WAME v Minister for Immigration & Anor

[2007] FMCA 1569

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAME v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1569

MIGRATION – Refugees – application for protection visa – whether RRT failed to take into account relevant considerations – whether applicant denied natural justice by RRT – whether RRT failed to deal properly with an important part of the applicant’s case – whether mistake of fact within jurisdiction – RRT mis-statement of relevant letter – reliance on mis-statement – errant fact finding – jurisdictional error established.

Migration Act 1958 (Cth), ss.91R, 476

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAGC 117

Applicant: WAME

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: PEG 269 of 2006

Judgment of: Lucev FM

Hearing date: 5 February 2007

Date of last submission: 5 February 2007

Delivered at: Perth

Delivered on: 5 October 2007

REPRESENTATION

Counsel for the Applicant: Mr M D Howard

Counsel for the First Respondent: Mr J D Allanson

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

2. That a Writ of Certiorari issue directing the Second Respondent to quash the decision made by it in relation to the Applicant and handed down on 21 September 2006.

3. That a Writ of Mandamus issue directing the Second Respondent to determine the Applicant’s application dated 10 April 2006 to the Second Respondent for review of the Delegate’s decision according to law.

4. That a Writ of Prohibition issue directed to the First Respondent preventing the First Respondent from acting on the Delegate’s decision of 20 January 2006 to refuse a protection visa to the Applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 269 of 2006

WAME

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Guinea, and a member of the Peuhl (or Foulani) ethnic group in Guinea.  The applicant says that in Guinea he was a member of a political party, Rally of the People of Guinea[1] which was opposed to the ruling government, and that his political involvement led to his arrest in 1998 and 2004.  Whilst under arrest the applicant alleged he was beaten by the police.  In March 2004 the applicant says that, following his release, he returned to his university, where he had previously been studying, and was told that he was no longer allowed to study and would be arrested if seen again at the university.  The applicant says that he feared that he would be arrested again and be beaten, tortured, held indefinitely or killed.

   [1] The “RPG”.

2. The applicant left Guinea (seemingly in the first half of 2004) and first went to Malaysia where he studied at university.  The applicant arrived in Australia on a visitors visa on 20 June 2005.  He applied for a protection visa on 1 September 2005.  A delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs refused the applicant’s protection visa application on 20 January 2006.  On 21 September 2006 the Refugee Review Tribunal[2] affirmed the delegate’s decision.  Both the delegate and the RRT were satisfied that the applicant was not a person to whom Australia had refugee protection obligations.

   [2] The “RRT”.

3. In making its decision the RRT purported to quote a 20 September 2005 letter from the Permanent Secretary of the RPG,[3] but actually mis-stated what was in the Permanent Secretary’s Letter, and based on the mis-statement refused to place weight on the letter as corroborative evidence of the applicant’s claims.

   [3] The “Permanent Secretary’s Letter”.

4. The applicant has applied to this Court seeking judicial review of the RRT decision.[4]

   [4] Migration Act 1958 (Cth), s.476 (“Migration Act”).

Issues

1. The issues raised in this case are:

   a)whether the RRT failed to take into account a relevant consideration or material matter by refusing to place weight on the Permanent Secretary’s Letter;

   b)whether the RRT denied the applicant natural justice by not taking into account the Permanent Secretary’s Letter;

   c)whether the RRT failed to deal properly with an important aspect of the applicant’s case;

   d)alternatively, whether the RRT failed to consider whether the applicant had a well founded fear of persecution; and

   e)finally, whether the RRT’s reliance on the misquote was no more than a mistake of fact within jurisdiction, and therefore not jurisdictional error.

RRT Findings

1. The RRT found (put as non-acceptance) that the applicant:

   a)was not a political activist;[5]

   b)did not have a profile as a political activist;[6] and

   c)was not an active campaigner or recruiter for the RPG.[7]

   [5] Casebook (“CB”) 227.

   [6] CB 227.

   [7] CB 227.

