raised in the first passage. In my opinion, it could not properly have reached the ultimate conclusion that it did unless such an explanation was provided. It follows that the finding contained in the second passage is indeed a “critical step” that the RRT took along the path to its ultimate conclusion. It may still have reached that conclusion if this step had not been taken, but it would have had to have done so by a different route, and although much of that route is clear from the RRT’s findings and reasons in relation to this subject, some parts of it are obscured.
The RRT must base its decisions on evidence. It must act judicially, and it must act rationally and reasonably. A duty to act judicially (in accordance with the requirements of procedural fairness or natural justice) necessarily excludes the right to decide arbitrarily, irrationally or unreasonably. If a finding of fact upon which a decision is based is unsupported by probative material (and if inferences of fact on which such a decision is based cannot reasonably be drawn from such findings of fact) then the decision maker has failed in its duty to act judicially. A breach of such a duty constitutes an error of law which will vitiate the decision (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 and MIMIA v Rajamanikkam (2002) HCA 32 at paragraph 25).
In my opinion, the applicants must succeed on this ground. But in case I am wrong in this regard, I propose to deal with the other grounds raised by them as well.
The Country Information Ground
The hearing before the RRT was held on 16 May 2002. The RRT’s decision was made in March 2003. The 2002 Report[5] is dated
7 October 2002. It contains the first passage.
[5] See Court Book pages 76 to 80
During the hearing in May 2002, the RRT referred the applicants to an earlier US State Department International Religious Freedom Report. That report was dated October 2001 (“the 2001 Report”). The 2001 Report did not incorporate (and obviously could not have incorporated) reference to the incidence referred to in the first passage.
The RRT did not refer the applicants to the 2002 Report (and did not seek their response to it) in the period between October 2002 and March 2003.
The inclusion of the 2002 Report in the RRT’s decision, and the contents of the second passage, make it clear that the RRT purported to rely upon the 2002 Report. As the discussion in these Reasons relating to the first ground makes clear, however, the RRT overlooked, ignored or gave no weight to the contents of the first passage.
Mr Farouque argued that the RRT’s reliance upon the report in the circumstances described above was an obvious breach of the rules of procedural fairness (see Kioa v West (1985) 159 CLR 550 at 628-9 and WAEJ v MIMIA (2003) FCAFC 188 at paragraph 34). Paragraph 27 of Mr Farouque’s written submissions is as follows:
In the present matter, the RRT has offended the rules of natural justice as a result of its failure to refer the Applicants to (the 2002 Report) and the RRT’s mistaken contention that (the 2002 Report) did not mention an “event or attitude that would support the Applicant’s claim that he was and would persecuted as a Jew in Kyrghyzstan”. Consequently, the Applicants were denied an opportunity to respond to (the 2002 Report) and correct the RRT’s mistaken view that (the 2002 Report) did not contain an “event or attitude” supporting the Applicant’s claim that he was and would persecuted as a Jew in Kyrghyzstan.
In my opinion, Mr Farouque’s submission in this regard must be correct. It is impossible to know what view the RRT would have taken of the first passage if it had heard argument as to its meaning and effect. I have dealt with this matter when discussing the previous ground for review.
Ms Moore argued that the RRT was not obliged to bring the 2002 Report to the applicant’s attention. She submitted that procedural fairness does not require the RRT to disclose to the applicant all of the information upon which it relies in reaching its decision.
Ms Moore’s submissions in relation to this matter were as follows:
33.In the alternative, the respondent submits that procedural fairness, or natural justice, does not require the Tribunal to have brought the material to the applicant’s attention.. Procedural fairness does not require the Tribunal to disclose to the applicant all of the information upon which it relied in reaching its decision. The High Court first examined the operation of the rules of procedural fairness in relation to a failure to disclose country information in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57. A majority of the Court (Gaudron, McHugh and Kirby, Gleeson CJ and Hayne J dissenting) held that failure to disclose, and invite an applicant to comment upon, country information could in some circumstances constitute a breach of the rules of procedural fairness.
