VWLL v Minister for Immigration
[2005] FMCA 978
•15 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWLL v MINISTER FOR IMMIGRATION | [2005] FMCA 978 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth), s.91R |
| Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62 Applicant S v Minister for Immigration [2001] FCA 1411 M66 of 2002 v Minister for Immigration [2004] FCAFC 112 Minister for Immigration vSGJB [2003] FCAFC 290 Minister for Immigration v SGLB [2004] HCA 32 Minister for Immigration v VSAF of 2003 [2005] FCAFC Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal & Ors [2002] HCA 30 NAST v Minister for Immigration [2002] FCA 1536 Perera v Minister for Immigration [1999] FCA 507 Re Minister for Immigration; Ex parte Lam [2003] HCA Singh v Minister for Immigration [2001] FCA 73 SZALV v Minister for Immigration [2004] FCA 1370 SZALW v Minister for Immigration [2004] FCA 1690 SZATG v Minister for Immigration [2004] FCA 1595 W306/01A v Minister for Immigration [2002] FCA 969 WABY v Refugee Review Tribunal [2005] FCA 209 |
| Applicant: | VWLL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1021 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 June 2005 |
| Date of Last Submission: | 7 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 15 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Geonow |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1021 of 2004
| VWLL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) made on 12 May 2004.
The applicant is a citizen of Egypt who arrived in Australia on
27 January 2001.
On 26 February 2004 he lodged an application for a protection visa which was refused on 17 March 2004 by a delegate of the Minister. The applicant then sought a review in the RRT, which application was refused on 12 May 2004.
In summary the nature of the applicant's claims are as described in the contentions of fact and law filed by the respondent:
12.The applicant claimed to have a well-founded fear of persecution for reasons of his religion, his political opinion and his membership of a particular social group, men who fear persecution as a consequence of their being alleged to have violated the honour of Egyptian, Muslim women and thereby to have impugned the honour of those women’s culturally conservative families. He claimed his fear was well-founded due first to the past intimidation, harassment and violence he claimed to have suffered from members of a Muslim fundamentalist group Jamah Islamah, both because of his won and his father’s beliefs. Secondly, because he feared that the family of his ex-girlfriend would seek violent retribution against him because of the loss of that family’s honour as the applicant had had sexual relations with her but not married her. Thirdly, because he was not a Christian convert and apostasy is not tolerated by the fundamentalists in Egypt.
As the matter was argued in some detail before me, it is appropriate that I set out the applicant's outline of the facts relied upon in support of his claim. In his outline of facts and contentions the applicant says as follows:
1.The Applicant is a 30-year-old student from Cairo born in Elminia, Egypt, April 14, 1974 and raised as a Sunni Muslim. He resided principally with his family in Kuwait before moving with his family to Elminia; Egypt in 1990 (CB 39).
2.In 1990, a group of men from Jamah Islamia (a fundamentalist Muslim group) approached the Applicant’s father demanding alms. The Applicant’s father was a high-profile currency trader whose name had been in the newspapers, and thus the Applicant maintains that he was identified in that way. The Applicant’s father refused (as he did not support Islamic fundamentalism) after which point the group began to harass and threaten him. They accused him of being an infidel and threw paint over his car as a warning. The Applicant then returned to Kuwait with his family after his father was invited to do so by the Kuwaiti Government. The harassment and threats from Jamah Islamia did not continue in Kuwait (CB 39-40).
3. In 1992, the Applicant returned to Elminia to commence tertiary study. The Applicant resided in a building owned by his mother which had been vandalised by the group of men from Jamah Islamia. Doors on the ground floor of the building had been broken which had to be replaced by the Applicant’s father (CB 40).
