Q v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1999-09-01|Before: Lehane J

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal made on 21 May 1999. By its decision the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant, who was not legally represented, seeks an order setting aside the decision of the Tribunal on three grounds, stated as follows: "1. That procedures that were required by the Act and Regulations to be observed in connection with the making of the decision were not observed. 2. That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law to the fact [sic] as found by the Refugee Review Tribunal. 3. The Tribunal member refused to accept that the applicant has a well‑founded fear of persecution on [sic] convention reasons." 2 Grounds 1 and 2 are grounds on which the Court has power, under Pt 8 of the Migration Act 1958 (Cth) to review a decision of the Tribunal: s 476(1)(a) and s 476(1)(e). The third ground, however, appears merely to allege an error of fact and that, of course, is not a ground on which relief is available in this Court. The applicant did not provide particulars of any of the grounds.

Tribunal's findings, reasons and conclusion 3 The applicant is an Algerian national; he was born in 1976. He arrived in Australia, without documents, on 9 February 1999. He claimed to have an Algerian passport which was in Algeria; he said that he had travelled to Australia on a false French passport which he had bought in Bangkok. He claimed to have left Algeria in late January 1999 and travelled to Australia via Syria, Thailand and Sri Lanka. 4 The applicant claimed to fear persecution in Algeria because he had evaded conscription. He had been required to undergo a medical examination, as a result of which he was classified as fit for military service. In September 1996 he was called up for service. He did not comply with the call‑up notice, however, and moved from his mother's house, where he had lived until that time, to his sister's house. Police called at his mother's home and asked where the applicant was; she said that she did not know. That happened on four occasions, the most recent of which was in January 1998. The applicant claimed that he enrolled in an accountancy course in September 1997 and that on 31 October 1998 he obtained a deferral of his military service obligation. He claimed that the office which dealt with applications for deferral was separate from the authorities who administered the call‑up and that the former would have been unaware that the latter had been looking for him because of his failure to comply with his obligations. The applicant claimed that one of his brothers suggested that they leave Algeria together. The applicant said that, even though he had a deferral, the authorities might prevent him from leaving. Accordingly, he said, he paid a bribe to officials at the airport in order to leave unhindered. The Tribunal summarised the basis of the applicant's claimed fear of persecution as follows: "He claims that he cannot return to Algeria as when his deferral runs out he will be forced to undertake military service. He states that he does not want to do it because he does not wish to kill innocent countrymen. He states that the Algerian government is dictatorial and is a military system. He claims that they torture and kill people for little or no reason and he does not wish to have anything to do with the actions of the Algerian government. He claims that if he refuses to undertake military service he will be imprisoned for 25 years. He also fears being at risk from the armed Islamic groups if he is forced to do his military service." 5 Elsewhere in its reasons, the Tribunal records that the applicant claimed to fear not only imprisonment for a long period but that the authorities might well execute him on his return to Algeria, on account of his evasion of the draft. The applicant gave evidence, which, from the Tribunal's account of it, seems to have been somewhat vague, about the disappearance of an uncle and the execution of a neighbour. 6 Two of the applicant's brothers live in Australia and both gave evidence before the Tribunal. The brother who had accompanied the applicant to Australia also gave evidence. The applicant's mother had visited Australia after the applicant's arrival, but had returned to Algeria before the Tribunal conducted the hearing. 7 The Tribunal took into account the evidence of the applicant and his brothers. It also took into account a good deal of general country information concerning Algeria and, particularly, information as to the Algerian law concerning conscription and the way in which that law was administered. The Tribunal took an adverse view of the applicant's credibility. It regarded some of his evidence as evasive, some of it as involving inconsistencies and much of it as implausible. For example, the Tribunal regarded as singularly implausible that the authorities, if indeed seeking the applicant, had not found him over a period of several years, when he was living at his sister's house. Nor did the Tribunal regard as plausible the applicant's claim to have obtained deferment of his obligation to undertake military service at a time when the authorities had for some years been seeking him in order to compel obedience to the call‑up notice. In particular, the Tribunal relied on certain "independent evidence" which contradicted the applicant's claim that call‑up and deferral were administered by two separate offices. Nor, in the light of country information which it had, did the Tribunal accept the applicant's and his brothers' evidence as to the inefficiency of the Algerian authorities. The Tribunal also found that the evidence given by the applicant's brothers was so vague and their claimed knowledge of the applicant's circumstances so slight as not to be "reasonable to believe". The Tribunal referred - I shall return to this matter - to a "deferment certificate" produced by the applicant: "The applicant has produced a deferment certificate. It is a photocopy only. It mentions nothing on it about the applicant studying, which would have been logical if indeed this would have been the reason for his seeking and obtaining deferral. Instead it states 'moutarabis' which means 'in waiting'. The applicant said it meant 'in waiting for a trade or profession'. This makes no sense, and should have said, if this was indeed the reason - studying. I give no weight to this document and consider that it has been manufactured in an attempt to support the applicant's claims of not as yet having completed national service." 8 On this aspect of the matter the Tribunal's conclusion was: "I find, having considered the entirety of his claims and the independent evidence, that the applicant has fabricated his claims of having avoided military service. I find that he has completed his military service, and that it is reasonable to conclude that he did so during the period indicated above (ending in February 1998)." 9 The applicant was represented by an adviser during the hearing before the Tribunal. The Tribunal dealt with a further matter raised by the adviser, that the Algerian authorities might harm the applicant because two of his brothers had sought refugee status in Australia. The Tribunal did not accept that such harm was likely, there being no evidence to support the claim; and the Tribunal was strengthened in that view by the circumstance that the applicant's mother had visited Australia recently, had stayed for three months and had then returned to Algeria. The Tribunal, finally, concluded that any harm feared by the applicant was harm as a "bystander" or "on the sidelines" of civil conflict (Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299) not persecution for a convention reason.

