VWSU v Minister for Immigration and Anor (No.2)
[2006] FMCA 858
•4 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWSU v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 858 |
| MIGRATION – Application for review of RRT decision – reconstituted Tribunal – hearing by original Tribunal only – decision of reconstituted Tribunal made without a further hearing after listening to the recording of the hearing – adverse credit findings made without observing the applicant give his evidence – procedural fairness – discretion to call applicant to give evidence – question of whether first Tribunal member drafted reasons which were used by the second member – no evidence of such – application of common law natural justice – application for review dismissed. |
| Migration Act 1958, ss.91, 420, 422, 424, 427 |
| VWSU v Minister for Immigration & Anor [2006] FMCA 212 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Liu v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541 SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Applicant VEAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 SZFIV & Anor v Minister for Immigration & Anor [2005] FMCA 1811 Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 6 |
| Applicant: | VWSU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG13 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 8 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Appudurai with Mr Phillips |
| Solicitors for the Applicant: | Stedman Cameron |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for review (as amended) filed on 14 December 2004 is dismissed.
The Applicant pay the first respondent’s costs fixed in the sum of $12,311.56.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG13 of 2005
| VWSU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 23 September 2004, which decision affirmed an earlier decision by the first respondent's delegate to refuse to grant the applicant a protection visa.
In an earlier interlocutory application by the first respondent to set aside a notice to produce served by the applicant, I was required to listen to the recording of the full hearing held at the Tribunal. The significance of me having listened to the recording is set out below.
For the reasons set out in my judgment (VWSU v Minister for Immigration & Anor [2006] FMCA 212) I set aside the notice to produce. There were observations made in that judgment that are pertinent to the issues in the substantive application before me.
A significant feature of this proceeding is the fact that the member of the Tribunal who conducted the hearing was not the member who made the decision. After the hearing, the Tribunal was reconstituted pursuant to s.422 of the Migration Act1958 (the Act). The reconstituted Tribunal decided not to conduct another hearing and relied solely upon the recording of the hearing before the originally constituted Tribunal.
It is fair to say that the applicant has essentially structured the grounds for review around this significant aspect.
The grounds for review argued before me on the substantive application can be summarised as follows:
a)The second Tribunal member did not fulfil an imperative duty under the Act to give due and independent consideration to the evidence because of one or more of the following factors:
i)the second member did not listen to the recording of the hearing; or
ii)could not have heard all of the recording as it was of poor quality;
iii)formed a prejudicial view of the applicant’s credit which could only be based upon his demeanour which could not have been observed by the second member;
iv)gave written reasons that were influenced by draft reasons prepared by the first member; and/or
v)simply adopted existing written reasons prepared by the first member, and only changed such necessary particulars to leave an impression the reasons were prepared by the second member.
b)The Tribunal failed to exercise its discretion pursuant to s.427(3)(a) of the Act to summon the applicant to appear before it to give evidence.
c)In consequence of the above, the Tribunal did not act in accordance with substantial justice and on the merits of the case in breach of s.420 of the Act.
d)The Tribunal’s decision is affected by error of law in that the Tribunal misconstrued and misapplied s.91R of the Act in finding that the threats made to the applicant in the context of the operation of his business did not constitute persecution within the meaning of the Convention.
e)The decision was so unreasonable that no reasonable decision–maker could have made it. Under this head the applicant highlights two findings by the Tribunal which he maintains are mutually exclusive and central to the making of the decision. Those findings were to the effect that the applicant was able to operate a legal business, properly licensed under government legislation as a travel agent, but later found the applicant to have been subjected to threats and extortion because others were aware that he had set up an illegal business.
f)The applicant also contended at the interlocutory hearing, and at the substantive hearing, that the second respondent was in breach of s.424A of the Act in that there was:
(i)a failure to provide copies of draft reasons for decision produced by the first member and to invite a response prior to the second member making a final determination; and
(ii)a failure to inform the applicant that it had formed an adverse view based upon the recording of the hearing and to invite a response.
g)At the substantive hearing the applicant also contended that the process adopted by the second member of the Tribunal of not affording a hearing to the applicant, and relying solely upon the recording of the hearing before the first member, was procedurally unfair.
