FEDERAL COURT OF AUSTRALIA

VBAM of 2002 v Minister for Immigration & Multicultural Affairs
[2003] FCA 504

MIGRATION – protection visa – Chilean alleging threats for the reason of political opinion – whether Refugee Review Tribunal denied applicant natural justice – finding that source of information of three witnesses who gave evidence on applicant’s behalf was applicant – whether obligation to notify of proposal to make finding or to ask witnesses what was the source of their information – whether tribunal erred in rejecting evidence of witnesses because of inconsistencies between evidence of applicant and his wife – whether tribunal erred in giving less weight to letter from party official because it was of recent date and obviously solicited for the purposes of the case – whether tribunal misdirected itself on issue of state protection

Migration Act 1958 (Cth) ss 420(2)(a), 424A

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 referred to

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1 referred to

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24 referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22 (2001) 206 CLR 57 at [31], [194] applied

Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472 at 481 followed

Abebe v Commonwealth of Australia [1999] HCA 14 (1999) 197 CLR 510 at [187] referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 77 ALJR 699 referred to

W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 432 distinguished

W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 distinguished

APPLICANT VBAM OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 105 of 2002

GRAY J

22 MAY 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

The nature of the proceeding

1                     The applicant has invoked the jurisdiction conferred on the Court by s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 7 January 2002.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, “the Minister”), refusing to grant protection visas to the applicant, his wife and their child.

2                     By s 36 of the Migration Act 1958 (Cth) (“the Migration Act”), there is a class of visas to be known as protection visas.  A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, or a non-citizen in Australia who is the spouse or a dependent of such a person, or of the holder of a protection visa.  Section 5(1) of the Migration Act defines “Refugees Convention” to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and “Refugees Protocol” to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  It is convenient to call those two instruments, taken together, the “Convention”.  For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or 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”.

3                     The applicant is a citizen of Chile.  He and his wife and their child arrived in Australia on 6 July 2000.  On 3 January 2001, they lodged a joint application for protection visas with the Department of Immigration and Multicultural Affairs.  On 30 January 2001, a delegate of the Minister refused to grant protection visas.  The applicants applied to the Tribunal for review of that decision.  On 25 September 2001, the Tribunal conducted a hearing at which the applicant and his wife and three other witnesses on their behalf gave evidence.  On 7 January 2002, the Tribunal published its written decision and reasons for decision.  In this proceeding, the applicant seeks to have the Court quash that decision of the Tribunal and order the Tribunal, differently constituted, to hear and determine the application for review of the delegate’s decision according to law. 

The applicant’s claims

4                     The applicant claimed to have a well-founded fear of persecution, if he should return to Chile, on the ground of political opinion.  He claimed that he left Chile because of threats made by current and former members of an intelligence group formed by the Pinochet government after the 1973 coup.  These threats were made because of the applicant’s involvement in the Chilean Socialist Party during and after the Pinochet government.  The applicant alleged that threatening phone calls continued to be made to his mother’s house, asking where the applicant was and when he would return.  According to the applicant, he feared harm from people who were involved with Pinochet and a new group formed to fight against socialism.  He believed he would be harmed because he was involved in the largest political group opposing Pinochet’s government and because he knew the names of different groups under Pinochet’s command and the crimes they committed.  Attempts to seek protection from the relevant authorities had been unsuccessful.

5                     According to the applicant, he had joined the Socialist Party in 1988, when it was banned, along with other left-wing parties, by the Pinochet regime.  He participated in the political campaign which resulted in the election of a new president in 1990, in subsequent presidential campaigns and in parliamentary and municipal election campaigns.  He gave two addresses in Santiago, one from 1994 to 1998 and another from 1998 to 2000, but said that he had moved around all the time because of his fear of persecution.  He worked part-time as a jeweller and also as an administrator for a company.  He joined a branch of the Socialist Party in a place an hour away from his home, not his local branch.  He claimed to have been president of the Young Socialists in 1989, when he was twenty-nine or thirty years old.  He claimed that he had had problems because of the killing of a union leader called Jiminez, or Jimenez.  He had received telephone calls warning him not to do anything about the Jiminez information or his wife and son might die.  The police had told him that his case didn’t have enough merit and had asked for proof of the threats.  He had changed his telephone number and moved house to avoid the calls.  His car had been stolen in 1997 and he believed this was linked to the threats.  He claimed that people who had been charged over the death of Jiminez continued to perform their functions and that he had information about events before the death of Jiminez which had not come out in court.  He also said that he had a cousin associated with the Allende government, now living in the United States, who also received threats.

