WAID v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2003-03-19|Before: French J

REASONS FOR JUDGMENT Introduction 1 The applicant is a national of Vietnam who was born in that country on 20 May 1967. He grew up in Vietnam during the time of the Vietnam War. In 1984 he left Vietnam for Cambodia. He did not want to join the Vietnamese Army. He could not find any way to get from Cambodia to any other country and so returned to Vietnam but had no papers. He claimed that after his return to Vietnam he helped people to escape from that country and was a wanted man in his home area. The authorities, he said, made inquiries from people in his home town as to his whereabouts. He was disowned by his family because of the trouble he was bringing upon them. There were also people who wanted to kill him because some of those he helped to escape were caught and shot by police or were drowned as they jumped overboard from the boat in which they were travelling. 2 The applicant left Vietnam by boat on 29 December 1988 and went to Malaysia where he lived in a refugee camp under United Nations protection. He was interviewed and granted refugee status by the United Nations High Commission on Refugees. 3 In the event he was granted a migrant visa "class 205-Camp Clearance Migrant" to enter and remain in Australia. He arrived in this country on 25 July 1991. He was just over 24 years of age at the time. 4 Unfortunately, following his arrival in Australia he fell into a pattern of criminal conduct which began in 1994. His record was as follows: 22 February 1994 Stealing - 2 counts $70 fine on each count 11 October 1994 Possessing prohibited drug One count - $400 fine 25 November 1994 Stealing - one count $500 fine 19 April 1995 Burglary and Commit Offence - 1 count Probation 12 months 8 May 1995 Stealing - 1 count $500 fine 29 May 1995 Armed robbery in company - 1 count 4 years 43 weeks imprisonment 27 June 1995 Re-enter Casino Premises when prohibited - 3 counts 1 month imprisonment and $50 5 July 1995 Betting Past Post - 1 count 1 month imprisonment 5 July 1995 Re-enter Casino Premises when prohibited - 1 count 1 month imprisonment conc 12 September 1995 Burglary with intent - 1 count 6 months imprisonment cum 6 June 1997 Unlawful wounding - 1 count $700 fine 27 June 1997 On premises/curtilage without lawful excuse - 1 count $50 fine 9 March 1998 Criminal Damage - 1 count 6 months imprisonment 9 March 1998 Attempted stealing - 1 count 6 months imprisonment

5 On 24 June 1998 a delegate of the Minister made a decision under s 200 of the Migration Act 1958 (Cth) to deport the applicant because of his conviction for armed robbery in the Supreme Court of Western Australia. The applicant was served with the deportation order on his release from prison and was thereafter taken into immigration detention. He appealed to the Administrative Appeals Tribunal (AAT) and on 15 February 2000 the AAT decided to affirm the decision to deport him once his term of imprisonment was completed. 6 Subsequently he filed an application in the Federal Court seeking an order of review of the AAT's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application was also evidently prepared by way of an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). On 29 September 2000, Carr J ordered that his application for review of the AAT's decision and by way of appeal against that decision should be dismissed. 7 On 8 August 2002, the applicant lodged an application for a protection (class XA) visa. A further application was submitted on his behalf through his migration agent on 13 August 2002. The applications for a protection visa were refused by a delegate of the respondent on 27 August 2002. On 28 August 2002, the applicant lodged an application for review of the delegate's decision with the Refugee Review Tribunal (the Tribunal). 8 Following a hearing held on 9 October 2002, the Tribunal made its decision on the same day to affirm the decision of the delegate to refuse to grant the applicant a protection visa. On 4 November 2002, an application was filed in this Court seeking review of the Tribunal decision. Evidence and Claims Before the Tribunal 9 The applicant lodged a statement in support of his original application for a protection visa. In that statement he set out the events that led to his departure from Vietnam in 1988, the grant to him of refugee status while in Malaysia and his subsequent entry to Australia under a migrant visa. He made reference in his statement to the circumstances which led to him embarking upon criminal activity. He said he was addicted to sleeping tablets and, while under their influence, had robbed a delicatessen in the company of another person in 1994. He had not been in control of his actions and had not considered their consequences. While on parole in March 1997 he was charged with unlawful wounding. His parole was cancelled and he was reimprisoned. When he was released from prison in December 1997 his parole officer told him of the intention of the Department of Immigration and Multicultural Affairs (DIMA) to deport him to Vietnam. Because he feared for his safety he stole a car and drove to the countryside. He was captured, convicted of stealing the car, and received a further term of imprisonment of six months. He was eligible for release from prison in July 1998. 10 While awaiting the decision of the Federal Court on his appeal from the AAT decision the applicant was in immigration detention and not permitted to associate with other inmates. He was, however, permitted to attend Church on Saturday mornings. Subsequently he turned to God, took up Bible studies and dedicated himself to the Seventh Day Adventist Church of which he became a member. He follows a Pastor Godfrey and continues studies with his assistance. 