Migration Act 1958 (Cth), ss.36, 91R, 474, 475A

Migration Legislation Amendment Bill (No. 6) 2001 (Cth) Explanatory Memorandum

Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 170 ALR 553

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 (5 July 2000)

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2001) 75 ALR 585

Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323

NAAV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 228; (2002) 193 ALR 449

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

SBBG v Minister for Immigration & Multicultural Affairs (2003) FCAFC 121 (6 June 2003)

VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927 (19 July 2004)

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1) The decision of the Refugee Review Tribunal made on 27 June 2002 is invalid.

(2) A writ of certiorari issue quashing and setting aside the said decision.

(3) The matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with the law.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

1. This judgment arises from an application filed by the applicants on

15 August 2002 seeking judicial review of the decision of the Refugee Review Tribunal on 27 June 2002 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant protection (class AZ) visas.

2. The first-named applicant, accompanied by his wife (the second-named applicant), arrived in Australia on 27 August 1998 from Latvia on visitor visas. They are both of Russian ethnicity and of Russian Orthodox faith. On 8 September 1998 they lodged applications for protection (class AZ) visas (sub-class 866) with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth). Pursuant to the provisions for the issue of a protection visa in respect to applicants who are of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. Only the applicant husband made specific claims under the Refugees Convention and for these reasons the Refugee Review Tribunal ("the Tribunal") has referred to him as the first-named applicant.

3. Both applicants, who are pensioners, claim that they are stateless due to the breakdown of the USSR and Latvia's independence. The first-named applicant is a retired Soviet Armed Forces officer. He claims that he fears persecution due to his former association with the Soviet military and his Russian ethnicity. Both applicants claim they are not entitled to obtain Latvian citizenship due to the first-named applicant's association with the armed forces, and that as a consequence both applicants have restricted civil rights in Latvia.

4. On 10 November 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection (class AZ) visas (sub-class 866); the applicants applied to the Tribunal for review of that decision on 30 November 1998. In the decision made by the Tribunal on 27 June 2002, the Tribunal affirmed the decision of the delegate not to grant the protection (class AZ) visas. The Tribunal found that the first-named applicant was not a person to whom Australia had protection obligations; the first-named applicant consequently did not satisfy the criterion for the purposes of the grant of a protection (class AZ) visa. The Tribunal also found that the applicant wife, who had made no specific Convention claims and was reliant upon the decision pertaining to her husband's application, did not qualify for a protection (class AZ) visa.

5. The Tribunal's findings, as stated in paragraph 5 of the applicants' contentions of fact and law, which were filed on 25 November 2002, were as follows:

i) the Tribunal accepted that the applicants were Stateless and that Latvia was the proper country of reference;

ii) the Tribunal found [that] the first-named applicant was a retired soldier and then a civilian employee (both in Latvia) of the Soviet then the Russian Armed Forces;

iii) the Tribunal accepted that there were and are in Latvia hostile attitudes towards Russian members of the former Soviet Armed Forces because of their nationality, imputed political opinion and membership of a particular social group;

iv) the Tribunal found that the chance of the applicants suffering "ethnically-motivated physical harm" was remote;

v) the Tribunal accepted that the first-named applicant was the victim of crimes but did not accept that the crimes were motivated by his being Russian;

vi) the Tribunal did not accept that the first-named applicant participated in a demonstration by Russians;

vii) the Tribunal found that the applicants had been granted permanent residence in Latvia and did not accept that they were visited routinely by the police or were at risk of being deported;

viii) the Tribunal was not satisfied that the applicants had a well-founded fear of being persecuted within the meaning of the Convention.

6. On 15 August 2002, the applicants lodged an application in the Federal Court of Australia, being V526 of 2002, pursuant to section 39B of the Judiciary Act 1903 (Cth) and section 475A of the Migration Act 1958 (Cth) ("the Migration Act") for review of the Tribunal's decision. The application stated that the Tribunal had:

a) misconstrued section 91R of the Migration Act and thereby had asked itself the wrong question;

b) failed to consider material which was relevant in determining the applicants' claims; and

c) failed to accord procedural fairness and natural justice to the applicants.

In the applicants' contentions of fact and law, particulars of the applicants' claims were provided. Summarily, the applicants claimed that the Tribunal had:

a) "wrongly misconstrued the concept of persecution" as modified by section 91R of the Migration Act;

b) "wrongly ignored relevant material" such as the applicants' access to medical services, whether they had a right to own property and whether their cumulative claims gave rise to a well-founded fear of persecution;

c) the concept of "serious harm" is inclusive, not exhaustive; and

d) the concept of "serious harm" is not limited to physical ill-treatment or harassment of a person, but can include mental harm.

7. The applicants' contentions were rebutted in the respondent's contentions of fact and law, which were filed on 11 December 2002. According to the respondent:

a) the scope of a court's jurisdiction in respect to reviewing a privative clause decision subject to section 474(1) of the Migration Act should be interpreted in accordance with the judgments in NAAV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 228; (2002) 193 ALR 449 ("NAAV");

b) "the proper construction of the term `persecution' cannot amount to an essential structural element, jurisdictional factor, or final limitation", so if any misconstruction existed it would be "no more than an error of law";

c) the applicants are seeking to engage in "merits review" by arguing that all the "relevant material" was not considered by the Tribunal.

