Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003

Federal Court of Australia (Full Court)|2005-05-10|Before: Black CJ, Bennett JJ

BACKGROUND 1 The respondents, a husband, wife and daughter, are ethnically Indian citizens of Fiji whose applications for protection visas were refused by the appellant's delegate. The Refugee Review Tribunal affirmed that decision. On the respondents' application for review of the Tribunal's decision, a judge of the Court declared it void and of no effect. The appeal is from that declaration.

BEFORE THE TRIBUNAL 2 On 15 April 2003 the Tribunal wrote to the first respondent (the respondent) advising that it was unable to make a decision in his favour on the material before it, and inviting him to attend a hearing on 11 June 2003 and return the "Response to Hearing" form. He did not return the form. The day before the scheduled hearing he telephoned a Tribunal officer and told her he would not be attending the hearing because of the death of his cousin. He proposed to attend the cousin's funeral in Sydney on 11 June. The officer asked him to provide documentary evidence concerning the funeral arrangements by the close of business on 12 June. The respondent did not appear on the scheduled date. Pursuant to s 426A of the Migration Act (Cth) 1958, the Tribunal proceeded to determine the respondent's claim in his absence. This it did on 19 June, by which time the respondent had not responded to the officer's request for information. The Tribunal's decision was handed down on 11 July. 3 The material before the Tribunal in which the respondent's claims were identified consisted of a two and a half page memorandum that had been before the delegate and a two page document accompanying the application for review. The Tribunal recorded the respondent's claims as follows: "The [respondent] claims that he is Indo‑Fijian and as such is at the mercy of native Fijians and the whole idea of 'Fiji for Fijians'. He claims that at the time of the military coup of 1987 he was working as a law clerk for Jasbir Singh & Co and he was detained along with the whole staff. He was detained at the Army Barracks and questioned by security officers. He was tortured. When he was released they warned him not to support the NFP. He suffered subsequent physical attacks and his wife was insulted. During the second coup by George Speight he was again picked up by security officers for supporting the Fiji Labour Party during the 1999 elections and also for harassing native Fijians while serving them with summonses to appear in court for not repaying their loans. These were false allegations. The [respondent] claims they did not want him to work for the NBF (National Bank of Fiji). He was tortured and humiliated. After he promised that he would work in favour of the native Fijian borrowers he was released and warned that if he didn't keep his promise he would be shot. He claims that none of the reports he made to the police ever brought him any positive results." 4 The Tribunal accepted that there was a certain amount of discrimination against Indo‑Fijians in Fiji, but noted that it had to consider whether the treatment the respondent complained of, if it took place, amounted to serious harm, so as to constitute persecution as opposed to mere discrimination. The Tribunal said: "on the available evidence, the Tribunal cannot determine its facts with confidence. The [respondent's] claims are vague: relevant details such as time and place of the alleged harm as well as the circumstances of the incidents are not provided." 5 The Tribunal referred to various matters it said it would like to have explored with the respondent. They included the level of his involvement with the Fiji Labour Party, the relationship between his work for the Party and his detentions, the nature of his work in the bank which he claimed caused him to suffer torture, why he travelled to Australia twice before and during the period when he alleged he was mistreated, and whether he had sought redress in respect of his alleged mistreatment. The Tribunal concluded: "Given that the applicant was put on notice that a decision favourable to him could not be made on the information currently before the Tribunal and that he did not attend the hearing or provide evidence for his non‑attendance as requested, on the basis of the evidence before it, the Tribunal finds that he … does not have a well‑founded fear of persecution for any Convention reasons should he return to Fiji. Having considered the evidence as a whole, the Tribunal is not satisfied that the [respondent] is a person to whom Australia has protection obligations under the Refugees Convention …."