4. The Applicant enrolled in the Arab Academy for Science, Technology and Maritime Studies in Alexandria, Egypt. The Applicant studied computer engineering (5 year course) over 9 years (1992-2001), only managing to complete 3 years. The Applicant claims that Islamic extremists from Jamah Islamia placed pressure on his teachers to fail him during this time. In this time the Applicant was often accosted by Muslim fundamentalists. The group knew his name and the Applicant felt he was targeted because of his father’s refusal to support the group and because he was from his appearance and behaviour clearly not a devout Muslim. The group would often target him because of his appearance or behaviour. In one particular incident, the Applicant was slapped across the face by a fundamentalist because he had been drinking with his friends and had not attended early morning prayer (CB 40).
5. In 1994, while visiting his residence in Elminia, the Applicant met a young woman named Rasha. A long period of courtship began that lasted till early 2000. In 1998 when the Applicant met with Rasha after a long period of telephone contact she told him that her father was a very violent man. The Applicant saw that one of her eyes was askew and had been permanently damaged. Rasha said that her father had done it. The applicant had sex with Rasha and when she asked him to marry her, the Applicant refused. Rasha began to harass the Applicant with repeated phone-calls and threatened him that she would tell her father about her lost virginity if the Applicant did not many her. The Applicant attempted to avoid her by moving his studies from Alexandria to Cairo. After 5 months, the harassment was still continuing and Rasha continued to call his mobile phone A friend of the Applicant informed him that Rasha’s uncle had come to his house in Alexandria to enquire on the Applicant’s whereabouts. In fear of his safety, the Applicant returned to his family in Kuwait. The applicant received a threatening phone call from Rasha’s family in January 2001. Rasha’s father yelled at the applicant, said that he would not get away with what he had done and that he would find him. The Applicant subsequently applied for a student visa in Australia, thinking he would be safe in Australia (CB 40-42).
6. The Applicant arrived in Australia on 27 January 2001. In May 2001 the Applicant met 50- year-old Cheryl May, and they married in September 2001. It was an Islamic marriage. [Cheryl May applied for] interim intervention orders against the Applicant on a number of occasions without good reason. On the fourth occasion the Court refused to grant such an order. Cheryl would still maintain contact with and try to live with the applicant even when the orders were in force (CB 42). The Applicant and Cheryl continue to maintain contact.
7. In February 2003, the Applicant was visited by a Christian missionary at his home. The Applicant then engaged in a private study of the Bible and in private prayer, and attended Church services at the Brunswick Baptist Church and St Joseph’s Catholic Church in West Brunswick. He had been interested in Christianity since 1999, when he had found a Bible on his brother in law’s desk in Egypt. He had previously attended some church services with Cheryl May. The Applicant did not at this stage contact any church organisation or discuss the possibility of Christian conversion with any Church officer. In March 2003, the Applicant informed Cheryl that he was planning to convert to Christianity (CB 42-43).
8. The Applicant lodged an application for a protection (class XA) visa on 26 February 2004 (CB 6-31). The Delegate for the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the Applicant a protection visa on 17 March 2004 (CB 44-59). The Applicant applied for a review of the primary decision to the Refugee Review Tribunal (“the Tribunal”) on 17 March 2004 ( 61-64).
9 The Applicant was detained in early 2004. While in detention, the Applicant was visited regularly by a Minister of the Baptist Church and a Nun from the Catholic Church. While in detention, the Applicant spoke to his father and mother by telephone and confessed his Christianity. His family was angry and his father was enraged and made threats to the Applicant that he might kill him (CB 43).
10. The Refugee and Immigration Legal Service (“RILC”) faxed submissions and other material in May 2004 (CB 72-94) in support of the Tribunal review of the Applicant’s visa application. The Tribunal hearing took place on 5 May 2004. The Applicant gave oral evidence to the tribunal in this hearing. The Tribunal (as constituted by Member Dr Alan Moller) affirmed the primary decision not to grant the Applicant a protection visa on 12 May 2004 (CB 99-116). It is this decision which is the subject of the present application for review (CB 1-5). The applicant’s evidence concerning his fear of persecution and conversion to Christianity were not accepted by the Tribunal. Notwithstanding that he was a self represented litigant whose first language was not English, the applicant was not invited or given an opportunity to address the concerns about the veracity of his evidence, or to file further evidence in support of his claims.