8. By order of Sundberg J on 13 February 2003 the matter was transferred to the Federal Magistrates Court pursuant to Order 82 of the Federal Court Rules 1979 (Cth).

9. On 23 May 2003, by order of Registrar Efthim in the Federal Magistrates Court, the parties were ordered to file further contentions of fact and law. The applicants' supplementary contentions of fact and law were filed on 23 July 2003. The respondent's supplementary contentions of fact and law were filed on 20 August 2003. Both parties adjusted their claims for relief in light of the High Court decisions in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 195 ALR 1 ("S134") and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ("Plaintiff S157/2002"). The applicants argued that the Tribunal's failure to take into account relevant material and the Tribunal's misconstruction of the concept of persecution were both jurisdictional errors as a result of S134 and Plaintiff S157/2002. The respondent contended that Plaintiff S157/2002 did not change the well-established principle that a decision maker does not err by failing to take into account a relevant consideration unless it is a consideration it is bound to take into account (see: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Paul v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1196). The respondent further argued that Plaintiff S157 made it clear that not every breach of procedural fairness constitutes a jurisdictional error.

10. Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

11. The term "well-founded fear of persecution" is affected by the provisions of section 91R of the Migration Act which provides as follows:

(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct.

(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

12. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 ("Yusef") at 351.

13. An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal's power (Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).

14. The Full Court of the Federal Court in SBBG v Minister for Immigration & Multicultural Affairs (2003) FCAFC 121 (6 June 2003) at [19] stated that the decision in NAAV is no longer binding. The Court held at [20] that its jurisdiction is limited only to "jurisdictional errors" which includes:

... where the Tribunal has proceeded on a misunderstanding of the law, at least in relation to defining its core task. This includes, in particular, a misunderstanding of the legal meaning of `refugee'.

15. It is clear that the concept of "serious harm" is inclusive, not exhaustive since the opening words of section 91R(2) state that the following are "instances" of serious harm, "without limiting what is serious harm for the purposes of paragraph 1(b)." The concept of serious harm is not limited to circumstances where there is significant physical ill treatment or harassment of a particular person. Even the instances cited are not restricted to instances where a person's physical wellbeing is at risk. In particular it is important to note that when section 91R was inserted by the provision of the Migration Legislation Amendment Bill (No. 6) 2001 (Cth), paragraph 23 of the Explanatory Memorandum which accompanied this Bill provided that the:

[D]efinition of persecution reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well founded fear of harm which is so serious that they cannot return to their country of nationality, or if stateless, to their country of habitual residence. These changes make it clear that it is insufficient to establish an entitlement for protection under the Refugees Convention that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia. Persecution must constitute serious harm. The serious harm test does not exclude serious mental harm. Such harm could be caused, for example, by the conducting of mock executions, or threats to the life of people very closely associated with the person seeking protection. In addition, serious harm can arise from a series or number of acts which, when taken cumulatively, amount to serious harm of the individual.

16. In construing the concept of serious harm for the purposes of section 91R(1)(b), previous judicial considerations of the concept of persecution continue to be relevant. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, McHugh J said:

Moreover**,** to constitute persecution the harm threatened need not be loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute persecution for the purposes of the Convention and Protocol. Measures in "disregard" of human dignity may, in appropriate cases, constitute persecution.

17. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 170 ALR 553, four justices of the High Court described persecution in terms of a "significant departure from the standards of the civilised world."

18. In Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 (5 July 2000), the Full Court consisting of Hill, Mathews and Lindgren JJ said at [48]:

It is inappropriate to attempt a definition of "persecution", if only because whether a particular act or threat will constitute persecution will depend on the circumstances of each case. This is a point emphasised in the Handbook on Procedures and Criteria for Determining Refugee Status (1992) published by the office of the United High Commission for Refugees. It is also a point made by Kirby J in Chen_. To the extent that the Tribunal did equate persecution with significant harm and applied that as a rigid test, the Tribunal would have erred._

19. McHugh J stated in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2001) 75 ALR 585 ("Haji Ibrahim") at [65]:

Framing an exhaustive definition of persecution for the purposes of the Convention is probably impossible. Ordinarily, however, given the rationale of the Convention, persecution for that purpose is:

s Unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason

s which constitutes an interference with the basic human rights or dignity of that person or the persons in the group

s which the country of nationality authorises or does not stop, and

s which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.

The concept of serious harm, properly construed, can incorporate interference with human rights or dignity of persons in a particular group, consistent with the treatment of persecution described in Haji Ibrahim by McHugh J.

