CATCHWORDS

 

ADMINISTRATIVE LAW - JUDICIAL REVIEW - Immigration -application for refugee status - whether applicant denied natural justice - whether decision maker applied an independent mind to the review where there is a substantial coincidence in the language of two decision makers - whether decision so unreasonable no reasonable person could have come ot it - Wednesbury unreasonableness - meaning of refugee - meaning of "well founded fear of persecution" - whether decision maker correctly applied the principles in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

 

 

 

 

 

 

 

Administrative Decisions (Judicial Review) Act, 1977 (Cth) ss 5, 11

Migration Act, 1958 (Cth)

 

 

Kioa v West (1985) 159 CLR 550

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100

Zhang v Minister for Immigration and Ethnic Affairs (1993) 45 FCR 384

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223

Immigration and Naturalisation Service v Cardoza-Fonseca (1987) 480 US 421

 

 

 

 

 

 

DANIEL HULUBA and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. NG529 of 1993

Beazley J

21 September 1995

Sydney

 

IN THE FEDERAL COURT OF AUSTRALIA )

                                  )    No. NG529 of 1993

NEW SOUTH WALES DISTRICT REGISTRY )

                                  )

GENERAL DIVISION                  )

 

 

 

 

 

                   BETWEEN:      DANIEL HULUBA

                                  Applicant

                                 

                                                              

                   AND:          MINISTER FOR IMMIGRATION

                                  AND ETHNIC AFFAIRS

                                  Respondent

                                     

 

 

CORAM:    BEAZLEY J

PLACE:    SYDNEY

DATE:     21 September 1995

 

 

 

                      MINUTES OF ORDERS

 

 

The Court orders that:

 

1.   The determination of the respondent dated 18 June 1993 be quashed.

 

2.   The matter be remitted to the respondent for determination in accordance with law.

 

3.   The respondent pay the applicant's costs.

 

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

 

 

IN THE FEDERAL COURT OF AUSTRALIA )

                                  )    No. NG529 of 1993

NEW SOUTH WALES DISTRICT REGISTRY )

                                  )

GENERAL DIVISION                  )

 

 

 

 

 

                   BETWEEN:      DANIEL HULUBA

                                  Applicant

                                 

                                                              

                   AND:          MINISTER FOR IMMIGRATION

                                  AND ETHNIC AFFAIRS

                                  Respondent

                                     

 

                                     

CORAM:    BEAZLEY J

PLACE:    SYDNEY

DATE:     21 September 1995

 

 

 

 

 

                    REASONS FOR JUDGMENT

 

 

BEAZLEY J:    This is an application brought under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) (the ADJR Act) for review of the decision, conduct or action taken by the Minister for Immigration and Ethnic Affairs (the Minister) on or about 18 June 1993 to refuse the applicant's application for refugee status in Australia.

 

The applicant, who was born on 7 August 1963 is a Romanian national and, until his entry into Australia on 27 March 1991 resided in Constanta, Romania, with his wife and one child, born in 1987.

The applicant arrived in Port Kembla on 27 March 1991 on board a Romanian government-owned vessel, "The Blaj" on which he was employed as a seamen.  The applicant had originally attempted "to jump ship" in Dampier at the end of January 1991.  He had gone with two friends to a seamen's club and there contacted the police.  He said that he was advised that he could not stay in Dampier and that he should try to jump ship somewhere else or at least get to Sydney.  He returned to his ship.  He said that thereafter, whenever he was in port, he was locked in his cabin.  He arrived in Port Kembla on 27 March 1991 and, on 28 March, left the ship with 2 other seamen.  He and his two companions waved down a passing police car and asked to be arrested.  The applicant was interviewed by an immigration officer on 3 April 1991 (the first interview).

 

On 10 April 1991, the applicant applied for refugee status in Australia.  He supported his application by a statutory declaration, setting out the basis of his claim.  During the course of the application being processed, he was again interviewed by a departmental officer (the second interview).  His application was refused on 30 November 1992 (the first decision).  The first decision was the subject of an internal review, the nature of which I shall deal with later.  On 18 June 1993, the second decision-maker refused the application (the second decision).  There is no dispute between the parties that the second decision is the relevant decision to review under the ADJR Act.  However, the first decision remains relevant as the applicant contends that the internal review resulting in the second decision was not an independent reassessment of the application and that he was thus denied natural justice.

 

Both decision-makers took an adverse view of the applicant's credibility.  It is necessary, therefore, to consider separately the information the applicant provided at each of the interviews with departmental officers, in his initial application for refugee status and statutory declaration lodged in support of that application and in his application for review.