6                     The applicant’s wife also claimed to have been a member of the Socialist Party and to have been an activist.  She also gave evidence about threats.  As well as telephone threats, she spoke of letters and painting on the wall.  The applicant said that these things had not come to his mind at the time.

7                     The first of the three other witnesses, Mr Guerrero, was a friend of the applicant.  He said that human rights abuses still continued in Chile even though the country was under democratic rule.  He knew that the applicant had been threatened and that his vehicle had been stolen.

8                     The second witness, Ms Garcia, said that she had known the family in Chile for about ten to eleven years.  The family had to stay in Australia because, if they returned to Chile, they would be hassled continuously.  Chile was a democracy in name only and people who fought against the military continued to be persecuted. 

9                     The third witness, Mr Pavez, said that he had been in Australia since 1988.  He visited Chile in 1995 to 1996 and had to give a package to the applicant, but it had been difficult to arrange a meeting with him because the applicant had said that people were after him and he could not go to the house.

10                  Following the hearing before the Tribunal, the applicant submitted two statutory declarations, one of them in response to an invitation by the Tribunal to comment on certain material adverse to his case.  In the first statutory declaration, dated 10 October 2001, the applicant expanded on his history of support for the Socialist Party and on the history of threats.  He claimed to have received at least 400 threatening phone calls over a period of eight years, to have suffered two break-ins of his home in which nothing was stolen but documents relating to the Socialist Party, to have received threatening letters and to have been followed on many occasions.  He claimed that his cousin, brother, brother-in-law and friends had all been discriminated against and persecuted in similar ways.

The Tribunal’s reasoning

11                  The Tribunal came to the conclusion that the applicant and his wife were not credible witnesses. 

12                  The Tribunal was prepared to accept in the applicant’s favour:

·        That he joined the Socialist Party in 1988.

·        That he was a participant in the Young Socialists prior to that time.

·        That he was an office-holder in the Young Socialist movement.

·        That he was active in three presidential campaigns.

·        That he was generally an active member of the Socialist Party in the 1990s.

·        That he was a member of the Socialist Party at the time he left Chile (although he did not hold any official position at the time of his departure and had reduced his activities because of threats he claimed to have received).

13                  The Tribunal did not accept the claim that the applicant was threatened because of information he had about the Jiminez case.  It found that it was quite clear at the hearing that the applicant knew virtually nothing about that case, not even the year in which the killing had occurred.  He knew little, if anything, about what had happened in the court cases that followed.  The Tribunal took the view that it was not credible that he would have been unaware of these very public court cases if he had been personally involved, to the point of being threatened with death, because of knowledge he had.  It was also implausible that, if he had been prepared to report what he knew to the police, he would have been too afraid to have gone to a human rights group with the information.  The Tribunal found that the claim relating to the Jiminez case had been fabricated.  It did not accept that he possessed information about the case or that he would be regarded as an enemy of the people who were prosecuted for the murder of Jiminez.

14                  The Tribunal did not accept the claims of threats because of political activities.  It said that the applicant and his wife did not provide consistent information about those threats.  It found the wife’s accounts differed significantly from those of the applicant and that the inconsistencies caused the Tribunal to doubt their truthfulness.