11 In the statement in support of his visa application the applicant said he was unable to return to Vietnam as he is still wanted by the Police and by the Communist Party. His life and the life of his family would be placed in extreme danger if he were returned. Moreover he would not be permitted to take his Bibles and study books into Vietnam which would mean he would have to terminate his Bible studies. 12 A further written submission in support of his application was made by Libby Hogarth and Associates, Migration Agents on 22 August 2002. In that submission it was asserted that the applicant claims that he will be subject to persecution in Vietnam on account of both his political opinions and on account of his religion. In relation to his asserted fear of persecution on account of his religion, the submission said: "The applicant is a Christian and baptised into the Christian Faith. He is a member of the Seventh Day Adventist Church in WA. If he were to be deported back to Vietnam he fears he would be unable to continue with his Christianity, Bible Studies and preaching God's Word to encourage others to become Christians. The applicant would most certainly draw attention to himself. Thus in association to his political opinion in opposing the Vietnamese Communists, exhibited by his refusal to conscript in their army and his participation in assisting others to flee the Communist Regime before escaping himself and fleeing to Malaysia, the applicant would suffer severe punishment and persecution placing the applicant in mortal danger as a result of his religion and political opinion. He would therefore be a person who would come to the attention of the Vietnamese authorities, if returned." (sic) It was submitted that the applicant would suffer severe punishment and persecution placing him in mortal danger as a result of his religion and political opinion. 13 The submission to the delegate contained country information including an extract from the Annual Report on International Religious Freedom from the United States Department of State for the year 2001. In that Report it was said of Vietnam: "Both the Constitution and Government decrees provide for freedom of worship; however, the Government continued to restrict those organized activities of religious groups that it declared to be at variance with state laws and policies. The Government generally allowed individual worship for those persons who participated privately in recognized religious bodies, including Buddhist and Roman Catholic traditions… The Government maintained organizational control of the administration of recognized religions, and restrictions on the hierarchies and clergy of most religious groups remained in place." The report indicated that the Government prohibited proselytising by foreign missionaries. Reference was also made in the submission to the Amnesty International Report for 2001 and a US Department of State Country Report on Human Rights Practices 2000 published in February 2001. 14 Following the delegate's decision and the lodgment of an application for review by the Tribunal the applicant's agent sent another submission to the Tribunal setting out the applicant's claims. The submission referred expressly to the delegate's findings and noted that the Seventh Day Adventist Church is not a recognised Church in Vietnam. Involvement in it is therefore banned in that country. The agent's submission took issue with the delegate's conclusion that the applicant could practice his religion with discretion. It was submitted that the applicant was excited by his new found faith and the change it had brought into his life. He was said to be "… keen to tell others about his faith and to be involved in church outreach". 15 Reports contained in Country Information from various sources relating to religious persecution in Vietnam were cited. An organisation called the US State Commission on International Religious Freedom was quoted as saying, in a report dated 7 May 2001: "Despite a marked increase in religious practice among the Vietnamese people in the last 10 years, the Vietnamese Government continues to suppress organised religious activities forcefully and to monitor and control religious communities… The government prohibits religious activity by those not affiliated with one of the six officially recognised religious organizations. Individuals have been detained, fined, imprisoned and kept under close surveillance by security forces for engaging in 'illegal' religious activities. In addition the government uses the recognition process to monitor and control officially sanctioned religious groups; restricting the procurement and distribution of religious literature, controlling religious training, and interfering with selection of religious leaders." The Tribunal Proceedings 16 The Tribunal arranged a hearing for 9 October 2002. I was informed by counsel for the applicant, without objection, that the hearing was by a video link between the applicant who was in immigration detention in Perth, the applicant's adviser in Adelaide and the Tribunal in Melbourne or Sydney. According to the applicant's affidavit evidence in these proceedings, about two weeks prior to the Tribunal hearing he began to suffer severe anxiety symptoms and feelings of panic related to his detention at the Perth Immigration Detention Centre and the forthcoming hearing. He told officers at the detention centre on several occasions over a period of several days that he wanted to see a doctor. He was eventually taken to see a psychiatrist at the Bentley Health Services, Mills Street, Bentley. The psychiatrist who saw him wrote a handwritten report dated 1 October 2002 and diagnosed "Adjustment disorder with depressed mood and anxiety". He prescribed an anti-depressant medication. According to the applicant the medication was too strong. It made his mind "a complete blank". He could not concentrate or remember things. He lost his appetite and felt dizzy and weak. He continued to experience these symptoms up to the date of the Tribunal hearing. He said he had the feeling he was going to die and he didn't know what to say or what to do. Although he had represented himself on a number of occasions before the Administrative Appeals Tribunal and in court, he had never felt like this before. He told his adviser over the telephone that he was unwell and he sent her a faxed copy of the medical report which he had been given by the psychiatrist. She sent a copy of the report to the Tribunal. 