 

Information provided in first interview

At the first interview, which was conducted by a compliance officer of the Department, the applicant provided the following  information.  About 3 months before the revolution, he had participated in some demonstrations against the government.  He had also been involved in discussions at work to the effect that the Communist government could not last much longer.  Two weeks later, he was detained by the Securitate for about 2 weeks in a cellar.  He said that he could not understand why he was taken by the Securitate, but believed that someone "told the Securitate about our conversations".  Nobody was notified of his whereabouts.  Towards the end of the period of detention, he was interrogated about whether he had been involved in the distribution of pamphlets and the writing of slogans on walls. At the end of his interrogation he was kicked and punched.  He
still had a mark from the punching.  He lost consciousness.  The applicant denied to the interviewing officer that he had been engaged in either the distribution of pamphlets or the writing of slogans on walls.

 

He said that he had been able to obtain a job on a Romanian government owned vessel through the influence of his step-father, who is an assistant mechanical officer and his father-in-law who is a chief mariner and by paying a bribe.  The Blaj was the first ship upon which he had obtained a job after the revolution.  However, before he signed on, his wife was sacked from her job as a sales assistant in a government store.  His step-father had not been allowed to sign on a ship for the last 6 months.  He believed the same thing would happen to his father-in-law. 

 

He was asked:

     "You are claiming that because of your conversation with friends you were detained and interrogated by the Securitate?    Yes.

 

     And because of that period of detention your wife has lost her job and your father is no longer allowed to work on ships?  Yes, definitely.

 

 

Information provided in application and statutory declaration

In his application, the applicant stated that he had been on unpaid leave from his job as a seaman between September 1989 and April 1990.  In his statutory declaration, the applicant stated that at the end of October 1989, before the  revolution in Romania, he participated in a demonstration in Constanta
and shouted slogans such as "Down with Communism" and "we want freedom".  He also listened to Radio Free Europe, both at work and at home.  He said that about 2 weeks "after these events" he was arrested and taken to the Securitate offices where he was detained for about 2 weeks without anyone knowing his whereabouts.  Towards the end of this period in detention, he was interrogated as to his involvement in "the demonstrations" and about the distribution of pamphlets and the writing of slogans on walls.  He said that he "denied the activities I had been involved in whilst being interrogated."  He says that during the course of the interrogation he was punched and kicked by the Securitate officers.  However, he was released after the interrogation and warned that if he was arrested again he would go to jail.  He also stated in his statutory declaration: "I had been involved in the distribution of pamphlets and writing slogans on walls".

 

A few days after his release, he said that Securitate officers came to his place of employment and spoke to the director.  He was then suspended from his position as a sailor and not allowed on any ships, but was given a position in the port.  He returned to work on ships around September or October 1990 and his trip on The Blaj was his first trip after his suspension.

 

Between 13 and 15 June 1990, he attended another demonstration in Bucharest.  He was again arrested and detained for about 18 hours.  He was interrogated and punched and kicked by the
police.

 

In October 1990, his wife was also interrogated by the police.  He says that by this time the Securitate officers had merged with the police and were acting in unison.  He said that during her interrogation, his wife was sworn at and suggestions made that if she had sexual intercourse with the interrogator, she would not lose her job.  She refused and subsequently lost her position as a sales assistant in a Government-owned shop.

 

He provided the same information as in the first interview as to how he had been able to obtain his position on The Blaj.   He also said that he had been told by his mother, in a telephone call on 5 March 1991, that his step father had lost his job because of the applicant's jumping ship in Australia.  He said that his mother told him in this conversation:

 

     "[the Securitate] are waiting for you if you come back."

 

 

The applicant also gave details of his attempts to "jump ship" in Dampier and of his leaving the ship in Port Kembla. 

 

Second Interview

Subsequent to lodging his application for refugee status, the second interview was conducted in which he provided the following information.  He was first arrested in October 1989, about three months before the revolution.  He said he was
detained at that time:

 

     "Because I was involved in propaganda, I was talking with my colleagues at work about a revolution being prepared."

 

 

 

He said he was against the Communist regime but denied that he had taken any action other than talking to friends at work.  The following exchange then occurred:

 

     "Q.  You have stated in your application that you participated in demonstrations in October 1989 and that was the reason for your arrest?

 

     A.   1989?

 

     Q.   Yes, this is your application, I must also point out that in your first interview with the Compliance area of the Immigration Department, you stated that you had not participated in demonstrations, but that you had been talking to friends. So we appear to have a difficulty. So what is the truth of the matter, why were you arrested in October 1989?

 

I should point out that this question does not accurately reflect the information provided in the first interview.  It appears that the interviewer took that part of the first interview which I have quoted above out of context.  The applicant did not deny being involved in demonstrations.  He had stated that he had been involved in demonstrations.  He denied being involved in the distribution of pamphlets and writing slogans on walls.   The applicant's response to this question was: 

 

     A.   Because I had various discussions with my
colleagues at work.  We were not allowed to listen to Free Romanian radio transmissions and we did.