15                  The Tribunal also found implausible the claim that the applicant was in hiding for a prolonged period because of the threats.  It found that the claim was inconsistent with his long-term employment.  It did not accept the applicant’s explanation that he believed the pro-Pinochet group threatening him would not harm him in public and took measures to ensure he was not followed.  It took the view that a powerful group would not have been deterred by the measures the applicant described.  The Tribunal did not accept that the applicant and his wife went into hiding because of threats.

16                  The Tribunal also did not accept that the applicant’s political profile would have led to the actions which he claimed had been taken against him.  At the time the applicant joined the Socialist Party, the dictatorship period was almost over and the country was beginning the transition to democracy.  The power of pro-Pinochet groups was waning throughout the period the applicant claimed he was being threatened.

17                  In the absence of information about the Jiminez case, and in the context of successful transition to democracy in Chile, the Tribunal found it unclear why a local Socialist Party activist would be of interest to pro-Pinochet groups for the eight years the applicant claimed. 

18                  The Tribunal also pointed out that the Allende government was overthrown in 1973.  It did not accept that the applicant would have been a target of pro-Pinochet groups in the 1990s because he had a cousin who was associated with the Allende government.  The Tribunal also found that the applicant’s claim of association through a similar name with a person alleged to have been responsible for a murder to be far-fetched and did not accept that he received threats because of this claimed connection.

19                  In the course of its reasons for decision, the Tribunal said:

“Based on the applicant husband’s limited political profile, the inconsistencies between the accounts of the applicant husband and the applicant wife about the threats they received and the Tribunal’s disbelief of the applicants’ claim that despite all the threats they received, they were not harmed because they were in hiding for a prolonged period, the Tribunal finds that the applicant husband did not receive numerous telephone threats or threats by letter or by writing on the wall or was [sic] threatened by any other means.  As the Tribunal does not accept that the applicant received the threats he claimed prior to his departure from Chile, it does not accept that the threats have continued since his arrival in Australia.  The Tribunal finds that the applicant husband has fabricated the claim that he has received threats because of his political activities in order to enhance his claim for refugee status.

In coming to this conclusion, the Tribunal has considered the evidence given by the applicants’ friends, but in view of the inconsistencies in the evidence given by the applicants themselves, is not prepared to give any weight to the testimony of their friends whose knowledge is based on information provided to them by the applicants.  The Tribunal has also considered the testimony of the San Antonio Regional President of the Socialist Party that the applicants received threats because of their political work, but as this testimony was dated January 2001, and was clearly solicited for the purpose of the applicants’ refugee application, taking into account the other factors discussed above, the Tribunal is not persuaded by this testimony that the applicants did receive threats because of their political activities.”

20                  The Tribunal took into account information, supplied by the Department of Foreign Affairs and Trade (“DFAT”), about political developments in Chile during the period from 1989, and information contained in the US State Department’s 2000 Annual Report on Human Rights Practices in Chile.  It found that the Socialist Party is part of the coalition of parties governing Chile and the President of Chile is from the Socialist Party.  The party is clearly in a strong position to protect any of its members who might be threatened by an opposing group because of their political views.  Apart from one threat to political leaders at the height of the controversy concerning Spain’s request to extradite former President Pinochet from the UK, there were no recent reports of any problems experienced by members of the Socialist Party.  Based on the “country information” available to it, the Tribunal found that there was not a real chance that the applicant would be persecuted if he returned to Chile and resumed being an active member of the Socialist Party.

21                  The Tribunal also considered the claims of the applicant’s wife that she received threats because of her involvement in the Socialist Party.  It accepted that she joined the Socialist Party in 1988 and was a member at the time she left Chile.  For the same reasons that the Tribunal did not accept that the applicant was threatened, namely his limited political profile and the inconsistencies in the evidence provided by him and his wife, the Tribunal found that the wife was not threatened for the reason of her political opinion prior to her departure from Chile.  Based on the same “country information”, the Tribunal found that there was not a real chance that the wife would be persecuted if she returned to Chile and resumed being an active member of the Socialist Party.

