FEDERAL COURT OF AUSTRALIA

VSAF v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1270

MIGRATION – visa – protection visa – applicant sought to postpone tribunal hearing and did not attend – tribunal did not advise whether hearing rescheduled – subsequently affirmed decision to refuse visa – did not make findings of fact on applicant’s claims – referred in reasons to matters about which it would have liked further information – whether tribunal performed duty to review decision of delegate

MIGRATION – tribunal – jurisdictional error – form of relief when tribunal not a party

Federal Court of Australia Act 1976 (Cth) s 21

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 5(1), 36, 65, 414(1), 415(1), 415(2), 415(3), 425, 426A, 424(2), 424(3), 441A

Federal Court Rules O 80

Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967

VSAF OF 2003, VSAG OF 2003 AND VSAH OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 651 of 2003

GRAY J

6 OCTOBER 2004

MELBOURNE

THE COURT DECLARES THAT the decision of the Refugee Review Tribunal, made on 19 June 2003, affirming a decision not to grant protection visas to the applicants, is void and of no effect.

THE COURT ORDERS THAT:

1.         Liberty to apply be reserved.

2.         The respondent pay the applicants’ 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 and history of the proceeding

1                     The central issue in this proceeding is the nature of the duty of the Refugee Review Tribunal (‘the Tribunal’) when the applicant in a review before it fails to attend the Tribunal’s hearing. 

2                     The applicants are husband and wife and their daughter.  They are citizens of Fiji, of Indian ethnic origin.  On 25 November 2002, they arrived in Australia.  On 24 December 2002, they lodged a joint application for protection visas.  On 30 January 2003, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), made a decision refusing to grant a protection visa to any of the applicants.  On 24 February 2003, the applicants applied to the Tribunal for review of that decision.

3                     By s 36 of the Migration Act 1958 (Cth) (‘the Migration Act’), 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.  The terms ‘Refugees Convention’ and ‘Refugees Protocol’ are defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 respectively.  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’.

4                     Section 36 of the Migration Act also provides that a criterion for a protection visa is that the person applying for it be a non-citizen, in Australia, and be the spouse or a dependent of a non-citizen to whom Australia has protection obligations under the Convention and who holds a protection visa.

5                     In the present case, it was the first applicant, the husband of the second applicant and the father of the third applicant, who claimed to be a person to whom Australia has protection obligations under the Convention.  The applications of the second and third applicants were as dependents of the first applicant, and were therefore reliant on the success of the first applicant’s application.

6                     On 19 June 2003, the Tribunal produced a written decision and reasons for decision, which it handed down on 11 July 2003.  Its decision was to affirm the decision not to grant protection visas.  It is in respect of that decision of the Tribunal that the applicants now seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth).

The legislation

7                     By s 414(1) of the Migration Act, if the applicants made a valid application for review of the decision of the Minister’s delegate, ‘the Tribunal must review the decision.’  There was no suggestion that the applicants’ application to the Tribunal was anything other than a valid application.  By s 415(1), the Tribunal was empowered to exercise all the powers and discretions conferred by the Migration Act on the Minister’s delegate.  Relevantly for present purposes, s 415(1) conferred on the Tribunal the power given to the Minister (and the Minister’s delegate) by s 65 of the Migration Act.  Relevantly, s 65 provides:

‘(1)      After considering a valid application for a visa, the Minister:

            (a)        if satisfied that:

                        ...

                        (ii)        the other criteria for it prescribed by this Act or the
                                    regulations have been satisfied;

                        ...

                        is to grant the visa; or

            (b)        if not so satisfied, is to refuse to grant the visa.’

8                     According to whether it was satisfied or not satisfied as to the relevant criteria, the Tribunal was empowered by s 415(2) of the Migration Act to affirm or vary the decision of the delegate, or to set it aside and substitute a new decision.  By s 415(3), if the Tribunal varies the decision or sets aside the decision and substitutes a new decision, the decision as varied or substituted is taken to be a decision of the Minister.

9                     Section 425 of the Migration Act provides, so far as relevant:

‘(1)      The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)               Subsection (1) does not apply if:

            (a)        The Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it’.

10                  Section 426A of the Migration Act provides:

‘(1)      If the applicant:

            (a)        is invited under section 425 to appear before the Tribunal; and

            (b)        does not appear before the Tribunal on the day on which, or at
                        the time and place at which, the applicant is scheduled to
                        appear;

            the Tribunal may make a decision on the review without taking any
            further action to allow or enable the applicant to appear before it.