20. Merkel J in VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927 (19 July 2004) said at [60]:

The RRT's references to s. 91R(2) and to instances of harm described in s. 91R(2)(c), (d) and (e) suggest that it was addressing the question of whether the harm feared fell within the instances set out in s. 91R(2), rather than whether the harm feared constituted "serious harm". That view is reinforced by the following matters. The RRT did not consider how the phrase "serious harm" is to be interpreted. In [49] the RRT referred to what s. 91R(2) "required" and in [51] it found the harm did not amount to persecution "within the meaning of s. 91R(2)". In [46], [48] and [49] the RRT applied the language of the examples contained in s. 91R(2)(c), (d) and (e) as if those examples represented the appropriate legislative test. Also, in its reasoning the RRT made a number of references to s. 91R(2) but it did not refer to s. 91(1) or 91R(1)(b).

There is a further matter that suggests the RRT applied s. 91R(2), rather than s. 91R(1). To apply s. 91R(1) the RRT would have to consider whether the claims of the applicant child, cumulatively, constituted persecution that involved "serious harm". That follows from the duty of the RRT to consider the "totality of the case put forward" (see Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 at [31]) and in doing so consider each of the integers of the claim: see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 247-248 [8]-[12] and 259 [41]-[42] and SCAT v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 625 at 636-637 [29].

21. The Tribunal applies the concept of serious harm in the final paragraph commencing on page 20 of the Court Book and concluding on page 21:

But the Tribunal does not accept that these attitudes have found expression in violent actions towards Russian people, including former military people, for reason of their being Russian, or being Russian ex-military, or being non-citizens. The described response to the demonstration does not constitute persecution of Russian ex-soldiers. It does not constitute harm of the order of seriousness suggested by the inclusive definition supplied by s. 91R of the act. Nor does the scrawling of graffiti or insults shouted at marches, however unsavoury these practices may be. The DFAT cables cited above, sourcing their advice from the OSCE mission on the ground, clearly state that violence in Latvia is not ethnically based, even in the case of Russian ex-military. The applicant's claim that he was in an exceptional situation because of his role, or his general profile, was unconvincing. The Tribunal was not persuaded that the applicant was still personally remembered, with hostility, in that role. The Tribunal finds that the chance of the applicants suffering ethnically-motivated physical harm is remote.

22. I am satisfied that the Tribunal, in making those findings, rather than looking at the broad concept of serious harm provided for in the legislation, has unduly restricted itself to an examination of whether the first-named applicant is liable to suffer "violent actions" or "ethnically-motivated physical harm". The Tribunal has thereby applied a wrong concept of persecution and notwithstanding its passing reference to an inclusive definition, has not in its application looked beyond the physical aspects of "serious harm". It has thereby failed to turn its mind to whether the general "hostilities" claimed to be experienced by the applicants, and found to exist by the Tribunal, could give rise to a well-founded fear of persecution.

23. The Tribunal also found "the country information indicates that Russians wanting to enter certain jobs are hampered by the language laws. The Tribunal is not satisfied that these restrictions would constitute serious harm to the applicant, who was self-employed after 1994." The Tribunal's finding in this regard suggests that it was addressing the question of whether the harm feared fell within the instances set out in section 91R(2), rather than whether the harm feared constituted "serious harm".

24. In all the circumstances I am satisfied that the Tribunal misconstrued the concept of persecution and that the first ground contained in the application is made out.

25. Having been satisfied that the applicants' first ground is made out, it is not strictly necessary to consider the second ground in order to conclude the review. However the second ground "that the Tribunal ignored relevant material" seems to be inextricably intertwined with the misconstruction of the concept of persecution. It was submitted by the applicants that the:

Tribunal ignored relevant material because it ignored a number of important parts of the applicants' claims in this case, namely:

* whether the applicants as elderly persons had access to medical services;

* whether the applicants had a right to own their own home;

* whether the situation had truly worsened for the applicants by reason of their daughter's acceptance as a refugee in Australia;

* whether if, cumulatively rather than simply individually, the applicants' claims gave rise to a well-founded fear of persecution.

I accept that the Tribunal did ignore the relevant material referred to.

26. It was further submitted by the applicants that the failure in this case went further than simply ignoring a piece of evidence since the Tribunal, largely because of its misconstruction of the concept of persecution, appears to have ignored an important integer of the applicants' claims, namely whether the first-named applicant's status as a non-citizen who was a former member of the Soviet army meant that the applicants might suffer persecution by reason of the consequent "unjustified breach of their human rights" which the Tribunal itself found to exist (Court Book page 22). I accept that the Tribunal did ignore this important integer of the applicants' claim because of its misconstruction of the concept of persecution. Accordingly the grounds set out in paragraph 2 of the application are also made out.

27. For the above reasons I am satisfied that the Tribunal fell into jurisdictional error by constructively failing to exercise its jurisdiction and accordingly the decision was not made under the Act and is not a decision protected by the privative provisions in section 474(1) of the Migration Act.

28. In all the circumstances it is appropriate to grant a declaration that the Tribunal's decision is invalid and issue a writ of certiorari quashing and setting aside the decision. The matter should be remitted to a differently constituted Tribunal to be determined in accordance with the law.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM