Wahs v Minister for Immigration
[2004] FMCA 417
•28 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAHS v MINISTER FOR IMMIGRATION | [2004] FMCA 417 |
| MIGRATION – Protection visa – whether jurisdictional error – whether actual or apprehended bias – testing of evidence not evidence of bias. |
Migration Act 1958 (Cth), ss.420(2)(b), 424, 424A(1), 474
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
W321/01A v Minister for Immigration and Multicultural Affairs (2002) FCA 210
MIMA v Jai (2002) 178 ALR 421
SAAP v MIMIA (2002) FCA FC 411
NACL v MIMIA (2002) FCA FC 387
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA FC 74 (17 April 2003)
Braganza v MIMIA (2002) FCA 1542
MIMA v Sarrazola (1999) 95 FCR 517
Abebe v Commonwealth (1999) 197 CLR 510
| Applicant: | WAHS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | WZ 169 of 2002 |
| Delivered on: | 28 June 2004 |
| Delivered at: | Melbourne (by video link to Perth) |
| Hearing Dates: | 4 February 2003 and 4 April 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Ms L Price |
| Solicitors for the Applicant: | Allens Arthur Robinson |
| Counsel for the Respondent: | Mr A Jenshel |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 169 of 2002
| WAHS |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant seeks review of a decision by the Refugee Review Tribunal (the RRT) made on 5 July 2002 affirming a decision of a delegate of the respondent to refuse the applicant a protection visa.
The applicant relies upon an amended application filed 19 February 2003 which at the hearing of this matter was further amended by leave of the court. The applicant further relied upon submissions in writing filed on 7 March 2003. The respondent relied upon submissions entitled "Respondent's Second Outline of Submissions" filed on 14 March 2003.
The application was originally filed in the Federal Court of Australia on 8 July 2002 and was transferred to the Federal Magistrates Court on 13 August 2002.
Pro bono counsel appeared on behalf of the applicant. Access was sought of a tape-recording made of the applicant's initial interview conducted at Port Hedland on 28 August 2000. An order was made on 19 December 2002 by Bryant CFM requiring the respondent to produce the applicant's initial interview tape and permitting the applicant's legal representative to inspect the tape. At the hearing the applicant was permitted to tender as an exhibit an affidavit of Kelly Del Gerber sworn 21 January 2003 (exhibit A1) which included significantly a document purporting to be a transcript of the hearing before the RRT conducted on 20 May 2002 , together with a country report entitled "The Palestinian Refugees in Syria: Their Past, Present and Future" prepared for the Expert and Advisory Services Fund International Development Research Centre by Dr Hamad Said Al‑Mawed dated 1999, and part of what purports to be a transcript of the tape-recording of the initial interview dealing with what are claimed to be relevant issues.
Objection was taken to the use of the affidavit and it is preferable to consider the objections and the extent to which the court will permit reliance upon the affidavit or parts thereof after considering the grounds of appeal and submissions by the parties.
Appeal grounds
The appeal grounds are as follows:-
“1.Failure to accord the Applicant natural justice and exercise its jurisdiction in good faith.
Particulars
(a) The Tribunal’s Decision was affected by apprehended or actual bias. The Tribunal did not exercise its decision making power with a mind open to persuasion, it has pre-determined the issues.
(b) The Tribunal focused on identifying reasons to reject the Applicant’s claims, rather than determining the Applicant’s claims on their merits.
(c) The Tribunal focused on addressing the shortcomings of the first Tribunal Decision identified in the Federal Court judgment, rather than determining the merits of the Applicant’s claims afresh.
(d) The Tribunal referred to submissions of the Applicant’s advisers made at the conclusion of and after the hearing, and stated that it had duly considered those submissions, when the Applicant’s advisers did not appear at the hearing, and did not provide any subsequent submissions to the Tribunal. In addition and contrary to the Tribunal’s statement, the written submissions lodged by the Applicant’s advisers prior to the hearing did not ask the Tribunal to treat with caution any ‘ facts’ reported in the Entry Interview.