Do Tribunal's reasons disclose available ground of review? 10 I have considered the Tribunal's reasons. The Tribunal gives a conventional account of the applicable law. That account is not open to criticism. Nor, on the findings of fact which the Tribunal made, does a conclusion that the applicant was not a person to whom Australia owed protection obligations disclose any error in the application of the applicable law. Nor, finally, is there any failure, apparent on the face of the reasons, to observe a procedure which the Tribunal was obliged to observe. Indeed, so far as the application offered any guide, the applicant's complaint was simply about the Tribunal's findings of fact; but that is not a basis on which the decision is open for review.

Statement that there was to be a second hearing: failure to comply with s 425? 11 In accordance with common practice, no transcript of the hearing before the Tribunal had been obtained when the hearing of the application for judicial review commenced. At the hearing, at which the applicant addressed the Court through an interpreter, it became apparent that the applicant had two substantial complaints. First, he said that the "deferment certificate" which was before the Tribunal was an original, not a photocopy. Even if the Tribunal incorrectly found that it was a copy, however, that would not make the decision amenable to review; and it is plain that the Tribunal's conclusions about the alleged deferral were supported by other aspects of the evidence. Secondly, and more importantly, the applicant said that the Tribunal had, towards the end of the hearing, informed him and his adviser that there was to be a further hearing before any decision was to be made. The Minister, not unnaturally, had no knowledge of what had passed before the Tribunal, apart from the Tribunal's own account in its reasons. The Minister submitted that, in any event, the application should be dismissed; but he did not oppose directions, which I made, for the filing and service of an affidavit exhibiting a transcript of the latter part of the hearing before the Tribunal. 12 Such an affidavit was before the Court when the hearing resumed. What the applicant said proved to be right. The section of the transcript in evidence commences at a point in the hearing after the Tribunal had heard evidence from the applicant and his brothers. The applicant had returned to the hearing room. The Tribunal member said: "We have finished all the witnesses. I just need - I am about to finish the hearing shortly so we will be about five minutes or so. Thanks." 13 The Tribunal member then, however, proceeded to ask the applicant, through the interpreter, some questions about the deferment certificate. After some questions and answers about the address stated on the certificate, the following exchange took place: "Tribunal Member: Can you read from the reason for deferral on the last line written in Arabic? It is the bottom line on the certificate with reason for deferment. The Interpreter: He explained it to me. The word, (foreign language) in Arabic means 'in waiting' and he explained the expression. He said 'in waiting' means that you stand in a waiting list until you are taken as an apprentice or as a trainee for a trade or a profession. Tribunal Member: So, it does not say that you are in study? The Interpreter: He says this is considered as a period for a study which - and this expression is not known here in Australia. My schooling - I finished the study which I was to do during my schooling and after that a person can go and study in centres. Tribunal Member: What we are going to do is adjourn the hearing now to another day and probably the week after next. It concerns me though that it does not say that you are studying. So, perhaps you can speak to your adviser and have something more clear put to me about what that means. Can I just have that back? Will it make sense." 14 Some further, not very illuminating, discussion took place, in the course of which the interpreter said: "I have a larger dictionary at home. This is just for day to day expressions. The words used here, 'to lurk', I have to go on the reference. It is from (foreign language), 'to lurk', lie in wait for, ambush, waylay, to wait for'." 