All of the above grounds, the applicant contended, constituted an error going to jurisdiction which afforded the relief sought by the applicant; namely, a declaration that the Tribunal’s decision is invalid and of no effect.
Background
The applicant is a citizen of Cambodia who arrived in Australia on a one month visitor visa on 31 August 2003. On 30 September 2003 he lodged an application for a protection visa setting out his grounds for the granting of such a visa as being his fear of persecution by members and supporters of the Cambodian People’s Party and the Cambodian government and authorities.
In a decision dated 8 January 2004, a delegate of the first respondent refused to grant the applicant a protection visa. On 29 January 2004, the applicant lodged with the Tribunal an application for review.
On 29 April 2004, the Tribunal conducted a hearing at which the applicant was represented and gave evidence. Significantly, the Tribunal before whom the hearing took place was differently constituted from that which finally determined the review and which provided the written reasons for affirming the delegate’s determination. The reconstitution of the Tribunal was pursuant to s.422 of the Act.
In the Tribunal’s written reasons for decision, it examined and reiterated issues raised, and points made at the hearing by both the then presiding member and the applicant. The second member made findings of fact based, on the face of it, upon what transpired at the hearing.
The applicant’s claim for protection was based upon persecution he claimed to have suffered prior to his departure from Cambodia, and his fear of such persecution should he be required to return, arising primarily from his association with, and membership of, the opposition Sam Rainsy Party (SRP), and also because of his conduct of a travel agency.
In summary, the applicant gave evidence before the Tribunal constituted by the first member of:
a)his involvement in the SRP;
b)of others with similar involvement being persecuted;
c)of the difficulties he faced because he was a government employee, who was banned from having outside employment but who, nonetheless, conducted a travel agency contrary to that ban.
d)him having to suffer threats which were reported to the police but no assistance was provided by them; and
e)the prospect that he would face the same level of persecution without any realistic expectation of protection from authorities, should he be forced to return to Cambodia.
The Tribunal constituted by the second member did not accept the applicant’s profile with the SRP was such that it would result in a real chance of persecution were he to return to Cambodia; nor did the Tribunal accept that he had been persecuted in the past because of his support or membership of the SRP. For the reasons set out below I am of the view that the Tribunal’s findings in these regards were open to it on the evidence and exhibit probative logic.
Contentions
The applicant strongly contends that the written decision pivots on an assessment of the applicant’s credibility, and that for such an assessment, the second member would have needed to have observed the applicant give his evidence in person. The fact that the second member did not see the applicant give his evidence gave rise, in the mind of the applicant, to a number of concerns and suspicions.
One suspicion was that the second member adopted the view of the first member as may have been, presumably, articulated in draft written reasons for decision. In addition to that suspicion, and giving weight in the mind of the applicant to it, the applicant’s legal advisors were presented with a faulty recording of the hearing. Hence the applicant’s allegations that the second member either did not listen to the recording and merely adopted the first member’s draft reasons for decision, or if it had listened to the recording, it could not have been given a proper understanding of the hearing because the recording was faulty and would, therefore, have had to rely to some extent on the first member’s draft reasons for decision.
As I have indicated, I have had the benefit of listening to the recording from beginning to end when the interlocutory matter came before me. The recording that I listened to was a copy of the original.
My understanding is that the recording heard by the second member was the original recording and it follows, because the recording which was a copy of the original that I heard, and which was faultless, that the original recording must also be faultless. It is an unfortunate happenstance that the copy presented to the applicant’s advisors was faulty. However, I am satisfied that the original recording was not faulty and capable of being listened to by the second member.