(e) The Tribunal states that it was not able to find country information relevant to the Applicant’s claims. However, there was country information readily available relevant to and supportive of the Applicant’s claims.
(f) The Tribunal in the Hearing sought information about the Applicant’s visas and obtained from the Applicant a clear description of the inter-relationship of the visas upon the Applicant’s return to Syria from Iran in 1999 and how the Applicant’s visa situation led to his contact with Syrian authorities. The Tribunal ignored the evidence presented by the Applicant in the Hearing and relied upon the confused description of the Applicant’s exit and re-entry recorded in the Entry Interview.
(g) The Tribunal in its reasons makes assumptions based on no evidence: see CB 250 at 0.7, CB 256 at 0.6 and CB 260 at 0.3 and 0.5.
(h) The Tribunal in its reasons makes findings contrary to the evidence: see CB 257 at 0.5, CB 258 at 0.5 and CB 259 at 0.9.
2.Having expressly undertaken at the conclusion of the Tribunal hearing to contact the Applicant to clarify any matters about which the Tribunal was unclear, the Tribunal failed to accord the Applicant natural justice by failing to put to the Applicant its concerns over the following matters:-
Particulars
(a)The description of the exit visa recorded in the Entry Interview.
(b)The Applicant’s claim that he had difficulty obtaining a job in Syria after his graduation from the Damascus Training Centre.
(c)The Applicant’s description of events in Iran in 1999.
(d)The Applicant description of his exit from Syria in 2000.
(e)The Applicant’s description of the relationship between Syria and Yasser Arafat and the Palestinian Authority.
(f)The Applicant’s description of events that occurred after the Applicant agreed to act as an informer of the Syrian authorities.
(g)The Tribunal also made assumptions detrimental to the Applicant’s case without putting them to the Applicant: see CB 250 at 0.7, 256 at 0.6, 258 at 0.5, 260 at 0.3 and 0.5, CB 263 at 0.9.
3.The Tribunal failed to comply with statutory requirements in the exercise of jurisdiction –
Particulars
(a)As particularised in this application the Tribunal failed to act in accordance with the substantial justice and merits of the case as required by s.420(2)(b) of the Act.
(b)The Tribunal failed to give to the Applicant particulars of information the Tribunal considered to be reason for affirming the delegate’s decision as required by s.424A of the Act, in particular its concerns about the description of the exit visa recorded in the Entry Interview.
4.The Tribunal erred in taking into account irrelevant considerations.
Particulars
(a)The Tribunal relied on country information that was not relevant to the Applicant’s situation in that it dealt with the situation of Palestinians resident in Syria who were registered with UNRWA and GAPAR, and who held Syrian travel documents. The Applicant is not registered with UNRWA in Syria nor with the General Authority for Palestine Arab Refugees (GAPAR) or holds Egyptian, not Syrian travel documents.
(b)The Tribunal relied on irrelevant country information that only referred to Syrian citizens and not Gaza Palestinians with Egyptian travel documents.
5.The Tribunal erred by failing to apply, or incorrectly applying, the test of well-founded fear of persecution for reason of imputed political opinion.
Particulars
The Tribunal failed to address the question of whether the Applicant had a well-founded fear of persecution by reason of his membership of his extended family, in particular because of the involvement of his father, uncle, brother and cousin in the PLO, and their subsequent persecution by the Syrian government as a result.”
It should be noted that during the hearing leave was granted to amend ground 5 by inserting reference to "membership of a social group" in lieu of what had previously been inserted as "imputed political opinion".
Both parties relied upon written submissions with the applicant relying upon submissions filed on 7 March 2003 and the respondent ultimately relying upon a second outline of submissions filed on 14 March 2003.
