Minister for Immigration & Multicultural Affairs v Gutierrez

REASONS FOR JUDGMENT 1 On 2 March 1998 the Minister for Immigration and Multicultural Affairs, the applicant (the Minister), filed applications in each of these matters to review the decisions of the Refugee Review Tribunal (the Tribunal) made on 3 November 1997. The decisions of the Tribunal set aside the determinations of the delegate of the Minister which refused the respondents, Mr Gutierrez and Mr Minaya protection visas. The Tribunal found that the respondents were refugees within the meaning of the 1951 Convention Relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol Relating to the Status of Refugees (the Protocol). Under the Convention and the Protocol, Australia has protection obligations to a refugee who is defined relevantly as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…" 2 The facts and legal issues are relevantly the same in the case of both respondents. The Tribunal's reasons for decision are almost identical in each case. Thus, it is convenient to deal with both cases in the one judgment. 3 The respondents are both nationals of Peru. They are both merchant seamen aged about forty years who have been working at sea for at least fifteen years. They arrived in Australia on the same ship on 17 December 1996. 4 The background and claims relevant to this review were described by the Tribunal in the case of Mr Gutierrez as follows: "The applicant claims that he was required to work in appalling and unsafe conditions on the voyage that led him to Australia. He and two colleagues stated that they were made to work seven days a week for between 10 and 15 hours a day as the size of the crew was kept to an absolute minimum. They said that they received meagre rations of food and a pitiful wage. They said that life-jackets were kept under lock and no safety harnesses were provided, even during rough weather when they were obliged to undertake dangerous work. They added that they had no opportunity to complain about their conditions until they came across a competent authority. When the ship docked in Westernport Bay representatives of the International Transport Federation (ITF) who boarded the ship discovered that it was not registered; the ship sailed under a Flag of Convenience. The ITF also discovered significant mechanical defects. It asked to see the contracts of the crew who were informed that the ITF act on its behalf only if it was given signed authority to do so. All crew members agreed to sign up. The applicant and a colleague had already signed up when the captain and chief officer from the ship intervened and threatened loss of future work for anyone who signed with the ITF. The applicant said that it was also implicit in the comments of the captain and chief officer that those who signed up would be left on land at the next port of call, although other threats were also made that an "accident" may befall them at sea. The applicant said that one other person signed up, notwithstanding the threatening intervention of the captain and chief officer. He said that since the majority declined to sign up the ITF was, ultimately, unable to prevent the ship from sailing. The applicant said that when the ITF inspector left the ship, he and his two colleagues who had signed up were isolated from the rest of the crew. He said that he heard messages being relayed to the head office in Lima reporting the trouble that had occurred; facsimiles sent to the shipping company in Peru were also sighted by others who have provided evidence to that effect. He said that he became increasingly fearful that he and his two colleagues would be harmed at sea or, if they survived to the next port of call, returned immediately to Lima where they faced a prospect of black-listing and civil action. He added that if he made it back to Lima he was also very fearful that thugs there, acting on behalf of the shipping company, would seriously harm him and his colleagues. He said that such a fear was fuelled by the intense anger expressed by the captain and the chief officer; by the substantial economic loss incurred due to delays in loading the vessel as a direct result of the dispute; and by the increased likelihood that publicity of the action at Westernport will lead to others checking ships belonging to the same line. He said that in view of the concerns held by him and his colleagues and, indeed, by others involved in the dispute, the ITF said it would look after him and his two friends. They were advised that they could leave the ship which then sailed without them. He said that he felt utterly abandoned by the ITF after he had disembarked. He said that the ITF wanted him to fly back to Peru when a ticket could be arranged. He said that he refused to do so as he feared for his life. He said that he feared, at least, the shipping company would pursue him in the civil courts and do all it could to make an example of him in order to deter others from joining a union. He said that if union conditions were imposed on the shipping line it stood to lose huge amounts of money. The applicant stated that he did not fear action in a military court and that such a course of action was never seriously contemplated by him. He said that the shipping company had referred to him and his two colleagues as deserters and the Embarkation Booklet for merchant seamen is issued by the Ministry for Navy; but the court action he fears is in the civil jurisdiction. He said that while he fears the government may not protect him from any harmful actions his fear is predominantly of violent action orchestrated by the shipping company." 