FEDERAL COURT OF AUSTRALIA

VUAN v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1638

MIGRATION – appeal – whether procedural fairness accorded to appellant in relation to internal relocation

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 - applied

Kioa v West (1985) 159 CLR 550 - applied

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 - applied

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 – applied

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 - applied

Stead v State Government Insurance Commission (1986) 161 CLR 141 – applied

Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 – cited

SYLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 942 - cited

VUAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 255 of 2005

MERKEL J

11 NOVEMBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be added as the second respondent and the title to the proceeding be amended accordingly.

2.                  The appeal be allowed.

3.                  The orders made by the Federal Magistrates Court on 16 March 2005 be set aside and, in lieu thereof, the following orders be made:

(a)                a writ of certiorari issue calling up and quashing the decision of the Refugee Review Tribunal made on 18 September 2003;

(b)               a writ of mandamus issue directing the Refugee Review Tribunal to hear and determine the appellant’s application for a protection visa according to law.

4.                  The first respondent pay the appellant’s costs of and incidental to the appeal and of the application to the Federal Magistrates Court.

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

REASONS FOR JUDGMENT

1                     The appellant, who is a citizen of Russia, applied for a protection visa claiming that he is a refugee to whom Australia owes protection obligations under the Refugee Convention because he has a well-founded fear of persecution by reason of his Jewish ethnicity.  A delegate of the respondent refused the application and the Refugee Review Tribunal (‘RRT’) affirmed that refusal.  The appellant made an unsuccessful application for review to the Federal Magistrates Court (‘FMC’) and has appealed to the Court against the orders of the FMC dismissing his application with costs.

2                     In its decision the RRT, after considering the evidence in relation to the appellant’s claim that he had a well-founded fear of persecution on the basis of his Jewish ethnicity, expressed certain doubts about the appellant’s claim of past persecution in Krasnodar, his home town in Russia.  Nonetheless, the RRT stated:

‘[h]aving weighed this evidence, the Tribunal gives the applicant the benefit of the doubt and accepts that the harm which befell him was for a Convention reason (namely ethnicity) and that he had a well founded fear of persecution in Krasnodar where he is apparently well known.’

3                     However, the RRT concluded that, because ‘the applicant could reasonably relocate to another area’ (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (‘Randhawa’)), he was not a person to whom Australia has protection obligations under the Refugees Convention.

4                     The main ground of appeal is that the RRT failed to accord procedural fairness to the appellant by failing to put him on notice that relocation in Russia was an issue on which the outcome of his case might turn.  It was common ground that, at the date of its decision, a failure by the RRT to accord procedural fairness to the appellant could found a claim of jurisdictional error on its part.

5                     Procedural fairness requires that a decision-maker bring to a party’s attention the critical factor on which the decision is likely to turn so that the party may have the opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587, 629 and 634 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 177-178 ([27]).

6                     In Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 [70] I stated:

 ‘The overriding principle is that the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa at 587 per Mason J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481.  It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its “essential features”: see Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601; Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 at 548.’

7                     It is common ground that the question of internal relocation was not raised as an issue in the appellant’s application or by the delegate of the first respondent (‘the Minister’) when the delegate refused the application.  It was also not expressly raised as an issue by the RRT or by the appellant in the course of the application to the RRT to review the decision of the delegate.  However, the Minister relies upon the following passage from the transcript of the hearing before the RRT as having sufficiently raised the issue of internal relocation:

‘Member:        What I don’t understand is from these papers of yours you’d obviously lived next to them for a while, why did they pick a particular day in September 1999 to bash you up?

Appellant:       Well, I don’t know exactly why it happened at that time of year, but it used to happen all the time.  They used to pick on me and my mother.  We used to have all this anti-semitic writing on the walls and on the door of our flat as well.  They wouldn’t leave us alone, if my mother was in the lift with one of them they would push her into a corner, push on her back.  They would put the shit at the entry of our flat.  We had all this writing saying like, “Oh you Jews just get out of here.”  I think one of the reasons was that one of the relatives of these people wanted to move to our flat because they kept saying to us, “Oh, you better sell your flat and get out of here you nasty Jews.”  We couldn’t move anywhere because we had no opportunities.  We had nowhere else.  Even if we went to another region of the country the attitude would be the same to us as Jews and besides, we didn’t have money to go.  For Jews in Russia it was the same everywhere.’