The applicant relies on a number of contentions in support of his claim for judicial review:
a)a denial of a fair hearing;
b)a claim that he had an inadequate understanding of English;
c)a claim that the RRT had not properly exercised its inquisitorial powers;
d)a claim that the RRT had not taken account of his psychological profile;
e)a claim that he did have a well founded fear of persecution, in that he stood to suffer serious harm;
f)that appropriate consideration was not given to his conversion to Christianity; and
g)that he was part of a persecuted group with respect to his relationship with the Egyptian woman, Rasha.
Denial of fair hearing
The applicant presses his case on the basis that he ought to have been clearly informed of the nature of the RRT's concerns about the veracity of his evidence and the truthfulness of his claims to have converted to Christianity.
The RRT concluded with respect to his Christianity, as follows:
In light of the nature of the applicant’s claim of conversion to Christianity, its recentness, the lack of convincing evidence that the conversion is in any way genuine, combined with the applicant’s unusual marriage and its attendant difficulties as well as his delayed application for a protection visa, the Tribunal is unable to accept that the applicant’s claim on a conversion to Christianity has been advanced for any other purpose than for the applicant to provide for himself the profile of, and to enhance his claims to be, a refugee. The Tribunal is satisfied that section 91R(3) of the Act applies to the applicant and his conduct in Australia must be disregarded in determining whether he has a well founded fear for being persecuted for a Convention reason.
In support of this contention the applicant relied upon ApplicantNAFF of 2002 v Minister for Immigration [2004] HCA 62.
In that case the context of the conduct of the RRT hearing must be carefully considered. It is well set out in the judgment of Kirby J who said:
48. In the Federal Court, and in this Court, the only issue that remains alive is the appellant's complaint that the Tribunal failed to accord him procedural fairness. That complaint arises from statements made at the end of the hearing in the Tribunal in which it was agreed that the Tribunal member said:
"TRIBUNAL: Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those (interpreted).
TRIBUNAL: So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal."
49.The Tribunal did not write to the appellant. Nor did it otherwise contact him or his agent about the "inconsistencies" referred to, or anything else. Without having done so, it delivered a comprehensive decision adverse to the appellant's claim to refugee status. The appellant's complaint that this procedure was fundamentally unfair and a breach of the requirements of procedural fairness applicable to the Tribunal's hearing was rejected by the Federal Court. By special leave, the appellant now appeals to this Court.
…..
56.On the face of things, in the light of the statement made to the appellant by the Tribunal, and the failure to fulfil the intended action foreshadowed there, the course of the proceedings involving the appellant was unfair. At the end of the proceedings, the appellant had pronounced himself confused over questions addressed to him by the Tribunal member concerning dates and events affecting the foundation of his claim for a protection visa. Certain difficulties had arisen from the use by the Tribunal of a Tamil-speaking national of Sri Lanka as the interpreter. It seems that the Tamil language in Sri Lanka may contain some differences from that spoken in the part of India from which the appellant derived. The appellant's agent expressed concern over this.
The High Court concluded that there had been a breach of procedural fairness as it appeared that the RRT member herself had formed the view that the procedure was not sufficient or fair, which is the reason that she took the steps that she did. Such an argument is not open here as there is nothing in the RRT member's reasoning to indicate that he considered that the process adopted was unfair (from a procedural perspective or any other perspective).
The applicant also relied upon Re Minister for Immigration; Ex parte Lam [2003] HCA 6 where the High Court said:
81. In his dissenting judgment in Teoh, McHugh J questioned whether, given the development in Australian case law of the requirements of procedural fairness, the doctrine of legitimate expectations was left with any distinct role. His Honour said:
"I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it'. If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?"
82.Earlier, in Quin, Brennan J had said:
"So long as the notion of legitimate expectation is seen merely as indicating 'the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded' to accord procedural fairness to an applicant for the exercise of an administrative power, the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power."
83.These statements by McHugh J and Brennan J should be accepted as representing the law in Australia. The decision in Teoh does not require any contrary or other understanding of the law.