34.Miah did not hold that applicants have a right to respond to all of the country information upon which the Tribunal relies. It is much more limited. It is, in fact, no more than an application of the well established rule of procedural fairness that a decision-maker must bring to an applicant's-attention the crucial factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it (e.g Kioa v West (1985) 159 CLR 550 at 587). If information that is contained in general country information is so significant that it is “the critical factor” on which the decision is likely to turn, it must be disclosed. Thus, McHugh J said, in Miah, that:
“In some cases, exercises of the power, although conditioned by the rules of natural justice, wi1l not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application." [emphasis added]
35.Justice Kirby in Miah held that a number of factors in combination meant that procedural fairness could require the disclosure of country information to an applicant. The third of those factors was that the information in question "was judged of crucial importance, even determinative, for the outcome of the application". His Honour went on to state (at 118) that:
“To conclude in this way does not imply that every delegate receiving any update of political information, would be obliged before deciding a refugee application, to call such information to the notice of the person affected for comment. That requirement would add unacceptable inflexibilities to the efficient performance by delegates of their functions under the Act.”
36.Justice Kirby had also put emphasis on the requirement to put "adverse" information to the applicant. Therefore, it is submitted that it could be said that the country information was favourable to the applicant and did not need to be put to the applicant. The applicant does not say that the material was adverse to him. Rather, he says that he missed the opportunity to "correct" a "mistaken view" taken by the Tribunal. It must be remembered that to satisfy the rules of natural justice or procedural fairness the Tribunal is not required to express its thought processes to the applical1t. Nor is the Tribunal required to make an applicant's case or prompt an applicant as to the material that he should rely on to the applicant in order for the applicant to analyse and criticise it.
37.Some of the principles arising out of Miah (and addressed above) were considered by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. A majority concluded that the Tribunal's failure to disclose adverse country information that had been relied upon by the Tribunal constituted a breach of the rules of procedural fairness. There was a different majority that found a breach of procedural fairness had occurred in relation to favourable "Part B" documents.
38.The various members of the majority in relation to adverse material emphasised the information needing to be, variously, of “crucial importance” to, “determinative” of or “decisive” to the outcome. Quite apart from any consideration of whether or not the material is favourable or adverse, it is submitted by the applicant that the country information relied upon by the Tribunal was not decisive or of crucial importance to the Tribunal's decision. That is because the decision was based principally upon the Tribunal not accepting the applicant's claims as put by him in evidence.
In my opinion, there is nothing in either or Miah or Muin that would support the respondent’s submission in the context of this case. As McHugh J said in Miah, “The rules of natural justice are flexible and adaptable to the particular circumstances of each case”.[6] The artificiality of the distinction between “adverse” and “non-adverse” country information is apparent in the particular circumstances of this case. On the surface, the first passage could be regarded as “non-adverse” country information from the applicant’s point of view. To that extent, it might be argued (although I express no concluded view in this regard) that the RRT was not obliged to alert the applicant to it. By not doing so, however, the door was opened (as it were) for the type of error, oversight or misinterpretation of the first passage as appears to have occurred and is evidenced by the second passage. The issue could have been resolved promptly and fairly to all relevant parties if the 2002 Report had simply been disclosed to the applicants.
[6] See Miah at paragraph 143
In any event, the Full Court has held that Ms Moore’s proposition to the effect that the rules of procedural fairness do not require the RRT to provide country information which is not personal to the applicant is incorrect. In NARV v MIMIA (2003) FCAFC 262 (at paragraph 15), the Full Court said:
…It has never been the law that the requirements of procedural fairness are only enlivened in the case of adverse information which is about (in the sense of being concerned solely with) the person who may be affected by the decision.
Their Honours held that, ordinarily, an opportunity should be given to an applicant to deal with adverse information that is “credible, relevant and significant to the decision being made”.[7] The obligation of a decision maker to disclose adverse information which is personal to the applicant is only one example of a broader duty to disclose adverse information which is “significant to the making of the decision”.[8]
[7] See Kioa v West (1985) 159 CLR 550 at 629
[8] See NARV v MIMIA (2003) FCAFC 262 at paragraph 15
Ms Moore also submitted that, in any event, the applicant has failed to advance any evidence to the effect that, had the 2002 Report been drawn to his attention, he would have presented further material or amended his case in some way. Reliance was placed upon decisions that suggest that, in the absence of any affidavit material from the applicant, it is impossible to know whether prior notice of the country information would have made any difference to his case.[9]
[9] See, for example, Re MIMIA; ex parte “A” (2001) HCA 77, Applicant M115/2003 v MIMIA (2003) FCA 1448 and SBBS v MIMIA (2002) FCAFC 361
It was contended on behalf of the respondent that, the absence of the type of evidence referred to in the previous paragraph, the applicant’s complaint must fail.