8                     No question was asked, nor was any issue raised, by the RRT at the hearing about the possibility or reasonableness of the appellant relocating to another part of Russia so as to avoid the persecution he claimed to have suffered.  Also, the appellant was not challenged or queried about the above answer, which merely sought to explain why the appellant thought a particular day in 1999 had been chosen to ‘bash him’.

9                     Although the FMC concluded that the RRT had accorded procedural fairness to the appellant, I do not consider that the above passage establishes that the appellant was aware of the factor on which his case was likely to turn, and upon which it did in fact turn, or that the factor was brought to the appellant’s attention.  It is relevant that that factor was not whether the appellant could or couldn’t relocate.  Rather, it was whether, at the date of the decision of the RRT (18 September 2003), the appellant could reasonably be expected to locate to another area in Russia where he would be expected to have effective state protection from the persecution in respect of which he had a well-founded fear: see Randhawa at 442 and Minister for Immigration and Multicultural Affairs v Respondents S152/12003 (2004) 205 ALR 487 (‘S152’) at 494-496 ([25]-[29]).  Nothing in the material before the Court indicates that that factor was drawn to the appellant’s attention by the RRT or that he was otherwise aware that it was a factor of significance in relation to his application, let alone a factor on which the outcome of his case may turn.  A matter that lends further support to that conclusion is that the evidence relied upon by the Minister relates to an event in September 1999 but the relevant period for the consideration of relocation was September 2003.

10                  The Minister accepted that, if there has been a failure to accord procedural fairness in the present case, the issue is whether, had the appellant had been accorded procedural fairness, that could not possibly have produced a different result: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 and Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 at 557-558 ([91]-[95]).  The issue of the reasonableness of any relocation will involve humanitarian considerations relevant to a particular applicant: see SYLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 942 at [22].  The applicant was not afforded the opportunity to deal with those considerations and the other issues that are relevant to relocation.  Accordingly, the present case is not one in which it can be said that the failure to accord natural justice could not possibly result in a different outcome.

11                  However, the Minister also contended that the appeal should fail in any event because the RRT made an alternative finding of effective state protection for the appellant.  As the appellant’s claim was one of persecution by non-state actors, S152 is authority for the contention that such a finding could have resulted in his claim failing in any event.  However, as was explained in S152 at 494-496 ([25]-[29]), the relevant issues concern:

(a)               whether the state is unwilling or unable to protect a person in the position of the claimant from the harm the claimant has suffered; and

(b)                if that question is answered in the affirmative, whether that justifies a conclusion that the claimant is a victim of persecution for a Convention reason and that it is owing to a well-founded fear of such persecution that the claimant is unwilling to avail himself or herself of the protection of the claimant’s country.

12                  In my view, although the RRT’s reasons referred to a legal requirement that ‘it may be enough that the government has failed or is unable to protect the [appellant] from persecution’, the RRT did not make any finding on that issue or on the matters discussed in the passages I have cited in S152.  The RRT made certain observations about the police not disregarding, and even investigating, the appellant’s complaints but those observations, in context, fall well short of a finding that the appellant would have effective state protection as that concept has been explained in S152.  Also, the observations relate to 1999 rather than the period relevant to relocation, September 2003.

13                  Finally, as explained above, the relevant issue in a relocation case relates to effective state protection in the place where the appellant may be relocated, that is, elsewhere in Russia,.  That issue was not considered by the RRT in its decision.

Conclusion

14                  For the foregoing reasons, I am satisfied that the FMC erred in rejecting the appellant’s claim that the RRT failed to accord procedural fairness in relation to the issue of internal relocation and that the FMC was in error in dismissing the application for review.  The appellant is entitled to orders allowing his appeal, setting aside the orders of the FMC and the decision of the RRT and to a further order that the matter be remitted to the RRT to be determined according to law.

Associate:

Dated:              11 November 2005