FEDERAL COURT OF AUSTRALIA

B34 of 2003 v Minister for Immigration & Multicultural & Indigenous

Affairs [2005] FCA 871

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – whether failure to consider claim – obligation of RRT to consider claims arising on material before it – applicant’s claims before RRT based on political opinion and ethnicity – applicant HIV positive – no claim raised in relation to membership of particular social group of HIV positive persons – claim neither articulated nor apparent from materials – no jurisdictional error by failure of RRT to consider claim – application dismissed

Migration Act 1958 (Cth)  

Judiciary Act 1903 (Cth) s 44

Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2000) 190 ALR 601 cited

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 cited

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 1999 ALR 364 cited

P33 of 2003 v Refugee Review Tribunal [2004] FCA 474 cited

B34 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUD142 OF 2003

FRENCH J

29 JUNE 2003

PERTH (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant is to pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant is a national of Ethiopia, of Amhara ethnicity.  He is a paraplegic and is HIV positive.  He came to Australia without travel or identity documents in 1998.  He unsuccessfully applied for a protection visa on the grounds of apprehended persecution by reason of his political opinions and his ethnicity.  The Refugee Review Tribunal (the RRT) affirmed the decision not to grant him a protection visa on 28 April 1999.  On 30 May 2003, the applicant filed an application in the High Court seeking a writ of certiorari to quash the RRT’s decision of 28 April 1999 and a writ of mandamus requiring it to hear and determine the application for review according to law.  That application was connected with the representative proceedings which had been commenced in the High Court and which were decided in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601.  The application was remitted to this Court and was heard by Cooper J on 15 July 2004.  His Honour having died before being able to deliver judgment, the matter has come on for a fresh hearing on the basis of the evidence and arguments put before him.

2                     The applicant contends that there was material before the RRT from which it would or should have been aware that he was HIV positive.  The RRT, he says, should have considered the possibility that as a member of the particular social group of HIV positive persons he would have a well-founded fear of persecution if returned to Ethiopia.  This claim was never raised before the RRT by way of written submission or oral argument.  For the reasons set out below there is no basis upon which it could be said that the RRT committed a jurisdictional error by failing to consider a claim never raised before it and not apparent on the materials before it.  The application will therefore be dismissed with costs.

Factual and Procedural Background

3                     The applicant is a national of Ethiopia.  He was born on 20 April 1970.  He is of Christian Orthodox religion and Amhara ethnicity.  From 1978 to 1990 he attended school at Esta M/Eyesusa.  He worked as a self-employed driver in Esta from 1990 to 1996.  He said he became a paraplegic because of a motor vehicle accident in 1996. At the beginning of 1997 he departed Ethiopia for Italy.  He flew out lawfully on an Ethiopian travel document.  His travel document expired in Italy and he obtained a new document there. 

4                     On 18 June 1998 the applicant arrived in Australia with his older brother, who was born in 1968, on Air Lauda, Flight NG1 from Vienna.  He had no travel or identity documents.  He and his brother were interviewed by airport staff through an Amharic interpreter.  He was refused immigration clearance and was detained under s 189 of the Migration Act 1958 (Cth) (the Act).  On 19 June 1998 he applied for a protection visa.  Following a medical examination he was released on 22 June on a bridging visa and travelled to Brisbane where his older sister lives.  On 3 July 1998 he lodged Parts B and C of the protection visa form setting out his claims to be a refugee.  He stated that he had been imprisoned on suspicion of supporting forces opposing the government, namely the All Amhara Peoples’ Organisation (AAPO).  The government consists of Tigray people who are at odds with the Amharas.  He said he feared that government forces would attack and kill him if he returned.  He said he had been refused medical attention for the accident in 1996 which had left him paralysed.