In dealing with a similar contention, the Full Court in NARV v MIMIA (2003) FCAFC 262[10] said:
It is not clear whether the Minister meant by this submission that in every case where the complaint is that there has been a denial of procedural fairness it is incumbent on the complainant to lead evidence to explain in precisely what way he has been adversely affected by a particular omission. If this is what the Minister means it should be rejected outright. There is no principle which is to this effect. Indeed, it is a submission which is contrary to well established principle. In Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82, McHugh said (at page 122) that:
“Once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because it is no easy task for a court…to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”.
[10] At paragraph 17
The Full Court continued:
On the other hand, there no doubt will be cases where it is not clear, what, if anything, a complainant could have done with the information which had not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, such a case a court is unable to see how the complainant has suffered “practical injustice”, then the complainant may be required to adduce evidence to explain why he has been unfairly treated.[11]
[11] See NARV v MIMIA (2003) FCAFC 262 at paragraph 18
The problem in the present case, of course, is that the applicant did not know of the first passage (which could conceivably have assisted his case, or prompted him to make further investigations which, in turn, may have improved his chances of success before the RRT). It is not in dispute that the applicant had seen an earlier report from the State Department which was almost in identical terms to the 2002 Report. But the fact of the matter is that the 2001 Report did not contain the first passage. Because the first passage was not brought to the applicant’s attention, he could not make submissions to the RRT regarding its significance. It is likely that, because such submissions were not made, the RRT made the comment that it did in the second passage. And because it made the comment that it did in the second passage, the consequences referred to in the discussion in these Reasons relating to the first ground followed.
In Re: Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82, Gleeson CJ concluded that the RRT, having inadvertently misled the applicant as to the nature of the material before it, deprived him of an opportunity to answer, by evidence and argument, adverse inferences that might be drawn. Had he been given an opportunity to correct the misunderstanding, “a different view might have been taken as to his credibility” [emphasis added].
In Stead v SGIC (1986) 161 CLR 141, the High Court observed that “it is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact”.
In Ranginui v MIMIA (2003) FCA 1280, Weinberg J said:
41 The principles that govern the resolution of this appeal are not in doubt. Once it is clear that there was a breach of natural justice, the applicant is entitled to have the decision under review set aside unless the Court is confident that the breach did not affect the making of the decision.
42 In Aala, the various members of the High Court who addressed this issue all made it clear that the threshold for refusing relief in such a case is a substantial one.
43 Gleeson CJ approached the matter on the basis that the RRT, having inadvertently misled the applicant as to the material before it, deprived him of an opportunity to answer, by evidence and argument, adverse inferences that might be drawn. Had he been given an opportunity to correct the misunderstanding, "a different view might have been taken as to his credibility". His Honour concluded that, in accordance with the principles enunciated in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, no one could be "sure" that the RRT's ultimate conclusion would have been the same.
44 Gaudron and Gummow JJ at 116-117 referred to a different passage in Stead, at 147, saying that it was sufficient that "the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome".
45McHugh J at 122 accepted that not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach, or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Importantly, as the Federal Magistrate noted, his Honour said:
"Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because `[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'." (footnote omitted)
46 Kirby J at 130-131 also referred to Stead. His Honour drew from that case the following statement of principle:
"Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness `could have made no difference' to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity. It will be `no easy task' to convince a court to adopt it." (footnotes omitted)
47 His Honour said that the reason for the stringent principle of the common law was plain. Departure from the requirements of a fair hearing involves a derogation from the assumptions inherent in the grant to the Tribunal by the Parliament of the decision-making power. Those who enjoy such power must conform to the conditions of the grant. If they do not, they have not exercised the power in accordance with law but instead in accordance with some "personal predilection".
In Dagli v MIMIA (2003) FCAFC 298, the Full Court said (at paragraph 95):
In our view, the submission advanced on behalf of the respondent is misconceived. The principles enunciated in cases such as Stead and Aala are well established. Those principles are not to be taken as having been overruled by a side wind, still less by a judgment of the Court that was given in a particular, and quite specific context. It is one thing to say that an applicant who claims to have been denied a "legitimate expectation", or asserts that the Tribunal misled him, must prove that he suffered "practical injustice". In such cases, the applicant is required to demonstrate that what occurred actually affected the outcome. It is altogether another thing to suggest that an applicant, whose case has been considered by a Tribunal that has before it material of an adverse kind, without informing the applicant of that fact, is not entitled to relief unless he can show that there was something useful that he could have said to rebut that material. That is simply not our understanding of the law.