(2)       This section does not prevent the Tribunal from rescheduling the
            applicant’s appearance before it, or from delaying its decision on the
            review in order to enable the applicant’s appearance before it as
            rescheduled.’

The facts

11                  The Tribunal had before it documents, which included the original protection visa application and the record of the decision of the Minister’s delegate.  It also had the application to the Tribunal and an accompanying statement of the first applicant.  By letter dated 15 April 2003, in accordance with s 425 of the Migration Act, the Tribunal advised the first applicant:

‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.’

12                  The letter proceeded to invite the applicants to a hearing of the Tribunal to give oral evidence and present arguments in support of their claims.  The hearing was fixed for 11 June 2003 at 2.00 pm.  The letter also advised:

‘The Tribunal will only change this hearing date for good reasons.  If you think you might be unable to attend the hearing, you must contact the Tribunal immediately.  If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.’

13                  In its reasons for decision, the Tribunal recorded relevant events as follows:

‘On 15 April 2003 the Tribunal wrote to the applicants, by letter addressed to [the first applicant], advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 11 June 2003.  They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice.  No response was received on the appropriate “Response to Hearing Form”.  On 10 June [the first applicant] contacted the Tribunal by telephone indicating that he wished to cancel his hearing the following day because he was flying to Sydney to attend the funeral of his cousin.  The Tribunal asked the applicant to provide some evidence of the reason of his inability to attend by c.o.b. on 12 June 2003.  To date no information at all has been received by the Tribunal from the applicant.  The applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.’

The first applicant’s claims

14                  In its reasons for decision, the Tribunal summarised the first applicant’s claims in the following terms:

‘The applicant claims that he is Indo-Fijian and as such is at the mercy of native Fijians and the whole idea of “Fiji for Fijians”.  He claims that at the time of the military coup of 1987 he was working as a law clerk for Jasbir Singh & Co. and he was detained along with the whole staff.  He was detained at the Army Barracks and questioned by security officers.  He was tortured .  When he was released they warned him not to support the NFP.  He suffered subsequent physical attacks and his wife was insulted.

During the second coup by George Speight he was again picked up by security officers for supporting the Fiji Labour Party during the 1999 elections and also for harassing native Fijians while serving them with summonses to appear in court for not repaying their loans.  These were false allegations.  The applicant claims they did not want him to work for the NBF (National Bank of Fiji).  He was tortured and humiliated.  After he promised that he would work in favour of the native Fijian borrowers he was released and warned that if he didn’t keep his promise he would be shot.  He claims that none of the reports he made to the police ever brought him any positive results.’

15                  It is clear from this summary that the first applicant’s claim to have a well-founded fear of persecution for the reason of his political opinion, and perhaps for the reason of his race, had some substance.  Clearly, it could not be rejected out of hand on the basis that the claims made disclosed no possibility of success.

The Tribunal’s reasons

16                  In its reasons for decision, the Tribunal proceeded to discuss a range of information about Fiji, under the heading ‘Country Information’.  Oddly enough, since the Tribunal was considering the claims of the first applicant, who is male, the information summarised in the Tribunal’s reasons included information about counselling and assistance to women in cases of domestic violence, rape and other problems such as child support.  It also included information about the manner in which the Fiji police deal with cases of sexual abuse. 

17                  Under the heading ‘Findings and Reasons’, the Tribunal first found the first applicant to be male, a citizen of Fiji, of Indian ethnic origin and of the Hindu religion.  It referred to his arrival in Australia, and his two previous trips to Australia.  It referred to his Fijian passport and to the fact that he had travelled to Thailand in July 2002.  The Tribunal then said:

‘It is common ground that there is a certain amount of discrimination against Indo-Fijians in Fiji and that this has tended to increase when there have been crises in the country.  This is exemplified in the information above about these issues during the coups which have occurred in Fiji since 1987.  Given this situation, the Tribunal needs to consider whether the treatment complained of by the applicant, if it took place, amounted not simply to discrimination but constituted serious harm so as to be regarded as Convention persecution, this is assuming that the harm suffered was for one of the reasons contemplated by the Convention.

In the present case, on the available evidence, the Tribunal cannot determine its facts with confidence.  The applicant’s claims are vague: relevant details such as time and place of the alleged harm as well as the circumstances of some of the incidents are not provided.  The Tribunal is unable to establish, for example, the level of the applicant’s involvement in the Fijian Labour Party even though there are few documented instances of labour party people being harmed, and this even during the election campaign of 1999.  The Tribunal would have liked to explore with the applicant the relationship between his work for the party and the detentions.

