NAPE v Minister for Immigration & Multicultural & Indigenous Affairs - [2004] FCAFC 118 - FCAFC 2004 case summary — Zoe

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NAPE v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 118

Federal Court of Australia (Full Court)|2004-05-10|Before: Hill J, Nicholson JJ

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Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2004-05-10

Before

Hill J, Nicholson JJ

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

the court: 1 The appellants appeal from the decision of Hill J given on 21 October 2003 in which he dismissed their application. The application was one brought in reliance on s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of the decision of the Refugee Review Tribunal ('the Tribunal') which affirmed the decision of the respondent to refuse to grant to the female appellant ('the wife') a protection (class XA) visa which they had sought pursuant to the provisions of the Migration Act 1958 (Cth) ('the Act').

[2]

Background circumstances 2 The appellants are wife and husband. They are both citizens of Fiji and they arrived in Australia on 5 May 2001. 3 The present appeal relating to the application by the wife requires understanding in the context of an earlier application made by the husband. The husband's claims revolved around a seafood business which he managed for his father, which had brought him into dispute with local chiefs and fisheries officers involving corrupt attempts to extort a share of, or other opportunities, from the business. The husband's father no longer ran the business and the husband had not been involved in it since May 2001. On 5 June 2001 he applied for a visa and his wife was included in the application as a member of the husband's family. However, it was refused by a delegate of the respondent on 18 June 2001. An application for review of that refusal was received outside the prescribed time limit and the Tribunal found it had no jurisdiction to review the delegate's decision which thus stood. 4 On 1 August 2001, following advice by letter dated 18 June 2001 of the delegate's decision, the wife and the husband lodged fresh applications for a visa, he being included in her application as a family member. This occurred inconsistently with the previous application of the husband where she had made no claims to be a person to whom Australia had protection obligations. 5 The wife's application was rejected by a delegate on 21 January 2002 and the appellants applied to the Tribunal for review of the delegate's decision. 6 Her case before the Tribunal was that since the time of the coup d'etat in Fiji she had received many threatening calls from indigenous Fijians. She said she had been physically sworn at and pushed around together with her husband in towns. She claimed the door of her home had been forced on one occasion while she was alone, but that those who had done that had been frightened away by a neighbour. She also claimed her husband had been nearly killed and harassed by the military after the coup. The fear of persecution which she claimed to have had was for racial reasons because she and her husband were Indians. She claimed the police made a mockery of the threatening calls and the appellant's reports to them were not taken seriously because they were Indians. She claimed she feared for her life and that of her husband and son (who had remained in Fiji) if she were returned there. She claimed it was the Fijian authorities who were encouraging or promoting violence and persecution against her. 7 The Tribunal considered the matters and on 8 April 2003 affirmed the delegate's decision. In affirming the delegate's decision, the Tribunal made the following findings: (a) the wife's claims did not include any direct harm or direct threats of harm to her; (b) the incidents and threat had been directed at the business managed by the husband and therefore were not essentially or significantly for a Convention reason;

[8]

ground 2: failure to address one ground raised 9 This ground contends that the issue of 'bona fide exercise of power by the Tribunal' had been raised before it as an issue on the review but not dealt with by his Honour. 10 The primary judge gave the appellant leave to amend the application 'to the extent it is necessary' to include within it a ground that there was no bona fide exercise of power. No further amended application was filed by the appellants pursuant to that leave. The potential need to amend the application arose as a result of submissions included in the appellants' written submissions in reply. The appellants' case that there was no bona fide exercise of power was based on the contention that the Tribunal 'cut him [the husband] off' and was disinclined to obtain further details of the alleged incidents from the husband at the hearing. 11 Whilst in the judgment, the primary judge did not expressly reject the contention that there had been any mala fides or bias, his Honour dealt with and rejected all of the arguments put forward by the appellants in support of this ground under the general heading 'Submission 5 - failure to permit the applicants to explain their case'. His Honour reviewed the transcript of the Tribunal hearing and concluded: 'It is clear from the transcript that at no time was either applicant cut off from saying anything. At no time was either applicant denied the opportunity to explain why it was that that applicant believed the harm he or she feared arose because he or she was Indian.' 12 The primary judge's rejection of the contention that there was a failure to give procedural fairness necessarily carried with it a rejection of any claim of mala fides or bias. His Honour did not err in the way that he dealt with this claim or ground. Even if his Honour was in error in not specifically and expressly rejecting this claim, nevertheless the appeal should in any event be dismissed because nothing in the transcript of the Tribunal hearing or the Tribunal's decision itself could support a finding of mala fides or bias. Such a serious allegation must be clearly alleged and proved and the circumstances in which the Court will find an administrative decision‑maker has not acted in good faith are rare and extreme. The circumstances were not present in this case. 13 Other matters raised under this head are addressed under ground 4 and the issue of bias.

