Cabal v Minister for Immigration & Multicultural Affairs

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

THE COURT: 1 At the conclusion of the hearing of the submissions of counsel for the appellants, the Court informed the parties that it did not need to receive oral submissions from counsel for the respondent. The Court ordered that the appeals be dismissed and that the appellants in each appeal pay the costs of the respondent. What follows are the Court's reasons for making those orders. 2 On 11 December 2000, French J ("the primary judge"), gave judgment in which he dismissed two applications. In the first application the applicants were Mr and Mrs Cabal and their four children. In the second application the applicants were Mr Pasini and his wife Ms Gonzalez. The Cabal family sought an order from the Court to review a decision of the Refugee Review Tribunal ("the RRT") in which Mrs Cabal and the children were refused protection visas. Mr Pasini and Ms Gonzalez sought materially identical relief with respect to the RRT's decision to affirm a decision of the respondent's delegate that they were not entitled to protection visas. 3 There were two appeals before the Court. In one appeal the Cabals contended that the primary judge erred in dismissing the applications before him. In the other appeal, Mr Pasini and Ms Gonzalez made the same allegation with respect to their challenge to the decision of the RRT dealing with their claims for a protection visa.

Background 4 The relevant applications for protection visas were lodged with the respondent's Department on 13 November 1998. In the application the subject of V960 of 2000 the first appellant, Mrs Cabal, was the primary applicant. Her four children were also applicants for protection visas but in the context of being persons claiming to be members of a family unit, enabling those applications to be combined with Mrs Cabal's application. It is not disputed that each Cabal child was an applicant for a protection visa in his or her own right. The second appellant in V960 of 2000, Carlos Cabal Jnr, was born on 14 May 1984 and his three siblings are younger than he is. 5 The primary judge dealt fully and comprehensively with the relevant factual background to his determination of the applications for review of the RRT's decisions. It is not necessary to repeat his Honour's setting out of that factual background which appears at [3] to [6] of the primary judge's reasons. It is also unnecessary to repeat the primary judge's setting out of the relevant history of the course of the applications; see [7] to [13] of his Honour's Reasons for Judgment.

Issues on Appeal 6 The issues raised on appeal may be broadly described as follows: · whether the Cabal children were afforded an opportunity to appear and give evidence before the RRT · whether the RRT was obliged to notify each applicant personally in writing of his or her opportunity to appear before the RRT · whether the form of the notice of the hearing was bad because it imposed time constraints on the receipt of advice from the appellants on whether they would avail themselves for an oral hearing · whether the RRT failed to have regard to the request by Mrs Cabal to have Mr Cabal give oral evidence before the RRT · whether the RRT properly considered the applications before it · whether the RRT applied the correct test in dealing with the applications

Opportunity to appear 7 At all material times Mrs Cabal and her children were legally represented with respect to their applications for protection visas. On 5 January 1999, a Deputy Registrar of the RRT wrote to Mrs Cabal care of solicitors acting for her and her children. The letter was headed "Notice Under Section 426 of the Migration Act 1958". The letter referred to a proposed hearing on 22 February 1999. It requested Mrs Cabal to inform it: · "whether or not you want to come to the Tribunal to give oral evidence; and · whether or not you want to ask the Tribunal to obtain evidence from other people." 8 On 12 January 1999, the solicitors wrote to the Deputy Registrar of the RRT. In that letter they advised, inter alia, that the children would appear as witnesses in the RRT hearing. They also requested an adjournment of the hearing. 9 By letter dated 14 January 1999, the Deputy Registrar advised the solicitors that it noted their request that the RRT obtain oral evidence from a number of people, including the Cabal children. The RRT required "specific details of the nature of the evidence each of the named persons would be able to give". 10 In a letter dated 4 February 1999 the RRT advised the solicitors inter alia that: "… the principal purpose of the hearing of 22 February 1999 will be to take oral evidence from the applicants in this case. The Tribunal accepts that you may require some additional time after the hearing to lodge other material." 11 At [49] of his Reasons for Judgment the primary judge said that: "On 22 February 1999, at the oral hearing, the member constituting the Tribunal asked Mrs Cabal whether the children would be giving evidence as applicants. She said she did not know but they could if they were asked. Counsel for the applicants then rather remarkably said to the Tribunal: "My problem, if the Tribunal pleases, is half my legal team is elsewhere, in fact three-quarters of my legal team is elsewhere with particular files. I am not sure if we've nominated the children. We've nominated certainly twenty five to thirty witnesses in this case." The Tribunal member responded observing that the children were applicants and that she was asking whether as applicants it was intended that they give evidence. Counsel asked if he could check. No clear answer was forthcoming. The Tribunal member said: "There's been a number of months when there's been ample opportunity for this matter to be clarified. The purpose of today's hearing is to take evidence." She then said the Tribunal was going to proceed to take evidence from applicants that wished to give evidence with the exception of Mr Pasini until arrangements had been made with regard to the option of taking his evidence in person at the prison." 12 His Honour then said at [50] that: "As is observed in the submissions for the Minister, no explicit answer was ever given to the Tribunal's question whether the Cabal children wished to give evidence. The final statement of the Tribunal, however, indicates that had they wished to do so their wish would have been accommodated. This ground was considered in relation to an application for interlocutory relief by Weinberg J in Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 and his Honour was of the view that the argument raised no serious question to be tried and was "wholly untenable" - [41] and [43]. Whether or not it was arguable that separate notice of the hearing should have been given to the son, notice was given to his solicitors and through them he was afforded the opportunity to appear and give evidence. Nothing in what the Tribunal did compromised his rights."

