FEDERAL COURT OF AUSTRALIA

Applicant S557 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1403

MIGRATION – jurisdictional error – s 424A Migration Act 1958 (Cth) – procedural fairness – Minister did not draw applicant’s attention to independent country information – applicant advised by letter that Tribunal could not make favourable decision in her case without her appearance at the Tribunal hearing – failure to attend Tribunal hearing – no denial of procedural fairness

Migration Act 1958 (Cth) s 424A, 426A

Kioa v West (1985) 154 CLR 550

Minister for Immigration and Multicultural and Indigenous Affairs ; Ex Parte Lam (203) 214 CLR 1

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

SZAGE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 317

WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188

APPLICANT S557 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD390 OF 2004

BENNETT J

29 OCTOBER 2004

SYDNEY

ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1. The application for a draft order nisi is refused.
2. The applicant pay the first respondent’s costs.

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

ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL

REASONS FOR JUDGMENT

1                     This is an application for a draft order nisi in respect of a decision of the Refugee Review Tribunal of 22 November 2001 that was remitted to this Court from the High Court by an order of Heydon J on 16 February 2004.  The first respondent was represented by Mr Reilly of counsel.  Mr Reilly proceeded on the basis that it was an application for orders nisi only and that the question was whether the applicant established an arguable case for the relief she seeks.  As that was the basis on which the matter proceeded, the question is whether an arguable case is established.

2                     The respondents as originally joined were the Refugee Review Tribunal (‘the Tribunal’), the Secretary of the Department of Immigration and Multicultural Affairs (‘the Secretary’) and the Commonwealth of Australia (‘the Commonwealth’).  At the hearing, by consent, the Secretary and the Commonwealth were removed as respondents and the Minister for Immigration and Multicultural and Indigenous Affairs was joined.

3                     The grounds in the amended draft order nisi are:

‘1.        The respondents DO SHOW CAUSE WHY WRITS OF prohibition, certiorari and mandamus should not issue out of this Court directed to the first and second respondents directing them to consider and determine according to law the application of the applicants for a protection visa under the Migration Act 1958 upon the grounds that:

(i)                 The first respondent failed to accord to the applicants procedural fairness.

                                                PARTICULARS

(a)               Failure to advise the applicants that it proposed to take into account independent evidence, consisting of documents, in dealing with the applicants application for a protection visa.

(b)               Failure to provide, prior to the making of its decision, the applicants with the independent evidence which it took into account in dealing with the applicants application.

(c)                Failure to give, prior to the making of its decision, the applicants with the opportunity to comment and/or rebut the independent evidence which it took into account in dealing with applicants application.

(ii)               The first respondent failed to take into account, in making its decision, relevant considerations contained in the independent evidence.

                                                PARTICULARS

                                    (a)        US Department of State Report for 2000.

(b)               USDOS, 2001, Philippines – Country Reports on Human Rights Practices – 2000.

(c)        ‘Communists still biggest threat in the Philippines military’, 2001, Agence France Presse, August 15.

(d)       The Bangkok Post, 1998, “Analysis/Peace in the Philippines” moves gain pace to end communist rebellion”, 7 April, p3.

(iii)             The first respondent failed to take into account, in making its decision, relevant considerations contained in applicants submissions.

                                                PARTICULARS

(a)               Pages 11 to 27 of the submissions which is annexure “B” of the mother applicant’s affidavit sworn on 4^th November 2003.

2.         Proceedings in matters number CLF2001/29039 with the Department of Immigration and Multicultural Affairs and N01/39503 with the Refugee Review Tribunal be stayed pending the hearing and determination of this Order Nisi or until further order.

3.         An injunction be issued restraining the Minister for Immigration and Multicultural and Indigenous Affairs from removing the applicants from Australia pending the determination according to law of the application for a protection visa.

4.         A copy of this Order Nisi and all affidavits and exhibits be served upon the first and second respondents by leaving copies with the Australian Government Solicitor within seven days hereto.’

The history of the matter

4                     The first applicant, who is the mother of the other three infant applicants, arrived in Australia on 16 May 2001.  On 6 June 2001 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it then was).  On 13 June 2001, a delegate of the Minister for Immigration and Multicultural Affairs (‘the delegate’) refused her application.  On 5 July 2001 she applied to the Tribunal for a review of the decision of the delegate.  She lodged written submissions in support of her application for review.

5                     On 28 September 2001 the Tribunal wrote to the applicant, informing her: 

‘The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.  You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.  You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.’

She was advised that, if she wished to come to a hearing, it would be on 6 November 2001.  The letter also stated that, if she did not attend the hearing, the Tribunal may make a decision on her case without further notice.

6                     By a further letter of 5 November 2001, the applicant was advised that the hearing would now be held on 12 November 2001.  The same warning about the consequence of non-attendance was included in that letter.

7                     It is not in dispute that the applicant did not contact the Tribunal in response to the letters nor did she or her children attend at the hearing.

The Tribunal decision

8                     Noting the history of the matter and the fact that the applicant did not appear, the Tribunal proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (‘the Act’).  The Tribunal decision was made on 22 November 2001 and handed down on 18 December 2001.  In its reasons, the Tribunal noted that the applicant had been telephoned on 5 November 2001 and informed that the hearing would take place on 12 November2001.