In this respect Lam's case is authority for the proposition that significant issues or factors should be identified for there to be a fair hearing, however it does not appear to me to support a claim for judicial review in this case in that the applicant was well aware of the proceedings that were pending and of the issues that were significant. This flows from a number of sources, for example:
a) at page 27 of the transcript the member stated to the applicant:
I’m going to be very frank with you and say that one of the things that I have to consider in your application is whether you’ve taken up Christianity just to improve your chances of being given a protection visa.
b) at page 28 of the transcript the member stated to the applicant:
You’ve decided very late in your life to become a Christian. You’ve had ample opportunity before this time.
c) at page 29 of the transcript the member stated to the applicant:
So how long do you think you’ve been a Christian? For how long have you been converted to Christianity?
d)Submissions made by the applicant's adviser before the hearing (a solicitor from the state of Victoria) that:
Unfortunately, we were not able to arrange support letters concerning VWLL's Christian conversion until today. We hope this does not inconvenience the presiding member.
e)The forwarding of two letters of support from witnesses with respect to the religious conversion.
f)The solicitor adviser stating during the hearing (transcript 38):
Since he’s been in detention, I have in fact encouraged him to meet with people from various churches and to try and sort out where he is heading with his Christian faith and whether it is a true belief or whether it is more a liking for Christianity, and I think he’s made it very clear today and to me over a long time that it is far more than just an interest and it has been for quite some time.
g)A comment made by the applicant's adviser during the hearing at page 41 of the transcript states:
I was wondering, member, if the issue of – I think one of the key issues here is obviously going to be [the applicant’s] Christian conversion. I’m wondering if there is anything you could envisage that we might be able to prepare – statements from people who have known him in detention or anything of this nature. Would that be helpful in forming an opinion as to the genuineness?
To this the RRT member responded:
I wouldn't have a problem with you doing that.
The member then went on to state:
Ms Donovan has just been raising the point of whether I’d like to or I am prepared to receive some information from people who do know you who might be prepared to write about – one of the issues is I think – has rightly been raised is, you know, whether or not I’m prepared to accept that your conversion to Christianity is something that is genuine or whether it’s something that has been manufactured in order to try and get you to stay in Australia. So I don't object to anything that you want to provide.
The applicant also sought to rely upon W306/01A v Minister for Immigration [2002] FCA 969. This case, however, turned upon the refusal by a RRT member to hear a witness. In the present case there can be no suggestion that the RRT member sought to restrict the material that the applicant was able to put before the RRT, as is evidenced by the above quotes from the transcript.
The applicant also sought to rely upon Minister for Immigration vSGJB [2003] FCAFC 290. The Full Court of the Federal Court said:
18.…
[94] Here, the question is whether each of those sections constitutes a code which thereby excluded any obligation of the RRT to notify the applicant that it proposed to reject Mr Chohaili's evidence after first having given the applicant the opposite impression. In my opinion, these sections do not, in clear terms, deal with the residual common law obligations of procedural fairness which must be assumed to apply; see the discussion of s 424A.
by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2002) 185 ALR 489.
[95] I do not consider that the RRT's impressions about the credibility of a witness's evidence is "information" which falls within s 424A; see NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at [8] per Branson J.
[96] Moreover, I do not consider that s 426(3) had any bearing upon the RRT's obligations in the circumstances which arose in this case. This is because the question was not whether the RRT should have had regard to the applicant's wishes. The RRT had in effect called Mr Chohaili in his written testimony. The question which arose was whether, in the light of what the RRT had said to the applicant about the favourable nature of Mr Chohaili's evidence, it came under an obligation to notify the applicant that it proposed to reject Mr Chohaili's evidence in order to achieve procedural fairness.
[97] Accordingly, it seems to me that the common law rules of procedural fairness applied to the circumstances of this case. The RRT could not make a finding adverse to the applicant's interests, that is by rejecting Mr Chohaili's evidence, without first giving the applicant an opportunity to make submissions against that finding.