13 Counsel for the appellants contended that Carlos Cabal Jnr was not afforded an opportunity to appear and give evidence to the RRT. That submission is devoid of merit and is specifically contrary to the intimation of the RRT expressed in its letter of 4 February 1999. At the hearing before the RRT on 22 February 1999, the RRT member conducting the hearing asked the legal representative of the applicants for protection visas whether the children would give evidence "as applicants". No clear response to this question was given. It defies reality in these circumstances for it to be contended that the Cabal children were denied their procedural rights under ss425 and 426 of the Act as it then stood. 14 Section 425 of the Act obliged the RRT to give the applicants an opportunity to appear before it and give evidence. Section 426 obliged the RRT to notify the applicants of their entitlement to give evidence. The applicants were so notified. They were also given an opportunity to appear. The appellants' submissions on this point are devoid of merit.

The so-called obligation to notify each applicant 15 The appellants submitted that s426 of the Act required that each applicant personally be advised of his or her entitlement to attend a hearing at the RRT. We reject that submission. Notice of the appellants' right to attend such a hearing was afforded to them by such notice being sent to the lead applicant, care of solicitors representing that person and other applicants, as part of the relevant family units. It is to be noted that this course reflected that adopted by Mrs Cabal in acting on behalf of her children, as well as herself, in lodging the application for RRT review.

Form of the notice 16 The letter sent to the solicitors' office concluded with the following words set out in bold and in a box form as follows: IF YOU DO NOT RESPOND WITHIN 7 DAYS OF THE DATE OF THIS LETTER WE WILL ASSUME THAT YOU DO NOT WANT TO COME TO A HEARING AND THE TRIBUNAL MAY MAKE A DECISION ON YOUR CASE WITHOUT FURTHER NOTICE 17 It was submitted on behalf of the appellants that a notice in that form was invalid. Reliance was placed on Xie v Minister for Immigration and Multicultural Affairs [1999] FCA 1480 at [23], (1999) 95 FCR 543 where Cooper J said: "The RRT had no statutory power to impose conditions on the applicant and his family as to the exercise of their statutory right to give evidence on the hearing of their application for review by imposing time limits within which an election to be heard must be made. Nor was the RRT entitled to make the assumption that failure to respond meant that the applicants did not wish to attend on the hearing and give oral evidence as was their entitlement. Although it may have been administratively wearisome, the only course open to the RRT when it determined s 424 did not apply, was to set a date which it notified under s 426 and to proceed to a hearing on that date. It was the hearing which was the occasion on which the applicant and his family were entitled to give evidence or not as they then chose. No internal administrative arrangements of the RRT could take away that entitlement of the applicant and his family; certainly not without their informed consent communicated by them in a positive way to the RRT." 18 In Xie, no hearing date had been set. That is a critical distinction between Xie and the instant cases, in which the letter from the RRT set a hearing date. Xie does not stand for the proposition that the RRT cannot require an applicant to advise by a certain time whether he or she will take advantage of the specified hearing. It does stand for the proposition that the RRT is not entitled to cancel the hearing, and make a decision without a hearing, simply because the applicant does not reply. However, in this case the RRT did not do that.

Evidence from Carlos Cabal Snr 19 It was submitted that the RRT failed to have regard to the written notice of the applicants before it, which stated that the applicants wished to have Carlos Cabal Snr give oral evidence. It was further submitted that the primary judge erred by finding that there was no evidence that the RRT failed to have regard to that request or unreasonably refused it. 20 At [52] of his reasons the primary judge said that: "…The solicitor's letter of 12 January 1999 expressed a desire that evidence be taken from Mr Cabal Snr among others. In the event the Tribunal received a 182 page statement from him. It was plain from the restrictive tenor of Mrs Cabal's answers to Tribunal's questions in evidence that there was no prospect of her husband subjecting himself to questioning in oral examination. There is, in any event, no evidence for the contention that the Tribunal failed to have regard to the applicant's request in their solicitor's letter." 21 The appellants submitted that in considering the exercise of its discretion to decline to allow a proposed witness to give oral evidence the RRT must have regard to the wishes of the applicants before it. There was no evidence to suggest that it did not have regard to their wishes. This point is also devoid of merit.

