FEDERAL COURT OF AUSTRALIA

S256 of 2002 v Refugee Review Tribunal [2003] FCA 1473

S256 OF 2002 v REFUGEE REVIEW TRIBUNAL & MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 293 of 2003

MOORE J

12 DECEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  To the extent necessary, time to make the application be extended.

2.                  The application be dismissed.

3.                  The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for constitutional writs (remitted to this Court by the High Court and originally filed in that Court in August 2002) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) of 26 February 2001 (handed down on 20 March 2001) which affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) refusing to grant the applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).  The criterion for the grant of such a visa is, subject to subd AL of Div 3 of the Act, that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967.

2                     The applicant is a citizen of Colombia.  She arrived in Australia on 20 April 1998 with her two children and her mother-in-law, on visitors’ visas.  On 4 June 1998 the applicant lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs in which she included her two children and her mother-in-law.  Her husband made a separate application.  On 29 June 1998 a delegate of the Minister refused to grant the applicant and her husband protection visas.  On 15 July 1998 the applicant applied to the Tribunal for a review of that decision (the application was received on 20 July 1998).  The husband also sought review by the Tribunal.  On 13 May 1999 the Tribunal affirmed the decisions not to grant the applicant and her husband protection visas.  On 10 June 1999 the applicant and her husband applied to the Federal Court for judicial review of the decisions of the Tribunal of 13 May 1999.  On 20 October 1999 Wilcox J made orders that the Tribunal’s decisions be set aside and both applications be remitted to the Tribunal for redetermination: see (1999) 94 FCR 366.  That order led to the decision of the Tribunal of 26 February 2001 to which these proceedings relate.

3                     This brief summary of the background is sufficient for present purposes as the point raised in this application is a narrow one.  However, it is necessary to mention several further matters.  As noted earlier, the applicant arrived in Australia on 20 April 1998.  Her application for a protection visa was lodged on 4 June 1998.  At that point the applicant was represented by a firm of solicitors, Peter Bollard & Associates, which forwarded the applicant’s application under cover of a letter dated 4 June 1998.  In that letter, the solicitors noted the application would constitute an application for a bridging visa and said:

Even though the applicant’s existing visa does not expire for some time it is important that the bridging visa be evidenced in the passport so as to enable the applicant to apply for a Medicare card.

The application was on standard forms in which a number of questions were asked of the applicant.  In Form C the applicant completed the question “Why did you leave your country?” by saying:

To escape injury or death because my husband informed on narco traffickers.

In answer to the question “What do you fear may happen to you if you go back to that country?” the applicant said:

Injury or death.

In response to a question “Why do you think they will harm/mistreat you if you go back?”  the applicant said:

Because my husband was an informant.

Following this entry there is a printed notation (probably a stamp) saying:

Further information and/or material will be supplied when available.

4                     By letter dated 8 June 1998, the Department wrote to the applicant.  That letter said:

Dear [APPLICANT]

Your application for a Protection Visa has been received and is being given attention.

The person(s) listed below who were named in your application and who claim to be members of your family unit are also taken to be applicants for a Protection Visa:

Name:  [NAME]                                           Name:  [NAME]

Date of Birth: [DATE]                                 Date of Birth:  [DATE]

Name: [NAME]

Date of Birth: [DATE]

Please notify me within 28 days of receipt of this letter if the above details are not correct.  You are taken to have received this letter 7 days after the date of the letter.

While your application is being processed, your contact with the Department about any matter contained in or related to the application must be in writing.  However, enquiries about the progress of your application need not be in writing.  Please note that, for privacy reasons, information about your application given over the telephone will be restricted.

You should always quote the above file number when you communicate with the Department about your application for a Protection Visa.  The address and telephone number of the office where your application will be processed are given below:

Onshore Protection NSW

Department of Immigration & Multicultural Affairs

Locked Bag No.8

HAYMARKET  NSW  1240

Telephone: (02) 9219 7777

In considering your application, an officer of the Department may contact you to arrange an interview or to seek further information, if this is needed.

If you have any additional information relevant to your application, you may give it to the Department at any time up until a decision is made on your application.  You should provide the information in writing.  It will be taken into account in deciding your application.

The address given in your application has been recorded as the place to which all correspondence relating to your application will be sent.  You can nominate one other person to receive letters and notifications about your application.  You will need to tell the Department this person’s name and address.  If the person you nominate charges you for advice, they must be registered Migration Agent.

If you change your address for more than 14 days, you must tell the Department your new address and how long you intend to be there.  You should use Form 929 Client Change of Address available from any office of the Department.

If you do not inform the Department when you change your address, you will be taken to have received letters and notifications about your application sent to the last address you have given the Department.

This letter, together with valid identification, may be presented to organisations which require proof that you have applied for a Protection Visa as assistance is provided by these organisations at their discretion.

I have attached a copy of a Client Information Sheet which explains the work entitlements available to applicants of a Protection Visa.

Yours sincerely

Registry Unit

Onshore Protection NSW

08 June 1998

cc:       Peter Bollard & Associates

[Emphasis in original]

It can be seen that the Department requested information concerning the members of the family unit within 28 days of the date of the letter (if the details were not correct).  Later in the letter the Department indicated that if the applicant had any additional information it should provide the information in writing.  The letter did not, in terms, indicate when that information should be furnished other than noting that it had to be before the decision was made.  Probably on 16 June 1998 the Department received a letter from Peter Bollard & Associates dated 15 June 1998 stating that the firm no longer acted for the applicant.

