FEDERAL COURT OF AUSTRALIA
Cabal v Minister for Immigration & Multicultural Affairs (No 4) [2000] FCA 1806
IMMIGRATION – refugees – protection visas – Refugee Review Tribunal – procedures – joinder of spouse to application in Tribunal – notification of hearing and opportunity to give oral evidence – notification to children of primary applicant – whether independent notification required – all applicants legally represented at all times – constitution of Tribunal – appointment of member to hear review – direction in writing – whether required of Principal Member or delegate when constituting himself or herself as Tribunal – failure to consider material issues – sufficiency of statement of reasons – approach to determining whether well-founded fear of persecution – whether error of law
Extradition Act 1998 (Cth) s 12
Migration Act 1958 (Cth) s 457, s 460 s 470 s 412 s 421 s 422 s 424 s 425 s 430
Migration Regulations 1994 reg 2.08A
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to
Peniche v Minister for Immigration & Multicultural Affairs [1999] FCA 709 referred to
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 cited
TERESA PASINI CABAL, CARLOS CABAL PASINI, SOFIA CABAL PASINI, ANAMARIA CABAL PASINI, TERESA CABAL PASINI and CARLOS CABAL PENICHE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V339 OF 1999
MARCO PASINI BERTRAN and MONSERRAT GONZALEZ KARRAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V340 of 1999
FRENCH J
11 DECEMBER 2000
PERTH (Heard in Melbourne)
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IN THE FEDERAL COURT OF AUSTRALIA |
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V339 OF 1999 |
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BETWEEN: |
TERESA PASINI CABAL FIRST APPLICANT
CARLOS CABAL PASINI SECOND APPLICANT
SOFIA CABAL PASINI THIRD APPLICANT
ANAMARIA CABAL PASINI FOURTH APPLICANT
TERESA CABAL PASINI FIFTH APPLICANT
CARLOS CABAL PENICHE SIXTH APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The First and Sixth Applicants are to pay the Respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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V340 OF 1999 |
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BETWEEN: |
MARCO PASINI BERTRAN FIRST APPLICANT
MonserRat Gonzalez KarRas SECOND APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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JUDGE: |
FRENCH |
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DATE OF ORDER: |
11 DECEMBER 2000 |
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WHERE MADE: |
PERTH (Heard in Melbourne) |
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THE COURT ORDERS THAT:
1. The application is dismissed.
2. The Applicants are to pay the Respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V339 OF 1999 |
REASONS FOR JUDGMENT
1 Carlos Cabal Peniche and his brother-in-law, Marco Pasini Bertran, arrived in Australia with their families under false names and using forged passports in 1996. Since 1998 they have been the subject of extended and extensively litigated extradition proceedings in relation to offences which they are said to have committed against various banking, tax and money laundering laws in Mexico.
2 Mr Cabal’s wife and children and Mr Pasini and his wife have applied in this country for protection visas. They claim that Australia owes them protection obligations under the Refugees Convention. They have been refused visas by the Minister’s delegate and the delegate’s decision has been affirmed by the Refugee Review Tribunal. They now seek an order of review in this Court against the decisions of the Refugee Review Tribunal.
Factual Background
3 Teresa Cabal Pasini (Mrs Cabal) and her husband, Carlos Cabal Peniche, their four children, Carlos, Sofia, Anamaria and Teresa, Mrs Cabal’s brother, Marco Pasini Bertran (Pasini) and his wife, Monserrat Gonzalez Karras, are all Mexican citizens. The Cabal family arrived in Australia on 1 October 1996 using false names under passports purportedly issued by the Dominican Republic. Mr Pasini and his wife arrived in Australia in April 1997, also using false names and passports apparently issued by the Dominican Republic. In November 1998 Mr Cabal and Mr Pasini were arrested on provisional warrants pursuant to s 12 of the Extradition Act 1998 (Cth). The arrests were made pursuant to requests from the United States of Mexico which seeks to extradite the two men on charges of offences against Mexican banking, tax and money laundering laws.
4 These requests led to the issue of notices by the Attorney-General under s 16 of the Extradition Act followed by a hearing before a magistrate to determine the eligibility of Cabal and Pasini for surrender under s 19 of the Act. That hearing took sixty nine days. The Magistrate’s decision was given on 17 December 1999 determining both men to be eligible for surrender to Mexico. Cabal and Pasini applied to the Federal Court for review of the decision under s 21 of the Act. However the magistrate’s decision was confirmed on 29 August 2000. An appeal against that decision has been heard by the Full Court in the last sittings in Melbourne and judgment is presently reserved.
5 On 13 November 1998 Mrs Cabal applied for a protection visa under the Migration Act 1958 (Cth) on behalf of herself and her children. Mr Pasini did the same for himself and his wife. The protection visas were sought on the basis that all were refugees within the meaning of the Refugees Convention and that by reason of that Convention, Australia was under protection obligations towards them.
6 On 8 December 1998 a delegate of the minister refused the grant of protection visas to both the Cabal and Pasini applicants. On 14 December 1998 the Cabals and Pasinis lodged applications for review of the delegate’s decisions with the Refugee Review Tribunal. On 31 May 1999 the Tribunal, constituted by Kerry Boland, affirmed the decisions not to grant protection visas. Separate reasons were published in respect of the Cabals and the Pasinis. Applications for orders of review of these decisions of the Tribunal were filed in this Court on 23 June 1999. One application was filed for the Cabals (339/1999) and a separate application for the Pasinis (340/1999). The applications did not come on for hearing until 4 September 2000.
History of Proceedings before the Tribunal
7 The pre-hearing history of the applications before the Tribunal is set out in the Tribunal’s reasons. At the time that the applications to the Tribunal were filed the applicants’ then advisers requested the Tribunal not embark on its consideration until they had gathered further evidence, a process which they estimated would take “some months” and involve between ten and twenty witnesses being flown to Australia. An affidavit from the applicants’ Mexican lawyer, Mr Zinser, estimated that it would take approximately four months to gather information in support of the applications and a further month to collate material for the Tribunal. The Tribunal rejected this request on 23 December 1998. The request was reiterated on 24 December 1998. The Tribunal responded on 4 January 1999 indicating that it intended to proceed with the review, that no preliminary conference would be called and that a hearing had been scheduled for 22 February 1999. Requests for an adjournment were repeated on 12 January 1999 and 28 January 1999, the latter seeking a separate oral hearing on the issue of an adjournment and more time to provide the names of between thirty and fifty witnesses. The Tribunal responded on 4 February 1999 that the hearing would proceed as its main purpose was to take oral evidence from the applicants. It accepted that additional time after the hearing might be required to lodge further material and advised that submissions on that issue could be made at the hearing. A further request for an adjournment was made on 17 February 1999 to avoid the possibility of prejudice in the impending extradition proceedings. The Tribunal was asked to allow further time because the applicants “had the resources to permit the gathering of a great deal of direct evidence from Mexico”. The Tribunal replied on 18 February that the hearing would proceed. It noted that the provisions of the Act would prevent confidential information before the Tribunal from being divulged in other proceedings.
