VOAO v Minister for Immigration - [2004] FMCA 441

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FMCA 441
Decision Date: 20 July 2004

CaseChat Overview and Summary

VOAO brought proceedings against the Minister for Immigration seeking a review of a decision of the Refugee Review Tribunal (RRT) in relation to their application for a protection visa. The Federal Court was asked to determine the validity of the RRT’s decision and, if found invalid, to quash it and order a redetermination. The central issue before the Court was whether the RRT’s decision, made in March 2003, was subject to the provisions of section 91R of the Migration Act, which was brought into effect by the Migration Legislation Amendment Act (No. 6) (2001). This, in turn, hinged on the interpretation of Item 7(c)(iii) of Schedule 1 of the Amending Act.

The applicants contended that the RRT’s decision was not subject to section 91R, as the decision referred to in Item 7(c)(iii) required a pre-existing decision made before the commencement of Item 7. They argued that the RRT’s decision in March 2003 did not satisfy this requirement, as no prior decision had been made by the RRT at the time. The Minister, on the other hand, contended that the RRT’s decision did fall within the scope of Item 7(c)(iii), and thus section 91R applied. The Court found in favour of the applicants, holding that the RRT’s decision was not subject to section 91R. The Court determined that Item 7(c)(iii) required a decision that existed prior to the commencement of Item 7, and that the RRT’s decision in March 2003 did not meet this criterion.

In light of the above, the Court declared the decision of the RRT to be invalid and of no effect. It quashed the decision and issued a writ of mandamus requiring the RRT to redetermine the matter according to law. The Court also ordered the Minister to pay the applicants’ costs in the sum of $4,250.00.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 1958Subdivision 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”.