Jurisdictional error
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further helpful decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant:-
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
Background
The applicant arrived in Australia on 23 August 2000 as an unauthorised arrival. He claims to be a Gaza Palestinian on Egyptian travel documents residing in Syria. He lodged an application for a protection visa on 8 March 2001. On 11 May 2001 a delegate of the respondent refused to grant the protection visa and on 15 May 2001 the applicant sought review of that decision by the RRT. The RRT made a decision affirming the delegate's decision on 3 July 2001. The applicant subsequently appealed against the RRT decision in the Federal Court of Australia. The RRT's decision was to decide by judgment of that court in Perth on 11 March 2002 and remitted to a differently constituted RRT for redetermination.
The applicant participated in a video-link hearing before the reconstituted RRT on 25 May 2002. The hearing was conducted with the assistance of an interpreter in the Arabic-English medium. The applicant was represented by an adviser who made further submissions after the hearing.
It is perhaps useful to set out the further background to this matter which had been recited by Lee J in this matter on appeal to the Federal Court in the decision being W321/01A v Minister for Immigration and Multicultural Affairs (2002) FCA 210 as follows:
“2 The applicant is a Palestinian who was born in Egypt in 1976 and has an Egyptian travel document.
3The applicant said his father (who died in 1999) had worked with, and had been a member of, the Palestine Liberation Organisation ("PLO"). As a result, his father had been imprisoned by Israel for two years, and then was forced to leave Gaza for Jordan. It appears that, in Jordan, his father was registered with the United Nations Relief and Works Agency ("UNRWA") as a refugee.
4 In 1970, after the "September Massacre", the applicant said his father left for Syria. However, Syrian intelligence reportedly imposed restrictions on his father so he moved to Egypt in 1976, where the applicant was born. The applicant said that in Egypt, his father also faced many restrictions that compelled him to return to Syria with his family in 1984.
5 The applicant said that, as Palestinians, his family faced many forms of harassment in Syria. They were not allowed to own property and could not work in any government organisation. He said that his father was imprisoned for five years by the Syrian authorities after the relationship between the PLO and the Syrian Government deteriorated.
6 When the applicant graduated from college, he was not allowed to be employed in Syria. He said that in early 1999 he got the opportunity to study in Iran through the Popular Front for Palestine Liberation. On a scholarship from the Iranian Government, he studied Persian language at a university and received a diploma in Persian-Arabic translation. He then enrolled in computer engineering in another Iranian university.
7 The applicant said that during this period many riots occurred in Iranian universities and, during one of those riots, the Iranian intelligence forces raided the students' dormitories and attacked the students without discrimination. After the riots, restrictions were placed on foreign students, as the authorities apparently thought that foreigners were an important element in any disorder occurring in the country.
8 During the latter part of this period, the applicant said his father became ill and he tried to return to Syria to visit him. The applicant apparently had to wait one month to get a Syrian visa. When he re-entered Syria on 18 October 1999, he was asked to report to the Palestine branch of the Syrian Intelligence Department. When he went there, the head of the branch reportedly asked him about the political situation in Iran and, specifically, about Syrian and Palestinian students in Iran. The applicant said that he told the head of the branch that he was not interested in politics and did not have much information. He claimed he was then asked to supply information about Iranian students. The applicant said he told the intelligence officer that his father had just died and he could not return to Iran at that time. The applicant said he was then asked to provide information on his friends and neighbours in Syria. He refused. This prompted threats from the branch head, and the applicant claimed that after he persisted in his refusal, he was imprisoned for three months. His brother, who had also worked for the PLO, was also imprisoned, reportedly as a means of pressuring the applicant. The applicant said that, eventually, to get out of prison, he had no choice but to sign an agreement, indicating his willingness to co-operate with the intelligence branch. The applicant and his brother were released when they signed a declaration undertaking to report to Syrian intelligence any information involving a threat to Syrian security.