8 A hearing proceeded on 22 and 23 February 1999 at which the applicants were represented by Mr Clothier of Erskine Rodan & Associates. A further submission was made at the hearing seeking an adjournment. While the hearing was proceeding an injunction was sought from the Federal Court to prevent the review from continuing. The application for an injunction was dismissed by Merkel J on 9 March 1999.
9 On 10 March 1999 the applicants’ solicitors again wrote to the Tribunal providing written statements from Mr Pedro Pasini, Mr Zinser and the children’s nanny, Petrona Garcia Lopez, advising that “further evidence on which the three adult applicants intend to rely will be provided to the Tribunal in statutory declaration form by Monday the 15th March 1999”. On 16 March 1999 they advised that statements were being taken from additional witnesses who were named and that these would be provided within the next fourteen days. The adult applicants’ statements had been delayed but would be provided to the Tribunal by about 30 March 1999. A statement from Mr Cabal Snr was enclosed, together with the promise of a more detailed statement which was currently being prepared. Detailed statutory declarations from Mrs Cabal and Mrs Gonzalez Karras and an additional declaration from a Mr Scott Perry were filed on 23 March 1999. A further letter of 30 March 1999 listed five other persons who would be providing statements “as soon as possible” and ten other persons who would be providing statements “within the next two months and hopefully earlier”. Further correspondence was received by the Tribunal from the solicitors on 14 April 1999 which referred to various items of country information and stated that Mr Pasini’s statement was “presently being settled” and would be provided by the middle of the following week. On 15 April 1999 the Tribunal replied to the solicitors noting the various changes in the promised dates. The Tribunal’s letter indicated that almost two months had passed since the oral hearing and that submissions accompanying the review application on 14 December showed that the applicants were aware from that early stage that material from Mr Cabal Snr would be relevant to the case before the Tribunal. The letter said that both Pasini and Cabal’s statements should be provided by no later than the middle of the following week and any additional material in relation to the case must be provided by 6 May 1999, after which time the Tribunal would proceed to a decision or inform the applicants if further evidence were required. The letter also provided country information to the applicants’ advisers for comment.
10 Following the letter of 15 April 1999, the Tribunal’s Deputy Registrar was contacted by counsel for the applicants who said it wouldn’t be possible to provide Mr Cabal or Mr Pasini’s statements within the time frames set by the Tribunal and requested an extension until 30 April 1999. That extension was granted orally. On 30 April 1999 a Maria Jockel of Purves Clarke Richards advised the Tribunal that she was now acting for the applicants. She said the applicants were grateful for the extension of time until 30 April but this was insufficient. She requested a directions hearing and a further period of one hundred and twenty days to present material to the Tribunal. The Tribunal responded on 4 May 1999 rejecting these requests. It did, however, grant an extension to 21 May 1999 to provide additional submissions or evidence. Ms Jockel contacted the Tribunal’s Deputy Registrar on 5 May 1999 to request a copy of country information that had been provided to the previous advisers. She also indicated that the time allowed by the Tribunal was not sufficient.
11 On 14 May 1999 the Deputy Registrar was contacted by Mr Gerkens of Fernandez Canda Gerkens, Barristers and Solicitors, who advised that he acted as counsel for the applicants in addition to Ms Jockel. He asked for an opportunity to discuss the possibility of a directions hearing with the Tribunal member by telephone. The Tribunal responded on 17 May 1999 indicating that a written authority was required before it could discuss the case with him and that Tribunal members could not discuss the case on an informal basis. On 18 May 1999 Mr Gerkens advised the Tribunal that Purves Clarke Richards had been dismissed as the applicants’ legal advisers and that he and his firm now acted in their place. He wrote to the Tribunal on 19 May requesting that the reviews not proceed until Mr Cabal Snr’s separate primary application for a protection visa was granted or reached the Tribunal. Alternatively, an extension of least thirty days was sought. His letter also indicated that Carlos Cabal Jnr “was entitled to give oral evidence”. On 20 May 1999 the Tribunal replied advising that all applicants had been given the opportunity of providing oral evidence and that Mrs Cabal had specifically indicated at the hearing that her children would not be giving evidence. The Tribunal advised that as the applications had been before it for five months, the applicants had been legally represented both in Mexico and in Australia for the whole of the time and a considerable time had been allowed since the hearing for submissions, no further extension would be granted. On the same day the Tribunal received a further letter from Mr Gerkens, written on 19 May, seeking to add Mr Cabal Snr to his wife’s application under reg 2.08A and advising that Mr Cabal Snr wished to exercise his right to a hearing. Mr Gerkens also orally requested an extension of time until 24 May 1999 to provide material. The Tribunal however informed him that no further extensions would be granted and the Act would not allow Mr Cabal Snr to be added as an applicant once the case had reached the review stage. Mr Gerkens protested about the refusal to grant an extension and repeated a request for Carlos Cabal Jnr to give evidence. This was done by letter received at the Tribunal on 20 May 1999.
12 On 21, 25 and 26 May 1999 the Tribunal received a large quantity of documents and papers from the applicants’ advisers. Multiple copies of some of the documents were submitted. The Tribunal observed in its reasons for decision:
“Many of the documents were submitted only in Spanish and the relevance of much of the remaining material to establishing the applicants’ claims to a fear of persecution for a Convention reason was not explained.”
13 Injunctive relief was sought by the applicants in the Federal Court on 25 May to prevent the Tribunal from proceeding but the application was dismissed by Weinberg J on 27 May 1999. On 28 May 1999 the applicants’ advisers provided further documents and video tapes and submitted by letter of that date a further complaint about what they called the “undue haste of the Tribunal” and asked for additional time to arrange for translation of documents previously submitted to the Tribunal. The Tribunal’s written reasons in each case were published on 31 May 1999.
The Tribunal’s Reasons for Decision
14 In its published reasons for decision in the Cabals’ case the Tribunal described their claims as set out in written submissions and oral evidence given on 22 and 23 February 1999. It also referred to post-hearing submissions comprising statements provided by Mrs Cabal, her husband and brothers, Marco Pasini Bertran and Pedro Pasini Bertran, Marco’s wife Monserrat Gonzalez Karras, Petrona Lopez who had been employed as a nanny with the Cabal family, their Mexican legal adviser, Mr Zinser, and a former business associate, Scott Perry. An affidavit of 24 February 1999 from George Defteros advised that he was counsel acting on behalf of Cabal and Pasini in relation to the extradition matters. His affidavit set out evidence which it was anticipated would be led at the extradition proceedings through an affidavit of a Mexican official, Rodolfo de la Guardia Garcia. The text of la Guardia’s affidavit was reproduced in full in the Tribunal’s reasons. It referred to the issue of warrants of arrests against Cabal, his history of flight, proceedings known as amparo proceedings taken in Mexico to effect stays of the warrants and the outcomes of those proceedings. The Tribunal also referred to a report by a consultant forensic psychiatrist outlining the personal and background history of Mrs Cabal and her four children.