[98] In my view, the applicant had a "legitimate expectation" that the evidence would be accepted. This did not compel the RRT to accept the evidence but it did require the RRT to give him notice and an adequate opportunity to put a case against the rejection of Mr Chohaili's evidence; see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648; Kioa v West (1985) 159 CLR 550.
[99] It is true that there was no evidence before me as to what Mr Chohaili might have said if he was called to the witness box. As a general rule, a denial of procedural fairness will not of itself result in jurisdictional error unless it can be seen that compliance with the rules of natural justice could have made a difference to the outcome; see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82.
However, this case must be seen in the context of an indication earlier in the hearing that the RRT member would accept the statement of a witness, with the result that the applicant in that case did not proceed to call the witness to give oral evidence. The RRT member then rejected that witnesses evidence. Such conduct has not occurred in this case.
The applicant also sought to rely upon Singh v Minister for Immigration [2001] FCA 73, however this was again a case where the RRT refused to accept any further material.
In response, the Minister referred to a number of cases with respect to the obligations of the RRT to make inquiries in this situation:
a) In Minister for Immigration v SGLB [2004] HCA 32 the High Court said:
42.The second ground of alleged error amounts to a finding by Selway J that the Tribunal was under a duty to inquire as to the effects of PTSD. This is apparent from his Honour's judgment:
"But, having found that the [respondent] was suffering from PTSD there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence." (emphasis added)
43.This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
b) In Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 the Full Court of the Federal Court said:
20. The primary judge, having set out the passage quoted at [3], expressed the view that the respondent’s claim to have a well-founded fear of persecution "had some substance" or at least could not be rejected out of hand on the basis that the claims had no possibility of success. Later his Honour said that if the Tribunal was not prepared to make findings in respect of the claims on the evidence it had before it, "the remedy lay, at least to some extent, in its own hands". It is not clear whether by this his Honour meant that the Tribunal should have attempted to arrange a new hearing at which it could have pursued the respondent as to the matters it said it would like to have explored with him (see [5]). If that is what he meant, the Tribunal was under no such obligation, as we have explained at [11] to [13]. If his Honour meant that the Tribunal should have sought information from other sources available to it under s 424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
21. The respondent submitted that having identified matters it would have liked to explore, it was open to the Tribunal under s 424 of the Act to obtain information it considered relevant in performance of its duty to review. That is true. But as indicated at [20], it was under no obligation to do so.
c) In WABY v Refugee Review Tribunal [2005] FCA 209 French J said:
67. In respect of other findings against the applicant’s credibility it was said that the Tribunal did not put to the applicant the gravamen of its concerns. This was said to have been the case in relation to the following matters:
‘5.1 the applicant’s work history was presented in a confused and confusing fashion over periods which conflicted with other evidence before the Tribunal which the applicant had supplied earlier to the Department;
...
5.7 the applicant’s evidence of his running an audio vision electrical shop in partnership with his brother was not impressive;
...
5.12 the applicant’s evidence was unsatisfactory in seeking to explain how and when he became interested in politics and developed an interest in and support for the MKO;
5.13 the applicant’s evidence was weak and he was evasive in his explanations in giving evidence of the serious inconsistencies between his protection visa application claim and his later evidence to the Department and to the Tribunal as to when he copied and sold MKO and other opposition speeches and movies.’68.It was submitted for the applicant that in order to accord him procedural fairness the Tribunal was obliged to give him an opportunity to be heard on each of the matters referred to in the written submissions and set out above.