 

 

This is consistent with what the applicant said in the first interview. 

 

The interview continued:

 

     Q.   Is it correct for us to conclude that you did not participate in any demonstrations in October 1989.

 

     A.   No I did not take part in demonstrations.

 

     Q.   Were there any demonstrations in your town Constanta in October 1989?

 

     A.   No I did not take part in demonstrations, only discussions among people."

 

 

This is the first point at which there is a departure from the applicant's statements in the first interview, his application and statutory declaration.

 

The Departmental officer also sought clarification as to whether the applicant had been involved in the distribution of pamphlets and writing on walls.  He asked:

 

          "You have claimed this in your application for refugee status?

 

 

The applicant answered:

 

 

 

     "    No I did not distribute pamphlets.  I wrote.  The lady who was with me and translated perhaps she made a mistake because I did not say that.  I only declared that I wrote on walls.

 

     Q.   Well you will understand that we have to rely upon the information which you present in your application.  In your interview with Compliance you stated that you were not involved in the distribution of pamphlets and that you were not involved in writing on walls.  In your application here you claimed you are involved in both these activities.

 

     A.   No I did not distribute any pamphlets."

 

 

The above exchange accurately reflects the material which was supplied on the occasions mentioned. 

 

The applicant was also questioned about his involvement in the events in Bucharest between 13 and 15 June 1990 and his subsequent detention for about 18 hours:

     "    What were the people demonstrating about or what were they criticising?

 

     A.   They were demonstrating against the Government which was then in power.

 

     Q.   Which Government was that?

 

     A.   The same Government which is now in power.  Everybody knew that the leaders were before Communists.

 

     Q.   Yes. What, do you think that all the leaders of that Government were communists?

 

     A.   Yes.  I have heard from my parents from my relations, from newspapers.

 

     Q.   And was there an electoral process involved in the formation of this Government?

 

     A.   Yes.

 

     Q.   And what aspect of the government were the people demonstrating about, were they against its economic policies, or...?

 

     A.   No, mainly for political reasons.

 

     Q.   And what was their political objection?

 

     A.   They wanted a change in Government."

 

He was asked a series of questions about whether the demonstration was organised or spontaneous, whether there were legal opposition parties in Romania and whether those parties were able to be critical of the government.  The interview continued:

 

     "Q.  Now, after the revolution in Romania I find it difficult to accept that anybody would be harassed or that anybody would experience difficulties because they had in the past criticised Ceausescu.  That claim is very difficult to accept?  To ask it another way, why do you think you would have human rights difficulties because in October 1989 you were critical of the government, the Ceausescu government at that time?

 

     A.   Because there are the same type of people in Romania, only some of the heads or leaders changed.  And I am afraid, I am afraid because I could get to jail there.

 

     Q.   Why would you be jailed?  For what offence?

 

     A.   Because I fled the country, because now I am here."

 

The applicant went on to say that he was afraid of the current regime in Romania and "the security" which he said was still active.  The interviewer then stated:

     "Q.  I will accept that elements of the Securitate still exist.  That is a fact.  But I do not accept that they still operate in the same way as they did under Ceausescu.  For example, many leaders of  the Securitate have recently been prosecuted because of human rights abuses which they committed during the Romanian Revolution?

 

     A.   Yes and many of them now have higher positions than they used to have...

 

     Q.   We are talking about your fear of return now and what that fear is based on?

 

     A.   Based on what I have said there about being arrested, about effected my wife, the persecutions of my wife at the office."

    

He said that his wife had told him that if he "continued to be active and criticise the current regime of Iliescu I could be arrested".  There was a further exchange about the applicant's arrest after the demonstration in Bucharest.  The applicant said:

 

     "    I am talking about events from last year in summer and I was arrested on account of the current government which is now in power.

 

     Q.   But as you have already told us large numbers of people were arrested during those demonstrations.  To our knowledge all those people were subsequently released?

 

     A.   No, the great majority were not released and there were other demonstrations which were shown on the TV, demonstrations to ask for their release....

 

     Q.   And are you saying then that they are still in detention - most of the people who were arrested.

 

     A.   I suspect yes, yes, of course, yes."

He said that the demonstration in Bucharest started about half a day before he arrived there.  The departmental officer then asked:

     "Q.  ...But the information available to us suggests that in fact these demonstrations had been building up for several weeks before that date.  Frankly, I have some difficulty accepting that you were involved bearing in mind your statement that they started half a day before you arrived?

 

     A.   But, half a day is what I said is because I saw the people gathering then, and the number of people increased slowly when I was there."

