FEDERAL COURT OF AUSTRALIA

WALS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1642

Migration Act 1958 (Cth) ss 36(2), 424A(1), 474

Migration Regulations 1994 cl 866

Abebe v Commonwealth of Australia (1999) 197 CLR 510 cited

Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 referred to

Kioa v West (1985) 159 CLR 550 referred to

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 referred to

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 considered

Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 considered

WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 considered

WALS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

WAD 142 of 2005

NICHOLSON J

15 NOVEMBER 2005

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant brings an application in reliance on s 39B of the Judiciary Act 1903 (Cth).  She seeks review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 4 May 2005.  That decision affirmed a decision of a delegate of the first respondent to not grant the applicant a protection (class XA) visa.  (The second respondent has stated through the first respondent that it will abide by the decision of the Court.)

factual background

2                     The applicant is a citizen of Uganda who, in an application dated 14 October 2002, originally applied to the Australian High Commission in Nairobi for a visitor visa in the name of ‘XYZA’.  In support of her application she submitted various documents including a certificate of her marriage on 8 May 1999, birth certificates for their two children and bank statements in the name of her husband.  In her application, the applicant stated that she had no relatives, friends or contacts in Australia. 

3                     On 23 October 2002 the applicant was granted a short stay visitor visa and she arrived in Australia on 6 December 2002.  Condition 8503 (amongst others) was imposed on the applicant’s visa which prevented her from being granted a substantive visa, other than a protection visa, while she remained in Australia.

4                     The applicant’s visitor visa was due to expire on 17 January 2003.  On 13 January 2003 she lodged a request with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) in Perth for waiver of condition 8503.  In her request, she claimed to have come to Australia to visit a friend and her husband for the birth of their first baby and wished to remain in Australia to support her friend who was suffering from post-natal depression.

5                     The applicant’s request to waive condition 8503 (no further stay) was refused by a delegate of the first respondent on 16 January 2003.  The applicant did not depart Australia upon the expiry of her visa and on 22 January 2003 she lodged an application for a protection visa in the name of ‘AZYA’.  That application was invalid as it was not signed or witnessed.  A valid application was subsequently lodged with the Department on 29 January 2003. 

6                     In her application for a protection visa the applicant claimed that she was married to ‘Mr BZYA’ and that they had three children.  She stated that she had been involved in campaigning for the Reform Agenda, an opposition political party in Uganda, and claimed to fear persecution for reasons of her political opinion.  The applicant claimed to have been arrested and detained for six months during which time she was tortured, beaten and raped, prior to leaving the country on a ‘fake travel document’.

7                     The applicant’s application for a protection visa was refused by a delegate of the first respondent on 23 February 2004 and in an application dated 9 March 2004 the applicant applied to the Tribunal for review of the delegate’s decision.

8                     The applicant attended a hearing before the Tribunal on 15 June 2004 at which she and two other witnesses gave oral evidence.  On 22 June 2004 the Tribunal received from the applicant certified copies of a certificate of her marriage to ‘Mr BZYA’ on 10 January 1989, birth certificates of their three children and a driver’s licence.

9                     The Tribunal caused a number of enquiries to be made in relation to the applicant’s documents and the information obtained as a result of those enquiries was provided to the applicant pursuant to three separate notices issued by the Tribunal pursuant to s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’).  Those notices also invited the applicant to comment on the information set out in each notice and the applicant provided a response in each case. 

10                  On 4 May 2005 the Tribunal made a decision affirming the delegate’s decision to not grant a protection visa to the applicant.  The Tribunal’s decision was handed down on 24 May 2005 and a copy forwarded to the applicant under cover of a letter dated 30 May 2005. 

11                  The application by the applicant seeking review by this Court was filed on 14 June 2005.  The grounds of review set out in the application are:

‘1.        In determining whether the applicant was a person to whom Australia owed protection obligations as provided for in section 36(2) of the Migration Act 1958 and Clause 866 of the Second Schedule of the Migration Regulations 1994, the RRT failed to adequately consider whether the applicant had a well-founded fear of persecution if she returned to her country of origin because of her political opinion, to the extent that it made a jurisdictional error.’ [particulars omitted]

‘2.        The RRT failed to accord to the applicant procedural fairness to the extent that it made a jurisdictional error.’ [particulars omitted]

ground 1 – tribunal failed to adequately consider whether the applicant had a well-founded fear of persecution

12                  Notwithstanding the privative clause provisions of s 474 of the Act, that section only has application in relation to decisions that do not involve jurisdictional error:  see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506, at [76]. 