17 At the commencement of the Tribunal hearing, the applicant told the member that he was unwell and asked for an adjournment. His adviser also requested an adjournment on his behalf. This was refused. In the outline of submissions put on behalf of the applicant it was also acknowledged that the Tribunal said it would stop the hearing if it considered that the applicant was unable to understand or cope with the situation. In his affidavit evidence to this Court, the applicant said: "Because of my confused state I do not remember clearly what I said to the Tribunal. However there were a number of important issues which I wished to give evidence to the Tribunal and I believe that if I had not been ill and on medication I would have been able to make my case much more clearly and convincingly and with the necessary details to support my claims. I wanted to explain to the Tribunal that I had been involved in opposing Vietnamese authorities in the period before I left Vietnam and came to Australia. I also wanted to explain the beliefs of my Church and the teaching to spread the word of God amongst the people. I converted and became a Christian and became part of the Seventh Day Adventists Church while I was at Casuarina Prison in 2000. I was taken directly from Casuarina Prison to the Perth Airport IDC. I have not had an opportunity to express my faith as an ordinary member of the Church community. However both at Casuarina and at the Detention Centre, I have attempted to talk of my beliefs and to share those beliefs with others who will listen to me. I believe that it is an important part of the faith of my church to spread the Christian word. I do not believe that I adequately expressed myself to the Tribunal on these matters." The applicant said that he continued to feel unwell after the hearing and was again allowed to go to the Bentley Hospital where he was seen by another doctor. He complained to the doctor that he believed the medication was having adverse effects upon him and that it was too strong. The doctor told him that the effects were not unusual and that for the medication to work it was necessary for him to complete the full four week period for which it was prescribed. The level of medication was increased. 18 In its reasons for decision, the Tribunal referred to the application for an adjournment and the psychiatric report which had been sent to it on 1 October 2002 by the applicant's adviser. The Tribunal summarised the effect of the report and then said: "The Tribunal read the report and informed the Applicant that the hearing would proceed but that it would be stopped if it became clear that he was unable to understand or cope with the situation." The Tribunal said later in its reasons: "At this stage, the Tribunal refers to the evidence given by the Applicant at his hearing. As indicated above, it received a psychiatrist's report at the beginning of the hearing and informed the Applicant that it would monitor the situation and adjourn if necessary. However, the Applicant appeared quite lucid. He had no apparent difficulties in understanding the questions asked on him nor in supplying relevant answers. While the Tribunal accepts that he is under considerable stress, it does not believe he was so hampered by his condition that he was unable to give the evidence he wished to give. It notes also that his evidence was on all essentials, consistent with evidence in his written submissions."

The Tribunal's Reasons for Decision 19 The Tribunal found that the applicant is a Vietnamese national who had been accepted into Australia as a person deemed to be a refugee from Vietnam by the United Nations High Commission on Refugees. It noted that the status is not a permanent one. The applicant had committed a series of crimes over a number of years. It was only after arrangements were made for him to be deported that he made an application for a protection visa in Australia. The Tribunal observed that the applicant appeared to have converted to the Christian faith only when faced with deportation. It could therefore be held that this was a conversion of convenience. Nevertheless it accepted that conversion can occur when a person feels desperation about his personal situation. The applicant had the support of a number of clergy and Church members who attested to his sincerity. He made his own statement about his beliefs to the Tribunal. The Tribunal found that he had become a Christian. It identified, as the next question it had to address, whether that change in his personal circumstances would lead to his persecution if he returned to Vietnam. 20 The Tribunal considered the position of Christians in Vietnam generally. It found they form about ten per cent of the population and that their numbers are increasing steadily if not spectacularly. If the applicant were returned to Vietnam he would be going to a country in which his religion is a significant minority. In connection with the applicant's contention that he would be part of a persecuted minority, the Tribunal had considered the sources submitted by the applicant as to the nature of government relations with religions in Vietnam. It did not find all of the submitted reports to be reliable, some being the product of virulent anti-communism emanating from the United States of America. The Tribunal in the end preferred information coming from the US Department of State Reports on Human Rights Practices, its Annual Reports on International Religious Freedom, Australia's Department of Foreign Affairs and major international human rights agencies, such as Amnesty International. 