5                     A delegate of the Minister decided on 25 August 1998 to refuse the applicant’s application for a protection visa.  On 4 September 1998, the applicant lodged, with the RRT an application for review of the delegate’s decision refusing the grant of a protection visa.  On 28 April 1999 the RRT affirmed the decision not to grant the applicant a protection visa.

6                     On 25 May 1999 the applicant sought the exercise of the Minister’s discretion under s 417 of the Act but that request was refused on 11 August 1999.  In response to a further request the Minister again refused, on 17 September 1999, to consider the exercise of his discretion under s 417.  An attempt, on 17 May 2000, by the applicant to lodge a further application on the ground of apprehended fear of persecution by reason of his  HIV positive status was also unsuccessful.  The Department refused to accept the application by reason of the operation of s 44 of the Act.

7                     The applicant was a member of the representative action in the High Court of Australia commenced under the names of Herijanto, Muin and Lie on 16 August 2000.  These were determined under the name Muin v Refugee Review Tribunal and Others and Lie v Refugee Review Tribunal and Others.   On 30 May 2003 the applicant filed an application in the High Court seeking a writ of certiorari to quash the RRT’s decision of 28 April 1998 and a writ of mandamus requiring it to hear and determine the application for review according to law.   By operation of orders made by Gaudron and McHugh JJ in the representative proceedings of which he had been a class member, the application was remitted instanter to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth). 

8                     The stated grounds of the application were that the RRT had failed to ask whether the applicant was eligible for the grant of a protection visa on the basis that he was HIV positive and therefore entitled to the grant of a protection visa on the basis of his membership of a ‘particular social group’ within the meaning of the Refugees Convention.  The other ground of the order nisi alleged failure by the RRT to comply with the rules of natural justice by its failure to disclose to the applicant, and give him an opportunity to comment on, various country information documents relied upon by the RRT.

9                     The remitted application came on for hearing before Cooper J on 15 July 2004 at which time his Honour reserved his judgment.  Sadly his Honour died in March 2005.  At the time of his death judgment had not been delivered.  The matter has now come on for rehearing and the parties have agreed that it should be determined on the papers which were before his Honour and by reference to the transcript of argument and submissions put before him.  The only ground relied upon before his Honour was the first ground relating to the alleged failure of the RRT to consider whether the applicant was entitled to a protection visa by reason of apprehended persecution on account of his HIV status.

The RRT’s Reasons for Decision

10                  The RRT set out the applicant’s background and claims in its decision.  The applicant gave evidence to the RRT that, before his arrival in Australia, he had spent 18 months in Italy.  There he had been operated on for the back injury which had left him a paraplegic.  He said his back had been injured in a motor vehicle accident about two months before he left Ethiopia.  A friend was killed in the accident.   He had been chased by police because he had been involved in a demonstration held under the auspices of the AAPO.  He did not receive any treatment in Ethiopia because there were insufficient funds for hospital treatment.  Later, however, he did receive some non-hospital medical treatment such as pain killing injections.  He had left Ethiopia via Bole airport at Addis Ababa  His friends had obtained a passport for him and he had been carried onto the aircraft on a stretcher.  He claimed that the authorities thought that he, like his friend, had been killed in the accident.

11                  According to the RRT’s reasons the applicant claimed to have become a member of the AAPO more than five years before.  He described it as an illegal organisation whose members were not permitted to demonstrate or express their views.  He had been attracted to it because it was a democratic organisation opposed to the government.  He was a secretary with the AAPO and moved around the country helping with communication, organising demonstrations, gathering people together and writing papers.  The applicant told the RRT there was considerable pressure on Amhara people in the countryside who are members of AAPO.  Their treatment contrasted with that of supporters of the AAPO in large cities such as Addis Ababa.

12                  The applicant told the RRT, in his written submissions, that he had been in prison on two occasions.  The first was about four years before when he had been in prison for three months, then about a year later he had been in prison for five months.  On the first occasion he was taken before a court because of his participation in a demonstration and was set free after his court appearance.  He couldn’t describe any specific charges laid against him.  It appears that in his oral evidence he claimed to have been imprisoned for much longer periods.

