"VAS" v Minister for Immigration & Multicultural & Indigenous Affairs

The Tribunal's decision 7 The Tribunal considered the account given by the appellant. It accepted many of his claims, including that he and his family were caught up in the war, that he was wounded and suffered the injuries claimed, that he and his family had fled to the mountains and that he had provided assistance to the KLA by transporting food and ammunition. However, it concluded that the appellant would not be at risk of persecution if he returned to Kosovo. 8 The Tribunal relied upon evidence given by a Mr Lloga, a "community representative" who did not know the appellant, "independent information" from Reuters including an article on "guerrilla activity in South Serbia", and information and a chronology of developments in Kosovo from the United National High Commissioner for Refugees (prepared in July 1999). 9 The Tribunal noted that the appellant had returned to his home town in 1999, that he had remained there until December 2000, and that he had not reported that he suffered any harm or persecution during that period. Despite the fact that it accepted the appellant's claims as to his role in the war, it did not accept that he would be targeted by the Serbs for these activities. It noted that his role had been a very minor one, and that there was no indication that he was suspected of any such activity. 10 The evidence of Mr Lloga appeared to be accepted by the Tribunal. He said the international forces currently stationed in Kosovo had been able to settle the situation somewhat. However, he indicated that the aftermath of the war was characterised by violence, uncertainty and conflict, the current situation was not ideal, and safety and security could not be guaranteed to all citizens. His evidence noted that the incidence of crime had increased, though not necessarily inter-ethnic crime. He also noted that the lack of a formal or established legal system had resulted in a reversion to customary laws, whereby people exact retribution on a wrongdoer themselves. 11 The Tribunal found that the appellant's claim for a protection visa should be rejected for a number of reasons. It did not accept that the appellant would be targeted by Serbs as a result of his assistance to the KLA. This view was based on the fact that the assistance which he had provided was very limited, and there was no indication that he had been suspected of any activity which could be seen as the basis for anyone wanting to cause him harm. Secondly, the Tribunal observed that while there was some violence in Kosovo: "The independent information above indicates that this is related more to criminal activity. This view was also supported by the witness Mr Lloga." It did not accept that Kosovars did not have any rights, nor that the appellant would be unable to pursue education or find a job because of his ethnicity. Finally, the Tribunal noted that the appellant had lived for a year in Kosovo following his period of hiding, and had not come to any harm. For these reasons the Tribunal found that the appellant did not face persecution for reasons of his ethnicity.

Issues before the primary Judge 12 Before the primary judge, the decision of the Tribunal was challenged on three grounds. The first concerned the finding of the Tribunal that the violence in Kosovo was "more related to criminal activity". His Honour said: "The applicant says, I think with some justification, that the "independent information" does not necessarily admit of that conclusion, but was in fact consistent with the view that much of the violence was directed against persons of a certain race or nationality." The primary judge went on to refer to passages from the "independent information". However, his Honour concluded that even if the Tribunal erred in its findings regarding the nature of the violence and unrest in Kosovo, this was a finding of fact, and did not constitute a reviewable error of law. 13 His Honour turned to the second ground and considered whether this finding was based on "no evidence", which would have amounted to an error of law. Counsel for the appellant submitted that the evidence examined by the Tribunal "barely" supported the finding relating to the nature of the violence and unrest (though he could not contend that there was "no evidence"). While the primary judge acknowledged that the evidence on which the Tribunal made the finding was "slight in the extreme", nonetheless it was concluded that there was some basis for the finding. After referring to Waterford v Commonwealth (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356; and Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, 481, 483, his Honour said: "But all this (the appellant's submissions about the paucity of the evidence) cannot avail the applicant, for, so long as there is some basis for the finding, there will be no error of law. And the fact is that there is some basis for the finding, albeit slight in the extreme." (Emphasis added) 14 The third ground was that the Tribunal failed to accord the appellant procedural fairness. It was said that the "independent information" was not provided by the appellant (though supplied to him by the Tribunal), and the appellant was not informed that the Tribunal viewed the information as not assisting his case. This argument was not accepted by the primary judge. His Honour said: "…neither the applicant nor his lawyers have put forward evidence to the effect that they were under some belief that the tribunal would only draw favourable inferences from the "independent information". … …the fact that the tribunal took the trouble to send the information to the applicant should have alerted him to at least the possibility that the tribunal might use it to reach adverse conclusions to those that the applicant now says should be drawn from the information."

Issues in the appeal 15 The notice of appeal in this matter was filed on 18 July 2002, after Madgwick J ordered that the time to institute the appeal be extended. The original notice of appeal sets out three grounds of appeal, substantially covering the same issues raised before the primary judge. 16 The first two grounds relate to the findings regarding the nature of the violence and unrest in Kosovo. First, it is contended that his Honour erred in finding that the Tribunal made a non-reviewable error of fact (though this ground was abandoned at the hearing), and secondly, that his Honour erred in concluding that the "no evidence" argument of the appellant was not made out. The third ground is that his Honour erred in finding that the Tribunal had not denied the appellant procedural fairness arising from the way in which it provided the appellant "independent information". The appellant sought leave to add, at the hearing of the appeal, an additional ground based on the judgment of the High Court of 8 August 2002 in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. 17 On 9 August 2002 the Minister filed a notice of contention, contending that even if the Tribunal made an error of law in characterising the violence, made findings that were not supported by evidence, or failed to comply with the rules of natural justice, its decision was nevertheless valid by operation of s 474 of the Act.