[10]

GROUND 4: ALLEGED BIAS 18 His Honour addressed three submissions grounded upon an alleged failure on the part of the Tribunal to afford the appellants natural justice by not drawing their attention to material which was adverse to their case and upon which the Tribunal relied in its reasons. 19 However, as the ground is put it is said that his Honour misconceived the submissions for the appellants and that what they complained of was that the Tribunal chose to deliberately pick and choose parts of the country information unfavourable to them and deliberately left out favourable parts in order to deny them refugee status so that it must be concluded that the Tribunal had been biased. 20 There is a preliminary question whether his Honour did misconstrue the submission for the appellants. Nothing in the amended application raised the question of bias. The Tribunal's treatment of the country information did not demonstrate bias. The appellants' case of bias is based on one sentence of the Tribunal's decision where it considers the present and future political situation in Fiji and refers to the US State Department Country Report 2001 in relation to Fiji. The Tribunal states (not directly quoting the report) that the harassment of Indo‑Fijians and destruction of their property during 2000 did not continue during 2001. The applicant's complaint is that the relevant passage in the report also included after a semi colon the words 'however no action was taken against those who looted and vandalised Indo‑Fijian stores'. That cannot make out the serious allegation of bias. The Tribunal's findings in relation to the present and future political situation in Fiji were open to it on the materials before it. Nothing in the Tribunal's treatment of this issue demonstrates any unfairness or bias. 21 In any event, a tribunal is not obliged to accept all evidence before it. What is important is that there is evidence which will support the conclusion which it reaches. That necessarily requires it to 'deliberately pick and choose' parts of the evidence including parts of country information. It is under no obligation to accept all country information. In carrying out its task of identifying relevant evidence the Tribunal is fulfilling its proper role and the fact that it has engaged in a process of selection cannot sustain an imputation of bias.

[13]

GROUND 7: FAILURE TO PUT MATERIAL ADVERSE INFORMATION CONCERNING POLICE COMPLAINTS 26 This ground contends that his Honour erred in holding that the Tribunal had asked the appellants about the lodgement of complaints against the police when in fact this had not been done in any acceptable way. Reference is made to the transcript of the hearing before the Tribunal during the course of which it was stated by the Tribunal member 'that there were mechanisms for example for lodging complaints against police'. 27 That statement was derived from a passage in Country Information Report No. 273/02 as his Honour identified. He said that it was clear it was not the real reason for the Tribunal's conclusion. He regarded the real reason as that previously referred to under the fourth ground discussed above. In any event, as a consequence of the reference by the Tribunal, the appellants were given the opportunity to comment upon it but did not do so. 28 For the appellants it is submitted that there was no opportunity for them to think that the reference made during the hearing signified material adverse information in relation to which it was necessary for them to respond. 29 His Honour held that the information about channels of complaint about misconduct was not significant or critical to the Tribunal's decision. As a result, there was no denial of procedural fairness even if this information had not been specifically drawn to the appellants' attention for comment. His Honour was also correct in holding that this information was in any event drawn to the appellants' attention during the hearing. There was nothing unfair about the way in which that had been done. It is immaterial that the Tribunal conveyed this information in a statement rather than a question. It is also immaterial that it was conveyed together with related information about the political situation in Fiji from the end of 2000. The appellants were fairly given the opportunity to comment on the relevant political situation in Fiji, including this aspect of that situation.

[17]

GROUND 12: NATURAL JUSTICE US STATE DEPARTMENT COUNTRY REPORT 40 Under this head it is contended that his Honour erred in holding that the US State Department country report did not go to the real ground of the Tribunal's decision. 41 The reference by the Tribunal to this material was made in this passage from the Tribunal's reasons: 'The country information confirms that the law and order situation in Fiji has improved since 2000. The US Department of State … reports … that the harassment of indo-Fijians and destruction of their property during 2000 did not continue during 2001. The independent country information indicates that the present elected Fijian Government is fully committed to protecting all citizens regardless of ethnicity and that the security forces have warned against violence and are in control of the country and are committed to protecting the population.' 42 Why his Honour said that the material did not go to the real ground of the Tribunal's decision was because it was not related to the existence of persecution of the husband which had been found to have been inspired not by race but by matters of business and greed. 43 For the appellants it is contended that in order for the Tribunal to decide whether or not the persecution of the appellants had been race-based it had to examine whether race-based persecution was taking place in Fiji so that the report was very relevant. 44 However, the relevance is not the decisive factor. As his Honour observed in his reasons, there is no need for material to be drawn to an applicant's attention where the material is really not relied upon by the Tribunal in reaching its decision: see Kioa v West (1985) 159 CLR 550 at 587 where Mason J stated the rule in terms that there is a need to draw the applicant's attention to material where the material concerns 'the critical issue or factor'. The focus of the primary judge was not on the relevance of the material but on whether it was directed to a critical issue or factor so as to affect the application of the duty to accord procedural fairness.