2. The RRT made the above findings for the following reasons:

   a)that the applicant’s description of his claimed political activities was unconvincing, and his political activities were “akin” to those of a “freelancer”;[8]

   b)the applicant’s claimed political profile was not credible because the RPG was a formal political party with a definite structure and a constitution;[9]

   c)it was unconvincing that the applicant attended university, but had little to do with students who were also members of the RPG attending that university, and hence conducted political activities on weekends in his own home town at the educational institutions in his hometown;[10]

   d)that the applicant’s political activities had varied little over the period 1995 to 2004, and were therefore unpersuasive;[11] and

   e)that the Permanent Secretary’s Letter “provide[d] no detail about the applicant’s actual involvement with and role in the party”.[12]

   [8] CB 228.

   [9] CB 228.

   [10] CB 228.

   [11] CB 228.

   [12] CB 228.

3. The RRT then went on to find that:

   a)the applicant had participated in demonstrations in 1998 as he asserted, but that his involvement in those activities in 1998 did not give rise to a well founded fear of persecution in the reasonably foreseeable future;[13]

   b)the applicant was not arrested in February 2004 when he alleged he was conducting a meeting on behalf of the RPG at school premises;[14]

   c)the applicant was not barred from university because of his political activities;[15]

   d)the applicant did not flee Guinea because he feared harm from the authorities;[16] and

   e)the applicant had not come “to the adverse attention of the authorities by reason of his political activities”, because he was not involved in leaflet distribution and meeting organisation, as he claimed to be.[17]

   [13] CB 228.

   [14] CB 229.

   [15] CB 229.

   [16] CB 229.

   [17] CB 229.

The Permanent Secretary’s Letter

1. The Permanent Secretary’s Letter is important to a proper consideration of the matters in issue.  Relevantly, it provides as follows:

   “We are writing as we are concerned about the reception afforded our party member.  He has told us about his fears for his safety following the outcome of his application for asylum in Australia.

   We therefore refer to application number 0155 of 15/2/2000 and confirm and certify that [applicant’s name] born on [applicant’s date of birth] in [applicant’s birthplace], occupation: student, is a member of the Rally of the People of Guinea (RPG), and that he unfortunately left as a result of problems which  placed his life and liberty in Guinea at risk.  We specify that he has been arrested for his political opinions and activity.

   We ask you that you ensure his protection under the 1951 Geneva Convention to which United Nations member countries are signatories.”[18]

   [18] CB 112.

2. Also important to a proper consideration of the matters in issue is the RRT’s mis-statement and treatment of the Permanent Secretary’s Letter, which is as  follows:

   “The Tribunal notes that the letter provided by the RPG states that:

   He specified that he had been arrested for his political opinions and activities

   The letter then goes on to suggest that the Applicant is therefore in need of asylum.  The Tribunal does not place weight on the letter as corroborative evidence of the Applicant’s claims as it clearly relies on the Applicant’s claimed experiences and is not an independent source.”[19]

   [19] CB 229.

3. It is not disputed that the purported quote from the Permanent Secretary’s Letter set out immediately above is a mis-statement.

Was the Permanent Secretary’s Letter a relevant consideration or material matter?

1. What constitutes a relevant consideration or material matter, and how is it determined for present purposes, in the context of an application for judicial review?

2. Judicial review is not necessarily concerned with the particular fact findings upon which the RRT acted.[20]  However when making a determination about the prospect or chance of a future occurrence, it is often an integral part of the process to make factual conclusions about past events.[21]  In Yusuf the High Court said:

   “If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error.  The error in such a case will most likely be either an error of law … or a failure to take account of relevant consideration (whether acts of persecution have occurred in the past).[22]

   [20] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 348 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para 74 per McHugh, Gummow and Hayne JJ (“Yusuf”).

   [21] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

   [22] Yusuf, CLR at 348-349 per McHugh, Gummow and Hayne JJ; HCA at para 75 per McHugh, Gummow and Hayne JJ.