15 The substance of the claim made by Mrs Cabal was that she feared that if returned to Mexico, she and her family would be subject to harassment by authorities in various ways, including the possible placement of her children in custodial institutions. She refused at the hearing to answer a number of questions on the grounds of legal advice, apparently on the basis that to do so would somehow prejudice the position of her husband and Pasini in the extradition proceedings. One of the questions she refused to answer was why she believed her husband was a refugee.
16 The Tribunal referred to the post-hearing statements which were received from Mrs Cabal and her husband and from Pasini and his brother, Pedro. Other statements referred to were from Pasini’s wife, the Cabal children’s nanny, Zinser, and Defteros. The affidavit of la Guardia, exhibited to that of Defteros, set out in some detail the history of the warrants for the arrest of Mr Cabal Snr, his flight from Mexico and other matters including “amparo” applications for stays of the warrants in Mexico. The Tribunal referred to a report by a consultant forensic psychiatrist, Dr David Sime, relating to the mental state of Mrs Cabal and her children. The above statements included some received as late as 21 May 1999.
17 Legal submissions from the Cabals’ former adviser, Michael Clothier of Erskine Rodan & Associates and from their current counsel, Mr Gerkens, were also referred to. The latter submission argued that the Cabal and Pasini families constituted “a particular social group” for the purposes of the Convention. It was argued that they had a well-founded fear of persecution by reason of their membership of the family of Carlos Cabal Snr and by reason of their imputed political opinion. It was submitted to the Tribunal that the evidence established the political motivation for and selective nature of the prosecution against Cabal and Pasini. The initiation of the prosecution was said to be persecutory. The probability that Mr Cabal Snr would be exposed to detention for a prolonged period and thus to excessive punishment, even though his conviction was unlikely, amounted to persecution. The risk of Cabal family members being subjected to detention and/or extra-judicial mistreatment was discriminatory and persecutory and each and every one of these feared harms was said to be of such significance that the concepts of “serious punishment or penalty” and “significant detriment or disadvantage” set out in the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 were satisfied. It was submitted that neither Cabal nor Pasini had any hope of a fair trial, they would be held without bail in a Mexican prison for two to three years before even being brought to trial, which was an act of persecution in itself. Their families would be subject to constant harassment and intimidation upon return both by the Mexican authorities themselves and by members of the public who, it was said, had been aroused by a government inspired media campaign of vilification. There would be a real risk of violence and assassination. The elements of the persecution asserted by the applicants were:
1. Intimidation, violence and assassination
2. Malicious use of a corrupt criminal justice system by:
(a) lengthy pre-trial imprisonment in appalling conditions; and
(b) engineering of unjust conviction and punishment for crimes of which the applicants are innocent;
(c) malicious and corrupt destruction of the reputations of the applicants.
18 The Tribunal then referred to independent evidence under two headings:
(a) Circumstances relating to the collapsed banks (Cremi and Union Banks), the impact this had on the Mexican economy in 1994 and thereafter, and the role of Carlos Cabal Peniche in the collapse of the banks.
(b) Reports on recent court rulings which indicate that charges against Carlos Cabal would be fairly considered by the local courts and that Pasini played a lesser role.
Under the first heading the Tribunal referred to an article in the Economist of 10 September 1994, the North American Congress of Latin American Report on the Americas dated November/December 1998, the Wall Street Journal of January 1997 and Mexico and NAFTA reports dated September 1994 and December 1998. Under the second heading, the Tribunal referred to reports in the Financial Times of November 1998 and February 1999, the Sunday Sun Herald of January 1999, the New York Times of January 1999, an AAP report of March 1999 and a AAP Worldstream report of March 1999.
19 In its reasons the Tribunal first considered the claims of past harassment by Mexican authorities. It referred to allegations of oppressive surveillance when the family lived in France and Spain, attempts by Mexican police to pressure Mrs Cabal to persuade her husband to surrender, the issue of a warrant in Spain for the arrest of her brother, Marco Pasini, and then for her, and a raid on her house and confiscation of her possessions. It noted however that la Guardia’s affidavit stated that she and her children and Pasini were present in Spain when the warrants were executed and were allowed to remain in residence at the property. She was appointed custodian of the goods seized under the warrant to search Cabal’s residence. The Tribunal found that it was clear from the independent information that the Mexican authorities, with the assistance of the Spanish authorities, when the applicant and her family were resident in Spain, were investigating crimes committed in Mexico of which her husband had been accused and for which there existed warrants for his arrest. The surveillance and action taken by the authorities was not disproportionate to the investigation of such crimes. Mrs Cabal did not claim to have been harmed while under surveillance. The inconvenience and possible invasion of privacy was made in the course of attempts to locate her husband. The Tribunal found this not to be of sufficient seriousness to constitute persecution, nor was it such a breach of fundamental human rights, including the right to privacy, to constitute persecution, considering it took place in the investigation of a criminal act. As to the applicants’ claim that Mexican Embassies had been issued with instructions not to renew her family’s passports, the Tribunal found this to be a legitimate action on the part of the State “…to attempt to clip Mr Cabal’s and Mr Pasini’s wings”. That the instruction was extended to the family was not in itself persecutory.
20 Allegations were made by the applicants that tax audits were conducted on Mrs Cabal in 1994, 1995 and 1996 and that there was a “constant threat of charges”. The Tribunal observed however that she had not been charged and that there was no evidence that she would be charged on return to Mexico. Tax auditing was a legitimate action on the part of the State. She was a high wealth individual whose husband was accused of serious fraud and embezzlement. The Tribunal found it was reasonable to investigate whether any funds from purportedly illegal or fraudulent dealings had been syphoned into her accounts. The auditing was not of sufficient seriousness to constitute persecution.
21 In relation to Mrs Cabal’s contentions that there were informal rumours about the freezing of her assets, seizing personal items and false accusations against her in the media, the Tribunal observed that scandal and muckracking by the media is an everyday event, particularly in the context of a high profile story attracting considerable public interest. Apart from not being of sufficient seriousness to constitute persecution, such media activities lacked the requisite sanction or participation by the State to constitute persecution under the Convention.
22 As to harassment and alleged approaches by the Mexican Embassy while she was in immigration detention, the Tribunal found that it was the duty of foreign embassies to offer to assist nationals who had been detained. It may have been that they wished to question her about her circumstances in Australia, however the fact their approach was declined and no further action was taken satisfied the Tribunal that this attention did not amount to persecution. Mrs Cabal claimed to have received anonymous telephone calls when in immigration detention from a person who had intimate knowledge of her circumstances. This person knew when her husband was moved to Port Phillip Prison even before his lawyers did. The Tribunal held the fact that she was informed of her husband’s whereabouts before his lawyers, did not display any sinister intent on the part of the caller nor was there any evidence that the call was connected with the Mexican authorities. Taking these events into account individually and cumulatively, the Tribunal was not satisfied that the events described by Mrs Cabal amounted to persecution in a Convention sense.