22                  The Tribunal therefore found that both the applicant and his wife were not persecuted in the past by reason of their political opinion, or for any other Convention reason, and if they were to return to Chile now or in the reasonably foreseeable future, there would be no real chance that they would be persecuted for the reason of their political opinion or for any other Convention reason.  The fears of the applicant and his wife were not well-founded.  Accordingly, the Tribunal was not satisfied that the applicant and his wife were persons to whom Australia had protection obligations under the Convention.  They did not satisfy the criterion set out in s 36 of the Migration Act for a protection visa.  The Tribunal noted that no specific Convention claims were made by or on behalf of the child of the applicant and his wife, and there was no basis on which the Tribunal could be satisfied that he was a person to whom Australia had protection obligations.  He could not be granted a protection visa because the applications of his parents failed.

The applicant’s case

23                  The application filed on 21 February 2002, to commence the proceeding, was in a printed form.  It contained a range of grounds of attack on the Tribunal’s decision, none of which was particularised.  Because the applicant was then without legal representation, I granted a certificate under the Court’s legal referral scheme, whereby the applicant was referred to counsel for advice and, if thought fit, the drawing of any amended application, without fee.  Pursuant to a direction of the Court, an amended application was filed on 24 May 2002.  Subsequently, the referral to counsel was broadened to include representation generally.  As a consequence, the applicant was very ably represented by counsel at the hearing of the application.

24                  The amended application identified four alleged jurisdictional errors on the part of the Tribunal.  The first three concerned the three witnesses who had given evidence in the course of the Tribunal hearing and the official of the Socialist Party who had provided information about the applicant’s involvement in that party by means of a written statement.

25                  First, it was said that the Tribunal’s positive finding that the knowledge of the three witnesses was based on information provided to them by the applicant and his wife was made without giving the applicant or the witnesses any opportunity to adduce material about the source of their information and therefore involved the denial of a fair opportunity to present the applicant’s case.  In support of this ground, counsel for the applicant submitted evidence that two of the witnesses, Mr Guerrero and Ms Garcia, did not tell the Tribunal the source of their information, the Tribunal did not ask any questions as to the source of their information and the migration agent who had assisted the applicant at the Tribunal hearing did not make any submission about the source of the information.  The evidence was in the form of an extract from the transcript of the Tribunal hearing containing the evidence of the three witnesses.  In the case of Ms Garcia, there was also an affidavit in which she swore that, had she been asked as to the source of her information she would have said that she herself has received threats from pro-Pinochet groups, both before and after Chile became a democracy, and would have been able to supply details of those threats.  She would also have said that she knew that the applicant received threats because she was present in his house when he received a threatening telephone call, as a result of which he looked pale.  She asked the applicant why he looked pale and he told her that the person on the telephone had threatened the safety of him and his family.

26                  The second ground concerned the manner in which the Tribunal dealt with the evidence of the three witnesses and the Socialist Party official.  As well as rejecting the evidence of the three witnesses on the ground that their source of information was the applicant and his wife, the Tribunal rejected that evidence in view of the inconsistency in the evidence given by the applicant and his wife.  It rejected the evidence of the Socialist Party official because it was dated January 2001 and was clearly solicited for the purpose of the applicant’s application.  Counsel for the applicant contended that the Tribunal was required to determine whether the evidence was capable of constituting corroborating evidence by determining whether it was independent, whether it was credible (in the sense of being reasonably capable of belief) and whether it confirmed and supported the applicant’s evidence.  The Tribunal misunderstood the way it should approach corroborative evidence and thereby misconceived its function.

27                  The third ground was that the Tribunal misconceived its function by rejecting the Socialist Party official’s evidence on the ground of its recent date and the fact that it was solicited for the purposes of the applicant’s case.  The duty of the Tribunal to review the decision of the delegate of the Minister meant that it was required to take such material into account.

28                  The fourth ground attacked the Tribunal’s finding that the Socialist Party is in a strong position to protect any of its members who might be threatened by an opposing group because of their political views.  Counsel for the applicant contended that the Tribunal was required to assess whether the applicant would enjoy effective protection in Chile.  This required an assessment of the attitude and role of the police and military authorities in controlling pro-Pinochet groups still operating within Chile.  The Tribunal misconceived its function by failing to make such an assessment.