13                  The applicant said he had not outlined any of his claims when interviewed on arrival in Australia because he was tired and stressed.  He had given only very brief answers.  He told his whole story to his adviser when he lodged his application for a protection visa.   He could not recall who had filled out the application but thought it may have been his sister.  However, according to the RRT, his sister gave evidence that she played no role in his application for a protection visa.  His adviser had commented at the end of the hearing that the sister had completed the initial application based on information which the applicant had provided to her and that she acted as interpreter although an accredited interpreter was called upon for occasional assistance. 

14                  The RRT found the applicant to be a national of Ethiopia and that he had resided in Italy for about two years before his departure to Australia.  There was no persuasive material to contradict the contention that he had no right of residence nor any right of return to Italy.

15                  The RRT referred to the applicant’s interview by an officer of the department upon his arrival in Australia and to his statement that he had left Ethiopia because he had been hurt by police after attending a demonstration.  The record of interview showed that the applicant’s interpreter complained on several occasions that the applicant had asked him to contrive a story on his behalf.  The interpreter asked to be excused from his role because of his unease about persistent attempts by the applicant to compromise him.  Several comments were made by the interpreter about demands being made on him.  The RRT said that the record of interview showed no attempt by the applicant to state that his purpose was only to clarify, with the help of the interpreter, what was being asked of him by the interviewer.  The RRT found that the applicant did endeavour during the interview to enlist the assistance of the interpreter in order to contrive various claims.

16                  The RRT rejected the applicant’s evidence that he was unable to provide detailed claims during his interview upon arrival in Australia because of tiredness and stress.  He had provided other detail and had clear opportunities to provide other information about his reasons for seeking refuge.  It was true that there were inadequacies in the manner in which his initial application for a protection visa was completed, particularly in relation to the use of an unqualified interpreter who was a close relative of his.  However the RRT was satisfied that he had an opportunity to give a full account of his reasons for seeking asylum. 

17                  The RRT referred to claims made by the applicant at the oral hearing that he had been subjected to two periods of lengthy imprisonment.  It said that the applicant had been unable to provide any detail of the charges against him despite his claim of having been taken before a court on one occasion.  This belated evidence was said to have been at odds with his initial application which set out uninterrupted periods of education and employment.  It was also said to be inconsistent with material contained in his written submission to the RRT in which he alleged that he suffered two periods of imprisonment for three months on one occasion and five months on the other.  The RRT said it was left in no doubt that the applicant had fabricated his claims of imprisonment.  

18                  The Tribunal considered the applicant’s claim that he had been injured in an accident as the result of a police car chase prompted by his participation in a political demonstration.  He had made no timely claim that the demonstration was a political demonstration held under the auspices of AAPO.  Nor did he make any timely claim that he was a member of AAPO or that he had any specific role within the organisation.  He had provided no detail nor any convincing evidence at the hearing of his reasons for joining the  AAPO or supporting its policies.  Even though he claimed he was able to flee Ethiopia because the authorities had taken him for dead, he left using a passport in his own name.  His claim that AAPO was an illegal organisation was contrary to available information relating to the time when he said he had been persecuted because of his political opinions.

19                  The RRT cited country information including the United States Department of State Country Reports of Human Rights Practices 1998 and a cablegram of 4 August 1998 from the Australian Department of Foreign Affairs and Trade (DFAT) (Cablegram AB905).  The RRT found that political rallies are permitted although a permit must be obtained in advance.  AAPO remained a legal entity and a major opposition force.  It was among political groups that staged public rallies and there was no evidence of participants facing difficulty except on occasions when some demonstrators were alleged to have advocated violence.  The RRT found that the applicant was not a member of AAPO or an activist for it.  It found that he was not pursued by police following a political demonstration causing an accident that left him severely disabled.  It also found that he was not of any interest to the authorities by reason of his political opinion.  It was apparent from the country information that even if he were to support AAPO openly then or in the foreseeable future he would not face a real chance of persecution as a consequence of legitimate expression of that political opinion.