5                     As noted earlier, the delegate made the decision on 29 June 1998 refusing to grant the applicant a Protection Visa.  The application to the Tribunal for review of that decision lodged on 15 July 1998 contained a section in which the applicant set out her reasons for making the application.  She said:

I fear returning to Colombia, death threats were made to the whole family and my sister was killed.

6                     In its decision of 26 February 2001, the Tribunal referred to these matters.  In a section of its reasons concerning the applicant it noted:

In the application for review dated July 1998 the Applicant wife wrote that death threats were made to the whole family and that her sister had been killed.

Later in its reasons under a heading “This Tribunal’s Hearing” the Tribunal said:

The Applicant wife could not explain why there was no mention of threats or of the death of her sister in her protection visa application which was completed with the assistance of a registered migration agent and solicitor, and an interpreter from that office, and was completed after her husband’s application had been rejected by the Department.  She said that they had told the solicitor everything.

7                     In a section headed “Findings and Reasons” the Tribunal addressed the claim of the applicant that the immediate source of her fear (more generally based on her husband’s fear of retribution as a police informer) was the murder of her sister shortly before the applicant arrived in Australia (and on the basis that her sister was murdered in the mistaken belief she was the applicant).  The Tribunal said:

Even though she had assistance from a registered migration agent and Spanish interpreter, the Applicant wife made no mention of the murder of her sister or more relevantly, that it was a case of mistaken identity, or that the family had been threatened, in the protection visa application.  She told this Tribunal that she told the solicitor everything and she could not explain why these matters had not been included.  The Tribunal is not satisfied that the Applicant wife’s claims are true or that if they are true that her experiences occurred for the reasons claimed.  This is because the Tribunal is satisfied that had her sister been killed in mistake for the Applicant wife for the reasons claimed and the family been threatened for the reasons claimed, that it is reasonable to expect that these very serious and recent matters would have been at least mentioned in the protection visa application especially as she applied after her husband’s application had been rejected by the Department and she was assisted by a registered migration agent and an interpreter.

8                     The point raised by the applicant in these proceedings concerns the approach taken by the Tribunal in the passage just quoted.  The Tribunal did not believe the applicant that her sister had been murdered because no reference had been made to the murder (and the circumstances in which it occurred) in the application for the protection visa lodged on 4 June 1998.  The starting point of the submission made by counsel for the applicant was that the Department denied the applicant procedural fairness by sending a letter (the letter of 8 June 1998) which would have led the applicant to believe that she had at least 28 days in which to forward further information (and her intention to do so was manifest by the stamped notation in the application itself).  The delegate should not have made a decision until that further information was provided.  The submission was then that the Tribunal should have drawn to the applicant’s attention this unfair procedure and also should have made it clear to her that the Tribunal intended to make an adverse credit finding on the basis of her failure to refer to the sister’s death in her original application.  In addition, the Tribunal failed to take into account or give sufficient weight to the fact that the applicant had adverted to the sister’s death in the application of 15 July 1998 made to the first Tribunal.  It was also submitted that the Tribunal failed to make a finding whether the applicant had told the solicitor everything and that there was no evidence to impeach the applicant’s credit because the failure had been that of the solicitor.  These matters were said to reveal jurisdictional error on the part of the Tribunal.

9                     In my opinion, the applicant has not demonstrated jurisdictional error on the part of the Tribunal.  What the Tribunal said in its reasons about what occurred at the hearing was not put in issue.  The Tribunal raised with the applicant her failure to refer to her sister’s death in the original application.  The Tribunal was clearly aware that a little over a month after the initial application was completed, the applicant raised the death of her sister in the application to the first Tribunal.  It referred to that fact in its reasons.  The Tribunal gave the applicant the opportunity at the hearing to explain why the murder of her sister was not referred to in the original application.  The applicant then had the opportunity to explain, for example, that she had told the solicitor about her sister’s murder before the form was completed (if that was what had happened).  It may be accepted that the questioning by the Tribunal could have taken a different course and also that other inferences could have been drawn about the failure to refer to the sister’s death in the original application (particularly having regard to the apparent collateral purpose of making the application on 4 June 1998 to obtain a Medicare card).  But the Tribunal is charged with the duty of finding relevant facts.  The conclusion the Tribunal reached about the applicant’s credibility was, in my opinion, open to it and the means by which it reached that conclusion did not involve a denial of procedural fairness or otherwise involve jurisdictional error.  As Gray J said recently in VBAM of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 504 at [43]:

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.

10                  The application should be dismissed with costs.  It is probably unnecessary to deal with submissions made by counsel for the Minister concerning the delay in instituting these proceedings and the related question of whether the applicant made an election to seek relief under s 417 of the Act the assumption that the Tribunal’s decision was a valid one.  These matters go to the question of whether time should be extended given that the application for constitutional writs was filed in the High Court in August 2002 in relation to a decision of the Tribunal given over a year earlier: as to which see M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146.  The preferable course is, in the circumstances, to extend time (if that be necessary) and dismiss the application.

Associate:

Dated:              12 December 2003