9 The applicant claimed that he feared further action against him by Syrian intelligence if he failed to provide information and became regarded by Syrian authorities as unreliable, or hostile to Syrian interests. As soon as he was released from prison, the applicant said he made plans to leave Syria, with the help of a smuggler. He said he left Syria on 22 July 2000 and flew to Indonesia, where he boarded a boat, arriving in Australia around 23 August.”
The RRT in a decision before this court delivered a lengthy decision together with its findings and concluded it was not satisfied the applicant is a person to whom Australia has protection obligations under the convention and noted and accepted that the applicant was a member of a Gaza Palestinian family bearing Egyptian identity/travel documentation. The RRT further accepted that the applicant is "in effect, stateless, given the unresolved status of 'Palestine'".
The RRT otherwise made findings to which reference will be made during the course of the court's consideration of the grounds of appeal and submissions made on behalf of the parties.
Ground 1: Failure to accord the applicant natural justice and exercise its jurisdiction in good faith
It was submitted by the applicant that the RRT did not properly deal with the claim and that this is indicative of bias or at least an apprehension that there was a pre-formed view by the RRT. An indicator of this was said to be a lack of reliance upon any information related to people in the specific category of the applicant. It was in relation to this ground, and particular (e), that reliance was sought to be placed upon the affidavit of Kelly Del Gerber and the exhibit to that affidavit being KTZ3 which was the country report. That report discovered by Ms Gerber was said to indicate the availability of specific information relating to the specific category of the applicant.
Both parties referred the court to authorities in relation to the issue of bias. For the present purposes I need do no more than rely upon the authority common to both submissions of MIMA v Jai (2002) 178 ALR 421 at 429.
It was submitted by the applicant that it was open to the court to find actual bias or apprehended bias in the present case and reference was made in great detail to the material and indeed transcript of the hearing which it was claimed taken as a whole demonstrates that the mind of the RRT was focused on identifying reasons to reject the applicant's claims rather than determining the applicant's claims on their merits. It did not necessarily refer to each and every reference, other than to indicate that the court has considered those matters in some detail.
The applicant submitted that essentially ground 1 can be put on two bases; namely, on the basis that a lack of bona fides or exercising statutory duty for an improper purpose without good faith amounts to a lack of procedural fairness and jurisdictional error. It was further submitted that if it does not amount to jurisdictional error it then becomes an issue of whether what I describe as the Hickman provisos have been met; that is, whether or not there has been an exercise of good faith.
During the course of the submissions counsel for the applicant referred in detail to the exchange between the RRT and the applicant and conclusions drawn by the RRT as to the applicant's credibility. Specific reference was made to the applicant's encounters with Syrian authorities upon return to Syria from Iran and his claimed persecution. A very detailed analysis was made on the exchange between the applicant and the RRT and matters raised not simply before the RRT but matters claimed not to have been considered including transcript of the initial audio record of the entry interview. Comments of the RRT were said to be derisive and incredulous of the applicant's evidence and references were made to specific extracts set out in the court book. It was claimed assumptions were made without pointing to evidence in support and otherwise findings were made which are alleged to be contrary to the evidence.
The respondent submitted that there is no basis upon which the court should find any failure to accord natural justice or that there has been material placed before the court to support the suggestion of apprehended or actual bias. It was submitted that a tribunal might give the impression that an applicant has "an uphill battle", but that is not indicative of bias. The RRT is entitled, according to the respondent's submissions, to form tentative conclusions as it goes through the process of fact finding. To do that the RRT is entitled to adopt a robust approach to test the evidence. It was submitted that effectively ground 1 is really a complaint about the merits of the RRT decision and the court was invited to consider particulars (h) and (i) referred to above which referred to the assumptions based on what is asserted to be "no evidence" or making findings "contrary to the evidence".
In my view, considering the material before the RRT and including to the extent that I am permitted the transcript, whilst I am satisfied there has been a fairly clear indication given to the applicant that at least as a preliminary view the RRT was sceptical and/or even critical of the applicant's assertions, that does not in my view on the authority to which I have referred and other authorities to which counsel had made reference during the course of argument constitute a sufficient basis upon which this court would take the very serious step and find actual or apprehended bias. The robust approach adopted by the RRT is an approach open to it in matters of this kind where it needs to properly test and examine the assertions made by applicants.
In testing those assertions the RRT cannot be accused of apprehended or actual bias if during the course of an exchange it makes comments which give a clear indication to an applicant that the assertions have not been readily accepted. If an RRT member simply listens to and receives information that are assertions of fact from an applicant without comment or exchange, then in one sense that may be more dangerous than if a healthy or robust exchange occurs. For an RRT member to simply remain 'sphinx-like' may indeed create an impression in the mind of an applicant that the assertions are accepted and may well be in fact more misleading, either to the applicant or his adviser.
In the present case on an examination of the material I am satisfied that there has not been any conduct by the RRT which would justify a conclusion that there is actual or apprehended bias. Accordingly, ground 1 should fail.
Ground 2: Failure to accord the applicant natural justice and put its concerns on matters
In making submissions to the court counsel for the applicant stressed that in this ground the question of the description of an exit visa that had been reported by a department officer in an entry interview should have been raised by the RRT and it should have indicated to the applicant that it was going to place considerable significance on it and then give him an opportunity to answer. It was submitted that was clearly a failure to extend natural justice. It is clear without referring to specific page references that the RRT does in fact place reliance upon that material. Likewise, it was submitted that the RRT drew negative inferences about the applicant's credibility based on handwritten notes of statements allegedly made by the applicant in his entry interview about his exit visa to leave Syria and that the RRT should have put concerns about that material to the applicant at the hearing.
It failed otherwise to put concerns about a number of other matters in relation to the applicant's difficulties obtaining a job in Syria, his description of events in Iran in 1999, accounts of his studies in Iran and location at the time of riots and his description of events that occurred after the applicant agreed to act as an informer for the Syrian authorities.
The respondent submitted that the ground raised misunderstands the role and function of the RRT (see WABG v MIMIA (2002) FCA 1096 at [16]). It was submitted there is no rule of natural justice which requires a decision-maker to expose its anticipated reasoning process and that accordingly ground 2 should fail. Counsel described the complaint as resulting in the RRT conducting itself in what is described as a "kind of a rolling decision-making process" whereby if the RRT has any lack of satisfaction that would be adverse to the applicant the RRT should interrupt the proceedings and ask the applicant to add any further submissions in relation to those matters. It was submitted that this cannot be the correct procedure for the RRT to adopt in the hearing of this matter.
In my view, the respondent's submissions in relation to this ground are correct. It is not for this court to examine in minute detail each and every matter which ultimately the RRT decides to rely upon or place weight upon as part of its overall decision-making process. I am satisfied on a proper reading of the material that the RRT has given the applicant an adequate opportunity to raise and agitate issues of concern. It is not appropriate to expect the RRT to then provide the applicant with what might be described as instant "feedback" as to the acceptance or otherwise of matters asserted by the applicant to be correct. To do so would be a laborious and inappropriate process.
I otherwise accept that in matters of this kind the failure to refer back to the applicant matters which ultimately led to adverse findings does not of itself constitute a denial of natural justice. Accordingly, ground 2 should fail.
Ground 3: Failure to comply with statutory requirements in the exercise of jurisdiction
It was submitted that s.424A of the Migration Act is an inviolable limitation, that the RRT is required to put to an applicant material that is adverse for comment and that a failure to do so affects the validity of the RRT's decision. It was acknowledged, however, that the matter has been dealt with by the Full Court of the Federal Court and counsel for the applicant quite properly accepted the court is bound by those decisions. No doubt counsel was referring to decisions relied upon by the respondent; namely, SAAP v MIMIA (2002) FCA FC 411 and NACL v MIMIA (2002) FCA FC 387 where it was submitted by the respondent that those decisions make it clear that a breach, albeit not admitted, of s.424A(1) would not circumvent s.474 of the Migration Act. After the hearing the respondent also referred to and relied upon a further decision of the Full Court of the Federal Court in the matter of VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA FC 74 (17 April 2003).