BEFORE THE PRIMARY JUDGE 6 The primary judge noted the jurisdictional errors relied on by the respondent, but said he did not need to deal with them because it appeared to him that the Tribunal "may have failed to discharge its statutory obligations with respect to the application to review … in a fundamental way". His Honour said that argument proceeded on that basis. 7 His Honour observed that the Tribunal made no finding against the respondent in respect of his claims. He referred to the various matters recorded at [5] which the Tribunal would have liked to explore with the respondent, and continued: "The Tribunal had within its power the means to satisfy itself about each of these issues. It could at least have attempted to schedule another hearing and to invite the [respondent] to attend and give oral evidence and present argument. Its failure to do so, in circumstances in which it made no finding adverse to the [respondent] about his reason for non‑attendance, amounted in my view to a dereliction of its duty. If the Tribunal were not prepared to make findings in respect of the first [respondent's] claims on the evidence it had before it, the remedy lay, at least to some extent, in its own hands." 8 The primary judge concluded that the "real reason" for the Tribunal's decision was that the respondent did not attend the hearing or provide evidence for his non‑attendance as requested. He continued: "The Tribunal had no statutory power to dismiss an application for review of a delegate's decision for non‑attendance by the person the subject of such a decision at a Tribunal hearing. The Tribunal's statutory obligations were clear. Section 414(1) of the Migration Act required it to 'review the decision'. Section 426A empowered it to 'make a decision on the review' without giving the [respondent] any further opportunity to appear, if it chose to do so. In any event, the Tribunal's obligation to review the decision continued. It did not cease because of non‑attendance." 9 His Honour went on to say that a review of the delegate's decision required that the various claims be considered and findings made in respect of them. The Tribunal had done neither. His reasons concluded as follows: "In the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non‑satisfaction. As I have said, the [respondent's] claims did not lack substance. Only if they were rejected, or if the Tribunal found that circumstances had so changed in Fiji as to make the [respondent's] claims no longer relevant to his likely treatment on return, could the Tribunal have rejected his application for a protection visa. The Tribunal neither rejected the claims nor made any finding as to changed circumstances."

GROUNDS OF APPEAL 10 There are three grounds of appeal. They are that the primary judge erred in holding that

(a) in the absence of an adverse finding about the reasons for non‑attendance at a hearing, the Tribunal was required to attempt to schedule another hearing;

(b) the Tribunal was obliged to grant a protection visa unless it either rejected the respondent's evidence or found that circumstances had so changed in the country of origin that a fear of persecution would no longer be well‑founded; and

(c) the Tribunal was obliged to attempt to acquire further information when deficiencies in the evidence are caused by an applicant's non‑attendance at a hearing.

Ground (a) 11 As appears from [7], the primary judge said that because the Tribunal had made no adverse finding about the respondent's reason for non‑attendance, its failure to attempt to schedule another hearing was a dereliction of its duty. Section 426A of the Act provides: "(1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled."

That was the provision pursuant to which the Tribunal "decided to make its decision on the review without taking any further action to enable the [respondent] to appear before it". Section 426A authorised that course, and we are unable to agree that it was a dereliction of the Tribunal's duty to avail itself of the power thereby conferred.

12 The primary judge referred to s 426A in the context of saying that an applicant's non‑attendance at a hearing does not affect the Tribunal's obligation to review the decision but did not explain how reliance on s 426A would amount to a dereliction of duty on the Tribunal's part. The primary judge's decision in this respect is inconsistent with the Full Court's decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said: "Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence." 13 It could not be said that the respondent's failure to attend the hearing was through no fault of his own. He was aware of the hearing date, simply announced that he would not be attending (see [2]), and failed to comply with what, in the circumstances, was a perfectly reasonable request to provide substantiation of his reason for not attending. The primary judge seems to have doubted whether the Tribunal's officer had power to request substantiation. His Honour said the officer "appears to have been unconcerned by the question whether the Tribunal had any power at all to request the information it requested". Although his decision did not turn on this issue, we note that in NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [35] a Full Court said: "The Tribunal, having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s 425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the appellant." 14 The respondent submitted that the Tribunal was obliged to reschedule the hearing because it gave him the opportunity to provide details of his non‑attendances by 12 June, which was a day after the hearing date. It was said that the respondent would have assumed from this that the hearing would be rescheduled, if for nothing else but to consider his reasons for non‑attendance. We do not accept this submission. Had the respondent complied with the request for information by 12 June, the Tribunal would doubtless have communicated with him as to whether there was to be a new date. However he did not provide the requested information by 12 June, or at all, and on 19 June the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable him to appear before it. 15 In our view the primary judge erred in concluding that in the absence of an adverse finding as to the reasons for non‑attendance, the Tribunal was obliged to attempt to schedule another hearing, or that, as his Honour put it, it was a dereliction of its duty not so to attempt.