15 There was then some discussion concerning what the Tribunal member saw as "some aspects of credibility about the applicant's story" and about the circumstances in which compulsory military service might, or might not, amount to persecution for a convention reason. That led to this: "Adviser: So, we are definitely having another hearing? Tribunal Member: If I am going to set the applicant aside, we will not. If I need to explore other areas, then we will. Adviser: Okay. Thank you." 16 After some further discussion the Tribunal Member said: "Now, you should either hear from me within a week or so indicating that there is another hearing date or you will get a decision within that time. Okay?" 17 The hearing ended with this exchange: "Adviser: If the - sorry, it will only be if the decision is to set aside that a decision will be made about a further hearing? [the Minister's solicitor accepted that 'about' should read 'without']. Tribunal Member: Yes. Adviser: I am just saying that because I would wish the chance to have a further say about this. Tribunal Member: Thank you, everyone." 18 What emerges is in most respects clear enough. The Tribunal member said that there would be a further hearing; there was then further discussion during which the Tribunal member's view about the necessity for a further hearing may have fluctuated somewhat. In the end, however, it was made clear by the Tribunal member, in answer to a specific question from the applicant's adviser, that there would be a further hearing unless the decision of the primary decision‑maker was to be set aside; and in circumstances where the adviser had made it clear that there were more submissions which she wished to put to the Tribunal. In fact there was no further hearing; the Tribunal simply made its decision and notified the applicant of it. 19 In those circumstances, the applicant has a real grievance. The Minister's solicitor accepted that, if the Court had power to set aside a decision of the Tribunal on the ground of a failure to observe the principles of natural justice, the application for judicial review might well be successful. However, it was submitted, and correctly, that the Court has no power to review the decision on that ground: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. If the applicant has a remedy in this Court it can only be because procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision were not observed. That ground, in the circumstances, would be made out, I think, only if it appeared that the Tribunal had not complied with its obligations under s 425. That section, as it applied at the time of the hearing before the Tribunal, provided: "425(1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary.

(2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review."

Section 424 does not apply. The Minister's submission was that the Tribunal had given the applicant an opportunity to appear before it to give evidence and was not required to allow any person (for example the applicant's adviser) to address it orally. Accordingly, its decision was not open to attack in this Court, though it might be otherwise in the High Court: Re Minister for Immigration and Multicultural Affairs; ex parte Abebe (1999) 162 ALR 1.

20 In Eshetu, Gummow J at 600, 601 and Callinan J at 618 approved the following passage in the judgment of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 at 59, 60: "The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the hearing rule). While [s] 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, [s] 476(1)(f) provides that actual bias is such a ground, while [s]476(1)(a) and [s] 425(1)(a), taken together, have the effect that a failure to give a genuine opportunity to appear before the [tribunal] to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that [s]476(1)(f) and [s]425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in [s]476(2)(a), 'the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules." 21 His Honour's explanation of the relationship between s 420 and s 476 was approved also by Gleeson CJ and McHugh J, at 588. But the decision of the High Court in Eshetu - and it is evident that Lindgren J, in Sun Zhan Qui took the same view - that the requirement of s 425(1) that an applicant have a genuine opportunity to give evidence does not import, as a ground of review, "the rules of natural justice", breach of which s 476(2) excludes as such a ground: see Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339 at 347 and 348 per Tamberlin and Katz JJ and at 354, 355 per Sackville J. 22 What then does s 425 require? In Cho, at 354, Sackville J said: "Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers. It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence. Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act."