9                     The Tribunal referred to the file that had been before the delegate and also to the application for review and ‘a lengthy submission’ from the applicant.  The Tribunal recited in some detail the facts asserted by the applicant in her primary application and in her written submission.  That submission included background material on the Philippines in general and on institutions, such as the Communist Party of the Philippines.  Shortly put, the applicant’s claims were based on activities she said she had undertaken with the New People’s Army (‘NPA’) in the Philippines and her fears of the NPA, due to the fact that she had signified to them her intention to withdraw from her association with them.  The Tribunal addressed her claims, as set out in her application and her submissions, in some detail over nearly five pages.  The Tribunal then referred to independent evidence with regard to the NPA and its relationship with the Philippines Government as well as the way in which the NPA punished defectors or “traitors”.  Other country information, relating to state protection of NPA members who have surrendered themselves under Government sponsored amnesties and to other active groups in the Philippines was also referred to.

10                  The Tribunal summarised the applicant’s claims as fear from harm from the NPA because of her failure to continue to be of assistance to them, that the authorities cannot protect her from that harm and that she cannot relocate as the NPA would seek her out wherever she might live in the Philippines.

11                  The Tribunal accepted the applicant’s evidence that she was of assistance to the NPA for a number of years, at least until about 1991 and then at a reduced level until 1995.  The Tribunal found it implausible that she was then subjected to threats as she claimed, by reference to independent country information.  That information included information that the NPA is no longer a major threat to the Philippines government.  The NPA has, as noted by the Tribunal, limited resources to spend in hunting down the applicant if she is of no threat to them and, as the NPA regularly suffers splits and defections, the applicant would merely be one of many Philippine citizens who has become disenchanted with its operations and has chosen not to participate in its activities or to support it.  The applicant, by her evidence, was never a member of the NPA.

12                  In the light of the evidence, the Tribunal found that the applicant’s fears that she would be harmed were unfounded and that she was not in need of protection.  It also found that, as the applicant was not prepared to assist the Philippine government with any information she might have, she does not need protection or access to the government witness program which she feared she would not be able to access.  The Tribunal observed that the fact that the applicant had not been sought by the Philippine government for all the years of her involvement with the NPA, indicates that her activities are not known to that government.  The Tribunal found, on the evidence before it, that the applicant does not have a well-founded fear of persecution within the meaning of the Convention and that it was not satisfied that the applicant and her children were persons to whom Australia has protection obligations.

The applicant’s submissions

13                  The first ground in the amended draft order nisi is that the Tribunal failed to accord the applicant procedural fairness in that it failed to advise the applicant that it proposed to take into account independent evidence, failed to provide that independent evidence to the applicant and failed to give her the opportunity to comment on and/or rebut the independent evidence which it took in to account.  The second ground is that the Tribunal failed to take into account relevant considerations contained in the independent evidence.  Certain publications are cited.  The third ground is that the Tribunal failed to take into account relevant considerations in the applicant’s written submissions.

14                  The applicant was represented by Mr Lee of counsel, who appeared pro bono.  Mr Lee informed the Court that the only issue was that of the claimed denial of procedural fairness, in that the applicant was not aware of the information with which the Tribunal dealt in addition to the information that was before the delegate. 

15                  Mr Lee relied upon s 424A of the Act but conceded that all of the independent evidence to which the Tribunal referred came within the description of information within s 424A(3).  That concession seems to me to be appropriate.

16                  Mr Lee submitted that the rules of procedural fairness, independently of s 424A required the Tribunal to inform the applicant of the additional independent country information which it proposed to and did take into account. 

17                  Counsel placed some emphasis on the word ‘alone’ in the sentence in the letter of 26 September 2001 which said ‘The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone’.  He submitted that this amounted to a representation that the Tribunal would not look at any additional information.  I cannot accept that submission.  To my mind, no such representation is made.  To the contrary, it amounts to an invitation to the applicant to present additional information.

The respondent’s submissions

18                  Mr Reilly did not submit that s424A alone deals with this question and agreed with Mr Lee that general questions of procedural fairness are relevant: see WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 and SZAGF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 317.

19                  Mr Reilly submits out that the Tribunal’s conclusions were purely factual and were open to it for the reasons it gave, including the country information that it cited.  To the extent that the draft order nisi raises the question of an error of fact or an error in giving weight to any particular piece of country information, there is no jurisdictional error (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] –[14]. 

Consideration

20                  In NAHI the Full Court said at [11]:

‘There can be no objection in principle to the Tribunal relying on ‘country information’.  The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.  Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted.  It may be used to assess the credibility of a claim of a well-founded fear of persecution.  It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true.  The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court.  If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.  The Court does not have power to do that.’

Accordingly, there was no jurisdictional error in relying on and referring to country information. 

21                  Further, the applicant was told by the Tribunal that it could not make a decision in her favour on the basis of the material before it.  The applicant chose not to attend.  If the Tribunal had not considered any additional country information but only the country information already in the Department’s file, it is reasonable to conclude that it would have affirmed the delegate’s decision.  Quite clearly, the additional country information was not a critical factor upon which the decision was likely to have turned and procedural fairness therefore did not require the applicant to have been given it: Kioa v West (1985) 159 CLR 550 at 587. In any case, it is difficult to see how the applicant was disadvantaged or how there was any practical unfairness in the Tribunal’s approach: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 4.  Further, the Tribunal notified the applicant that it may consider additional information.  Where the applicant chose not to attend or to submit further information, the Tribunal was entitled to consider additional country information (NAHI).   

22                  The applicant has not established an arguable case for a denial of procedural fairness or failure to comply with s 424A of the Act.  No jurisdictional error on the part of the Tribunal is arguably apparent.  The decision is therefore a privative clause decision. 

23                  It follows that the application for a draft order nisi is refused.  The applicant should pay the respondents’ costs.

Associate:

Dated:              29 October 2004