23 The Tribunal then turned to consider the claims of future persecution if Mrs Cabal and her children were to be returned to Mexico. It noted there did not appear to be any intention to charge her with any offences although there had been ample opportunity particularly during the claimed tax audits. The Tribunal found that if there were any substance in the claimed fear of false charges, the tax audits would have been a convenient vehicle through which to invent such charges. There was no real chance that false charges would be laid against Mrs Cabal if she were to return to Mexico. Nor, having regard to her post-flight history, was there any real chance that Mexican authorities would use unlawful methods to pressure her to influence her husband’s response to the charges against him. The Tribunal said:
“It is quite clear that it is the applicant’s husband and brother who are the subjects of the interest of the Mexican authorities and on the independent information from an international selection of a variety of sources set out in this decision…there appears to be evidence to support the legal legitimacy of this interest, that is the investigation of crimes committed in Mexico.”
24 As to Mrs Cabal’s children, the Tribunal did not doubt that they had been through a trying time because of the surveillance and flight they had undergone, their change of identity and the upheavals in their family structure. This was none of their own doing. But surveillance to which they had been subjected took place in the investigation of crimes that their father and uncle were accused of committing. The interests of the authorities in their movements and residences was legitimate in the attempt to locate their father and did not violate their human rights or cause them harm such as to amount to persecution. If Mrs Cabal’s son were harassed this was in the process of an investigation of a criminal offence and it had not been claimed that he or the nanny were harmed in any way.
25 The Tribunal accepted that Mrs Cabal and her family would not be popular if they were to return to Mexico. However there was no evidence that Mexico was interested in them apart from seeking the whereabouts of Mr Cabal and Mr Pasini. There was also no evidence, apart from her assertion, that the protection of the State from the acts of individuals would be denied to the applicants, nor even that Mrs Cabal and her family had made any attempt to avail themselves of such protection. Fears of assassination attempts were pure speculation on the part of their adviser at the eleventh hour. The Tribunal concluded its reasons thus:
“The Tribunal has considered the claims of the applicant, and the claims put forward on the behalf of her children, both individually and cumulatively. The Tribunal finds, on the basis of the reasoning set out above, that the applicant and her children do not face a real chance of persecution if they return to Mexico and that they therefore do not have a well founded fear of persecution for a Convention reason if they return to Mexico either now or in the reasonably foreseeable future. The Tribunal finds therefore that the applicant and her children are not refugees as defined in the Refugees Convention. As the Tribunal has found that the applicants do not have a well founded fear of persecution, it is unnecessary to make findings as to whether the Cabal family forms a particular social group under the Convention.”
The Tribunal’s Reasons for Decision on the Pasini Application
26 The Tribunal’s reasons for decision on the Pasini application were substantially the same as its reasons in relation to the Cabal application. The evidence, statements and submissions relied upon were the same, save for those aspects that related specifically to Mr Pasini’s situation.
27 In its findings and reasons, the Tribunal observed that Mr Pasini claimed that he faced prosecution because of a political need of the government to create scapegoats for the Mexican financial crisis in 1994. He said that by virtue of his support of his sister’s family, Mexican authorities had imputed to him a political opinion, namely the same opinions and attitudes as that of Mr Cabal who as a supporter of one of the presidential candidates, Colossio, had fallen out of favour with the ruling party when the candidate was murdered. According to the submission made on behalf of Mr Pasini on 21 May 1999:
“The need to put the blame for a foreseeable financial crisis, the need to calm down the social pressure of debtors against the bankers… and the need to diminish any resistance to the new banking authorities and regulations are the direct causes of the persecution of Carlos Cabal.”
28 The Tribunal found, in relation to Pasini, that independent evidence referred to in the reasons indicated that he was being sought as part of an ongoing criminal investigation of embezzlement and fraud and that the Mexican government’s interest in having the case heard did not suggest any sinister intent on its part. There was a level of evidence upon which the charges against Cabal and Pasini were based and that did not indicate that the motivation for the charges was any imputed political opinion due to Pasini’s relationship with Cabal or his membership of any group defined by Cabal’s family. Even if the Mexican government had charged Pasini and not others, there might be any number of reasons for that. It was not for the Tribunal to decide the merits of the charges which had been laid apart from deciding whether they were levied for a Convention reason. The Tribunal found on the basis of the independent evidence referred to in its reasons, that there was a legitimate basis for the charges.
29 The Tribunal found that Pasini’s claims did not establish a nexus with the Convention. It found that any harm feared was not “for reasons of” his political opinion real or imputed or membership of any particular social group. It also found the charges laid against Pasini for assisting Cabal were not motivated by revenge but based on the fact that there was a basis for the issue to be tried. Notwithstanding Pasini’s claim that he would not receive a fair trial in Mexico and that the same judge might hear the trial as issued the warrants for his arrest, the Tribunal found the charges had not been made against him for a Convention reason and that there were grounds for considering that the issue of the warrants were appropriate under the Criminal Code of Mexico. The Tribunal said:
“In the present case, the applicant has been charged with offences which appear to be a legitimate exercise of the State’s obligation to investigate crimes which may have been committed on its territory. This is to be distinguished from persecution, except where the law is applied selectively for a Convention reason, or is disproportionately punished for a Convention reason.”
30 The applicants did not have a well-founded fear of persecution under the Refugees Convention nor were Mexican authorities motivated by any Convention reason to levy charges against him. Additionally the Tribunal found there would not be a disproportionate punishment in relation to the crimes alleged nor did the independent evidence support the claim that Mr Pasini would be held in lengthy pre-trial detention. The Tribunal considered other claims that Mr Pasini would be subject to threats from Mexican police officers and that the intense media vilification of Cabal would mean that both government officials and individuals would wish to harm Pasini. He had stated that police would make false accusations against him and his wife and that they use torture in Mexico to make people say what they want. The Tribunal observed that if Pasini were taken into custody, he would be in custody because he had been convicted of a crime and if he were harmed in custody this would be for the same reason.
31 Pasini’s wife gave evidence of surveillance to which she had been subject. The Tribunal held that surveillance and possible intrusion into privacy were legitimate acts in the investigation of a crime and that such actions on the part of the Mexican authorities were not of sufficient severity to amount to persecution. The Tribunal also went on to hold that any damage to Pasini’s reputation or his ability to secure employment flowed from the bringing of the charges against him and would not be related to the Convention. If the reputation of his wife were tarnished on her return to Mexico, that embarrassment was not harm sufficient to amount to persecution. If she were unable to secure employment there was no evidence that such inability would stem from any actions towards her on the part of the State. There was no evidence that the State would take part in harming Pasini’s reputation or that of his wife or in depriving them of the opportunity to work apart from following up on charges which had been laid as a legitimate application of the criminal law of Mexico. The Tribunal found that this post-return harassment aspect of the claim lacked the requisite involvement of the State and did not constitute persecution for the purposes of the Convention. The Tribunal thought it unnecessary to make a finding whether any connection with Cabal constituted a Convention ground of political opinion (real or imputed) or membership of a family defining a particular social group. That was because it had found that the harm feared was not persecution for a Convention reason. The Tribunal then concluded:
“The Tribunal has carefully considered the applicant’s claims and those made by and on behalf of his wife, both individually and cumulatively. It has found those claims not to be Convention related and not to constitute persecution for a Convention reason. The Tribunal finds that cumulatively, the applicant’s claims and the claims made on behalf of his wife do not amount to persecution for a Convention reason and therefore finds the applicant and his wife do not have a well founded fear of persecution for a Convention reason if they return to Mexico now or in the reasonably foreseeable future.”