Similarly the Tribunal cannot form a clear picture of the situation regarding the applicant’s work in the bank which he claims caused him to suffer torture and humiliation; the alleged treatment because of his duties as a bailiff does not sit well with the fact that he worked in that capacity, it seems, from December 1997 to November 2002.

The Tribunal also would have liked to explore the reasons why the applicant who travelled to Australia twice before and during the period when he alleges he was mistreated, did not apply for protection on one of the previous occasions.  This behaviour would indicate that at least the extent of his fear of persecution needs to be questioned.

In relation to his claims that he made reports to the police a number of times to no avail, the Tribunal refers to a DFAT document dated 14 August 2002, dealing with Indo-Fijians (CX66594) which states  inter alia:

            An Indo-Fijian citizen who has a complaint against a police officer
            can take the matter up with the Department of Internal Affairs in the
            Fiji Police Force which will investigate the complaint.  The matter can
            also be taken up with the Fiji Human Rights Commission or the
            Ombudsman’s office if the complainant feels that the Internal Affairs
            Department’s investigations are not sufficient.  None of these services
            require payment by the complainant.

The applicant does not report any attempts to seek redress of the alleged treatment of his complaints, yet he is a person who has worked in a number of solicitor’s offices and is involved in a quasi-legal area in his job; the Tribunal would have liked to also explore this issue with the applicant.

Given that the applicant was put on notice that a decision favourable to him could not be made on the information currently before the Tribunal and that he did not attend the hearing or provide evidence for his non –attendance [sic] as requested, on the basis of the evidence before it, the Tribunal finds that he [sic] applicant does not have a well founded fear of persecution for any Convention reasons should he return to Fiji.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa.

No specific Convention claims were made by or on behalf of the applicant daughter and partner.  The fate of their application therefore depends on the outcome of the first named applicant’s application.  As the first named applicant cannot be granted a protection visa, it follows that the applicant daughter and partner cannot satisfy the alternative criterion set out in s.36(2)(b) of the Act and cannot be granted a protection visa.’

The applicants’ case

18                  In an amended application to the Court, filed on 30 October 2003, the applicants sought a declaration that the Tribunal’s decision was void and of no effect.  They also sought certiorari, removing the Tribunal’s decision into the Court to be quashed, prohibition directed to the Minister, prohibiting him from acting on or giving effect to or proceeding further on the decision, and mandamus or an injunction compelling the respondent to cause the Tribunal to consider and determine according to law the applicants’ applications for protection visas.

19                  The applicants relied on a range of grounds, expressing the concept of jurisdictional error in various ways.  In particulars of these grounds, the applicants alleged that the Tribunal failed to address and deal with essential elements of the applicants’ claims raised by the material and evidence before it, and referred to certain specific aspects of those claims.  At the hearing of the application, counsel appointed pursuant to the scheme under O 80 of the Federal Court Rules appeared for the applicants.  His submissions tended to be directed to specific aspects of the Tribunal’s reasons.  It appeared to me, however, that the Tribunal may have failed to discharge its statutory obligations with respect to the application to review the decision of the delegate of the Minister in a fundamental way.  Argument therefore proceeded on this basis.

The handling of the adjournment application

20                  It is easy to be critical of the course of events in the Tribunal in a number of respects.  Assuming that the first applicant was aware of the contents of the Tribunal’s letter of 15 April 2003, he would have been aware of the possibility of having the hearing postponed, if he should be unable to attend that hearing.  The letter advised him that, in that event, he should contact the Tribunal ‘immediately.’

21                  It would have been understandable if, in response to the first applicant’s telephone call to the Tribunal on 10 June 2003, the Tribunal officer who took the call had told him that the Tribunal member assigned to the case would have to make a decision whether to postpone the hearing.  It would have been understandable if the Tribunal officer had suggested to the first applicant that any material he wished to place before the Tribunal member in support of his application to have the hearing postponed should be forwarded forthwith, so that it could be placed before the Tribunal member on the following day.  The Tribunal officer did no such thing.  Instead, the Tribunal officer asked the applicant to provide evidence of the reason for his inability to attend by close of business on the day following the day appointed for the hearing.  If the Tribunal member were to consider such information, his consideration of it could only have been on the basis that the hearing had already been postponed by the time he saw the material.