29                  At the hearing of the application, counsel for the applicant conceded that she was precluded by the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 from relying on the first and fourth grounds.  She put those grounds formally and relied only on written submissions in relation to them.  Counsel for the applicant nevertheless contended that the applicant could succeed, despite NAAV, on the second and third grounds, relating to the manner in which the Tribunal dealt with the evidence of the three witnesses and the Socialist Party official.  During the hearing, it became apparent that the way in which the applicant’s case was being argued raised questions of fact as to what had occurred in the Tribunal in relation to the evidence of the three witnesses.  At the end of the hearing, the parties were given leave to file further written submissions on this issue.  It was pursuant to this leave that the applicant filed the extract from the transcript of the hearing before the Tribunal to which I have referred.

30                  Subsequently, the High Court of Australia delivered judgments in two important cases concerning the effect of the privative clause in s 474 of the Migration Act.  See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24.  As a result, I invited the parties to make further submissions as to the effect, if any, of what the High Court said in those cases on the present case.  Counsel for the applicant submitted that all four grounds relied on were open to the applicant, as a result of the High Court’s reasoning in Plaintiff S157.

Denial of natural justice

31                  It is plain from the decision of the High Court in Plaintiff S157 that denial of natural justice, also called want of procedural fairness, is capable of constituting jurisdictional error, and thus rendering a decision of the Tribunal immune from the effect of s 474 of the Migration Act.  It is therefore necessary to determine whether, in the present case, by making the finding that the source of information of the three witnesses was the applicant and his wife, the Tribunal failed to afford procedural fairness to the applicant.  It is therefore necessary to examine the evidence of the three witnesses.

32                  Mr Guerrero’s evidence began with a general statement about continuing threats and persecution to people who have been politically involved in Chile.  The Tribunal member asked him specifically about things that had happened to the applicant.  Mr Guerrero replied, through the interpreter, “That they started threatening him.”  The Tribunal member invited Mr Guerrero to go on.  The transcript of the next answer reads:

“That they started with a (indistinct) a vehicle, making it look like this was the beginning of the events that would continue in the future.”

33                  The Tribunal member then asked where Mr Guerrero was living while these things were happening.  Mr Guerrero named the part of Santiago in which he was living.  The Tribunal member then asked whether there is “anything else that you want to tell me that you think I should know about?”  Mr Guerrero responded:

“I just want to reaffirm that these things are still continuing there and lots of people are being persecuted, but sometimes one doesn’t hear about it because these people aren’t important people.”

34                  The Tribunal member then asked whether there was anything that the applicant specifically wanted her to talk to Mr Guerrero about.  The applicant responded in the negative.  Before he left the hearing room, Mr Guerrero said:

“I just want to add that he has been the object of threats and persecution in Chile.”

35                  Ms Garcia then gave evidence.  In response to a general question, she said:

“That I think he would have to stay in this country because the life of his family, especially his son, are at risk if they go back to Chile; that if they don’t (indistinct) them in life, they will be hassled continuously.”

36                  There was then an exchange in which Ms Garcia informed the Tribunal that she knew the applicant’s family in Chile very well, she had known them for ten or eleven years, since the time when the protests started in Chile against the military government, and that she had been in Australia from June 1999.  After another general question, Ms Garcia said:

“I repeat again, they say that in Chile there is a democracy but it’s a ‘democracy’ in inverted commas and the people who fought against the military government, including myself, many of them continue to be persecuted and threatened, and as a mother, I would ask you to take this case into consideration because there is a child involved.  We as adults, what else do we have?  We live in a democratic country, but in our country, we don’t know what’s coming and what’s ahead, and also to our detriment, because of the particular colour that one has in my country, you can’t get work.  Thanks to the situation that he has left – my friend has left – in Chile, it’s helped us make the decision to come here to live.  For very long, we had lost the fear after the protests, but at the moment, what exists is panic and I wouldn’t feel good if he had to go back and only, I insist, it’s the children we have to protect.”

Again, the applicant was invited to suggest anything else that he felt Ms Garcia could say and he declined.

37                  Mr Pavez then gave evidence, describing his holiday in Chile in 1995 to 1996.  He said:

“Yes, I went in the summer of 95-96, and actually how I know him, it’s because I grew up with his nephew and we went to the same school and all that, so when I went down there, his nephew – the first time I met him, I was only supposed to take him a package, you know, letters and all that, but it was very hard to get in contact with him and all the contact I had was with his mother, and I never knew what was going on until later on, but that’s how I come into the picture, because of his nephew.  Since then, we’ve been friends.”

38                  The Tribunal member asked whether there was anything Mr Pavez specifically wanted to tell her that would be helpful to the applicant’s case.  Mr Pavez responded:

“Yeah, all I can say is what I saw, is that it was a very – not hard, but he had to tell me where to meet and stuff like that and I couldn’t understand why because I’ve never suffered that problem in Australia, and too, he told me that he was being – you know, people were after him and stuff like that, and a couple of times he told me not to go to his house because of safety reasons and I just stayed where I was and sometimes he visited me, but it was always an arrangement, kind of thing, to get together, you know.  He wasn’t very comfortable.”

Again, the Tribunal member asked the applicant whether there was anything else that he would like her to ask Mr Pavez about and the applicant offered no suggestion.

39                  In these circumstances, it is plain that each of the three witnesses was given every opportunity to give evidence to the Tribunal as to the source of any information he or she had about any threats made to the applicant.  The applicant was also given every opportunity to suggest that the Tribunal should ask as to the source of the information, if there existed a source other than himself and perhaps his wife. 

40                  If the applicant had desired to obtain from Mr Guerrero more detailed evidence about the incident with a vehicle to which he had referred, every opportunity existed.  An obvious
question might have been whether Mr Guerrero was an eye-witness to the incident, or any aspect of it.  If he had been, it is to be assumed that he would have been asked to say so.

41                  Ms Garcia’s evidence was given in general terms.  There was nothing to prevent her from giving evidence of the incident she later described in her affidavit, when she observed the applicant to have become pale after taking a telephone call.  She had every opportunity to give evidence of this incident if she wished to do so.  The applicant had every opportunity to suggest that the Tribunal ask her about it.  If she had given such evidence, apart from her observation of the applicant’s physical state after the telephone call, it is plain from her affidavit that the source of her information about what caused him to be pale was the applicant himself.

42                  Mr Pavez made it plain in his evidence the source of his information about threats to the applicant was the applicant himself.  As was the case with the other two witnesses, he was given every opportunity to say anything he wished to say.  The applicant was given every opportunity to suggest questions that might be put to Mr Pavez.

43                  In the circumstances, the finding that the source of the information of each of the three witnesses was the applicant, and perhaps his wife, was open to the Tribunal on the evidence as it stood at the end of its hearing.  The exercise of the Tribunal’s function required it to assess the evidence, for the purpose of determining whether it would accept it.  It was not obliged, as part of that process of assessment, to indicate to the applicant the way it proposed to find, and to invite further submissions.  To do so would be to exceed the requirements of procedural fairness in the circumstances.  The Tribunal is not obliged to reveal its processes of reasoning, so as to give an applicant for review an opportunity to strengthen his or her case, before making a finding adverse to that case.  See Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22 (2001) 206 CLR 57 at [31] per Gleeson CJ and Hayne J, and [194] per Kirby J.  The obligation to afford a hearing does not usually carry with it an obligation to direct the attention of the person in question to omissions in his or her case.  See Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472 at 481.  It was for the applicant to advance whatever evidence or argument he wished to advance in support of his contention that he had a well-founded fear of persecution for a Convention reason and for the Tribunal then to decide whether that claim was made out.  See Abebe v Commonwealth of Australia [1999] HCA 14 (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.

44                  Section 424A of the Migration Act did not oblige the Tribunal to give notice to the applicant of the finding it proposed to make about the witnesses.  That section relates only to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision” under review.  Section 424A(3)(b) excludes from the obligation information that the applicant gave for the purpose of the application.  The evidence of the three witnesses was information that the applicant gave for the purpose of the application. 

45                  Even if the Tribunal were obliged to disclose to the applicant that it proposed to make the finding that the source of the information of each witness was the applicant and his wife, there is no indication that the applicant could have done anything that would have altered the course of events.  If it were the fact that any of the witnesses had been able to give an eye-witness account of any event that strengthened the applicant’s case, it is hard to accept, in the absence of evidence, that he or she would not have been invited to do so.  As I have said, save for Ms Garcia’s observation of the applicant’s physical condition after he had taken a phone call, the evidence she says she would have given confirmed that he was the source of her information about the making of the threat.  As I have said, the evidence of Mr Pavez itself disclosed that the applicant was the source of his information.  The applicant has not made out a case that he would have been able to do anything to strengthen the evidence in support of his claim to a protection visa, if he had been given any further opportunity.  Compare Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 77 ALJR 699. 

46                  The applicant has not made out the ground of denial of procedural fairness affecting the Tribunal’s decision. 

Dealing with corroboration

47                  In approaching the argument put by counsel for the applicant on this issue, it is important to bear in mind that the function of the Tribunal is to be the fact-finder.  Whatever might be the limits of the grounds of jurisdictional error, in the light of the reasoning in Plaintiff S157, the concept of jurisdictional error will not include making an incorrect finding of fact that is not a jurisdictional fact.  Still less will jurisdictional error be established on the basis that the Tribunal has given too much, or too little, weight to a particular item of evidence.  The weight to be given to evidence is very much a matter for the Tribunal.  The function of the Court is not to substitute its own view of the weight to be given to particular items of evidence for that of the Tribunal.

48                  It is also necessary to bear in mind that the Tribunal is exempted by s 420(2)(a) of the Migration Act from the rules of evidence.  Specific rules as to the manner in which a Court must approach corroborating evidence do not bind the Tribunal.  In essence, its function is to determine the facts from the mass of material before it, without being confined to following any particular line of reasoning.  For the Tribunal, there is no “best evidence” rule, no rule as to what is primary and secondary, hearsay or real, opinion or fact. 

49                  The Tribunal in the present case was therefore not obliged to follow any particular path of reasoning in relation to what counsel for the applicant contended was corroborating evidence, given by the three witnesses and the Socialist Party official.  The Tribunal was not obliged to assess the evidence of the three witnesses independently of that of the applicant and his wife, for the purpose of determining its credibility, and whether it was capable of corroborating.  It was entitled to look at the whole of the evidence, and to exercise its function of determining the facts on the basis of the evidence.  It was entitled to take the view that the evidence of the applicant and his wife was so unreliable that it could not be saved by the evidence of the three witnesses or the Socialist Party official. 

50                  In essence, when its reasons are examined, this is the process followed by the Tribunal.  In the second paragraph of the passage I have quoted at length in [19], the Tribunal made it clear that it had considered the evidence given by the three witnesses, but that that evidence did not save the unreliable evidence of the applicant and his wife.  It is true that the Tribunal used an unfortunate expression when it said that it was “not prepared to give any weight” to the evidence of the three witnesses.  When this phrase is viewed in the context of the sentence in which it is used, it is plain that the Tribunal meant that it was not prepared to give sufficient weight to that evidence to rescue the applicant and his wife from the consequences of their own unreliability.  Similarly, in the same paragraph, in dealing with the evidence of the Socialist Party official, the Tribunal did not ignore the evidence, but considered it of insufficient weight to justify a finding favourable to the applicant. 