As a corollary to the preceding argument, Ms Moore submitted that section 424A of the Migration Act (which compels the RRT to provide the applicant with certain information) had not been breached. Section 424A is as follows:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.
Ms Moore argued that country information clearly falls within the exemption provided for in section 424A(3)(a), and referred to a number of cases supporting that proposition[12].
[12] See paragraph 42 of the Respondents Contentions of Fact and Law
Ms Moore also argued, relying on WAAJ v MIMIA (2002) FCAFC 409 that section 424A is an exhaustive statement of the RRT’s obligation to bring information to the attention of a visa applicant — overriding any wider common law obligations. In NARV v MIMIA (2003) FCAFC 262, however, the Full Court recognised that the statement from WAAJ relied upon by Ms Moore is obiter.
The Full Court in NARV contrasted the passage relied upon by Ms Moore from WAAJ with a passage from the Judgment of McHugh J in MIMIA; ex parte Miah (2001) 206 CLR 57 (at page 96) which, when applied to section 424A, clearly infers that the section will only add to the RRT’s common law duty (and not replace it).
After referring (in some detail) to the decision of the Full Court in VHAJ v MIMIA (2003) FCAFC 186, their Honours said:
Section 424A(3)(a) has two limbs, both of which must be satisfied in order for the information to fall within the exemption. Those limbs are: (i) information "that is not specifically about the applicant or another person and" (ii) information that "is just about a class of persons of which the applicant or other person is a member" (emphasis added). According to the views of the majority in VHAJ it is mistaken to regard all information before the Tribunal as falling into one or other of two mutually exclusive categories of information "specifically about the applicant or another person" or, information "just about a class of persons of which the applicant or other person is a member". The words "just about" have been included as words of limitation. Information which is "just about a class of persons" is information possessing only one characteristic, in the sense of being information solely about that "class of persons" and not going to another issue before the Tribunal. The Tribunal, for example, frequently has regard to reports produced by the Commonwealth Department of Foreign Affairs and Trade or the United States State Department on the level of protection of civil liberties afforded to various ethnic groups in a particular country. Such information usually has the single character of information solely about a class of persons.
However, information may come before the Tribunal which, while perhaps relating to a class of persons, may also go to another issue which is relevant to the reasoning process of the Tribunal. It is conceivable that information will not necessarily fit into either of the two categories contemplated by s 424A(3)(a). If the information is not specifically about the applicant or another person and is also not "just about" a class of persons of which the applicant is a member, then if the information would be the reason, or part of the reason, for affirming the decision that is under review, it ought to be disclosed.
In VHAP/2002 v MIMIA (2004) FCAFC 82, a differently constituted Full Court rejected the argument that section 424A(3) describes two criteria that must be met — namely, that the information:
a)is not specifically about the applicant; and
b)is just about a class of persons.
Their Honours referred to, and doubted, the paragraphs from NARV referred to in paragraph 53 above. Their Honours said[13]:
In our opinion, that argument (ie that section 424A(3) prescribes two separate criteria) must be rejected. The reference to the class of persons in section 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.
[13] at paragraph 14
Notwithstanding the criticism of NARV in VHAP, I am of the view that the decision of the majority (Ryan and Finklestein JJ) in NARV is persuasive. Still, their Honours did not consider it necessary to determine the correctness of the obiter opinion contained within WAAJ and referred to above. Their Honours dealt with the appeal before them on the basis that the RRT breached its obligations under section 424A.
In my opinion, it is not necessary for me to consider WAAJ in any detail.
Section 424A(1)(a) requires the RRT to give to the applicant particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review. Section 424A(3)(a) states that that obligation does not apply if the information “is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.
In my opinion, whether one accepts the dual criteria approach to the meaning of section 424A(3)(a) preferred by the majority in NARV or the unitary approach preferred by the Full Court in VHAP, the reality is that the first passage clearly falls within the provision. It is not specifically about the applicant and it is “just about” a class of persons (namely, Jews).
If section 424A(3)(a) applies, then section 424A(1)(a) does not require the RRT to provide the applicant with information that it considers would be the reason or a part of the reason, for affirming the decision that is under review. The fact of the matter is, however, that whilst the RRT may have considered that the 2002 Report (in its totality) should comprise part of the reason for affirming the decision that was under review, it could not possibly have considered that the first passage (of itself) would amount to the reason, or part of the reason, for affirming the decision. As I have already observed, the only reasonable inference to be drawn from the second passage is that the RRT overlooked, ignored or gave no weight to the contents of the first passage.