The Grounds of the Applications – the Cabal Application
“1. Procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed (s 476(1)(a)).
Particulars
(i) Teresa Pasini Cabal has been denied her procedural right under Regulation 2.08A to add her spouse to her application.
(ii) Carlos Cabal Peniche has been denied his procedural rights under the Act and Regulations as an applicant for review.
(iii) The Tribunal failed to prepare a written statement under s 430 setting out the Tribunal’s decision in relation to the sixth applicant, the reasons for the decision, the findings on material questions of fact and to refer to the evidence or other materials on which the findings of fact were based.
(iv) In relation to applicants 1 to 5, the Tribunal failed to set out its findings on material questions of fact as required by s 430(1)(c) and failed to refer to the evidence or other material on which the findings of fact were based as required by s 430(1)(d). The applicant refers to and repeats the particulars set out at Ground 4 (ii).
(v) Carlos Cabal Pasini has been denied his procedural rights under s 425 of the Act to appear before the Tribunal to give evidence.
(vi) Carlos Cabal Pasini, Sofia Cabal Pasini, Anamaria Cabal Pasini and Teresa Cabal Pasini were denied their general procedural rights under the Act and Regulations in that they were not notified of their rights under ss 425 & 426 (as they then were) in accordance with the requirements of the Act & Regulations.
(vii) Contrary to s 426(3), the Tribunal failed to have regard to the applicants’ written notice under s 426(2) that it wished the Tribunal to obtain oral evidence from Carlos Cabal Peniche.
(viii) The Tribunal failed to comply with s 426(3) by refusing unreasonably or without good cause to obtain oral evidence from Carlos Cabal Peniche.
2. The person who purported to make the decision did not have jurisdiction to make the decision (s476(1)(b)).
Particulars
The member constituting the Tribunal was not properly constituted pursuant to s 421 of the Act.
3. The decisions were not authorised by the Act or Regulations (s 476(1)(c)).
Particulars
(i) Regulation 2.08A required the Tribunal to recognise Carlos Cabal Peniche as an additional applicant included in the application of Teresa Cabal Pasini and it failed to do so.
(ii) There was a constructive failure on the part of the Tribunal to exercise jurisdiction in that it failed to consider the totality of the evidence and to take into account material issues before it on the evidence. The applicant refers to and repeats the particulars set out at Ground 4(ii).
(iii) Carlos Cabal Pasini, Sofia Cabal Pasini, Anamaria Cabal Pasini and Teresa Cabal Pasini were denied their general procedural rights under the Act and Regulations in that they were not notified of their rights under ss 425 & 426 (as they then were) in accordance with the requirements of the Act & Regulations.
4. The decisions involved errors of law, being errors involving incorrect interpretation of the applicable law or incorrect application of the law to the facts as found (s 476(1)(e)).
Particulars
(i) The RRT misconstrued and misapplied the definition of “refugee” contained in Article 1A(a) of the Refugees Convention by failing to apply the correct test for determining whether the applicants had well founded fears of persecution and failed to determine whether, on the facts of the case, the applicants would suffer persecution on the grounds of:
political/imputed political opinion;
social group being the family of Carlos Cabal Peniche; and
social group being the owners of banks who did not unreservedly support the government.
(ii) The Tribunal failed to consider the whole of the evidence and the various material issues raised by the evidence –
(a) including, amongst other evidence and issues and apart from those specific instances in the decision where the Tribunal does so, the evidence and issues raised in the documents filed by the applicant on 21 May 1999, 25 May 1999, 26 May 19999 and 28 May 1999; and
(b) the evidence filed in the Spanish language.
(iii) The Tribunal misunderstood the scope of its jurisdiction to deal with the applications and constructively failed to exercise that jurisdiction. See Ground 4(ii).
(iv) By failing to consider the whole of the material before it, the RRT erred in that it foreclosed reasonable speculation upon the chances of persecution emerging from a proper consideration of the totality of the evidence. It has not asked: “What if I am wrong?”
(v) The Tribunal failed to consider the applicants’ claims cumulatively.
(vi) The Tribunal incorrectly interpreted Regulation 2.08A of the Regulations by failing to consider and determine the application of Carlos Cabal Peniche, an additional applicant to the application of Teresa Cabal Pasini.”
The Grounds – the Pasini Application
“1. Procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed (s 476(1)(a)).
Particulars
(i) The Tribunal failed to set out its findings on material questions of fact as required by s 430(1)(c) and failed to refer to the evidence or other material on which the findings of fact were based as required by s 430(1)(d). The applicant refers to and repeats the particulars set out at Ground 4(ii).
(ii) Contrary to s 426(3), the Tribunal failed to have regard to the applicants’ written notice under s 426(2) that it wished the Tribunal to obtain oral evidence from Carlos Cabal Peniche.
(iii) The Tribunal failed to comply with s 426(3) by refusing unreasonably or without good cause to obtain oral evidence from Carlos Cabal Peniche.
(iv) Monserrat Gonzalez Karras was denied her general procedural rights under the Act and Regulations in that she was not notified of her rights under ss 425 & 426 (as they then were) in accordance with the requirements of the Act & Regulations.
2. The person who purported to make the decision did not have jurisdiction to make the decision (s 476(1)(b)).
Particulars
The member constituting the Tribunal was not properly constituted pursuant to s 421 of the Act.
3. The decisions were not authorised by the Act or Regulations (s 476(1)(c)).
Particulars
(i) There was a constructive failure on the part of the Tribunal to exercise jurisdiction in that it failed to consider the totality of the evidence and to take into account material issues before it on the evidence. The applicant refers to and repeats the particulars set out at Ground 4(ii).
(ii) Monserrat Gonzalez Karras was denied her general procedural rights under the Act and Regulations in that she was not notified of her rights under ss 425 & 426 (as they then were) in accordance with the requirements of the Act & Regulations.
4. The decisions involved errors of law, being errors involving incorrect interpretation of the applicable law or incorrect application of the law to the facts as found (s 476(1)(e)).
Particulars
(i) The RRT misconstrued and misapplied the definition of “refugee” contained in Article 1A(1) of the Refugees Convention by failing to apply the correct test for determining whether the applicants had well founded fears of persecution and failed to determine whether, on the facts of the case, the applicants would suffer persecution on the grounds of:
political/imputed political opinion; and
social ground being the family of Carlos Cabal Peniche.
(ii) The Tribunal failed to consider the whole of the evidence and the various material issues raised by the evidence –
(a) including, amongst other evidence and issues and apart from those specific instances in the decision where the Tribunal does so, the evidence and issues raised in the documents filed by the applicant on 21 May 1999, 25 May 1999, 26 May 1999 and 28 May 1999; and
(b) the evidence filed in the Spanish language.