22                  Although the first applicant did not place any evidence before the Court as to his state of mind, or as to the reasons why he did not provide material as invited, it must have been clear to the Tribunal member on 11 June 2003, if he were in possession of the information set out in his reasons for decision, supplied by the Tribunal officer, that the first applicant might have been given the impression that the hearing would be postponed.  The first applicant had not been told that the Tribunal proposed to proceed pursuant to s 426A(1) of the Migration Act, to make a decision on the review without taking any further action to allow or enable the first applicant to appear before it.  Nor had he been told that the Tribunal would exercise its power, pursuant to s 426A(2), to reschedule the first applicant’s appearance before it, or to delay its decision in order to enable the first applicant to appear before it as rescheduled.  It does not appear that the first applicant was ever told which of these two courses the Tribunal proposed to take.  It does not appear that the Tribunal member made any decision, whether on 11 June 2003, or otherwise, as to whether or not it would reschedule the hearing, until it gave its decision in writing on 19 June 2003.

23                  The Tribunal officer’s invitation to the first applicant to supply information about the reason for his inability to appear was not an invitation pursuant to s 424(2) of the Migration Act, under which the Tribunal may invite a person to give additional information.  This was because the invitation was not given by any of the methods required by s 424(3) and s 441A.  It was given orally, by telephone, which is not a statutory method of giving such an invitation.  The Tribunal member appears to have been unconcerned by the question whether the Tribunal had any power at all to request the information it requested.  Without any further investigation, and without making any finding at all as to the genuineness of the first applicant’s reason for non-attendance, the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.  It so recorded in its reasons for decision. 

The Tribunal’s approach to reviewing the decision

24                  More importantly, the Tribunal made no finding against the first applicant in respect of any of his claims, other than to describe them as lacking in detail.  It repeatedly expressed its inability to make such findings, and its unfulfilled desire to obtain more information from the first applicant.

25                  The Tribunal did not rely on most of the information that it summarised under the heading ‘Country Information’.  As I have said, some of that information was plainly irrelevant to the first applicant’s claims.  Only in expressing its finding that ‘there is a certain amount of discrimination against Indo-Fijians in Fiji and that this has tended to increase when there have been crises in the country’ did the Tribunal appear to rely on any of the ‘country information’.  (How it could have described this finding as ‘common ground’ is not apparent.  That expression is defined in the Macquarie Dictionary to mean ‘that part of the matter under discussion to which all parties to a dispute can agree.’  It is generally used in judgments to describe an undisputed fact.  It was certainly not the case put by the first applicant that there was only ‘a certain amount of discrimination’ against people of Indian ethnic origin in Fiji.  The Tribunal’s function was to test the applicants’ claims, not to resolve any dispute.  There was no other party before the Tribunal.)

26                  Even having made this finding, the Tribunal did not use it to reject any aspect of the first applicant’s claims.  It simply drew attention to the need to consider whether the treatment of which the first applicant complained took place and whether it amounted to harm sufficiently serious to be regarded as persecution, and to the issue whether such harm was suffered for a Convention reason.

27                  The issues as to which the Tribunal expressed its inability to make a finding were not issues raised directly by the first applicant’s claims.  They appear to have been issues that the Tribunal thought it might have raised, for the purpose of refuting those claims.  Thus, it made no finding as to whether the first applicant had been involved in the Fijian Labour Party, as he claimed.  Rather, it seemed to have formed a view that the level of his involvement might have been relevant to its acceptance of the claim.  None of the ‘country information’ recited by the Tribunal suggested that there was, or was not, persecution of people involved to any particular extent in the Fijian Labour Party.  There remained the first applicant’s claim that  he had been picked up by security officers for supporting the Fiji Labour Party during the 1999 elections.  The Tribunal neither found this claim to be established nor rejected it.

28                  Similarly, the Tribunal did not find to be substantiated, nor reject, the claim that the first applicant had been tortured and humiliated for working for a bank and harassing native Fijians while serving them with summonses to appear in court for not repaying their loans.  It only referred to a fact that was apparently inconsistent with the claim.

29                  The Tribunal’s reference to the first applicant’s two earlier visits to Australia seems again to have been something it thought it might use against the first applicant, to refute his claims.  In a similar category was the Tribunal’s reference to the absence of any report of any attempt by the first applicant to seek redress in respect of the lack of response to reports to the police.  Having found further information, which it viewed as something it might have put to the first applicant as a counter to this claim, the Tribunal seems to have regretted that it had no opportunity to make use of the product of its labour.