20                  The RRT was also unable to find any material to indicate that the applicant would face a real chance of persecution by reason of his race.  It referred to an advice from DFAT dated 28 March 1994.  In that advice it was said that the Amhara could not legitimately regard themselves as victims of racial disharmony.  Further advice of 30 August 1995 received by DFAT from an international agency was that Amharas, who make up 30% of the Ethiopian population, are not at risk of harm from the government.  Another DFAT cablegram, NA6654 of 19 November 1997, was also cited.  The RRT concluded that the applicant did not have a well-founded fear of persecution by reason of his ethnicity.

21                  The RRT referred to a report from the Queensland Program of Assistance to Survivors of Torture and Trauma Inc which expressed the opinion that the applicant suffered from post-traumatic stress disorder.  In assessing the material the RRT found the applicant’s psychological state as diagnosed was not attributable to a Convention ground.  It accepted that his paraplegia might give rise to consideration of the grant of a visa on compassionate grounds but observed that it had no power in that regard. 

22                  In considering all the circumstances of the case, the RRT found that the applicant did not have a well-founded fear of persecution for a Convention reason.

Grounds of the Application

23                  The grounds of the application set out in the draft order nisi were as follows:

‘1.        The Tribunal failed to consider or ask whether the Prosecutor was eligible for the grant of a protection visa on the basis that he was a member of a social group consisting of persons who were HIV positive.

2.         The Tribunal failed to comply with the rules of natural justice by failing to disclose to the Applicant and give him an opportunity to comment upon the following documents:

            (a)        United States Department of State “Country Reports of Human Rights Practices 1998”;

            (b)        Australian Department of Foreign Affairs and Trade (“DFAT”) Cablegram AB905 dated 4 August 1998;

            (c)        the DFAT advice dated 28 March 1994;

            (d)        the DFAT report dated 30 August 1995;

            (e)        the DRAFT Cablegram NA6654 dated 19 November 1997.’

 As noted above, the application proceeds only upon the first of the above grounds.

Claims and Evidence Before the RRT Relevant to the Applicant’s HIV Status

24                  It is apparent from the papers that the applicant made no claim in his application for a protection visa or before the RRT on the basis that he was at risk of persecution in Ethiopia on account of his status as an HIV positive person.

25                  The written contentions made on behalf of the applicant on this ground were limited and were in the following terms:

‘6.        The Applicant was a paraplegic and is also HIV positive.  He did not make any specific claim for a protection visa on the basis of his HIV positive status.

7.         However, the Minister and the Tribunal were aware that the Applicant was HIV positive, the Minister having obtained a medical report which indicated that he had that condition.

...

13.       Sections 36(2), 64, 414 and 415 of the Migration Act 1958 (“the Act”) required the Tribunal to consider whether the Applicant had a well founded fear of persecution for a convention reason.  This included consideration of whether the Applicant had well founded fear of persecution by reason of his membership of a social group consisting of persons who are HIV positive, albeit that such a claim was not specifically made by the Applicant: c.f. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/02 (2002) 195 ALR 1 at [75] – [76], [87] per Gaudron and Kirby JJ.  The present case is distinguishable from circumstances in Applicants S134 because this is not a case that involved issues as to the satisfaction of “criteria expressed in disjunctive terms”: see par [32].  The Tribunal failed to consider whether it was satisfied that the Applicant is a person to whom Australia owes protection obligations by reason of his membership of a social group consisting of persons who are HIV positive.  It is contended that such failure amounted to a jurisdictional error.’

26                  The applicant relied in part upon materials obtained from departmental files under a freedom of information request.  An internal departmental facsimile dated 28 August 1998 included the following statement:

‘The report of his medical examination carried out while detained in Sydney also appears to indicate that he is HIV positive.’