(iii) The Tribunal misunderstood the scope of its jurisdiction to deal with the applications and constructively failed to exercise that jurisdiction. See Ground 4(ii).
(iv) By failing to consider the whole of the material before it, the RRT erred in that it foreclosed reasonable speculation upon the chances of persecution emerging from a proper consideration of the totality of the evidence. It has not asked: “What if I am wrong?”
(v) The Tribunal failed to consider the applicants’ claims cumulatively.”
Statutory Framework
32 The Refugee Review Tribunal is established by s 457 of the Migration Act 1958 (Cth). It consists of a Principal Member, a Deputy Principal Member and such number of Senior Members and other members as are appointed in accordance with the Act (s 458). The Principal Member is the executive officer of the Tribunal and is responsible for its overall operation and administration (s 460(1)). The Principal Member is also responsible for allocating the work of the Tribunal among the members in accordance with guidelines which the Principal Member may lay down for that purpose (s 460(2) and (3)). And by virtue of s 470:
“470. The Principal Member may, by writing signed by him or her, delegate to a member all or any of the Principal Member’s powers under this Act other than the power under section 443 to refer decisions to the AAT.”
33 The class of decisions which are reviewable by the Tribunal are known as RRT-reviewable decisions. If a valid application is made for review of an RRT-reviewable decision then the Tribunal must review that decision (s 414(1)). RRT-reviewable decisions include decisions to refuse to grant protection visas (s 411(1)(c)). Section 412 governs the applications for review of RRT-reviewable decisions thus:
“412(1) An application for review of an RRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).”
34 The Tribunal is authorised for the purposes of the review of an RRT-reviewable decision to “…exercise all the powers and discretions that are conferred by this Act on the person who made the decision” (s 415(1)). If the Tribunal varies a decision or sets it aside and substitutes a new decision, the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister (s 415(3)).
35 The constitution of the Refugee Review Tribunal for the exercise of its powers is governed by ss 421 and 422. They provide:
“421(1) For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.
(2) The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.
422(1) If the member who constitutes the Tribunal for the purposes of a particular review:
(a) stops being a member; or
(b) for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
(2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(3) In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).”
Section 420(1) requires the Tribunal, in carrying out its functions “…to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. Provisions governing the conduct of the review include ss 424, 425 and 426 which are in the following terms:
“424(1) If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.
(2) For the purposes of subsection (1), a decision or recommendation made on a review is taken to be the decision or recommendation most favourable to the applicant if there is no other decision or recommendation that:
(a) the Tribunal could make; and
(b) in the Tribunal’s opinion, the applicant would prefer the Tribunal to make.
425(1) Where section 424 does not apply, the Tribunal:
(a) must give the applicant an opportunity to appear before it to give evidence; and
(b) may obtain such other evidence as it considers necessary.
(2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.
426(1) Where section 424 does not apply, the Tribunal must notify the applicant:
(a) that he or she is entitled to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.”
36 The preparation of reasons for the Tribunal’s decision is provided for in s 430 in the following terms:
“430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material question of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
(2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.
(3) Where the Tribunal has prepared the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.”
37 Also relevant in the present application is Regulation 2.08A of the Migration Regulations 1994 which provides:
“2.08A(1) If:
(a) a person (in this regulation called the original applicant) applies for a permanent visa of a class for which Schedule 1 permits combined applications (except, subject to subclause (3), a Resolution of Status (Residence) (Class BL) visa); and
(b) after the application is made, but before it is decided, the Minister receives, in writing in accordance with Division 2.3, a request from the original applicant to have the spouse, or a dependent child, of the original applicant (in this regulation called “the additional applicant”) added to the original applicant’s application; and
(c) the request includes a statement that the original applicant claims that the additional applicant is the spouse or dependent child, as the case requires, of the original applicant; and
(d) at the time when the Minister receives the request, the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class;
then:
(e) the additional applicant is taken to have applied for a visa of the same class; and
(f) the application of the additional applicant:
(i) is taken to have been made at the time when the Minister receives the request; and
(ii) is taken to be combined with the application of the original applicant; and
(iii) is taken to have been made at the same place as, and on the same form as, the application of the original applicant.
(2) Despite any provision in Schedule 2, the additional applicant:
(a) must be, at the time when the application is taken to be made under subparagraph (1)(f)(i), a person who satisfies the applicable secondary criteria to be satisfied at the time of application; and
(b) must satisfy the applicable secondary criteria to be satisfied at the time of decision.”
Sub-regulation 2.08A(3) is not relevant for present purposes.
Cabal – Ground 1(i) – Non-joinder of spouse
38 On 19 May 1999 the solicitors acting for the Cabals wrote to the Minister in the following terms:
“Pursuant to Regulation 2.08A of the Migration Regulations, I, Teresa Pasini Cabal (Date of birth – 13 July 1962), the original applicant in Refugee Review Tribunal case No V98/09626, hereby request that my spouse, Carlos Cabal Peniche (date of birth – 15 December 1956), be added to my Protection Visa application as an additional applicant.
I state that the proposed additional applicant, Carlos Cabal Peniche, is my spouse and was in Australia, ie, within the Migration Zone, at the time of my application and has not left the Migration Zone since that time.”
On the same day the Cabals’ solicitors sent a letter to the Deputy Registrar of the Tribunal enclosing a copy of the request to the Minister and stating:
“The effect of this request is that Mr Carlos Cabal Peniche is taken to be an applicant included in Mrs Cabal’s above application.
Please bring this matter to the attention of the presiding Member and be advised that Mr Cabal Peniche wishes to exercise his right under Section 426(1) of the Migration Act 1958 to give oral evidence to the Tribunal.”
The assertion was reiterated in a further letter to the Tribunal of 20 May. On that day the Deputy Registrar of the Tribunal wrote back to the Cabals’ solicitors stating that the member reviewing the cases had asked him to advise as follows:
“Regulation 2.08A only enables persons to be added to an application before it is decided at the primary stage. Section 412(2) of the Migration Act 1958 makes it quite clear that only a person who has been the subject of a primary decision may apply for review. Mr Cabal is not an applicant before the Tribunal and has no rights under section 426.”
In its reasons for decision the Tribunal referred to its advice to the Cabals’ solicitors.
39 The Cabals brought proceedings in the Federal Court for orders of review, mandamus, prohibition and an injunction. They sought relief which would require the Tribunal to provide Carlos Cabal Jnr with an opportunity to give oral evidence and to treat Mr Cabal Snr as a party to the application as well as to grant an extension of time to lodge further material. An application for interlocutory relief was dismissed on 27 May 1999 by Weinberg J - Peniche v Minister for Immigration & Multicultural Affairs [1999] FCA 709. Weinberg J described the applicants’ argument in this respect as raising a serious question to be tried only by the “barest margin”.
40 Mr Cabal Snr has been named as the sixth applicant in these proceedings in order to challenge the Tribunal’s refusal to treat him as an applicant pursuant to reg 2.08A. It is submitted for the applicants that the effect of reg 2.08A is that, if the correct procedural steps are taken and the relevant criteria met, an added spouse “is taken to be” an applicant included in the application of the original applicant. This, it was submitted, was not a matter in the discretion of the Tribunal. It was bound in law to treat Mr Cabal Snr as an applicant. In failing to do so, it was said to have failed to comply with a procedure with which the Act required it to comply.
41 In my opinion however, the words of the regulation are clear. The requirement for joinder of a spouse must be received by the Minister “after the application is made but before it is decided”. The decision which defines the time limit for a request for joinder is that of the Minister or his delegate. True it is, that where the Tribunal varies or substitutes a new decision for that under review, the varied or substituted decision is taken to be a decision of the Minister (s 415(3)). But the Tribunal may affirm the decision under review. In so doing there is no new ministerial decision to refuse a protection visa. The original decision is affirmed. It cannot be said that the initiation of the Tribunal process somehow sets a new time limit for a request under reg 2.08A defined by the time of the Tribunal’s decision. The Tribunal, in my opinion, correctly construed reg 2.08A. Ground 1(i) therefore fails.
Cabal Ground 1(ii) – Denial of Rights to Cabal Senior
42 The second particular of the first ground depends upon the construction of reg 2.08A advanced under the first particular and fails for the same reason.
Cabal Ground 1(iii) – Failure to prepare a statement under section 430 in relation to Cabal Senior
43 This particular leads nowhere even were it to have been made out. The Tribunal repeated what its letter of 20 May 1999 had said on the topic of the joinder of Mr Cabal Snr and what it said was correct.
Cabal Ground 1(iv) – Failure to set out findings on material questions of fact
44 It was submitted for the applicants that the Tribunal had “grossly failed” to meet its obligations under s 430 of the Act. Evidentiary material going directly to the material issues in the case was said not to have been addressed by the Tribunal in its written statement of reasons. A number of statements, including some in Spanish, were referred to in the submission. These statements had been variously filed on 12, 13, 15, 18 and 21 May 1999. The submission then reiterated the essence of the Cabals’ case and the way in which these various documents were said to support it. It was put that the issue for the Tribunal was whether the applicants had a well-founded fear of persecution for a Convention reason or reasons. In deciding that they did not have such a fear the Tribunal, it was said, was obliged by s 430 to deal with the evidence referred to because unless it did so its reasoning process was not apparent. It had failed to do so.
45 It is important in considering this ground to bear in mind the nature of the obligation under s 430 as explained by the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. Section 430 requires the Tribunal to record the decision to which it came, its actual reasons for coming to that decision, the findings of fact that were made and the material on which those findings were based. It does not impose any obligation on the Tribunal to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached. There is no requirement for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any finding it made. The Tribunal must make findings on questions of fact that are central to the case raised by the material and evidence before it. The material facts are not only those ultimate facts specified by the statute such as the existence of a well-founded fear of persecution. They extend to facts which are necessary to complete the logical chain the Tribunal has adopted as the basis for its decision. So a fact is material if the decision in the practical circumstances of the particular case turns on whether that fact exists.
46 The Tribunal is not obliged to refer to all material that is put before it. It is not required to translate material in a foreign language, particularly where the applicants plainly have the means to do so themselves. Nor is it required to consider large volumes of material whose relevance is not explained. In any event, if relevant material is not considered that is not of itself a ground for review. The grounds of review which may be agitated before the Court do not extend to failure to take into account a relevant consideration (s 476(3)(e)). That is not to say that such a failure may not expose a reviewable error of law such as a misconstruction of the criteria for the issue of a protection visa. In this case the Tribunal’s reasons have comprehensively set out all the necessary elements of its logic and the material upon which it has based its conclusions. This ground, as presented, is an invitation to merits review. The ground fails.
Cabal Ground 1(v) – Denial of procedural rights to Carlos Cabal Pasini
47 Under this ground it was submitted that s 425 of the Act requires the Tribunal, in the circumstances to which that section applies, to give to each applicant an opportunity to appear before it to give evidence. Carlos Cabal Pasini is Mrs Cabal’s son who was born on 14 May 1984. It was submitted that he had not been directly notified of his rights under s 426(1). Rather it is said that the Tribunal notified Mrs Cabal and then “left it to her to perform its obligations and notify the son”. No effort was made to ascertain whether she had communicated to her son the information about the hearing date and his right to appear and give evidence and to nominate witnesses. Given this circumstance and his absence from the hearing, the Tribunal was said to have failed to accord to him the opportunity to appear before it to give evidence which was his entitlement under s 425(1)(a).
48 The applicants were at all material times legally represented. As is pointed out in the Minister’s submissions the Tribunal wrote to the applicants’ solicitors on 5 January 1999 advising them of the hearing date and asking them to inform the Tribunal whether they wanted to present evidence from other persons. Mrs Cabal was the primary applicant. Her application for a protection visa named herself and the children as persons included in the application. An “Application for a Member of the Family Unit” was completed for each child, albeit it had, in each case, to be signed by “a parent or guardian…on their behalf”. In a letter dated 12 January 1999, the applicants’ solicitors said Mrs Cabal wished evidence to be called from witnesses including her husband, their children, her brother and sister-in-law and from other persons. The Tribunal sought “specific details of the nature of the evidence each of the named persons would be called to give”. This led to a request for an adjournment of the oral hearing which was declined. At no time were any statements by any of the children produced.
49 On 22 February 1999, at the oral hearing, the member constituting the Tribunal asked Mrs Cabal whether the children would be giving evidence as applicants. She said she did not know but they could if they were asked. Counsel for the applicants then rather remarkably said to the Tribunal:
“My problem, if the Tribunal pleases, is half my legal team is elsewhere, in fact three-quarters of my legal team is elsewhere with particular files. I am not sure if we’ve nominated the children. We’ve nominated certainly twenty five to thirty witnesses in this case.”
The Tribunal member responded observing that the children were applicants and that she was asking whether as applicants it was intended that they give evidence. Counsel asked if he could check. No clear answer was forthcoming. The Tribunal member said:
“There’s been a number of months when there’s been ample opportunity for this matter to be clarified. The purpose of today’s hearing is to take evidence.”
She then said the Tribunal was going to proceed to take evidence from applicants that wished to give evidence with the exception of Mr Pasini until arrangements had been made with regard to the option of taking his evidence in person at the prison.
50 As is observed in the submissions for the Minister, no explicit answer was ever given to the Tribunal’s question whether the Cabal children wished to give evidence. The final statement of the Tribunal, however, indicates that had they wished to do so their wish would have been accommodated. This ground was considered in relation to an application for interlocutory relief by Weinberg J in Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 and his Honour was of the view that the argument raised no serious question to be tried and was “wholly untenable” – [41] and [43]. Whether or not it was arguable that separate notice of the hearing should have been given to the son, notice was given to his solicitors and through them he was afforded the opportunity to appear and give evidence. Nothing in what the Tribunal did compromised his rights.
Cabal Ground 1(vi) – Denial of right of notification to the Cabal children
51 This ground fails for the same reasons as ground 1(v). The children concerned were aged 7, 9, 13 and 14 at the time of the Tribunal hearing.