13                  It may also be accepted that if the Tribunal fails to deal with a question which its review of decision in question requires it to consider and as a result of such failure the exercise or purported exercise of power is thereby affected, that will amount to jurisdictional error which will invalidate the Tribunal’s decision:  see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, at [82]; Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 per Gummow and Callinan JJ at 394-395, at [26]-[27], Kirby J at 407, at [87]-[89] and Hayne J at 408, at [95]. 

14                  In the present case, the applicant claimed to have a well-founded fear of persecution by reason of political opinion if she was to return to Uganda, based on her involvement with the Reform Agenda, and because she had been arrested and detained for six months and beaten, tortured and raped.  These claims required the Tribunal to consider whether the applicant had been detained and mistreated as claimed, then whether the applicant has a fear of future persecution if she returned to Uganda, whether such fear is well-founded and, if it is, whether it is for a Convention reason.  The applicant’s claims and the history of her dealings with the Department prior to applying for a protection visa also meant that a question arose as to the applicant’s true identity. 

15                  Given the facts and circumstances of this case, the Tribunal was not in error in considering as a preliminary issue, the applicant’s true identity.  The issue of the applicant’s identity was an important matter which affected the credibility of the whole of her claims.

16                  The Tribunal found on a ‘strong balance of probability’ that the applicant’s real identity was that shown on her passport, namely, ‘XYZA’.  Having regard to all of the evidence and material before the Tribunal, this finding was one that was reasonably open to it and does not involve an error of law.

17                  After setting out is reasoning as to why it reached the conclusion that the applicant’s real identity was ‘XYZA’, the Tribunal referred to the applicant’s statement that the documents she submitted in Nairobi with her initial visa application were not genuine, but noted that her husband’s bank details were verified by the Australian High Commission.  The Tribunal also referred to the fact that the applicant’s first approach to the Department in Australia involved a falsehood as she stated she had come to Australia in order to be present at the birth of a friend’s child, but that at the hearing she had revealed that this was not true. 

18                  The Tribunal then proceeded to deal with the applicant’s evidence as to her arrest and mistreatment.  It considered that this evidence was also unsatisfactory and explained why it had reached this view.

19                  After taking these matters into account, the Tribunal made the following findings:

(i)                  The applicant attended the Australian High Commission in Nairobi herself and could not, therefore, have been detained at that time as she claimed.

(ii)                The applicant was able to and did freely leave Uganda travelling on her own passport and return there after obtaining her Australian visa.

(iii)               The applicant’s account of her detention, torture and repeated rapes was not credible and was rejected.

(iv)              The Tribunal therefore did not accept that the applicant had been persecuted for any reason in the past and there was not a real chance of her suffering harm amounting to torture should she return to Uganda in the foreseeable future. 

(v)                The applicant did not have a well-founded fear of persecution for reason of her political opinion or for any other Convention reason should she return to Uganda in the foreseeable future.

20                  In written submissions and orally the applicant contends that the Tribunal failed to adequately consider her claims because the reasoning of the Tribunal was mainly concerned with her identity and not with her membership of the Reform Agenda party or with her alleged detention and torture.  She submits that the issue of her identity was collateral to her principal claims.  She contends that the Tribunal’s decision did not examine the circumstances in which she claimed to have been arrested, where she was detained, whether she was interrogated, how she was mistreated or tortured and how she came to be released.  She submits that, in short, the Tribunal did not adequately address the circumstances of the applicant’s alleged persecution in Uganda. 