As I had indicated in my earlier judgment in the interlocutory application, after hearing the recording and having read the second member’s written reasons for decision, I am satisfied that those written reasons and findings made by the second member, insofar as they can be said to relate to credit, are in my view findings readily open to the second member. At the hearing of the substantive application, I invited counsel for the applicant to persuade me of the merit of the allegation that the issues that could be said to touch on credit, and the findings associated with credit, necessitated an observation of the applicant as a witness. Despite the invitation to highlight those instances, the applicant’s counsel failed to direct me to one instance supportive of the general contention that the second member’s findings that touch upon credit could not have been made without first observing the applicant as a witness. In the Tribunal’s decision I note, incidentally, there is no reference to the applicant’s demeanour. I have no hesitation in dismissing the applicant’s contentions in this regard. In doing so I note that there was a full and exhaustive hearing by the first member. Pertinent questions were asked and answers given by the applicant. Any contradictions in evidence were presented to the applicant and the explanations provided by the applicant were, in my view, deficient. The findings based upon the recorded evidence were certainly open to the second member to make, and they exhibited probative logic.
There was a significant component of conjecture in the applicant’s contentions insofar as they relate to the inability of the second member to make the findings without first observing the applicant, and in respect of the contention that somehow the second member was reliant wholly, or in part, on draft reasons previously written by the first member. There is nothing, in my view, in the nature of the recording, or in the written reasons of the second member that would give any indication that the second member did not fulfil her imperative duty to listen to the evidence and bring an independent mind to the determination of the matter.
In respect of the contention by the applicant that there was a contradiction in the logic of the Tribunal in how it found the applicant was involved in a legal business outside of his employment with the Ministry of Agriculture and then found that such business was considered illegal, I find that there is no illogicality evident in such findings. A fair and reasonable reading of the Tribunal’s reasons for decision in these regards clearly shows that the Tribunal found the applicant had applied for a licence to act as a travel agent and met all the legal requirements of obtaining that licence. However, in finding that the business was illegal, its illegality relates directly to the fact that employees of the Ministry of Agriculture, as the applicant was, are banned from engaging in outside employment. The illegality referred to by the Tribunal relates to the conduct of the applicant in engaging in a business banned by the terms of his employment. The business itself, however, was legal. There is no illogicality in the Tribunal’s written decision and it cannot be said that the Tribunal’s reasons were unreasonable in any sense, let alone in a Wednesbury sense.
In respect of the ground that the Tribunal misconstrued the meaning of persecution under s.91R, I am of the view that the assessment of what conduct constituted or would constitute ‘persecution’ was a finding of fact for the Tribunal. I am in agreement with the first respondent’s contention that there is no substance to the applicant’s complaint that the Tribunal misconstrued or misapplied s.91R of the Act.
The Tribunal properly instructed itself with respect to judicial and legislative interpretation of the meaning of the term ‘persecution’.
In my view, the Tribunal’s finding that threats were not ‘real and genuine’ was open to it on the material before it, and in the written reasons for this finding the Tribunal exhibited probative logic and a proper construction of the term ‘persecution’ as referred to and understood by s.91R of the Act.
The final ground upon which the applicant contends the second respondent acted without jurisdiction is that which could be generally categorised as a lack of procedural fairness as demanded by s.420 of the Act. Under this general contention, the applicant highlights the significance of a number of sections of the Act that should, in his contention, have come into play to ensure procedural fairness for the applicant. The first is that there was an obligation pursuant to s.427 of the Act for the Tribunal to summon the applicant to a new hearing after the Tribunal was reconstituted. This contention is discussed in more detail below.
Another contention was that there was an obligation pursuant to s.424A of the Act to have provided the applicant with the ‘information’ contained in the recording which the second Tribunal took into account when making adverse findings of fact which could be said to be based upon credibility and further, pursuant to s.424A, any draft reasons for decision that existed which were made by the first member should have been provided to the applicant. In respect of the draft reasons, I
reiterate the matters referred to above as to the conjecture surrounding this proposition and also refer to my earlier decision in the interlocutory hearing wherein I found, in short compass, that such draft reasons, should they exist, do not constitute, information, as understood by that section.