5 The Tribunal then referred to the evidence of a witness from the Maritime Union of Australia (MUA) as follows: "The witness from the MUA stated that it was extremely rare for the ITF to feel obliged to take the kind of action demanded of it in relation to the ship on which the applicant was a crew member. He said that he had been warned to be very careful in dealing with problems on Flag of Convenience ships because it was well-known the repercussions for crew may be extremely serious. He said that he was very disconcerted the attempts to protect crew had gone astray, adding that the treatment of crew on the ship on which the applicant was employed was the worst he had encountered. He added that several of the threats against the applicant and his colleagues were made openly and very aggressively. He said that some seamen from Burma who had taken action in conjunction with the ITF to protect their rights had disappeared upon return to Burma (see, also, Age Extra, 7 June 1997, "shelter from the Storm"). He said that there is strong hearsay evidence of crew members from other countries who have sought union protection being seriously harmed, as well. He said that shipping companies which sailed under a Flag of Convenience had strong economic motives to take draconian action against uncooperative crew members as the cost savings to such companies were immense while their activities remained unregulated. (A table submitted by the witness estimates an annual loss of more than US$1m. per annum for the company under unionised conditions). 6 Under the heading "Discussion of Evidence and Findings" the Tribunal considered the question it posed as "…whether the applicant…faces a real chance of persecution for a Convention reason…". 7 The Tribunal found that the shipping company which employed the respondents made serious threats including death threats. It continued: "Those threats arose from the applicant's expression of a view and a course of action as a member of a particular social group - the ITF; the threats also arise from the applicant's political opinion or that imputed to him." 8 There was then a discussion concerning the prospect of the respondents facing "vexatious litigation for breach of contract" by the shipping company if returned to Peru. I will return to that matter in due course. After the Tribunal concluded that discussion it returned to the question of the real chance that the respondents would become victims of thuggery instigated by the shipping company. In almost a page of references to evidence relating to the question, the Tribunal concluded that the respondents faced a risk of serious harm from the shipping company if returned to Peru. At the end of this discussion appeared the concluding sentence as follows: "In the particular circumstances of this case the Tribunal is unable to discount the prospect of the State being unable to afford effective protection of the applicant against systematic harassment for a Convention reason by persons seeking to protect their financial interests." 9 Mr Tracey QC, who appeared as counsel for the Minister, contended that, at this point, in dealing with the question of the absence of State protection the Tribunal failed to refer to the evidence or other material on which the finding was based. Thereby the Tribunal failed to comply with the requirements of s 430(1) of the Migration Act 1958 (Cth) (the Act) which provides: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 10 Such a failure is a ground of review under, at least, s 476(1)(a) of the Act. 11 I agree with this submission. In Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 142 ALR 331 at 354 McHugh J said: "Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality." 12 It was a necessary finding in this case that the State was unwilling or unable to prevent physical harm to the respondents which was threatened by the shipping company. That finding was made. However, s 430(1)(d) required the Tribunal to refer to the "evidence or any other material on which the findings of fact were based". In this respect the decision of the Tribunal is deficient. There is no reference to the evidence on which the finding is based. 13 Mr Krohn, who appeared on behalf of the respondents, contended that there was ample evidence before the Tribunal to support the finding. The Tribunal found in relation to each respondent that he was "a credible witness and accepts his claims in their entirety". Mr Krohn submitted that the Tribunal thereby incorporated by general reference all the evidence tendered to the Tribunal which supported the finding. In my view s 430(1)(d) requires a specific reference to the evidence or other material which supports the relevant finding. The purpose of s 430(1)(d) is to arm the reader of the decision with an understanding of the steps by which the Tribunal reached its decision. It would not be sufficient for the Tribunal to say that it found that the State could not effectively protect a person "on the basis of all the evidence tendered to the Tribunal which supports the finding", unless that formula identified particular evidence. In the present case the reference is even more oblique. 