51                  This is not a case like W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 432 or W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211, in which the Tribunal completely ignored aspects of claims made to it and sizeable bodies of evidence supporting those claims.  In the present case, the Tribunal did not ignore the evidence of the three witnesses and the Socialist Party official.  It considered that evidence but did not find it persuasive.  This was the Tribunal performing the function allocated to it.  It is not indicative of jurisdictional error and the Court cannot intervene.

The evidence of the Socialist Party official

52                  Nor was there any vice in the grounds on which the Tribunal chose to discount the evidence of the Socialist Party official.  It was legitimate to point out that the document in which the evidence was contained was of relatively recent origin.  As a matter of logic, the Tribunal was entitled to give less weight to such a document than it might have given to a contemporaneous account.  Nor was the fact that the evidence of the Socialist Party official had been solicited for the purpose of the applicant’s case entirely irrelevant.  Of course, decision-makers under the Migration Act will often deal with evidence created for the purposes of supporting an application for a visa.  It would be entirely wrong to ignore all such evidence because of the purpose for which it is created.  Nonetheless, as is the case with any other evidence, the circumstances in which it is given are relevant.  It was open to the Tribunal to take the view that the evidence of a Socialist Party official had less weight than if it had been contained in a document given for another purpose.  The weight to be given to the document was a matter for the Tribunal.  The Court cannot substitute its own view on that question, even if the view taken by the Tribunal was unduly restrictive.

The Tribunal’s approach to State protection

53                  Counsel for the applicant argued correctly that the concept of persecution under the Convention is not limited to State-sanctioned persecution, but applies also to persecution occurring in circumstances where the government of the State concerned is unable or unwilling to prevent acts of persecution, or has simply failed in its task of doing so.  The contention that the Tribunal in the present case confined its attention to a narrow concept of persecution cannot be accepted. 

54                  The first thing that must be remembered is that the Tribunal made the finding that the applicant had not received the threats he claimed either prior to his departure from Chile or since his arrival in Australia.  It found that his claim with respect to the threats had been fabricated in order to enhance his claim for refugee status.  Its consideration of the possibility of persecution of the applicant by reason of his political opinion if he were returned to Chile was on that basis.  The Tribunal was dealing with the question whether, in the light of his previous involvement with the Socialist Party, there was a real chance that the applicant would be persecuted for this reason.  It reviewed the information it had from DFAT and the US State Department about relevant conditions in Chile.  It then made its finding that the Socialist Party was one of the coalition parties governing Chile and that the President was from the Socialist Party.  It then expressed its finding that the Socialist Party was in a strong position to protect any of its members who might be threatened by an opposing group because of their political views.  The Tribunal did not stop there.  It looked at evidence from the US Department of State, Amnesty International and Human Rights Watch for the preceding three years and found only one reference to problems experienced by members of the Socialist Party.  This reference was in the particular context of the controversy concerning the extradition of Pinochet.  In the absence of recent reports of problems experienced by members of the Socialist Party, the Tribunal was entitled to find that there was not a real chance that the applicant would be persecuted because of membership, past, present or future, of the Socialist Party.  It did so find. 

55                  Counsel for the applicant complained of the failure of the Tribunal to refer to a statement about the inadequacy of police protection in a report by Amnesty International.  That information concerned death threats against human rights defenders, not members of the Socialist Party.  Similarly material in the Human Rights Watch Report about threats concerned threats to persons who supported the Pinochet prosecution.  The Tribunal had no evidence that the applicant supported, publicly or privately, the prosecution of Pinochet. 

56                  In all the circumstances, given that it had rejected entirely the applicant’s case that he had received threats, the Tribunal discharged its function of reviewing the decision of the delegate, by addressing itself to the case put by the applicant.

Conclusion

57                  The applicant has therefore failed to make out any ground of error on the part of the Tribunal in dealing with his case.  No occasion arises for considering whether, if it had been made out, any of the alleged errors would have amounted to a jurisdictional error.  The applicant’s application must be dismissed.  Applying the usual rule that costs follow the event, the applicant should be ordered to pay the Minister’s costs of the proceeding.

Associate:

Dated:  22 May 2003