3. The failure to take account of relevant considerations includes ignoring relevant material or relying on irrelevant material in a way which affects the exercise of the power, and to do so, may be a jurisdictional error.[23] 

   [23] Yusuf, CLR at 351 and 352 per McHugh, Gummow and Hayne JJ; HCA at paras 82 and 84 per McHugh, Gummow and Hayne JJ.

4. The practical application of these principles can be seen in a number of decisions of the Full Court of the Federal Court of Australia. 

5. In SCAT v Minister for Immigration & Multicultural & Indigenous Affairs[24] the RRT’s summation of a relevant letter was “plainly inadequate” and reference to other relevant letters was omitted.[25] The Full Court observed that whilst not legally significant in themselves they were pointers to the RRT having overlooked the claim, which relevantly involved a claim of discrimination causing serious psychological harm, amounting to serious harm under s.91R of the Migration Act.[26]  Those issues were said to be “central to a proper assessment of the appellant’s case” and “not addressed” by the Tribunal, resulting in “a failure to carry out the review function”.[27]  The Tribunal was said to have overlooked crucial material amounting to an integer of the claim,[28] that “error” being a “failure to perform an imperative duty” amounting to jurisdictional error.[29]

   [24] [2003] FCAFC 80 (“SCAT”).

   [25] SCAT at paras 24 per Madgwick and Conti JJ.

   [26] SCAT at paras 24-25 per Madgwick and Conti JJ.

   [27] SCAT at paras 25-26 per Madgwick and Conti JJ.

   [28] SCAT at para 29 per Madgwick and Conti JJ citing Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 per Allsop J (“Htun”).

   [29] SCAT at para 30 per Madgwick and Conti JJ.

6. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)[30]  the Full Court having cited Yusuf, referred to the High Court decision in Dranichnikov v Minister for Immigration and Multicultural Affairs[31] and to Htun,[32] went on to say that:

   “a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.”[33]

   [30] (2004) 144 FCR 1; [2004] FCAFC 263 (“NABE”).

   [31] (2003) 197 ALR 389 at 394 per Gummow and Callinan JJ; [2003] HCA 26 at paras 24-25 per Gummow and Callinan JJ.

   [32] NABE, FCR at 17-18 per Black CJ, French and Selway JJ; FCAFC at paras 55-57 per Black CJ, French and Selway JJ.

   [33] NABE, FCR at 20 per Black CJ, French and Selway JJ; FCAFC at para 63 per Black CJ, French and Selway JJ.

7. In NABE  the Full Court referred, approvingly, to the nature of the review function as described by Allsop J in Htun, and in particular to the necessity for distinguishing between a failure to consider all the claims made and errant fact finding.[34]

   [34] NABE, FCR at 18 per Black CJ, French and Selway JJ; FCAFC at para 57 per Black CJ, French and Selway JJ citing Htun at 259 per Allsop J.

8. In VAAD v Minister for Immigration & Multicultural & Indigenous Affairs[35] the Full Court found that the RRT failed to consider a letter which was arguably of critical importance to the applicants’ claims, and led the RRT to make erroneous findings and had an adverse effect on the RRT’s assessment of the applicants’ credibility.[36]  The Full Court found that the assessment of credibility was also based on other factors, but that assessment of credibility was not necessarily linear, and that had the RRT considered the letter, rather than erroneously finding it was a fabrication, it was possible the RRT might have accepted other aspects of the applicants’ accounts.[37]  Hence, the Full Court said:

   “While it is impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different if the error about the UNP letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.”[38]

   [35] [2005] FCAFC 117 (“VAAD”).

   [36] VAAD at para 77 per Hill, Sundberg and Stone JJ.

   [37] VAAD at paras 78-79 per Hill, Sundberg and Stone JJ.

   [38] VAAD at para 79 per Hill, Sundberg and Stone JJ.

9. The RRT refused in this case to place weight on the Permanent Secretary’s Letter as corroborative evidence of the applicant’s claims “as it clearly relies on the applicant’s claimed experiences and is not an independent source.”[39]

   [39] CB 229.