It was noted that ground 3 also relies upon, as an alternative, a claim the decision is invalid because s.420(2)(b) is an inviolable limitation. It was noted, however, the respondent's submissions relying upon other decisions including the matter of Braganza v MIMIA (2002) FCA 1542 at [74].
In my view, the applicants did not advance strongly the arguments in support of ground 3 and on the material before me regardless of whether a breach of the statutory provisions could constitute an inviolable limitation or otherwise, I am not satisfied that in any event there has been a breach in the present case of a kind which would circumvent s.474 of the Migration Act. In any event, I am not satisfied there is jurisdictional error arising out of this ground. Therefore, ground 3 should fail.
Ground 4: Irrelevant material was taken into account
It was submitted on behalf of the applicant that the RRT relied upon country information which was not relevant to the applicant's specific situation, but rather related to Syrian citizens and not Gaza Palestinians with Egyptian travel documents. The RRT, it was submitted, fell into jurisdictional error in relying upon the irrelevant country information to reject the applicant's claims.
In support of this ground the applicant sought further to rely upon the affidavit of Kelly Gerber. Specifically reference was made in that affidavit to what is now said to be relevant information in contrast to the information relied upon by the RRT. The court was invited to rely upon the affidavit in support of this ground to answer arguments which the applicant might face but has not established there is material that the RRT could have accessed which presumably might have led to a different outcome.
The respondent submitted that the RRT was entitled to rely upon the evidence and that this ground really seeks to complain about the merits of the decision. Objection was taken to reliance upon the affidavit of Ms Gerber in connection with ground 4 and it was specifically submitted that whether or not the information the RRT relied upon was relevant or irrelevant is a matter that has to be considered by looking at that information. It would not be possible for subsequent information to render what otherwise could have been relevant irrelevant, except in the sense that the report might contradict something set out in country information relied upon by the RRT. It was submitted that this is no more than a veiled invitation for the court to consider the merits of country information; that is, country information that the RRT relied upon, on the one hand, and the report uncovered by Ms Gerber in her affidavit, on the other hand. An analysis of competing reports is an inappropriate line of inquiry in an appeal of this kind. It was submitted that nothing addressed by the applicant supports the proposition that the RRT had relied upon irrelevant information.
In my view, whilst the endeavour to locate another report claimed to be more specific may assist the applicant at least in rebutting a suggestion that the outcome may have been different, it does not nevertheless establish that the country information considered by the RRT was irrelevant. It may have been different information applying to a broader group, but nevertheless constitutes country information which the RRT is entitled to take into account. Although not quite as specific as the other information now sought to be relied upon, I otherwise accept the submission by the respondent that for this court to embark upon a comparative analysis of the more recently discovered report compared with the material accessed by the RRT would not be an appropriate process for this court to follow in a hearing of this kind.
Whilst I permitted the applicant to rely upon the affidavit, I am not prepared to place weight upon the material in that affidavit in support of ground 4. To do so would be to provide at best a superficial benefit to the applicant in circumstances where the affidavit material at best could only lead to a conclusion that a document was found to be in existence as a consequence of a web search undertaken by Ms Gerber at some later time after the RRT hearing. That conclusion is one which does not, in my view, assist the process of review in an application of this kind.
Accordingly, ground 4 should fail.
Ground 5: Correct test of refugee status not applied
It was submitted that in determining whether the applicant is a refugee in the terms of Article 1A of the Refugee Convention it is required to consider whether the applicant had a well-founded fear of persecution for a convention reason including imputed political opinion and membership of a particular social group.