14 Mr Tracey also contended that the Tribunal was bound to make a positive finding that the Government of Peru could not or would not provide protection to the respondents, and that the form of the concluding sentence referred to earlier in these reasons was not a positive finding to that effect. The finding left open the possibility that the Government of Peru could or would provide adequate protection. This judgment has so far proceeded on the basis that the sentence does contain a positive finding. Although the position is not free from doubt, I incline to the view that within the double negative there lies a positive finding. As the cases must return to the Tribunal any further decision will no doubt avoid the ambiguity and take into account the argument raised by the Minister. 15 I now return to the question of the Tribunal's approach to the risk of vexatious litigation by the shipping company against the respondents. The relevant passage commenced: "It is apparent that in signing a contract on which he subsequently reneged the applicant is liable to prosecution for breach of contract. Such a legal recourse is, ordinarily, distinguishable from persecution for a Convention ground." 16 The passage concluded: "Thus, even though the company has a right in law to sue the applicant for breach of contract in the present case the applicant is differentially at risk of such action, and of unusually vigorous action, by virtue of his association with the ITF." 17 The Tribunal began by acknowledging that in an ordinary case exposure to civil action would not amount to persecution. It ended by suggesting that the present cases were not ordinary because, as a result of their ITF sympathies, the respondents would be the targets of especially vigorous attention by the civil courts at the instance of the shipping company. 18 Mr Tracey submitted that the pursuit by a private litigant of its rights under the civil law cannot, without more, amount to persecution. He relied on the judgment of McHugh J in Applicant A at 354 where his Honour said: "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group." 19 Again I accept this submission. In response Mr Krohn argued that the concluding sentence referred to earlier in these reasons, in which the Tribunal said that it "could not discount the prospect" of Peru being unable to afford effective protection to the respondents, applied both to the risk of physical violence and also to the risk of exposure to civil litigation. I doubt that the concluding sentence, in context, was intended to apply to the latter. However, if it was so intended, it suffers from the same failure to comply with the requirements of s 430 in respect of any reference to the risk of exposure to civil litigation as it suffers in respect of the risk of physical harm. For instance, nowhere is it explained what role the State would take in failing to prevent or sanctioning such litigation. It is not for the respondents or the Court to scrutinise the evidence before the Tribunal, and select such of it as would support the findings. The Tribunal is obliged to set out the basis of its decision. 20 These reasons have so far proceeded on the basis that the Tribunal correctly found that the threats to the respondents arose from their actual or imputed political opinion. However, Mr Tracey contended that the Tribunal failed to properly identify what the respondents' actual or imputed political opinion was. He submitted that such a finding was necessary to establish the requisite causal link between the harm feared and the Convention ground. While it is possible to infer the Tribunal's meaning of this finding, it is by no means clear and probably also constitutes a failure to comply with s 430(1). 21 In the result each of the decisions must be set aside and be referred back to the Tribunal for further consideration in accordance with law. The usual practice of the Tribunal in such a case is for the hearing of a matter remitted by the Court to be undertaken by a different member of the Tribunal. In the present cases each respondent sought an order that the same member deal with the case referred back to the Tribunal. The Minister does not oppose that course. Section 481(1)(b) expressly allows the Court to refer a matter back to the person who made the decision. In this case it is appropriate to make such an order. 22 Finally, it should be noted that nothing said in this decision is intended to suggest that the ultimate conclusion reached by the Tribunal was not open on the facts before it. That was not the issue before the Court. The vice in the decisions was that if any factual basis existed it was not disclosed by the reasons. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.