Ground (b) 16 The primary judge said the Tribunal could reject the respondent's application for a protection visa only if either his claims were rejected or if it found that circumstances had so changed in Fiji as to make the claims no longer relevant to his likely treatment on return. In our view, in a case such as the present, the Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims. In reviewing a decision, the Tribunal stands in the shoes of the original decision‑maker, in this case the Minister's delegate. See s 415 and Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. The delegate is bound by s 65 of the Act, as it applies to a protection visa, to grant the visa if satisfied that the applicant is a person to whom protection obligations are owed. In the absence of that satisfaction, the section requires the delegate to reject the application. Section 65 shows that the relevant decision is not whether a person is or is not a refugee, but whether the decision‑maker is satisfied as aforesaid. As was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274‑275: "A condition of determination is the Minister's satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that a person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution. This is the 'decision' for which provision is made by the Act." 17 We are unable to agree with his Honour's statement that "in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non‑satisfaction": see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non‑satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant's claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal's approach was upheld by a Full Court at [15]: "It can be seen from the form of [s 65(1)] that it does not require the decision‑maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied."

See also NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33] and Applicant A159 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 473.

18 We do not accept the respondents' submission that the Tribunal failed to make a decision as to "its state of satisfaction or not in relation to the evidence before it at the time of the hearing". In the penultimate paragraph of its decision, having reviewed the evidence, it said "the Tribunal is not satisfied that the [respondent] is a person to whom Australia has protection obligations". 19 For these reasons, the primary judge erred in concluding that in the absence of findings as to the facts, either favourable or unfavourable to the respondent, the Tribunal could not reach the requisite state of satisfaction or non‑satisfaction.

Ground (c) 20 The primary judge, having set out the passage quoted at [3], expressed the view that the respondent's claim to have a well‑founded fear of persecution "had some substance" or at least could not be rejected out of hand on the basis that the claims had no possibility of success. Later his Honour said that if the Tribunal was not prepared to make findings in respect of the claims on the evidence it had before it, "the remedy lay, at least to some extent, in its own hands". It is not clear whether by this his Honour meant that the Tribunal should have attempted to arrange a new hearing at which it could have pursued the respondent as to the matters it said it would like to have explored with him (see [5]). If that is what he meant, the Tribunal was under no such obligation, as we have explained at [11] to [13]. If his Honour meant that the Tribunal should have sought information from other sources available to it under s 424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16]. 21 The respondent submitted that having identified matters it would have liked to explore, it was open to the Tribunal under s 424 of the Act to obtain information it considered relevant in performance of its duty to review. That is true. But as indicated at [20], it was under no obligation to do so. 22 The respondent also submitted that having said it would have liked to explore various matters with the respondent, the Tribunal failed to make any findings on the evidence or material before it, and thus failed to perform its function of review under s 414 of the Act. We have dealt with and rejected this submission in our consideration of grounds (a) and (b). Section 414 is in Part 7 of the Act. What we have said at [12] is applicable to that section. 23 The respondent relied on observations of a majority of the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 at [26]‑[27] and [32]. However that was not a case involving a failure to appear and it turned on its own particular facts. There, at the conclusion of a hearing, the Tribunal told the appellant that because there were some questions it wished to put to him about inconsistencies in his evidence, the Tribunal would write to him setting out those questions and inviting a response, together with any further information, within twenty one days. The Tribunal did not write to the appellant, and without further notice handed down its decision affirming the delegate's decision not to grant a protection visa. It was held that the Tribunal had failed to complete the review process as required by s 414. The observations relied on by the respondent are of no assistance in the present case where the respondent did not attend a hearing and the Tribunal made no representations to him as to how it would proceed. 24 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 is a case very like the present. The applicant failed to attend a hearing, and the Tribunal proceeded to make its decision without taking any further steps to enable him to attend. The Full Court said that was a course the Tribunal was entitled to adopt. Their Honours continued at [4]‑[5]: "In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters. In its reasons for decision, the RRT said that in view of the first appellant's failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason …, it was bound to affirm the decision of the Minister's delegate to refuse to grant to the first appellant a protection visa."

As is apparent, the Full Court saw no error in the Tribunal having proceeded in the same manner as the Tribunal in the present case.

CONCLUSION 25 The appeal must be allowed, with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, the Honourable Justice Sundberg and the Honourable Justice Bennett.

Solicitor for the Applicant: Australian Government Solicitor

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