 

He was then asked a series of questions about his precise location during the demonstration and what tactics the Government used to break up the demonstrations.  He was asked why he chose to leave Romania and leave his wife there if he had a general fear of the regime.  He answered:

 

     "I wanted to escape from Romania so that I should be free, I wanted to lead a quiet life."

 

 

He was asked:

 

     "Q.  But when you say you wanted to be free, free from what, you were not in detention?

 

     A.   To escape from that country where everytime you lived in fear, and even now you live in fear in that country.

 

     Q.   But what particular reason did you have to live in fear?

 

     A.   The fact that I was beaten up, that I was thrown out of the job, that my permit was taken."

 

There was further questioning.  It included questioning about the Securitate's approach to his employer and alleged inconsistencies in the applicant's various statements as to when that had occurred.   It also included questions about the difficulties which his wife had encountered and how the applicant ascertained that.  There was confusion at this point.  The interviewer then said:

 

     "My question was, if your wife did not tell you the questions asked by the police or the security authorities, if your wife did not tell you that they had a specific interest in you, on what are you basing that claim? (...) O.K., well we will move on then if you are not comfortable with that line of questioning.  Now, you came to Australia as a sailor.  You were the member of the crew, is that correct?"

 

 

Later in the interview, the applicant said that he understood from phone conversations with his parents and wife that if he went back to Romania, he would be put in jail.  He said that his wife was under pressure to divorce him, that "she is forced to divorce me".  He had been told that he had been accused of treason.

 

On 30 November 1992 the applicant was advised by the Department that his application for refugee status in Australia had been refused.  He was informed that he could seek a review of the decision by the Refugee Status Review Committee.  That committee was an internal Departmental committee established to provide an informal means of review of Departmental decisions.  The applicant applied for review, although there is confusion as to when he did so.  In any event, he was not granted a review by the Committee.  Rather, he was told that another departmental officer make a new determination.

 

On 21 June 1993, the applicant's application for refugee status was again rejected.

 

Grounds of review

The applicant brings this review on 3 bases.  He alleges:

 

(i)       that the respondent breached the rules of natural justice;

 

(ii)      that the decision to refuse him refugee status was unreasonable; and

 

(iii)     that the decision-maker failed to properly apply the principles in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

 

Natural justice

Counsel for the applicant submitted that, although the Department considered that it was appropriate to provide the applicant with an internal review of the initial decision, the second decision-maker had not applied an independent mind to the review, but merely repeated the assessment of the first delegate.  It was submitted that this was apparent from a reading of the second decision, which repeated, almost word for word, substantial portions of the first decision.  In particular, reference was made to the passages set out below.  The passage in italics is from the first report.  The passage in bold is from the second report.  I have lettered the paragraphs for convenience only.

 

A.   I am, however, unable to accept that mild, low level opposition to the Ceausescu regime in the form of workplace discussions with a few colleagues and listening to forbidden radio transmissions by a person with no political profile is a ground for persecution now in Romania.  Leaving to one side the applicant's assertion that the regime in Romania now is, but for its leadership, the same one that existed before, if I were to accept such a claim as true then I would have to accept that hundreds of thousands of Romanians who carried out the Revolution, including those responsible for the summary trial and execution of Mr and Mrs Ceausescu and subsequent trials and imprisonment of other Ceausescu family members and senior Securitate figures, would be experiencing persecution in Romania now at the hands of the Securitate.  There is, however, absolutely no evidence to support such a conclusion....

 

A.            I am unable to accept that his low level opposition to the Ceausescu regime, in the form of workplace discussions with a few colleagues and listening to forbidden radio transmissions would have given him a political profile and is a ground for persecution in Romania now.  If I were to accept such a claim as true, then I would have to accept that hundreds of thousands of Romanians who carried out the Revolution, including those responsible for the summary trial and execution of Mr and Mrs Ceausescu, and subsequent trials and imprisonment of other Ceausescu family members and senior Securitate figures, would be experiencing persecution in Romania now at the hands of the Securitate.  There is, however, absolutely no evidence to support such a conclusion....

B.   It should be noted also that the credibility of the applicant's claims in this regard was seriously undermined by inconsistencies between his statutory declaration, his comments at interview and other evidence....

 

B.            I note also that the applicant's claims are seriously undermined by inconsistencies between his statutory declaration, his comments at interview and other evidence....

 

The reasons advanced in each report for coming to this conclusion were the same, although there was some difference in the wording used.

 

C.   ...I cannot accept that someone of such supposed interest to the Securitate as he claims would yet be allowed to travel abroad on a government ship.

 

 

C.            ...I cannot accept, that someone of such supposed interest to the Securitate, as he claims, would have been allowed to travel abroad on a government ship.

 

 

D.   I find that the lack of credibility surrounding the applicant's claims as indicated above as well as the general implausibility of the claimed consequences of his actions lead me to doubt the claims he has made about consequences of his actions affecting other family members such as his wife and step father....

 

 

D.            I find that the lack of consistency in applicant's claims, as already indicated above..., together with the general implausibility of the claimed consequences of his actions, leads me to doubt that his actions have affected other members of his family....

 

The reasons advanced in support of this finding were also identical in each report although the language used differed in some respects.

E.   Clearly such an inconsistency leads to profound doubts about the truth of the claims made about his wife.  Accordingly I am unable to give any weight to these claims.

 

E.            Clearly such inconsistencies lead to profound doubts about the truth of the claims made about his wife.  Accordingly, I am unable to give these claims any weight.

 

F.   I have considered the applicant's claims to also fear persecution on the basis of his having jumped ship in Australia and therefore, in combination with his (sic) the consequences of his other actions dealt with above, being liable to imprisonment for "treason".  Having determined that there is no chance of persecution facing the applicant based on his other claims, and having in any case found serious credibility problems leading to substantial difficulties in even accepting the applicant's version of events, I find no reason to consider that any punishment for deserting a government ship should be cumulatively affected by those actions.

 

F.            I have considered the applicant's claims in relation to his jumping ship at Port Kembla and his fear of jail for treason....  He contends that this is a cumulative ground for his fear of persecution in conjunction with his political acts (refer 5.6.1).  Having determined that there is no chance of persecution facing the applicant based on his other claims, and having found serious problems leading to substantial difficulties in even accepting the applicant's version of events, I find no reason to consider that any punishment for deserting a government ship should be cumulatively affected by those actions.

 

G.   The change in government and the substantial improvement in human rights in Romania, including the freedom of movement and political opinion, means that condemnation for jumping ship and seeking asylum in another country cannot be what it once might have been under the paranoid and oppressive dictatorship of Ceausescu's regime.  Political exiles and asylum seekers have been allowed to return to Romania under the NSF government (Country Reports on Human Rights Practices for 1990, US Department of State, February 1991, p.1236) and, as has been noted above, the new Constitution and legislative reforms contain guarantees against torture or inhuman or degrading punishment and increases rights in relation to obtaining a fair trial. Therefore, even if I were to accept that the applicant would face some kind of penalty for his action in jumping ship, I am unable to accept that it would be such as to amount to persecutory treatment in terms of the Convention definition.

 

 

G.        The change in government in Romania and the substantial improvement in human rights, including the freedom of movement and political opinion, means that condemnation for jumping ship and seeking asylum in another country cannot be what it once might have been under the previous Ceausescu regime.  Political exiles and asylum seekers have been allowed to return to Romania (Country Reports on Human Rights Practices for 1990, US Department of State, February 1991, p.1236).  As has been stated above, the new Constitution and legislative reforms provide for citizens to obtain a fair trial. Therefore, even if I were to accept that the applicant would face some kind of penalty for his action in jumping ship, I am unable to accept that it would be such as to amount to persecution within in terms of the Convention.

 

 

It is well established that, subject to a clear contrary statutory intention, a decision-maker must act fairly towards a person who is the subject of the decision-making process.  In Kioa v West (1985) 159 CLR 550, Mason J said at 584:

     "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."

 

 

And, as Deane J observed in Haoucher v Minister for
Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653:

 

     "the law seems...to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making..."

 

See also the specific statement of French J in Zhang v Minister for Immigration and Ethnic Affairs (1993) 45 FCR 384 at 406, that:

 

     "It is not in dispute in the present case that the rules of natural justice apply to the determination of refugee status at both the primary and review stages."

 

It was not suggested in this case that there was any contrary statutory intention.

 

The requirement of fairness carries with it flexibility in the application of the rules of natural justice, having regard to the nature of the power being exercised and the statutory provisions which govern the exercise of the power.  As Gibbs CJ stated in Kioa v West at 564: "the rules of natural justice are flexible requiring fairness in all the circumstances...".  Those circumstances include the nature of the decision-making process.

 

In the present case, the applicant was advised on 30 November 1992 that his application for refugee status had been refused.  He was also advised:

     "You may seek a review of the decision not to recognise you as having the status of a refugee.

 

     Your refugee status review request will be considered by the Refugee Status Review Committee.  This committee comprises representatives from the Department of Immigration, Local Government and Ethnic Affairs, the Department of Foreign Affairs and Trade, the Attorney-General's Department and the Refugee Council of Australia. A representative of the United Nations High Commissioner for Refugees participates as an adviser to the Committee.

 

     If you wish to exercise your right of review, you should do so within twenty eight (28) days of the date of receipt of this letter.  You are deemed to have received this letter five (5) working days after the date of posting.