21                  In response, the written and oral submissions of the respondents place reliance on the reasoning of the High Court in Abebe v Commonwealth of Australia (1999) 197 CLR 510.  At the heart of the claim for prerogative relief there in issue was the contention that the Tribunal failed to examine whether Mrs Abebe was a refugee by reason of her having a well-founded fear of persecution if returned to her native country, because she had been raped by government officials while held in custody in that country for reasons of political affiliation and racial background.  It was said that the Tribunal should have examined that issue and so fell into jurisdictional error:  see Abebe at [59] and [76]. 

22                  However, at [85] in the reasons of Gleeson CJ and McHugh J, it was said:

‘Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant.  The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion.  The Tribunal was not bound therefore to make any express finding as to whether she had been raped.  Nor given the nature of her claim and the Tribunal’s finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed.’

In the reasons of Gummow and Hayne JJ at [196] it was stated:

‘If, however, the applicant’s contention is that the Tribunal failed to enquire into whether the applicant had been raped in detention, that contention must fail.  The Tribunal did consider that question.  In its reasons for decision the Tribunal recorded that the applicant claimed [she had been raped].’

23                  Having regard to the Tribunal’s reasoning in relation to the applicant’s evidence as to her arrest and mistreatment and the various findings made by the Tribunal as set out above, it is apparent that the Tribunal here did consider the applicant’s claims that she was arrested and mistreated for her political opinion and that as a result she has a well-founded fear of persecution on the grounds of political opinion should she return to Uganda in the foreseeable future.  Accordingly, the Tribunal’s decision does not involve jurisdictional error by reason of failing to address the applicant’s claims.  Those claims were examined and considered, but rejected.

ground 2 – tribunal failed to accord the applicant procedural fairness

24                  The particulars to the applicant’s second ground of review claim that the Tribunal did not give her the opportunity to present medical evidence that would have supported her claim that she had been tortured and raped.  The applicant further claims that if the Tribunal was of the view ‘that to be satisfied as to the applicant’s claims that she had been beaten, tortured and raped it needed medical evidence to corroborate the applicant’s evidence, then it should have indicated this to the applicant to give her the opportunity to present such medical evidence’.

25                  The Tribunal did not state that in order to be satisfied as to the applicant’s claims for having been beaten, tortured and raped that it would need medical evidence to corroborate her evidence.  Rather, as part of its reasoning process in considering the applicant’s claims, the Tribunal took into account that the applicant had not provided any supporting evidence in support of her claims, such as a medical certificate.  The Tribunal said:

‘The absence of such evidence does not prove these events did not take place, but does permit me to come to the conclusion that they did not, given the problems with the documents she did submit to support her claims.’

26                  Procedural fairness may require the Tribunal to put before an applicant adverse information from another source of which the applicant is unaware:  see Kioa v West (1985) 159 CLR 550 per Mason J at 587.  However, procedural fairness does not require the Tribunal to reveal to an applicant its reasoning process where the Tribunal proposes to make an adverse decision.  The Tribunal’s reasoning in relation to evidence and material submitted by an applicant, or in this case not submitted, does not constitute ‘information’ and procedural fairness does not require that reasoning to be disclosed:  cf Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [53] and [54].  Nor is the Tribunal obliged to identify gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps:  cf WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at 282-284, at [26]-[29].  I agree with the submission of the respondents that the above reasoning in Tin and in WAGP is unaffected by the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162.

27                  An applicant can put forward whatever evidence and material he or she wishes to present in support of his or her claims:  Kioa per Mason J at 587; Abebe per Gummow and Hayne JJ at 576, at [187].  This is not a case where the applicant was unable to obtain relevant evidence in circumstances where procedural fairness required the Tribunal to make its own inquiries.  The applicant had arrived in Australia shortly after her claimed six months period of detention and it was up to her to provide any relevant medical evidence to the Tribunal in support of her claims. 

28                  In all the circumstances, there was no breach of procedural fairness by the Tribunal as claimed.  I consider that the Tribunal was under no obligation to advise the applicant that her failure to provide any supporting medical evidence was a factor in the Tribunal’s reasoning in concluding that the claimed mistreatment did not take place.

conclusion

29                  For the reasons above, neither ground of review is made out and the application must be dismissed with costs.

Associate:

Dated:              15 November 2005