69.In my opinion, the Tribunal was not required to pre-test its conclusions on any of these matters with the applicant before finalising its reasons. Each were conclusions about and characterisations of the evidence put to the Tribunal by the applicant. They were conclusions and characterisations which the Tribunal was entitled to reach. The Tribunal questioned the applicant in a somewhat sceptical fashion on a number of matters in the course of the hearing. It gave the applicant the opportunity to make further written submissions to further bolster his case after the conclusion of the hearing. Even had it not done so, there would have been no failure of procedural fairness in this case. It is open to the Tribunal to reject or not be persuaded by an applicant’s evidence without specifically putting to the applicant that the evidence has not convinced or persuaded it. This is true of all the matters in respect of which complaint is now made.
d) In SZATG v Minister for Immigration [2004) FCA 1595 Hely J said:
30. Neither the principles of natural justice, nor the provisions of s 424A, require the disclosure of the RRT’s subjective thought processes or evaluative conclusions so as to give an applicant the opportunity of persuading the RRT to change its mind: Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100 at 101 (Keely J), 108 (Gummow J); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 117-118 (Kirby J); Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at 1918 [54]; VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24].
e) In Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal & Ors [2002] HCA 30 the High Court said:
265.Procedural fairness required that Mr Muin have a reasonable opportunity to place before the Tribunal any submission and any material that he wished to advance in support of his claim. Unlike National Companies and Securities Commission v News Corporation Ltd and Mahon v Air New Zealand there was no question of allowing a person an opportunity to meet some adverse finding that might later be published. In such a case an investigating body may be obliged to provide an opportunity for rebuttal because the issue emerges with sufficient definition only at the stage where the body forms a tentative view that the adverse finding may be made. But that is not this case. As has already been pointed out, the issue of the willingness and ability of his country of citizenship to afford Mr Muin protection from persecution on Convention grounds was central to his claim. The Tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the Tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the Tribunal's proceedings.
266.Nor was the Tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of "contradiction" if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin’s claim. It was for him to make good his claim that he was entitled to Australia's protection.
267.Nor was this some aspect of his personal circumstances about which it might be expected that he had special knowledge or to which his answer might have some particular significance. It was a question about the general political situation in Indonesia - a matter about which his personal knowledge could fairly be expected to have been fully revealed (or at least revealed to the extent that he considered useful) in whatever evidence or submissions he had made to the Tribunal.
268.Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the Tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the Tribunal to tell him what material, adverse to his claim, the Tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the Tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the Tribunal is not to be cast in the role of contradictor.
In this case I am not satisfied that the applicant did not have a fair hearing. There was no obligation upon the member to advise the applicant at the hearing that he had formed a view to reject the applicant's evidence as to the genuineness of his conversion to Christianity (if indeed the RRT member had in fact formed that view at the RRT hearing). Similarly, there is no obligation in this case on the RRT member to advise the applicant of his views in this regard prior to giving a decision so as to enable the applicant to have a chance to place further material before the RRT. This result flows in this particular case as genuineness of the applicant's conversion to Christianity was always a central issue, which was addressed in written material, the subject of express questioning, and the subject of a discussion between the applicant's adviser (a solicitor and migration agent) and the RRT member at the hearing. It was also the subject of further material forwarded by the applicant to the RRT after the hearing.
Understanding of English
The next issue raised by the applicant was that he had an inadequate understanding of English.
A review of the transcript shows that the applicant had a good grasp of English, at times inquiring about the meaning of more unusual words but generally being responsive. The applicant relied upon the following passages from the transcript:
(a)DR MOLLER: We don’t have an interpreter. So I don’t have to worry about that. For some reason if you don’t understand any of my questions, can you just make sure that you, you know, ask for clarification.
APPLICANT: Yes.
DR MOLLER: I don’t want to miss anything.
APPLICANT: Okay.
(b)DR MOLLER: Who did you speak to on the phone when you spoke to your parents?
APPLICANT: How did I speak?
(c)APPLICANT: What was devoutly?
(d) DR MOLLER: So very little of their time was spent in Egypt.
APPLICANT: I beg you?
(e)APPLICANT: In the first stage for example when I went for intervention order, before I got the (indistinct) she tried to get intervention order in the first stage, and the court find not enough reason to giver her order against me. Like for example, first order was for one day, and she cancelled them (indistinct) just because I was a bit tense, and she went straightaway to get order, and that was during contact by phone. So I haven’t touch her, I haven’t done nothing that – you know, that deserve order.