 

     Your refugee status review request must be completed on an Application for Review by the Refugee Status Review Committee (Form 907).. It should state why you disagree with the decision to refuse refugee status to you.  Include any facts or circumstances you wish to have taken into consideration and any changed circumstances since your Application for Refugee Status was lodged."(emphasis added)

 

The first record that the Department had of any application for review being made was on 10 February 1993.  On that day, the applicant's solicitor contacted the Department, the applicant having been detained again under the Migration Act, 1958.  The solicitor advised the Department that he had faxed a review application to the DORS Committee on Christmas Eve but that he did not have any record of the transmission.  The Department had no record of the application.  Another application was forwarded on that day.  There was some misunderstanding between the departmental officer dealing with the matter and the solicitor about forwarding the application for review to the committee.  In any event, the application was forwarded to the Committee on the 22 February 1993.  On 2
March 1993, the assistant director of the RSRC Co-Ordination Unit wrote to the applicant in the following terms:

 

     "The first record the Department has of you submitting an application for review of the decision to refuse refugee status is 10th February 1993.

 

     The policy in this regard is that applications for review of refugee status must be made within 33 days of the date of decision...Your request was well outside this time limit.

 

     I acknowledge that this is only a policy requirement and that review/reconsideration could be given outside of normal policy requirements.  After examining the material you have submitted, and other relevant information I have decided that you should be allowed internal review and that a delegate will make a new determination on your application for refugee status."

 

 

 

In March 1993, the applicant lodged a new Form 907 application for review by the Refugee Status Review Committee.  The application was dated 15 March 1993 and was received by the Sydney office of DORS on 16 March 1993.  The printed portion of Form 907 includes this statement:

 

     "Reasons for this application

 

     You should give reasons why you do not agree with the decision to refuse you the grant of refugee status...

 

     Include any facts and circumstances you wish to have taken into account.

 

     Include any changed circumstances since you lodged your application for refugee status. Claims of changed circumstances should be supported by evidence."

 

The second decision-maker, in her report dated 18 June 1993,
found that the applicant was not a refugee.  By letter dated 21 June 1993, the applicant was advised of the decision.  The letter referred to the fact that the applicant had been allowed the benefit of an internal review and that the case was presented to the delegate for a new determination.

 

I have set out these matters in some detail in an attempt to ascertain the nature of the review which was undertaken.  The picture which emerges is a conflicting one.  On the one hand, the standard statements in the Form 907 indicate that a review by the committee might be confined to a consideration whether the original decision-maker's determination contained some error or whether there was some good reason why it ought not be maintained.  On the other hand, the undertaking of a "new determination" indicates a fresh consideration of the matter.   Although it is not clear why a Form 907 was used by the applicant, given that there was not going to be any review by the committee, the likelihood is that the Form 907 was lodged because it was the usual form to lodge for a review.  However, the language used by the Department that there was to be a "new determination", indicates that the matter was to be considered afresh and was not to be merely subject to review.  It is in that context that the approach taken by the second decision-maker has to be considered. 

 

As I have stated above, there was no dispute that the new determination was also subject to the requirements of natural justice, or as it is now more frequently described, procedural fairness.  The content of the rules of procedural fairness depends upon the legislation under which the decision-maker is acting and the subject matter of the application.  The nature of the inquiry, or, as in this case, the new determination, being undertaken is also relevant: see Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 444; Kioa v West at 584.  See also Zhang v Minister for Immigration and Ethnic Affairs and Chen v Minister for Immigration and Ethnic Affairs & Ors (1994) 48 FCR 591 at 596. 

 

Procedural fairness requires a decision-maker to apply an independent mind to the application subject of administrative action.  A decision-maker is entitled to have regard to research and investigations carried out by others as well as to assessments and reports and recommendations prepared by others in the course of the administrative process.  A decision-maker may have regard to and adopt, if thought appropriate, the reasoning of some other person involved in the administrative process.  Thus a decision-maker could accept the reasoning of an officer whose function it had been to provide a recommendation and could adopt verbatim, such report or recommendation, provided at all times that the decision was the independent decision of the decision-maker.  This case is different.  The second decision-maker's task was to make a new determination.  In doing so there woud have been no breach of the rules of procedural fairness for the second decision-maker to read and consider the findings of the first decision-maker.  However, procedural fairness required that she reach an independent decision in the matter. 

 

It is obvious from the passages set out above that the second decision-maker used substantial portions of the report of the first decision-maker.  The coincidence of the language makes any other conclusion improbable.  Those passages contain critical findings.  The question arises, therefore, whether this coincidence of language demonstrates a failure by the second decision-maker to bring an independent mind to the determination of the application.