Consideration 18 In relation to the "no evidence" ground, the appellant did not challenge the conclusion of the primary judge that there was a basis for the finding concerning the violence in Kosovo (that it was "related more to criminal activity") even though the basis was "slight in the extreme". That is, the appellant did not seek to demonstrate that there was no material before the Tribunal which would have justified this conclusion that there was a basis even though qualified in the terms used by the primary judge. This would have been difficult because all the material that had been before the Tribunal (including the transcript of the evidence of Mr Lloga) was not included in the record of the Tribunal's proceedings provided to the primary judge. 19 In any event, it is clear that his Honour was alive to the distinction between an error of law arising from a finding being made where there was no evidence, and circumstances where there was some evidence, albeit slight, supportive of the finding. The unchallenged conclusion of his Honour that there was some basis for the finding is, in our opinion, sufficient to defeat the argument of the appellant. The approach of his Honour does not reveal any error of legal principle having regard to the authorities to which he referred in his judgment. While the primary judge plainly thought the material supporting the finding was very limited, it is not possible to say, as the appellant submitted, that a conclusion that it was "slight in the extreme" is effectively a finding that there was "no evidence". A helpful discussion of the applicable principles and difficulties concerning their application is found in Aronson & Dyer Judicial Review of Administrative Action 2nd ed 2000 at 214-216. However it is unnecessary, in this appeal, to consider in greater detail the scope of the applicable principles given that the appellant did not challenge the conclusion of the primary judge that there was "some basis for the finding". It is also unnecessary to consider whether, had there been error on the part of the Tribunal, it would have amounted to jurisdictional error, and similarly unnecessary to consider the effect of s 474 of the Act. 20 As to the second ground, we are satisfied that the approach of the primary judge was correct. The appellant was sent by a Registrar of the Tribunal, under cover of a letter dated 28 September 2001, four documents containing "independent information". Three of those documents were later referred to by the Tribunal in its reasons. The letter simply invited the appellant to comment on them if he wished. A copy of the letter was sent to the appellant's lawyers. It may well be, as the Minister submitted in this appeal, that a person in the position of the appellant, or at least his lawyers, might think that the documents were being forwarded for comment because the Tribunal thought they did not support the person's case for a protection visa. 21 However, in the absence of evidence that that the appellant or his lawyers were misled (assuming, for present purposes, that the test is a subjective and not an objective one) or the preferable inference being that they were misled, the sending of the letter and the documents says nothing in support of the appellant's contention that he was not afforded procedural fairness. If anything, he was given the opportunity to comment on the documents but failed to take up the opportunity: see Re: Architects of Australia Association; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305. It is unnecessary to consider the effect of s 474 which, as the law presently stands, would immunise the Tribunal's decision from challenge on the basis that there had been a denial of procedural fairness; NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. 22 The same can be said of the effect of NAAV v Minister for Immigration & Multicultural & Indigenous Affairs on the third ground. But apart from s 474, that ground is not made out for reasons which we now explain. 23 The third ground the appellant sought leave to raise was based on the judgment of the High Court in Muin v Refugee Review Tribunal. However, in order to appreciate how this ground would arise, it is first necessary to consider the state of the evidence in the present case. The delegate of the Minister made the primary decision on 7 August 2001. In the decision record he records (in Part B) the evidence before him. 36 documents are listed including 27 which, having regard to their title, probably constitute "independent information", that is country information from agencies (including the Department of Foreign Affairs & Trade). In its decision, the Tribunal records that it "ha(d) before it the Department's file" but does not indicate, one way or the other, whether it had before it the Part B documents. It refers to two of the documents in its reasons though whether it obtained them independently (of whatever, if anything, it was given by the Department) is not apparent from its reasons. There was no evidence before the primary judge (not surprisingly given that Muin v Refugee Review Tribunal had not been decided when the matter was heard below) about whether the appellant believed the Part B documents were before the Tribunal. Nor was there any evidence that, if so, the appellant acted on the basis that it was unnecessary to place before the Tribunal "independent information" in the Part B documents favourable to him (assuming those documents did, at least in some respects, support his case). 24 In our opinion, these facts fall short of establishing what is necessary to demonstrate that there was a denial of procedural fairness of the type considered by the High Court in Muin v Refugee Review Tribunal. In that matter various facts were agreed. Of importance is that it was an agreed fact in that case that the two plaintiffs believed the Part B documents had been sent to and looked at by the Tribunal and also an agreed fact that the two plaintiffs would have highlighted passages in those documents which assisted their cases. While the circumstances of the two plaintiffs differed, these two agreed facts were central to the reasoning of the majority: see particularly Gaudron J at [60]-[68], Gummow J at [171], Kirby J at [194] and [200] and Hayne J at [257]. 25 In the present appeal there are no agreed facts of the type considered by the High Court. There is no direct evidence that the appellant believed the Part B documents had been sent to and looked at by the Tribunal nor any direct evidence that the appellant would have highlighted passages in those documents which assisted his case, or otherwise sought to rely specifically upon them. Nor does the material before us enable an inference to be drawn about either of those matters. Accordingly the factual foundation which led the majority of the High Court to conclude there had been a denial of procedural fairness in Muin v Refugee Review Tribunal, does not exist in the present appeal. While we give leave to amend the notice of appeal to add this ground, it does not assist the appellant. 26 For the preceding reasons the appeal should be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Moore & Weinberg.

Solicitor for the Appellant: Mr M Jones - Solicitor

Solicitor for the Respondent: Blake Dawson Waldron