21 The Tribunal referred to a United States Department of State Country Report on Human Rights Practices. It indicated to the Tribunal that religious observance is a growing part of the social scene in Vietnam and that individuals are permitted to participate in the religion of their own choice. It acknowledged, however, that the Report and other reports also referred to religious groups and practices which are either restricted or prohibited. The Tribunal then said: "The Applicant's current and potential position is not that of a leader. He is new to the Christian faith. On his return he will, in a sense, be a newcomer even as a Vietnamese citizen, another reason why he might not be considered a leader. The Tribunal assesses that it is the situation of individual Christians, rather than that of clergy or leaders, which most fits his situation." 22 Accepting that there are some restrictions placed on the practice of religion by the Vietnamese Government the question for the Tribunal was whether the restrictions are so onerous that they would prevent the applicant from practising his faith and whether the Government persecuted Christians of like or similar situations as the applicant. The Tribunal was satisfied that the applicant would be able to hold to his own religious beliefs and was not faced with a prohibition of such beliefs. However, the Tribunal also adverted to the Federal Court decision in Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 to the effect that there must be an acceptable degree of freedom to actually practice his religion. 23 The Tribunal was satisfied that the applicant would be free to attend worship services which are at the core of religious practice. It took into account that the applicant is from South Vietnam and so would be in the area where religious bodies are able to undertake the major requirements of their faith. It found that as an individual Christian he would be able to continue with his beliefs. The Seventh-Day Adventist Church of which he was a member has at least 10,000 members and a number of congregations in Vietnam. 24 In response to the submission that the Seventh-Day Adventist Church is not a recognised Christian organisation in Vietnam, the Tribunal said: "While it is true that the government tries to insist on registration, there also is evidence that it does not have a systemic or systematic policy of persecuting those who choose to remain unregistered." It referred to the US Report on Religious Freedom which it regarded as a significant indicator that registration is not the only factor to be considered when determining whether a person is able to practice their Christian faith in Vietnam. The Tribunal observed that many thousands are able to do so even though they are part of unregistered groups. 25 The Tribunal also "speculated" that the applicant was not bound to join the Seventh- Day Adventist Church and only that one. It was somewhat accidental that his Christian mentor was from that particular denomination. Letters of support for him had come from a range of denominations. The Tribunal was satisfied that even if the applicant could not find a Seventh-Day Adventist Church in the place where he relocates, he would be able to find a protestant congregation. 26 The Tribunal rejected the claim that the applicant was bound to proselytise even at the cost of his own safety. He agreed at the hearing that he was not ready to do any preaching but that he would like to talk to people. The applicant was not obliged to put himself in harm's way. The Christian church had resolved that issue in the early first century by decreeing that it was not necessary to become a martyr. 27 In relation to whether the applicant would suffer discrimination amounting to persecution the Tribunal was satisfied that the difficulties the applicant might face on his return to Vietnam were not related to religion. They flowed from his loss of contact with his family and the reasons for his deportation from Australia. It said: "The Tribunal is satisfied that the Applicant, a relatively new convert to Christianity, would have access to a Christian group of his own choice, that he would be able to worship and believe and that he would not be persecuted in his daily life for the reason of being a Christian." 28 The Tribunal then dealt with the applicant's claims of feared persecution for reasons of his political opinions or imputed political opinions. It accepted that he had left Vietnam illegally and being designated as a refugee had a prior profile of being anti-government. But that was a decade ago. What was significant for refugee determination was whether the circumstances which caused him to leave continue to raise valid fears of persecution now. 29 In relation to his alleged failure to undertake military service, the Tribunal was satisfied that the passage of time and changed circumstances in Vietnam would make any prosecution or persecution of him for this failure remote. In this respect it accepted advice from the Department of Foreign Affairs and Trade that the Vietnamese Government requires a decreasing number to perform military service and that past desertion is not a matter of great moment. Indeed the applicant did not actually desert; he had failed to report at all. In relation to his departure from Vietnam, the current evidence as the Tribunal found it was that the Government was quite anxious to welcome returnees. It has established a "Committee for Overseas Vietnamese" specifically aimed at encouraging former refugees to return to Vietnam. 30 Summing up the position, the Tribunal said it had considered the applicant's situation since his arrival in Australia and in particular his conversion to Christianity and the fears he holds for the manner of his removal from Australia. It did not find that he faced a real chance of persecution on each of these matters individually nor that they would accumulate together to give him a profile which might attract persecution. The Tribunal found him not to be a refugee. Grounds of the Application 31 The grounds upon which the applicant now seeks review of the Tribunal's decision pursuant to s 39B of the Judiciary Act 1903 (Cth) are set out in his amended application a minute of which was filed on 18 February 2003. The grounds are set out in pars 5 to 8 inclusive of the amended application. Ground 6 was abandoned. The remaining grounds are in the following terms: "5. The Tribunal failed to grant the Applicant a proper hearing and accordingly failed to comply with the provisions of s425 of the Migration Act and thereby to accord the Applicant natural justice in making the said Decision: PARTICULARS a) The Applicant on the day of the hearing appointed by the Tribunal was too ill to give the evidence and to present the arguments which he wished to provide to the Tribunal and the Applicant therefore sought an adjournment. The Applicant's request for an adjournment was refused by the Tribunal, which then made its decision following the conclusion of the Hearing. The Applicant was thereby prevented from presenting the case that he wished to present to the Tribunal. … 7. The Tribunal erred in law in determining how it considered that the Applicant was obliged to act in pursuing his faith as a Christian. The Tribunal thereby had regard to an irrelevant consideration and exceeded it (sic) jurisdiction. PARTICULARS a) The Applicant claimed that as part of his faith as Seventh Day Adventist he was bound to proselytise if returned to Vietnam. b) The Tribunal erred in law in determining that Christians as a whole were not bound to act in a way that would cause persecution by the State. c) The issue for the Tribunal to determine was whether there was a real chance Applicant would proselytise as he claimed and if so whether he might then be persecuted by the Vietnamese authorities for reasons of his religion. This issue was not addressed or determined by the Tribunal. 8. The Tribunal failed to accord the Applicant natural justice in making its decision, in that the Tribunal did not bring country material on which it relied and which was adverse to the Appellant's claims, to the Appellant's attention and did not give the Appellant an opportunity to respond to such material. (sic) PARTICULARS a) The Tribunal relied on extracts from the Country Material in reaching its conclusion that the Applicant could practice his faith as a Seventh Day Adventist without persecution. The Tribunal failed to put the material relied upon to the Applicant and failed to give the Applicant the opportunity of commenting on the material or of adducing other material contrary to that relied upon by the Tribunal. b) If the Applicant or his adviser had been given an opportunity to comment on the material relied upon by the Tribunal then the Applicant or his adviser would have been able to point out to the Tribunal relevant passages in the Country Material relied upon by the Tribunal, which supported the Applicant's case that members of evangelical churches, which are not recognised in Vietnam (which grouping would include the Seventh Day Adventist Church), continue to suffer the risk of persecution and that the Country Material relied upon by the Tribunal does, in truth, distinguish between the vast majority of religious persons who belong to the official churches and those who belong to the unofficial churches." Statutory Framework 32 The provisions of the Migration Act 1958 (Cth) most relevant to the present application are to be found in Pt 7 of the Act which concerns the review of protection visa decisions by the Tribunal. Decisions reviewable by the Tribunal are identified in s 411 and include a decision of a delegate refusing to grant a protection visa (s 411(1)(c)). Applications for review must be made in the approved form and given to the Tribunal within the prescribed period (s 412). Where a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision (s 414). The Tribunal in carrying out its functions under the Act is required to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420(1)). It is not bound by technicalities, legal forms or rules of evidence (s 420(2)(a)). It must act according to substantial justice and the merits of the case (s 420(2)(b)). 33 An applicant for review may give the Registrar of the Tribunal a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review (s 423(1)). Section 424 provides: "424(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information. (3) The invitation must be given to the person: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the person is in immigration detention - by a method prescribed for the purposes of giving documents to such a person." There is an important obligation on the Tribunal to provide certain potentially adverse information to an applicant. The relevant part of the section is in the following terms: "424A(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. . . . (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 34 The circumstances in which the Tribunal must invite an applicant to appear before it are set out in s 425: "425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal." Where an applicant is invited to appear before the Tribunal it must give the applicant notice of the day on which and the time and place at which the applicant is scheduled to appear. The period of notice must be a reasonable period (s 425A). 35 Sections 424, 424A and 425 all appear in Div 4 of Pt 7 of the Act. That Division was amended by the Migration Legislation Amendment (Procedural Fairness) Act 2002. A new section 422B was inserted to read as follows: "422B(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416, 437 and 438 and Division 7A, insofar as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with." The Act commenced on 4 July 2002, the day after it received Royal Assent. It is not in dispute that the amendment applied to the proceedings before the Tribunal in this case. 36 Reference should also be made to s 474 of the Migration Act which, in relation to the class of decisions under the Act known as "privative clause decisions" provides: "474(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." It is not in dispute that a valid decision of the RRT is a privative clause decision attracting the application of s 474. The operation of that section has to be read in light of its construction by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1. The Purpose of the Procedural Fairness Bill 37 According to the Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002, the purpose of the Bill is "… to provide a clear legislative statement that the 'codes of procedure' identified in the Bill are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with". The amendments in the Bill were said to apply to the "codes of procedure" in the Act relating, inter alia, to the review of decisions by the RRT. The Explanatory Memorandum noted that in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57the High Court held, by majority, that the "code of procedure" for dealing fairly, efficiently and quickly with visa applications did not exclude common law natural justice requirements. The majority, it was said, considered that such exclusion would require a clear legislative intention which was wanting in the Act. The purpose of the Bill was to supply that clear legislative statement. The Second Reading Speech was to the same effect and concluded with the Minister saying: "… these amendments are necessary to restore the Parliament's original intention that the Migration Act should contain codes of procedure that allow fair, efficient and legally certain decision-making processes that do replace the common law requirement of the natural justice hearing rule." The First Ground of Review - Failing to Grant the Applicant a Proper Hearing 38 The primary thrust of this ground is that the Tribunal failed to comply with s 425 of the Act in refusing the applicant's request for an adjournment because of his depressed mental state. On the face of it this ground stands or falls on the answer to the question whether the Tribunal failed to comply with the requirements of s 425. 39 Counsel for the applicant, in his oral submissions, accepted that he was asserting non-compliance with s 425. This non-compliance, it was said, constituted a jurisdictional error per se. And in the circumstances of this case it also constituted a breach of procedural fairness which would amount to jurisdictional error. The importance of characterising any identified error as jurisdictional error is explained by the High Court's decision in Plaintiff S157. The effect of that decision is that s 474 which protects privative clause decisions against review, does not prevent a challenge to the validity of a decision based upon alleged jurisdictional error. For such an application raises the very question whether there has been a privative clause decision made which attracts the protection of s 474. 40 In my opinion this ground can be disposed of shortly. The Tribunal did not accept the applicant's claim that he was prejudiced in his ability to present his case at the hearing. Rather it adopted a "wait and see" attitude on the basis that it would monitor the situation and adjourn if necessary. In the event, it found that the applicant appeared quite lucid and had no apparent difficulties in understanding the questions asked of him or in supplying relevant answers. It noted also that his evidence was in all its essentials consistent with the evidence in his written submissions. Importantly, the Tribunal did not reject any of the primary factual matters advanced by the applicant. 41 Reference was made in the applicant's submissions to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. The case is cited by the applicant for the proposition that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness. It was said at par [40] in the joint judgment of Gaudron and Gummow JJ: "Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness." 42 In that case the review hearing was set down for 15 September 1998. Mr Bhardwaj became ill on 13 September 1998. On the evening of 14 September his agent sent an urgent message to the Tribunal by facsimile informing it of his illness and seeking another hearing date. This did not come to the attention of the relevant Tribunal member and on 16 December the Tribunal affirmed the delegate's decision to cancel his visa without having heard from him. Gaudron and Gummow JJ observed at [43] that the failure of the Tribunal to provide the applicant in that case with a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of a visa. So what it determined was not a "decision on review" for the purposes of the Act. 43 The factual circumstances in this case differ significantly from those in the Bhardwaj case. In this case the Tribunal heard from the applicant, found him to be lucid and consistent in his evidence and did not disbelieve any of it. 44 In Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193, the Full Court considered the position of an applicant seeking an adjournment on the ground of illness. In that case the applicant fell ill with the flu and was still ill on the day of the hearing. The weather on that day was particularly bad as it was raining severely. He rang the Tribunal to ask for an adjournment. The Tribunal member (as the Full Court found) refused to adjourn the hearing. The Full Court was of the view that the applicant was denied an adjournment in circumstances in which that denial negated his opportunity to appear before the Tribunal to give evidence. The Tribunal was held to have failed to comply with s 425. The Court said at [35]: "In our view an applicant who is sick and cannot attend a hearing is not relevantly afforded an opportunity to appear to give evidence where the Tribunal refuses to grant an adjournment. This is not to say that the Tribunal is under any obligation to grant an adjournment on the basis of a mere allegation of sickness. There is no reason why the Tribunal must accept an allegation of this kind uncritically. It is entitled to require medical evidence if it believes that there is reason to doubt the truth of the allegation or otherwise to test it. An argument that so to hold would open the floodgates to applicants seeking adjournments for the purposes of delaying a hearing is without foundation. It will be ultimately a factual matter whether, in all the circumstances, an applicant has been given a real opportunity to appear before the Tribunal to give evidence. In the event that there is any contest and no adjournment is given, the question is one which will fall to be decided by the Court, which will consider all the circumstances, including any factors which support the Tribunal's refusal to grant an adjournment application." Reference should also be made to the decision of Einfeld J in Qadir v Minister for Immigration & Multicultural Affairs [1999] FCA 620 where the applicant had suffered the amputation of three fingers at work four months before the hearing. The fingers had required micro and plastic surgery and were deformed and not functioning normally. The applicant in that case suffered and was continuing to suffer pain for which he was taking analgesics. He was scheduled to undergo further surgery three weeks after the hearing. The Tribunal was informed by unchallenged expert evidence that the applicant was suffering from anxiety and depression, that he was stressed and found it difficult to concentrate, that he was receiving psychotherapy and taking medication and that he was struggling to cope with life. The Tribunal said in that case that none of these matters prevented the applicant from attending the hearing. Einfeld J held that this response was beside the point: "No one was suggesting that he could not be present. It was said that he would not be able to do justice to himself and his refugee claim. The Tribunal thus failed to address itself to the argument made to it." 45 There was evidence of complaints by the applicant at the hearing, that he was feeling dizzy and too unwell to answer questions. Judged by its approach during the hearing and by its ultimate explanations in its judgment the Tribunal, it was held, exhibited no appreciation of the effects of months of pain and heavy analgesics on a person's capacity to concentrate and remember detailed facts. There his Honour found that the applicant did not receive true or bona fide consideration of his application for adjournment which the Tribunal was bound to give him. 46 In the present case the Tribunal considered the application for an adjournment and the medical evidence in support of it. It made its own observations of the applicant's responses in the course of the hearing leaving open the option of adjourning the hearing if that became necessary. There is nothing to suggest that it did not approach its task conscientiously. I cannot be satisfied on the evidence that the Tribunal has failed to comply with the requirements of s 425. This is not a case in which there has been a breach of s 425 or the rules of natural justice in that connection. The first ground therefore fails. The Second Ground - The Applicant's Christian Obligations 47 In support of this ground it was submitted that the issue for the Tribunal to determine was whether there was a real chance the applicant would proselytise as he claimed and, if so, whether he might then be persecuted by the Vietnamese authorities for reasons of his religion. It was submitted that this issue was not addressed or determined by the Tribunal. In any event it was submitted it may well be "persecution" of the kind contemplated by the Convention for the applicant to be forced to practice his beliefs as part of the officially recognised religions in Vietnam when his church is not one of those official religions. The Tribunal, it was said, was not entitled to reject his claim because it regarded it as unnecessary or unreasonable for the applicant to practice his beliefs and convictions. The Tribunal was said to have asked itself the wrong question or to have had regard to an irrelevant consideration and so to have fallen into jurisdictional error. 48 In this connection the Tribunal found that the applicant, if returned to Vietnam, would be part of a significant minority religion Christians forming about ten per cent of the population of Vietnam. Although it did not expressly address the question of whether the applicant would proselytise upon his return to Vietnam, it implicitly dealt with that claim when it said: "The applicant's current and potential position is not that of a leader. He is new to the Christian faith. On his return he will, in a sense, be a newcomer even as a Vietnamese citizen, another reason why he might not be considered a leader. The Tribunal assesses that it is the situation of individual Christians, rather than that of clergy or leaders which most fits his situation." The Tribunal appears here to be rejecting any suggestion that, at least in the short term, the applicant was likely to be proselytising. It explicitly rejected his claim that he was bound to proselytise even at the cost of his own safety. These were matters of fact for the Tribunal. They do not expose any error that could be characterised as jurisdictional. The second ground fails. The Third Ground - Whether the Tribunal Failed to Accord Natural Justice in Relation to Country Information 49 It was submitted for the applicant that the Tribunal specifically relied upon country information concerning the practice of religion in Vietnam which had not previously been referred to the applicant. So it was said the applicant was given no opportunity to respond to that information. 