It follows that, in my opinion, the information contained in the first passage would not have been covered by section 424A(1)(a) in any event — as it is, arguably, material that is supportive of the applicant’s case. As the application of section 424A(3)(a) to the facts of this case necessarily means that section 424A does not apply, and as section 424A(1)(a) would not have obliged the RRT to provide the applicant with particulars of the first passage in any event, it seems to me that no reason exists not to apply the ordinary rules of procedural fairness.
In WAEJ v MIMIA (2003) FCAFC 188, the Full Court found that section 424A did not represent a complete statement of the RRT’s obligation to afford procedural fairness to an applicant for a protection visa. It also had to deal with an argument to the effect that WAAJ mandated a contrary conclusion to the effect of section 424A. In relation to this matter, their Honours said:
The argument addressed in WAAJ was limited to whether failure to comply with the requirements of section 424A provided a ground for review under the Migration Act. There is no express statement in section 424A that common law rights are revoked by the section and operation of the section does not depend upon an implication to that effect.
Furthermore, when the High Court determined in Re: MIMIA; ex parte Miah (2001) 206 CLR 57 that the Migration Act was not to be read as an exhaustive code that excluded obligations of procedural fairness it was considering decision making provisions of the Act to which section 57 of the Act applied, a provision in equivalent terms to those set out in section 424A.
It follows that a breach of the rules of natural justice occurred in the manner in which the RRT conducted its proceeding…[14]
[14] See paragraphs 36 to 40
In my opinion, section 424A does not assist the respondent, and the jurisdictional error which has been made out (being the denial of procedural fairness) is not protected (as it were) by section 424A.
Section 91R
In determining whether the applicant faced a real chance of persecution, the RRT applied the Convention definition of persecution — as qualified by section 91R of the Migration Act[15].
[15] See Court Book page 74
Section 91R of the Migration Act is as follows:
(1)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.
(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:
(c)a threat to the person's life or liberty;
(d)significant physical harassment of the person;
(e)significant physical ill-treatment of the person;
(f)significant economic hardship that threatens the person's capacity to subsist;
(g)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(h)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Section 91R is contained within subdivision AL of the Migration Act. This subdivision was enacted by the Migration Legislation Amendment Act (No. 6) (2001) (“the Amending Act”). With the exception of section 91X, subdivision AL was brought into effect by Item 7 of Part 2 of Schedule 1 of the Amending Act. Part 2 of Schedule 2 of the Amending Act is headed “Application of Amendments”. Item 7 is in the following terms:
7Application of amendment—Subdivision AL of Division 3 of Part 2 of the Migration Act 1958
Subdivision AL of Division 3 of Part 2 of the Migration Act 1958 (other than section 91X) applies in relation to:
(a)an application for a protection visa made after the commencement of this item; and
(b)an application for a protection visa made before the commencement of this item, where the visa was neither granted, nor refused, before the commencement of this item; and
(c)an application for a protection visa made before the commencement of this item, where:
(i) a decision to refuse to grant the visa was made before that commencement; and
(ii) an application for review of that decision is or was made to the Refugee Review Tribunal or the Administrative Appeals Tribunal (whether before, at or after that commencement); and
(iii) the Refugee Review Tribunal or the Administrative Appeals Tribunal made a decision on that review after that commencement.
It is not in dispute that Item 7 of Schedule 1 of the Amending Act commenced in October 2001. The applicants applied for a protection visa in August 1998.
Nor was it in dispute that Item 7(a) and (b) do not operate to apply subdivision AL (including section 91R) to the applicants’ application for a protection visa.
Mr Farouque argued that Item 7(c) of Schedule 1 of the Amending Act similarly does not operate in such a manner as to apply subdivision AL (including section 91R) to the applicant’s application for a protection visa. He submitted that although the requirements of Item 7(c)(i) and (ii) are satisfied, the requirements of Item 7(c)(iii) are not.
Ms Moore conceded that the question of the applicability of subdivision AL (including section 91R) to the applicant’s application for a protection visa turns upon the proper interpretation of Item 7(c)(iii).
Mr Farouque argued that Item 7(c)(iii) cannot be satisfied because the paragraph requires that a decision be “made” after the commencement of Item 7 (in other words, after October 2001). He referred to the Concise Oxford Dictionary, and to the definition of “made” as the past and past participle of “make”.