In respect of the earlier contention that somehow the second member should have forewarned the applicant about the evidence given, in a full and thorough hearing, which was considered by the second member as supportive of adverse findings, I say that this is simply an attempt to require the Tribunal to disclose its decision–making processes – which it is not obliged to do. In accordance with the majority in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471, the Tribunal’s assessment of any problems with the applicant’s evidence related to consideration of “identified gaps, defects or lack of detail or specificity in evidence”. It was not therefore ‘information’ within the meaning of that term in ss.424A(1) of the Act.
In respect of the contention that there was an obligation on the part of the second member to conduct a hearing before determining the matter, I say that there was no such obligation. Section 427 clearly gives discretion to the Tribunal as to whether a person should appear before it to give evidence. In my view, any failure to exercise the discretion could not of itself amount to a breach of any duty owed by the Tribunal to the applicant, such that jurisdictional error might arise (see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] hack [sic] [25] hack; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; and Liu v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541 at [38] hack [42].)
In my view, the hearing conducted by the first member was thorough and afforded the applicant every opportunity to present his case. Where there were issues arising from a conflict in the evidence the Tribunal afforded the applicant an opportunity to address those issues. I am more than satisfied that the second member was provided with the benefit of a thorough, indeed, exhaustive hearing and there was not a manifest need for a further hearing. From my listening to the recording, I am confident that pertinent issues were covered by the first member in the hearing and I would have been comfortable, as indeed the second member obviously was, to have made a decision based upon the recording only.
The Tribunal was reconstituted after the hearing phase of the review process had been competently concluded. Section 422 of the Act speaks of a requirement of the new member to “continue to finish the review”. To finish the review, in the circumstances of this case, it would not be necessary, in my view, to have invited the applicant to another hearing where the recording of the hearing met the needs of the second member to be fully informed of the issues and the evidence.
The applicant sought to rely on SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, Applicant VEAL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 and SZFIV & Anor v Minister for Immigration & Anor [2005] FMCA 1811 to support the general contention that procedural fairness was not afforded the applicant by not having another hearing. It was contended that procedural fairness is directed to the obligation to give a fair hearing. There was a distinction to be drawn between the fairness of the procedure and the fairness of the decision produced by the procedure. I am satisfied, in the circumstances of this case, that the procedure adopted and the outcome of procedure were both fair. The applicant sought to argue that the effect of s.422B of the Act was undecided in its apparent attempt to exclude common law natural justice considerations.
Whilst I am not persuaded that common law natural justice considerations have any application to this matter, the issue is, in any event, settled. In Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61 at [66] the Full Court held that provisions such as s.422B were designed to provide “comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule”.
Conclusion
On the part of the applicant there was much conjecture as to how the second Tribunal member reached her findings and conclusion.
That conjecture had its genesis in the fact that there was a reconstituted Tribunal where the second member did not have the benefit of a hearing. On the premise that adverse credit findings required, by necessity, an adjudicator to have observed the witness in the witness box and that any such findings made on just listening to a recording are inherently wrong, the applicant contended that the Tribunal in this instance must be in breach of an imperative duty. Closely associated with that general understanding by the applicant was the notion that the written reasons provided by the second member could not have been that member’s own reasons but were infected by, at least in part, the draft reasons by the first member. The difficulty the applicant had in proving that aspect was the applicant’s inability to have access to the computer audit trails of the first and second members. The applicant was hopeful such access would disclose the first member’s draft reasons for decision. The reason why that access was denied is set out in my written reasons in respect of the interlocutory hearing.
To add more weight, of course, to the general conjecture and the applicant’s suspicions concerning the second member’s written reasons is the fact that a faulty recording was provided to the applicant’s legal advisors. There is no proof that the second member was also provided with a faulty recording, and for the reasons mentioned above, it is more probable than not that the second member had the benefit of the same quality recording that I had. The other grounds of general procedural fairness, manifest unreasonableness of the decision and incorrect construction of the meaning of ‘persecution’ are grounds that are not made out for the reasons stated above.
In summary, the applicant has failed to establish jurisdictional error on the part of the second respondent. Accordingly, the application for review (as amended) filed on 14 December 2004 is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 4 August 2006
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