10. The RRT came to this view as a consequence of the mis-statement of the Permanent Secretary’s Letter.[40]

    [40] As set out above at  para 10.

11. By not placing weight on the Permanent Secretary’s Letter the RRT did not further consider it, or its relevance, if any.

12. Properly analysed the Permanent Secretary’s Letter shows in the second paragraph, that the Permanent Secretary, on behalf of the RPG (the paragraph commences “We”), “confirm[s] and certif[ies]” personal and membership details for the applicant (which are uncontroversial), and then:

    “that he unfortunately left [Guinea] as a result of problems which placed his life and liberty in Guinea at risk.  We specify that he has been arrested for his political opinions and activity.”[41]

    [41] CB 112.

13. Given that it is not in dispute that the applicant left Guinea in 2004 it might have been possible for the RRT, had it considered the Permanent Secretary’s Letter, to infer that the applicant’s life and liberty was at risk (at least, in the view of the Permanent Secretary of the RPG) at, or shortly before that time.  Likewise it might have been possible for the RRT to infer that the applicant was arrested at or about the same time, for his political opinions and activity.  The RRT did not however consider these possible inferences because of the erroneous view, based on the mis-statement of the Permanent Secretary’s Letter, that the Permanent Secretary’s Letter was reliant on the applicant’s claimed experiences and not from an independent source.  However, the second paragraph of the Permanent Secretary’s Letter makes it clear that the Permanent Secretary, who is arguably an independent source, confirms and certifies the experiences, seemingly from his own knowledge, not that of the applicant.

14. The material in the Permanent Secretary’s Letter went to the core of the applicant’s claims.  The RRT’s failure to consider it by not placing weight on it based on a finding arising from a mis-statement of the Permanent Secretary’s Letter was to fail to take account of a relevant consideration, and was a failure to deal with a claim raised by the evidence and contentions of the applicant, and therefore a failure to carry out the review function. [42]  As in VAAD it is not possible to say that the RRT’s failure could not have affected the outcome.[43]

    [42] Yusuf, CLR at 351 and 352 per McHugh, Gummow and Hayne JJ; HCA at paras 82 and 84 per McHugh, Gummow and Hayne JJ; SCAT at paras 25-26 and 29-30 per Madgwick and Conti JJ; NABE, FCR at 20 per Black CJ, French and Selway JJ; FCAFC at para 63 per Black CJ, French and Selway JJ.

    [43] VAAD at para 79 per Hill, Sundberg and Stone JJ.

15. The RRT’s failure constituted jurisdictional error.  The applicant is entitled to prerogative relief.

Other Issues

1. Given the conclusion reached above it is not necessary to consider each of the other issues raised by the applicant in detail.  Suffice to say that the RRT also denied the applicant natural justice by failing to deal with evidence and contentions raised by the applicant.[44]

   [44] NABE, FCR at 20 per Black CJ, French and Selway JJ; FCAFC at para 63 per Black CJ, French and Selway JJ.

2. The respondents contended that the mis-statement of the Permanent Secretary’s Letter, which was what ultimately caused the RRT to fail to properly consider the evidence and contentions in support of the applicant’s claims, was just a mistake of fact within jurisdiction, and therefore not jurisdictional error.  But it was not really a mistake of fact.  Rather the RRT, by mis-statement of the letter, created for itself a false  or non-existent fact upon which it erroneously relied to justify its failure to consider the proper claims.

Conclusion

1. The applicant has established that the RRT, in not placing weight on or considering the material in the Permanent Secretary’s Letter, which went to the core of the applicant’s claims:

   a)failed to take into account a relevant consideration;

   b)failed to deal with a claim raised by the evidence and contentions;

   c)failed to properly carry out the review function; and

   d)denied the applicant natural justice.

2. The applicant is entitled to prerogative relief, and writs of certiorari, mandamus and prohibition will issue.

3. The Court will hear the parties as to costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  M Hewitt

Date:  5 October 2007