Failure to consider or review the applications 22 It was submitted on behalf of the appellants that the primary judge erred in rejecting the submission made before him that the RRT failed to consider the whole of the evidence before it. His Honour characterised the submission made before him at [60] as "a complaint about the sufficiency of the [RRT's] reasons", which he had earlier indicated were "sufficiently expressed for the purposes of s430 (of the Act)." 23 In reliance upon some observations of the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ("Anthonypillai"), the appellants submitted that the RRT's apparent failure to consider a large number of documents meant that it had failed to consider the applications before it by determining them without reading the material before it. 24 The primary judge correctly rejected a similar submission made to him which was based on s430 of the Act. It is well established that the RRT is not bound to refer in its reasons to every conflicting piece of evidence. The new submission, that there was a failure to consider the applications, is also one without merit. In Anthonypillai some "extreme examples" were given of situations where the RRT may be said not to have considered an application. The instant situation is not one of them. In Anthonypillai the Court had in mind a situation where the RRT did not read the material before it. There is no evidence before us that the RRT, in the instant cases, did not read material before it which was suggested to be relevant to any issue it was required to determine. 25 There may be occasions in which the RRT is under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained to the RRT. However, the primary judge was correct when he said, as a general proposition, at [48] that the RRT "is not required to translate material in a foreign language" or "consider large volumes of material whose evidence is not explained". Its failure to do so will not mean that it failed to consider or review an application in accordance with s414(1) of the Act or s54 of the Act, if applicable, when it has otherwise dealt with all material considered by it to be germane to its task of reviewing the decision of the delegate. In the present case the additional material was voluminous (including 19 textbooks in Spanish) and its relevance unexplained.

Failure to apply the correct Convention test 26 At [58] to [60] of his Reasons for Judgment the primary judge said that: "Particulars (i) to (v) of ground 4 were dealt with together in argument and, with respect, in a way that did not make particularly clear the nature of the applicants' complaints. Much of the oral argument focussed upon the Tribunal's findings about whether the conduct of Mexican authorities in relation to the applicants constituted unlawful or oppressive surveillance or harassment and therefore a species of persecution. In my opinion the course of the Tribunal's reasoning indicates that it was not satisfied that the conduct of which the applicants complained amounted to persecution. Rather it found that that conduct involved steps legitimately taken by authorities in the investigation of what was said to be very serious criminal offences committed by Mr Cabal Snr. This was a finding of fact which the Tribunal was entitled to make and there was nothing to suggest that it misapplied the law in so doing.

The Tribunal also found as a matter of fact that Mrs Cabal and her family were not at risk of persecution in its Convention sense if returned to Mexico. This was based in part upon its findings about the way in which the Mexican authorities dealt with Mrs Cabal and the children after their flight from Mexico in 1994. As a matter of fact the Tribunal's conclusions on the question of past events of alleged persecution and the future risk thereof excluded any alternative possibility that there was a "real chance" of persecution nonetheless. Its findings on this issue necessarily implied that any disadvantage that might be suffered on the applicants' return to Mexico would not amount to persecution on any Convention ground. The hypothesis that the applicants were part of a particular social group, defined by membership of the Cabal family, did not need to be explored because the threshold question of whether there was a well-founded fear of persecution for whatever reason was answered in the negative.

The complaint was raised again, under this ground, that the Tribunal failed to consider all of the evidence put before it. This is really a complaint about the sufficiency of its reasons. As I indicated earlier, the reasons are, in my opinion, sufficiently expressed for the purposes of s 430. The weight that may have been given to particular aspects of the evidence and whether the Tribunal failed to take into account relevant considerations are not matters with which this Court can be concerned. The applicants' case in essence failed at the threshold because they failed to show that they were subject to a risk of persecution on Convention grounds or otherwise."

27 It was submitted that in so deciding the matter the primary judge and the RRT applied an incorrect test to determine whether an applicant was entitled to a protection visa. The applicants contend that the RRT was incorrect in its findings that certain activities of Mexican authorities in Europe did not constitute persecution. There is nothing in the reasons for the two relevant decisions of the RRT to show that it failed to correctly consider what was persecution under the Act. The appellants' real complaint appears to be based on their disagreement with the RRT's view on the merits of the applications rather than any real complaint about legal error in determining what is meant by "persecution" in the Refugees Convention. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Whitlam and Marshall.

Counsel for the Appellants Mr M Gerkens with Mr J Gibson

Solicitor for the Appellants: Fernandez Canda Gerkens

Counsel for the Respondent: Mr G Gunst QC with Mr S G McLeish

Solicitor for the Respondent: Australian Government Solicitor