 

Counsel for the respondent submitted that there was nothing unfair in the second decision-maker's approach to the writing of the review report.  She submitted that it could not be inferred that a similarity of language meant that the second decision-maker had not brought an independent mind to the decision.  In any event, she submitted, it was not improper for the second decision-maker to adopt the reasons of the first decision-maker after reading the first decision and the additional material which was lodged in further support of the application.  It was submitted that the new material did not contain any factual data which required the second decision-maker to actually rethink the observations made by the first delegate.  It was submitted that provided that the Court was satisfied that the second decision-maker had considered the fresh material, the second decision did not offend against the principles of natural justice.  Counsel submitted that:

 

     "prima facie [there was nothing] offensive in going through that document and selecting portions which the second delegate felt on a consideration of the material was still conclusions open to him or her" .

 

 

In Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, Wilcox J stated at 122:

 

     "...the use by decision-makers of reasons devised by others is a matter that should excite concern about the possibility that individual decisions were taken in accordance with an overriding rule or policy or at the direction or behest of others.  But, if an inference is to be drawn from standard provisions, it is not enough to point to mere use.  It is necessary to consider the content of the adopted provisions.  The standard provisions widely used in this case were either statements of law or summaries of the substance of documentary material concerning conditions in Cambodia.  The full documentary material was before each delegate.  He or she had to decide whether or not to accept it.  It seems to me that delegates who chose to accept that material could adopt already formulated summaries of its relevant content, without exposing themselves to the reproach of having surrendered their independence of judgment."

 

 

Lek was a representative action where review was sought by the applicant on behalf of himself and 51 group members.  Wilcox J considered it significant that upon a proper analysis of the decisions, it was not suggested that the delegates relied on standard paragraphs in connection with claims relating to the applicants' personal experiences or circumstances.

 

In the present case, the second decision-maker used material from the first decision-maker's report which was specific to the applicant.  They contained the decision-maker's findings as to whether the applicant's alleged activities were presently grounds for persecution in Romania and as to the applicant's credibility, both critical factors in the decision of both decision-makers.

 

I do not agree that, as was submitted by counsel for the respondent, that it was sufficient for the second decision-maker to consider the new material.  Accepting that the new material was considered, there could still be a breach of procedural fairness.  If a decision-maker adopted the reasoning of another without applying an independent mind to the matter, the consideration of other material could not cure the breach of procedural fairness that had occurred.  In the present case, I consider that the use of the same language, sometimes in florid terms, on critical aspects of the decision-making process, makes it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process.  It follows that the applicant was denied procedural fairness by the second decision-maker.   

 

Unreasonableness

An administrative decision may be quashed if the decision is so unreasonable no reasonable person could have come to it: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

 

In Attorney-General (NSW) v Quin (1990) 170 CLR 1 Brennan J said at 36-7:

 

     "Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240, at p249...As Professor Wade explains (Administrative Law, 6th ed. (1988), p407) in a passage cited with approval in Reg v Boundary Commission; Ex parte Foot [1983] QB 600, at p626:

 

          "The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision."

 

 

 

Counsel for the applicant submitted that the second decision-maker failed to make an individual assessment of the applicant's circumstances but rather drew a broad comparison with the circumstances of others in a paragraph which is set out above, but which, for convenience I will repeat here:

 

     "I am unable to accept that [the applicant's] low level opposition to the Ceausescu regime, in the form of workplace discussions with a few colleagues and listening to forbidden radio transmissions would have given him a political profile and is a ground for persecution in Romania now.  If I were to accept such claims as true, then I would have to accept that hundreds of thousands of Romanians who carried out the Revolution, including those responsible for the summary trial and execution of Mr and Mrs Ceausescu and subsequent trials and imprisonment of other Ceausescu family members and senior Securitate figures, would be experiencing persecution in Romania now at the hands of the Securitate.  There is, however, absolutely no evidence to support such a conclusion." (emphasis added)

 

The middle (emphasised) section of this paragraph involves a degree of hyperbole.  That of itself does not make the decision unreasonable.  However, at no point did the applicant put his case in those terms.  His case was that a lot of people had been arrested in the June riots and that he had been taken to the police station with about 6 or 7 other people.  Those riots were against the Iliescu regime, not against Ceausescu.  The applicant said that even at that time, many of the officials of the former regime remained in power and there were still abuses of power, particularly by the Securitate.  He said that people arrested in the June riots had been detained and that there had been further demonstrations for their release.  He suspected that those people were still in detention.  At no stage did he state that "hundreds of thousands of people had been arrested".  

 

The finding in this paragraph, that the applicant's "low level opposition" was not a ground for persecution, was one of, if not the central finding, in the determination.  The effect of assessing the applicant's claim for refugee status against an inaccurate, hyperbolic statement, throws doubt upon the decision-maker's objectivity.  However, the principle of "Wednesbury unreasonableness" as it is often called, is one which is directed to the decision as whole.  It may be that if one or more aspects of the reasons for a decision are unreasonable in the relevant sense, the decision itself may be infected.  However, I am not satisfied that the hyperbole found in this paragraph has this effect.  Assuming for the moment that the respondent applied the correct test as to the meaning of "refugee", it could not be said that on all the material, a decision that the applicant was not a refugee, was so unreasonable that no reasonable person could have reached that determination.  