Mr Farouque pointed out that neither the RRT nor the Administrative Appeals Tribunal had made a previous decision on the applicant’s application for review at the time of the decision of the RRT in March 2003. He argued that the decision referred to in Item 7(c)(iii) cannot be a decision made by the RRT in March 2003. Item 7(c)(iii) requires a pre existing decision. The very fact that the RRT makes a decision cannot — for that reason alone — cause Item 7(c)(iii) to be triggered (as it were). Mr Farouque argued that such an interpretation would be illogical, as it would mean that a decision made by the RRT would “enliven the application of different law for that very decision”.
Ms Moore argued that Mr Farouque’s submission was itself illogical, because it would mean that Item 7(c) would only apply to matters that had been remitted back to the RRT after judicial review. That is the only way that a “previous decision” can be made.
Ms Moore also argued that acceptance of Mr Farouque’s submission would result in an unacceptable “hiatus” effect in relation to the operation of Item 7 (and, therefore, in the application of section 91R). She described the “hiatus” as follows:
Section 91R would apply to a visa application made after
1 October 2001 (Item 7(a)). It would also apply to a visa application made before 1 October 2001, but for which there had been no decision to refuse or grant it before 1 October 2001 (Item 7(b)). Yet it would not apply to the only other possible variation of dates — namely, a visa application made before 1 October 2001 for which there had been a decision to refuse or grant it before 1 October 2001, an application for review made (before or after 1 October 2001) and an RRT decision after 1 October 2001.
It is not usual for legislation to apply retrospectively. If it is Parliament’s intention that legislation should have retrospective effect, then there can be no doubt that Parliament should say so clearly.
An examination of Item 7 reveals a variety of tenses and expressions. The word “made” appears in Item 7(a) and (b). It also appears in the preamble to Item 7(c). The expression “was made” appears in Item 7(c)(i), and the expression “is or was made” appears in Item 7(c)(ii). Item 7(c)(i) and (ii) are both in the passive form. In Item 7(a) and (b), and in the preamble to Item 7(c), the word “made” is adjectival.
Item 7(c)(iii), including the word “made”, is in active form. In my opinion, its meaning is clear. For the relevant subdivision (incorporating section 91R) to apply in relation to an application for a protection visa made prior to the commencement of item 7, the RRT must have already made a decision on any relevant review after the commencement date. Whether or not a perceived hiatus exists is not to the point. The variety of tenses and expressions used in item 7 reveals that the draftsman clearly intended that the various words used should be given their usual meaning. Why else would one form of words be used in one provision and not in another? Item 7(c)(iii) could have been drafted to read:
(a)A decision on that review is or was made by the Refugee Review Tribunal or the Administrative Appeals Tribunal after that commencement (see item 7(c)(ii)); or
(b)the Refugee Review Tribunal or the Administrative Appeals Tribunal makes a decision on that review after that commencement.
In each of the above examples, it could be argued that the RRT is obliged to give effect to the relevant subdivision (including 91R) at the time that it considers its decision. But that is not the case when regard is had to the manner in which item 7(c)(iii) has been drafted.
I agree with Mr Farouque’s submission that, in the present case, the decision referred to in item 7(c)(iii) cannot constitute a reference to the decision of the RRT on 4 March 2003.
If the draftsman had wanted to “cover the field” in item 7, then the provision could have been drafted as follows:
(the relevant subdivision) applies in relation to:
(a)an application for a protection visa made before, at or after the commencement at this time; and
(b)a decision of the Refugee Review Tribunal or the Administrative Appeals Tribunal, whether made or to be made before, at or after the commencement of this item.
It follows from the above that, in my opinion, the RRT did indeed ask itself the wrong question when it sought to apply the provisions of section 91R of the Migration Act in considering whether the applicant had a well founded fear of persecution. It also follows that its decision is affected by jurisdictional error, and is not protected by section 474 of the Act.
Conclusion
For all the above reasons, I am of the view that the applicants must succeed. I propose to grant relief in the form of a declaration and orders in the nature of cetiorari and mandamus.
There will also be an order that the respondent pay the applicants’ costs, which I assess in the sum of $4,250.00 pursuant to Rule 21.05(2)(a) of the Federal Magistrate Court Rules.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the Reasons for Judgment of Walters FM
Deputy Associate:
Date: 14 July 2004
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