30                  The Tribunal had within its power the means to satisfy itself about each of these issues.  It could at least have attempted to schedule another hearing and to invite the first applicant to attend and give oral evidence and present argument.  Its failure to do so, in circumstances in which it made no finding adverse to the first applicant about his reason for non-attendance, amounted in my view to a dereliction of its duty.  If the Tribunal were not prepared to make findings in respect of the first applicant’s claims on the evidence it had before it, the remedy lay, at least to some extent, in its own hands.

31                  The real reason for the Tribunal’s decision appears in the last paragraph above the heading ‘Conclusion’.  It is that the first applicant did not attend the hearing or provide evidence for his non-attendance as requested.  The Tribunal had no statutory power to dismiss an application for review of a delegate’s decision for non-attendance by the person the subject of such a decision at a Tribunal hearing.  The Tribunal’s statutory obligations were clear.  Section 414(1) of the Migration Act required it to ‘review the decision.’  Section 426A empowered it to ‘make a decision on the review’ without giving the first applicant any further opportunity to appear, if it chose to do so.  In any event, the Tribunal’s obligation to review the decision continued.  It did not cease because of non-attendance.

32                  It is true that, pursuant to s 425 of the Migration Act, an invitation to attend at a hearing generally results from the formation of an opinion, by someone within the structure of the Tribunal, that the Tribunal is unable to decide to set aside the decision under review on the material before it.  To say that the Tribunal is unable to make a decision in favour of an applicant is not the same as saying that it is bound to make a decision against that applicant in the absence of further material.  The duty to review the decision continues.  A review of the decision requires that the various claims be considered and findings made in respect of them.  To hold otherwise would be tantamount to giving the Tribunal power to dismiss an application for review on the ground of non-appearance, a power the Tribunal is not given specifically by the Migration Act.

33                  In the present case, the Tribunal did not consider the various claims made and make findings in respect of them.  The Tribunal’s statement that it made a positive finding that the first applicant did not have a well-founded fear of persecution for a Convention reason was inconsistent with its approach, as recorded in its reasons for decision.  So also was the Tribunal’s statement that it was not satisfied that the first applicant was a person to whom Australia had protection obligations.  In the absence of findings as to the facts, either favourable or unfavourable to the first applicant, the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non-satisfaction.  As I have said, the first applicant’s claims did not lack substance.  Only if they were rejected, or if the Tribunal found that circumstances had so changed in Fiji as to make the first applicant’s claims no longer relevant to his likely treatment on return, could the Tribunal have rejected his application for a protection visa.  The Tribunal neither rejected the claims nor made any finding as to changed circumstances. 

The appropriate orders

34                  It follows that the Tribunal’s decision must be set aside and the applicants must be given a further opportunity to have the Tribunal exercise its statutory obligation to review the decision of the Minister’s delegate.  The question of how to achieve this objective is not easy.  The Tribunal is not a party to this proceeding.  I perceive there to be difficulty in granting certiorari against a decision-maker not party to the proceeding.  Nor would mandamus against the Minister be effective, because the Minister lacks the power to compel the Tribunal to do anything.  The remedy of prohibition could not be granted because the Tribunal is not a party.  To grant prohibition against the Minister would seem to be without useful purpose. 

35                  In the circumstances, it seems to me to be appropriate to make a declaration of right, pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth).  Such a declaration will only bind the parties to this proceeding, namely the applicants and the Minister.  It will have the effect of establishing, as between those parties, that the applicants’ application for protection visas has not been dealt with finally, because they have applied for review of the adverse decision of the Minister’s delegate and their application for review has not been dealt with in accordance with the Migration Act.  It is to be expected that the Tribunal would act on the basis that such a declaration established the position.  In case it does not do so, liberty to apply should be reserved, so that the applicants can return to the Court and seek to join the Tribunal as a party, for the purpose of obtaining relief directed to it. 

36                  Although counsel for the applicants appeared as a result of a referral pursuant to O 80 of the Federal Court Rules, and such appearance is generally without fee, in the event that the party referred is successful and the Court awards costs to that party, O 80 r 9(2) entitles the legal practitioner who has provided legal assistance to recover fees and disbursements that the unsuccessful party is required to pay under the order.  The Court can therefore award costs.  I am of the view that the normal rule, that costs follow the event, should be followed and the Minister should be ordered to pay the applicants’ costs of the proceeding.

Associate:

Dated:              4 October 2004