A copy of the medical examiner’s report which was dated 22 June 1998 indicated that the applicant was suffering from paraplegia and contained a note that he was HIV positive.  Also in the hands of the department was a report from South Western Area Pathology Services dated 25 June 1998 which set out test results indicating that the applicant was HIV positive. 

27                  The argument advanced on behalf of the applicant was that the RRT had the departmental materials before it.  This was on the basis that the Secretary of the department was required under s 418 of the Act to transmit the relevant documents to the RRT.

28                  Reliance was also placed upon country information exhibited to an affidavit of Fraser Syme filed on 12 July 2004. It referred, inter alia, to the stigma associated with HIV in Ethiopia and efforts to overcome it. However the information all post-dated the RRT’s decision

29                  The applicant’s adviser referred to earlier decisions of the RRT in which it had held that persons suffering from HIV/AIDS were members of a particular social group for the purposes of the Refugees Convention.  In the published reasons for the decisions relied upon the identity of the relevant country of origin was not disclosed.  In N95/08165, decided on 6 June 1997, the RRT held that evidence before it supported the claim that the applicant in that case and his family members could be ostracised and suffer discrimination in the areas of employment, education, social services and access to ongoing medical treatment.  The cumulative effect of these measures was held to be persecutory.

30                  The critical question in this case is whether the Tribunal, having before it the information that the applicant was HIV positive and came from Ethiopia, was obliged to consider whether he had a well-founded fear of persecution in that country on the grounds of his membership of a particular social group constituted by HIV positive people.  It is the applicant’s contention, in effect, that although neither he nor his adviser thought of this claim or raised it before either the delegate or the RRT, the RRT committed jurisdictional error in failing to consider it.

31                  In NABE v Minister for Immigration Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 the Full Court considered the authorities about the obligations of tribunals to consider claims not expressly raised before it.  At [58] the Court said:

‘The review process is inquisitorial rather than adversarial.  The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J).  There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ).  By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing.  It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J.  The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.  Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.’

The Court did not accept that there was a general rule that the tribunal in undertaking a review can disregard a claim which arises clearly from the materials before it.  It referred to the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 and the observation by Kirby J in that case that the function of the tribunal is to respond to the case that the applicant advances.  In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J noted that this does not mean the application for review is to be treated as an exercise in 19^th century pleading.  The Full Court went on to say, after referring to observations by Merkel J in Paramananthana, by the Full Courts in Sellamuthu and Sarrazola (No 2), and by Cooper J in SDAQ, that these were consistent with the proposition ‘...that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it’.

32                  On the most generous interpretation of the authorities and the views expressed by the Full Court in NABE there is no basis for a finding of jurisdictional error on the part of the RRT in the present case.  The claim now advanced was not put before the RRT and the materials relevant to such a claim which were before the RRT were, at best, threadbare.   In my opinion this application must fail on the merits.

33                  There was debate before Cooper J as to whether the present application was out of time, having been instituted in the High Court some 16 months after the expiry of the time limits set by O 55 in that Court.  For the reasons which I expressed in P33 of 2003 v Refugee Review Tribunal [2004] FCA 474, I do not consider that the Rules of the High Court governing the time limit for bringing an application for a writ of certiorari continue to apply after remitter into the Federal Court.  In any event, in that case, I held that the terms of the global leave granted by Gaudron J to members of representative groups in the Muin and Lie proceedings to file their own applications, well in excess of six months after the RRT decisions affecting virtually all of them, did not suggest any reservation as to the time that had elapsed between the RRT’s decision and the inclusion of those persons in the representative group.  If leave were necessary it was, in effect, given by operation of her Honour’s order.

Conclusion

34                  For the preceding reasons the application will be dismissed.  The applicant is to pay the respondent’s costs of the application. 

Associate:

Dated:              29 June 2005