Thus, unduly short notice of a hearing may deprive an applicant of the right conferred by s 25 (Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166); and the Tribunal may fail to comply with s 425 if it proceeds with a hearing in circumstances where the applicant, through illness or misadventure, is unable to attend: Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193. I respectfully adopt Sackville J's summary in Cho at 355, 356:

"These cases illustrate that s 425(1)(a) is primarily directed to the requirement that the RRT ensures that the applicant not only knows of his or her entitlement to give evidence (see s 426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the RRT from taking advantage of the statutory entitlement. Ordinarily, the RRT complies with s 425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised. If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the RRT is aware, there will generally be no breach of s 425(1)(a). If the applicant does appear in response to the timely notification, and gives evidence before the RRT, there will likewise generally be no breach of s 425(1)(a). It does not necessarily follow that the effect of s 425(1)(a) is exhausted once the RRT actually commences to hear the applicant's evidence, adequate notice of the hearing having been given. There may be circumstances - although I think that they are likely to be rare - where the RRT conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a). To take a hypothetical example, the RRT, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant's own knowledge. If the RRT were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s 425(1)(a). The applicant, although permitted to appear before the RRT and to give evidence, would have been denied the opportunity to appear and give evidence on an issue the RRT itself considered to be critical to the outcome of the case." 23 The brief observations of Burchett J, to which the Minister's solicitor helpfully referred me, in Nouredine v Minister for Immigration and Multicultural Affairs [1999] FCA 1130 at par 15, are consistent with that view. 24 What happened in this case must be tested against those principles. There was no question of inadequate notice. The applicant was present, with his adviser. Nor, it is evident, was the hearing in any sense perfunctory. Material before me indicates that it was relatively long, occupying the whole of a morning; and the Tribunal's reasons make it clear that the Tribunal investigated aspects of the evidence, and matters of concern to the Tribunal, with the applicant in some detail. Nor is there any indication that the applicant was prevented from giving his evidence on any topic on which he wished to give evidence. After the Tribunal had "finished all the witnesses" the Tribunal member asked some further questions about two aspects, which he found troubling, of the deferment certificate. The applicant answered questions about the address stated on the certificate. He also had an opportunity to comment on the expression translated as "in waiting". Two matters remained. One was a matter of translation of a word in Arabic, a matter on which, the Tribunal was justified in thinking, the applicant himself was unlikely to be able to assist: what was outstanding, therefore, was, presumably, the result of the interpreter's further researches. The other outstanding matter was that the applicant's adviser wished "the chance to have a further say about this", namely, an opportunity to make further submissions. But the Tribunal was not required by any provision of the Act to permit oral submissions to be made (s 425(2)). In short, s 425 entitled the applicant only to an opportunity (a genuine opportunity) to appear to give evidence; and in the circumstances I am unable to hold that he did not have that opportunity.

Conclusion 25 Accordingly, the application to this Court must be dismissed, and I so order. 26 In written submissions filed before the day on which the application was first listed for hearing, the Minister sought an order that the applicant pay his costs. That would commonly be the consequence of the Minister's success. This, however, is an unusual case. An applicant, who has little or no facility in English, is without legal assistance and in detention, is told by the Tribunal that there will be a further hearing; but there is no further hearing. He is informed, in the letter notifying him of the Tribunal's decision, that he has the right to seek review by this Court. He is not told anything about the limitations upon that right of review or that he may have a right of review (in some respects a more extensive right) elsewhere. The Minister accepts that this is a case where there might be a remedy under s 75(v) of the Constitution but submits, as he is entitled to do and, as I have held, correctly, that in the circumstances the Tribunal's decision is not open to review in this Court. The Minister, of course, had no responsibility for and, when the application first came on for hearing had no knowledge of, what had happened at the hearing before the Tribunal. But in the circumstances I do not think it would be just to require the applicant to pay the Minister's costs. Accordingly, I make no order as to costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 5 and 20 August 1999

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