(f)APPLICANT: The main problem. My wife was worried and she managed to be in very bad depression before her relation with me, and she was hospital for a while over reason that her friend left her. She always think that I might be going to do the same on her, and she said to me that she don’t want to be in such situation again, and face such circumstances because of that. Our relation was very stressful, and at that stage as well – I mean, in one night that we went outside for drink, after drinking from 5.00 to 9.00 in the house, and then from 9.00 to 11.00 in the pub, she was still wanting to go to another pub, and I couldn’t go. I’m tired. I’ve been drinking from 9.00 till 11.00. I can’t continue drinking, and I was also (indistinct) but she can.
(g)APPLICANT: Maybe I (indistinct) about it. They cancel my student visa. I went, after lodging my application for protection visa, on a bridging visa for nine days. When I come to the immigration on the date they asked me to attend, they asked for (indistinct) for the bridging visa again to issue another bridging visa, and I don’t have money. I don’t have anyone supporting me for my family. I haven’t saved anything during my life here or during my life overseas. That’s why I’m here. I’m waiting for decision in my protection application. I can’t go back to my country. They though in the past that because of my problem with the (indistinct) but I think it’s over. It’s not that. It’s that I can (indistinct).
(g)APPLICANT: First semester I had problem with the accent of my teacher as he spoke. I think I should have take English course before I did that to get used to the system and to get used to the accent and different accent at that stage. I can understand you all right, but the person I think who was before you, I wouldn’t understand him perfectly. I pick some words from here and there.
It must also be borne in mind that the hearing took place in the presence of a solicitor and migration agent on behalf of the applicant and no objection was raised at any stage with respect to the applicant's understanding of English. Importantly, prior to the hearing the hearing invitation sheet was completed by the applicant's adviser notifying the RRT that no interpreter would be required (see Court Book 69). I also note that the applicant sets out that he had studied at an institution in Australia for a significant period of time, which also tells against the proposition that he did not have an adequate understanding of English.
In the circumstances, I am not satisfied that any of the tests referred to by Kenny J in Perera v Minister for Immigration [1999] FCA 507 would indicate that there was a jurisdictional error as a result of a failure to provide a fair hearing to the applicant in this case.
I find this ground to be completely without merit.
Inquisitorial powers
The claim with respect to inquisitorial powers is a claim that the RRT ought to have proceeded to inquire into the issue concerning the applicant's conversion to Christianity. As discussed in a number of the cases above at paragraph [18], the RRT is under no obligation to make such inquiries. The RRT gave the applicant adequate opportunity to provide such material as the applicant saw fit.
The respondent adds to the authorities in this regard SZALV v Minister for Immigration [2004] FCA 1370 where the Court said:
12.In explanation, the appellant said that if he goes back to his country he will encounter many problems. He commented that other people from India had been accepted as refugees, that he was afraid to go back to India and that the Tribunal had not phoned India to try to find out more information about him. Much of this complaint relates to questions of fact. Factual findings are matters for the Tribunal and the findings of fact were available on the evidence. The Tribunal had no obligation other than to consider the claims made by the appellant, as presented. The Tribunal was not obliged to conduct its own investigation or to seek out evidence for itself from India (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (‘SGLB’).
….
25.The respondent submits that the appellant did not request the Tribunal to obtain evidence from a witness or seek further time to obtain evidence. In Re Ruddock; Ex parte S154 of 2002 (2003) 201 ALR 437 at [57] – [58] Gummow and Hayne JJ, with whom Gleeson CJ agreed, held that it was not for the Tribunal to cross-examine or press an applicant for additional evidence or further submissions. In SGLB at [1], [19], [43] and [124], Gleeson CJ and Gummow and Hayne JJ, with Callinan J reaching a similar conclusion, held that the provisions of the Migration Act do not impose upon the Tribunal a duty to inquire. I accept the respondent's submissions on this aspect. The Tribunal is under no obligation to make out the appellant's case. The appellant's claim that the appellant had such a duty is not supported by any principle of law. I can find no error on the part of the Tribunal in respect of this aspect.