 

Application of principles in Chan's case

Finally, it was submitted that the second decision-maker had wrongly applied the principles in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  Article 1A(2) of the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) (the Convention) defines "refugee" relevantly, as follows:

 

     "...the term 'refugee' shall apply to any person who:...

     owing to well-founded fear of being persecuted for...political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country"...

 

 

 

In Chan Yee Kin v Minister for Immigration and Ethnic Affairs, the High Court held that the phrase "well-founded fear" in the Convention definition of "refugee" had both a subjective and an objective requirement.  As Dawson J stated at 396:

 

     "There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear." 

 

A fear may be well founded even though persecution was unlikely to occur.  See also Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 421, where the United States Supreme Court stated that an applicant for refugee status may have a well-founded fear of persecution even though there was only a 10% chance that the applicant may be persecuted.  A farfetched possibility must be excluded.  However, if there was "a real chance" of persecution, the fear should be characterised as "well-founded".  In undertaking an objective examination of the facts to determine if a subjective fear of persecution is well-founded, the decision-maker is not confined to those facts which induced the applicant's fear:  see Chan per McHugh J at 429; see also R v Home Secretary; Ex parte Sivakumaran [1988] AC 958.

 

The second decision-maker referred first to the definition of "refugee" in the Convention.  She accepted that he did not wish to avail himself of the protection of Romania, his country of nationality.  She then stated:

 

     "However, I must assess whether this is because the applicant has, in relation to a Convention reason, a well founded fear of persecution".

 

 

She found, correctly, that the applicant's claim was based solely on "political opinion" and that no other Convention based reason was relevant.

 

However, having correctly referred to the Convention definition and correctly stating the task she was to perform in determining whether the applicant fell within the Convention definition, she stated:

 

     "I consider the issue is not whether the applicant would have been persecuted by the regime of Ceausescu for his actions, but whether he in fact faces such prospects at the hands of the current government in Romania."   (emphasis added)

 

She continued:

 

     "I am unable to accept that his low level opposition to the Ceausescu regime, in the form of workplace discussions with a few colleagues and listening to forbidden radio transmissions would have given him a political profile and is a ground for persecution in Romania now." (emphasis added)

 

 

In my opinion, the second delegate in posing the question and making a finding in these terms, applied the wrong test.  The test is whether the applicant has a well-founded fear of persecution, which may exist even though persecution is unlikely to occur:  Chan;  Sivakumaran; and Cardoza-Fonseca. The second decision-maker asked a different and wrong question, namely whether the applicant "in fact" faced persecution.  The second decision-maker thus erred in law.  I have come to this conclusion, notwithstanding that there are passages in the second decision which use the language of Chan.  However, I am of the opinion that in posing the critical question as she did, the decision-maker did not correctly approach the determination of whether the applicant was a "refugee" within the meaning of the Convention.  I should state that the second decision-maker was correct to the
extent that she stated that the time that the matter was to be considered was the time the determination was made: see Chan per Mason CJ at 391 and Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223 at 250.  

 

It was further submitted that the conclusion that the overthrow of Ceausescu eliminated any real chance of persecution, was unreasonable as the decision-maker's own report indicated that, whilst Romania was moving towards a democracy that process was still in an evolutionary stage.  It is important to bear in mind when determining whether a decision is unreasonable that, as Mason J stated in  Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41-42:

 

     "...it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power...a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits"

 

If I am wrong in my finding that the second decision-maker erred in law by applying the wrong test in the determination of whether the applicant was a refugee, the second decision-maker was entitled to give such weight to this matter as she considered appropriate.  It is apparent that she afforded little or no weight to this consideration.  She was clearly entitled to do so.  Accordingly, I do not consider that this finding offends the principle in Wednesbury. 

 

Finally, I should indicate that, although the matter was not argued, I consider that the decision-maker applied the wrong test as to the meaning of persecution under the Convention.  However, as the matter was not argued, it is not appropriate to consider that matter further.

 

I certify that this and the preceding 32 pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Beazley.

 

 

 

 

 

 

Associate:

 

 

Dated:    21 September 1995

 

 

 

                         APPEARANCES

 

Counsel for the Applicant:        Mr Parnell

 

Solicitors for the Applicant:         Messrs Belen Oag

 

Counsel for the Respondent:       Ms Henderson

 

Solicitors for the Respondent:    Australian Government Solicitor

 

Dates of hearing:                 22 March 1995