Reference was made to the submissions made by the applicant that his father was an active member of the Fatah faction of the Palestine Liberation Organisation and that the applicant's father, brother, uncle and cousin were also members of the PLO and had been persecuted at the hands of the Syrian government for that reason. It was submitted the RRT failed to put all relevant matters claimed by the applicant into the balance when determining whether or not it was satisfied the applicant met the statutory requirements for a protection visa. The RRT, it was claimed by the applicant, failed to address the question of whether the applicant had a well-founded fear of persecution by reason of his membership of his family either for imputed political opinion or because the applicant's family is in a particular social group (see MIMA v Sarrazola (1999) 95 FCR 517 and (2001) 107 FCR 104).
It was submitted that the issue of whether the applicant's family is a particular social group and whether there was a real chance of persecution by reason of family membership were issues which the RRT was required to address. It was claimed the RRT had not applied the law in exercising its jurisdiction (see Abebe v Commonwealth (1999) 197 CLR 510). Jurisdictional error has arisen as a consequence and therefore it was submitted this ground should succeed. During the course of submissions in support of ground 5 as amended it was submitted it is well-established that a family can be a particular social group and as a convention reason an applicant may be a refugee if he faces a well-founded fear of persecution by reason of membership of that group.
It was further submitted that one of the requirements to be considered in a particular social group is that the social group must not be defined by reason of persecution but something that sets the family apart. It was argued that the applicant may be seen as a member of a family that are active supporters of the PLO. It was claimed the RRT did not deal with the issue and reference was made to a number of extracts from the court book and in particular statements made by the applicant in support of the application for a protection visa. Reference was made to the court book to a statement by the applicant where he claims “Family history is full of persecution.”
Many other references were made to specific issues concerning the applicant's family.
The respondent by way of reply submitted that the statement concerning the family history being full of persecution when read in context was simply drawing attention to the applicant not working for Syrian security and that he was trying to convey not so much a family history of persecution but as a point of pride having regard to his family he would not "sully" himself by working for Syrian security. The respondent submitted that one needs to read the whole of the claims, and in any event, the family element it was submitted was considered by the RRT. The following extracts from the RRT's findings and reasons refer to:
“The evidence regarding the Applicant’s family generally supports the view that the chances of their being exploited are very small. This is probably due at least in part to what the Applicant called his own experience at keeping out of trouble. The Tribunal has not failed to consider the claimed manipulation of the Applicant by the GAPAR officer and the claimed persecution he suffered in the process; it will return to that area of his claims in due course.
The Tribunal accepts that the Applicant’s late father was a Fatah supporter and that some years back, he was imprisoned. The Tribunal regards as significant, however, the evidence regarding Syria’s much-evolved relationship with Fatah. The Tribunal also regards as significant the fact that the punishment of the Applicant’s late father was limited to him, apart from the suffering his imprisonment must have caused whilst it lasted and the bitter feelings it may still engender in the family’s hearts. However, the Tribunal is satisfied that these facts are not indicative of a real chance of future persecution of the Applicant, given his freedom of movement in the past and the ongoing residency of his surviving family in Syria.”
It was submitted that the RRT was cognisant of the relationships to which the applicant had referred and drew appropriate conclusions.
It was submitted that having considered the matters the RRT was not obliged to explicitly raise and reject all possible permutations of the applicant's claims in relation to his family.
In my view, it is clear on a proper reading of the material that the RRT has considered in general terms the issues raised by the applicant and it was open to it to make the findings referred to by the respondent. It did not provide a proper basis upon which it can be claimed that the correct test of refugee status has not been applied. It has simply made findings of fact which, if ultimately it led the RRT to conclude on the authorities that membership of a particular social group was irrelevant, then it could have done so. The fact that it did not do so does not of itself provide a basis upon which it can be concluded that it applied an incorrect test to the refugee status of the applicant. Accordingly, ground 5 should fail.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 June 2004
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