Psychological profile
The next ground to be considered is whether or not the RRT had regard to the psychological profile of the applicant that was forwarded. The RRT member has referred to this on two occasions in the reasons for decision, at pages 8 and 16 of the decision. I see no error in this regard.
Whether persecution
The applicant argued that I ought to review the conclusions of the RRT as to whether or not the applicant was suffering persecution within the meaning of s 91R. The applicant's counsel sought to distinguish this from an argument with respect to merits review on the basis that the facts had been found by the RRT and that it was appropriate for me to determine whether or not in my view those facts amounted to persecution. This appears to me to misconceive the nature of judicial review as discussed by the High Court in the many cases on this topic. Significantly, in M66 of 2002 v Minister for Immigration [2004] FCAFC 112 the Court said:
13.An allied argument was that the Tribunal should have found that detention with "assault and ill treatment" must constitute persecution. We do not accept this argument. What does or does not constitute persecution is a question of fact, and in any event, as the primary judge pointed out, the ultimate question looks to the future and requires the decision-maker to consider whether the fear of persecution in the future upon return to Sri Lanka is well founded.
The matter was also the subject of comment by Allsop J in SZALW v Minister for Immigration [2004) FCA 1690 where his Honour said:
26. Whether or not a given body of facts falls within s 91R(1) is one of fact and degree. The conclusion by the Tribunal that it was not satisfied that the past events amounted to persecution was open on the material, certainly as to the question of seriousness of harm. The appellants had had stones thrown at them, people had refused to pay at their restaurant and behaved badly there, the appellants had suffered discrimination and unpleasant conduct from native Fijians. It is clear that the appellants felt a subjective fear of native Fijians. The events which had occurred in the past were not such as to warrant a view that the Tribunal must have misunderstood the meaning of the relevant statutory provisions (s 91R) to reach the view it did.
I find no merit in this ground.
Conversion to Christianity
With respect to the issues concerning the applicant's conversion to Christianity, I note that s 91R places an onus upon the applicant, in that the section provides:
91R(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.
This section was specifically considered in NAST v Minister for Immigration [2002] FCA 1536 where the Court said:
26. The effect of s 91R(3) is that an applicant has an onus of proof in relation to activities in Australia. The person must satisfy the Minister or the Tribunal, as the case may be, that the relevant conduct was engaged in "otherwise than for the purpose of strengthening the person's claim to be a refugee". The onus of proof is, no doubt, to the civil standard; but it is an onus borne by the applicant. It is a change from the usual position faced by the Tribunal, where the benefit of doubtful facts must be given to an applicant for refugee status.
27. In the present case, the applicant failed to satisfy the Tribunal about the genuineness of his conversion. I do not think that the Tribunal's rejection of his claim goes anything like the distance that would be required to make good a claim of actual bias. At the most, it can be said there was a questionable finding of fact. It is unfortunate if, as a result of a wrong finding of fact, the applicant's claim to refugee status has been incorrectly rejected. However, the Court has very limited power. In particular, the Court cannot review the Tribunal's findings of fact.
I find no error in the manner in which the RRT has approached this issue. The RRT’s findings were open on the evidence before it.
Whether a persecuted group
The final matter is whether or not the RRT erred in failing to conclude that the applicant had demonstrated that he was a member of a ‘social group’, namely men who face persecution or harm for having violated the honour of Egyptian Muslim women. The RRT concluded that this did not amount to a ‘social group’ within the meaning of the legislation.
Importantly, the RRT went on to make a finding (at page 16 of the decision):
Further, the applicant has made no claim that Rasha has been harmed because of their relationship; the Tribunal finds that any threats made by her family to harm the applicant in some way are threats only and without a real chance they would be carried out. The Tribunal finds that given that it is nearly four years since the applicant last saw Rasha, the chance of harm being done to the applicant is remote.
It appears that it is academic to determine whether or not such a group could constitute a social group in the context of this case as the finding of the RRT with respect to the possibility of harm results in the applicant not succeeding in any event.
Conclusion
In the circumstances, I find no error on the part of the RRT that would justify judicial review. I must therefore dismiss the current application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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