Cabal Ground 1(vii) – Failure to have regard to the Applicants desire to obtain oral evidence from Mr Cabal Snr
52 There was no identifiable part of the written submissions relating to this ground. The solicitor’s letter of 12 January 1999 expressed a desire that evidence be taken from Mr Cabal Snr among others. In the event the Tribunal received a 182 page statement from him. It was plain from the restrictive tenor of Mrs Cabal’s answers to Tribunal’s questions in evidence that there was no prospect of her husband subjecting himself to questioning in oral examination. There is, in any event, no evidence for the contention that the Tribunal failed to have regard to the applicant’s request in their solicitor’s letter.
Cabal Ground 1(viii) – Failure to comply with section 426(3)
53 Under this ground it is said that the Tribunal failed to comply with s 426(3) by refusing unreasonably or without good cause to obtain oral evidence from Carlos Cabal Peniche. For the reasons expressed in respect of ground 1(vii) this ground also fails.
Cabal Ground 2 – Want of jurisdiction
54 Under this ground it is said that the Tribunal was not properly constituted for the purpose of the review because no direction had been given as required by subs 421(2) by the Principal Member. Counsel for the Minister however, tendered to the Court an Instrument of Delegation (Exhibit 3) under which the Principal Member of the Refugee Review Tribunal delegated to Ms Boland various of his powers under the Act including the power to “…constitute cases to Melbourne Members”.
55 The applicants relied upon the fact that the only document produced by the Tribunal evidencing Ms Boland’s appointment as the member to conduct the review was a document entitled “RRT Case Load Report” which listed the Cabal and Pasini applications under Ms Boland’s name. This document was signed by Ms Boland. I am prepared to assume that it may not itself have constituted a written direction of the kind contemplated in s 421, but was rather in the nature of a case management report. Nevertheless it plainly evidenced her appointment as the Tribunal member for the purpose of conducting the Cabal and Pasini reviews. Having regard to that material, I am not prepared to infer that the Tribunal was not properly constituted for the purpose of undertaking these reviews.
56 In this case Ms Boland had the power of the Principal Member to constitute the Tribunal for particular cases. In my opinion s 421 should not be construed as requiring the Principal Member or the delegate to give a written direction to himself or herself as the case may be, as a condition of that member constituting the Tribunal. There is no sensible policy reason to support such a construction. The language of s 421(2) is facultative. On the face of it and according to its construction in accordance with the ordinary meaning of its words, it does not require the Principal Member to give a written direction in every case. In this respect the language of s 421(2) stands in contrast with the mandatory language of s 422(1) where, if the constituted member stops being a member or is otherwise unavailable the Principal Member “must direct” another member to constitute the Tribunal for the purpose of finishing the review. The difficulty with s 421 however is that s 421(1) appears to define the constitution of the Tribunal for the purpose of a particular review as its constitution “in accordance with a direction under subs (2)”. In my opinion, however, what s 421 makes clear is that the Tribunal is to be constituted by a single member in each case and that single member is to be designated by the Principal Member. There is a procedural requirement for a written direction but if the Principal Member were to give a direction other than in writing it would not, in my opinion, invalidate the authority of the Tribunal to proceed with the review. A fortori where it is the Principal Member who constitutes himself or herself as the member, the absence of a written direction will not deprive him or her of authority to proceed with the review. The same of course applies to a delegate exercising the powers of the Principal Member to constitute the Tribunal. In my opinion, there is no merit in this ground of review.
Cabal Ground 3(i), (ii) and (iii) – Want of authorisation for decisions
57 The issues raised under this ground have already been dealt with under ground 1. They relate to the refusal to treat Mr Cabal Snr as an additional applicant, an alleged failure on the part of the Tribunal to consider all the material put before it and the alleged failure to notify the Cabal children of their rights under ss 425 and 426. For the reasons expressed in relation to those matters in respect of ground 1, this ground fails in its entirety.
Cabal Ground 4(i) to (v) – Misapplication of legal test and failure to consider all evidence
58 Particulars (i) to (v) of ground 4 were dealt with together in argument and, with respect, in a way that did not make particularly clear the nature of the applicants’ complaints. Much of the oral argument focussed upon the Tribunal’s findings about whether the conduct of Mexican authorities in relation to the applicants constituted unlawful or oppressive surveillance or harassment and therefore a species of persecution. In my opinion the course of the Tribunal’s reasoning indicates that it was not satisfied that the conduct of which the applicants complained amounted to persecution. Rather it found that that conduct involved steps legitimately taken by authorities in the investigation of what was said to be very serious criminal offences committed by Mr Cabal Snr. This was a finding of fact which the Tribunal was entitled to make and there was nothing to suggest that it misapplied the law in so doing.
59 The Tribunal also found as a matter of fact that Mrs Cabal and her family were not at risk of persecution in its Convention sense if returned to Mexico. This was based in part upon its findings about the way in which the Mexican authorities dealt with Mrs Cabal and the children after their flight from Mexico in 1994. As a matter of fact the Tribunal’s conclusions on the question of past events of alleged persecution and the future risk thereof excluded any alternative possibility that there was a “real chance” of persecution nonetheless. Its findings on this issue necessarily implied that any disadvantage that might be suffered on the applicants’ return to Mexico would not amount to persecution on any Convention ground. The hypothesis that the applicants were part of a particular social group, defined by membership of the Cabal family, did not need to be explored because the threshold question of whether there was a well-founded fear of persecution for whatever reason was answered in the negative.
60 The complaint was raised again, under this ground, that the Tribunal failed to consider all of the evidence put before it. This is really a complaint about the sufficiency of its reasons. As I indicated earlier, the reasons are, in my opinion, sufficiently expressed for the purposes of s 430. The weight that may have been given to particular aspects of the evidence and whether the Tribunal failed to take into account relevant considerations are not matters with which this Court can be concerned. The applicants’ case in essence failed at the threshold because they failed to show that they were subject to a risk of persecution on Convention grounds or otherwise.
Cabal Ground 4(vi) – Joinder of Cabal Snr
61 This ground was a revisiting of the issue whether Mr Cabal Snr was to be treated as an applicant before the Tribunal. It fails for the reasons stated in relation to the similar grounds mentioned above.
The Pasini Grounds
62 So far as the Pasini application is concerned, the grounds were the same as those raised under the Cabal application. They were argued at the same time as the Cabal grounds and they fail for the same reasons.
Conclusion
63 For the preceding reasons, the applications will be dismissed. In the case of the Cabal applications only the adult applicants will be ordered to pay costs, they being the first and sixth applicants. In the case of the Pasini application, both applicants will be ordered to pay the costs of the respondent.
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I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. |
Associate:
Dated: 11 December 2000
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Counsel for the Applicants: |
Mr M Gerkens |
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Solicitor for the Applicants: |
Fernandez Canda Gerkens |
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Counsel for the Respondent: |
Mr G Guntz QC and Mr SGE McLeish |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
4 and 5 September 2000 |
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Date of Judgment: |
11 December 2000 |