50 It was conceded for the applicant that the material which he had provided and that which was relied upon by the Tribunal "were substantially to the same effect". Its substance was that official churches are tolerated and controlled while unofficial churches are subject to persecution. The Tribunal, it was said, had reached a different conclusion by referring to passages in its country material out of context. It failed to distinguish between material which referred to official churches and that which referred to unofficial churches. Had the applicant been given the opportunity to comment, it is said that he could have referred the Tribunal to passages which put those quoted by it in their correct context. 51 Counsel for the Minister relied upon s 422B. Section 424A he submitted deals with the provision to applicants of adverse information. Section 424A(3) has the effect that the Tribunal is not obliged to give an applicant particulars of adverse information unless it is about the applicant or another person. It is not sufficient that it is about a class of person of which the applicant may be a member. By virtue of s 422B this was said to exhaust the requirements of natural justice in relation to the provision of potentially adverse information which might be relied upon by the Tribunal. 52 In WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 409 in which s 422B was not applicable, a similar ground was rejected by the Full Court. In that case it was argued that the Tribunal had failed to give the appellant an opportunity to comment on a report from the Department of Foreign Affairs and Trade which said that converts from Islam to Christianity were generally tolerated in Iran "as long as they maintain a very low profile". Counsel for the appellant there said the Tribunal had taken the report into account and should have given the appellant notice of its existence and contents and an opportunity to refute what it said. The argument was based in part upon s 424A of the Act. The Full Court found, however, that the information referred to by counsel was information that fell within subs (3)(a) of s 424A and that accordingly the section did not apply to it. The Full Court then went on to consider whether there had been a breach of procedural fairness. It said at [36]: "Prior to 2 October 2001, breach of the rules of natural justice was not a ground of review available in this Court - see s 476(2)(a) of the Act - although it was available in the High Court of Australia: see Re Minister for Immigration and Multicultural Affairs; ex parte Miah [(2001) 206 CLR 57]. However, s 424A was not in the Act when the Miah delegate's decision was made. All members of the High Court bench in Miah pointed out that the common law rules about natural justice could be excluded by a manifestation of a legislative intention to that effect, including by the making of a statutory regime to cover the relevant factual situation… As it seems to us, s 424A must be treated as an exhaustive statement of the Tribunal's obligation to bring information to the attention of a visa applicant, overriding any wider common law obligation." 53 The applicant contends that WAAJ is contrary to the majority judgments of the High Court in Miah, is therefore plainly wrong and should not be followed. 54 In Miah, the High Court was considering ministerial rather than Tribunal decisions and in particular the scheme of Subdiv AB of Div 3 of Pt 2 of the Act. Section 57, which appears in that subdivision, is similar in relevant respects to s 424A which applies only to Tribunal decision-making. In that case the applicant for a protection visa complained that he had not been given the opportunity to put a case in reference to a change of government in Bangladesh or to answer the case made against him by reference to that change. He asserted that there had therefore been a breach of the rules of natural justice. The High Court by majority rejected a contention that subdivision A provided a comprehensive "code" of procedure in relation to dealing with visa applications. It held that procedural fairness required that the applicant be given the opportunity to put a case by reference to the change of government in Bangladesh or to answer the case made against him by reference to that change. Because that did not happen, there had been a breach of the rules of natural justice. 55 As the Full Court in WAAJ noted, s 424A which was introduced into the Migration Act by the Migration Legislation Amendment Act (No 1) 1998, was not in the Act when the decision of the delegate in the Miah was made. The delegate's decision in the Miah case was made on 13 May 1997. But s 57, which was in force and was applicable to the delegate's decision, was not relevantly distinguishable from s 424A. It was in the Act and was part of subdivision AB which was under consideration in that case. 56 It is questionable whether the observations of the Full Court in WAAJ on the issue of common law natural justice are of binding authority because the ground of appeal with which their Honours were dealing was concerned solely with an alleged failure by the Tribunal to comply with s 424A. The ground of appeal made no reference to procedural fairness, albeit procedural fairness was mentioned in argument. Their Honours dealt with it in par [36] of their judgment on that basis. Moreover it is questionable, in the light of Miah, whether the observation at par [36] in WAAJ is correct. If the observations of the Full Court were part of its ratio then, notwithstanding any views that I might have about their consistency with the prior High Court decision, that decision was expressly addressed by the Full Court, and I would be bound to apply the Full Court decision. In the present case however not only do the observations appear not to be part of the ratio but the Parliament has legislated to overcome the effect of the Miah decision in relation to procedural provisions in the Act. 57 Section 422B, as appears from the Explanatory Memorandum and the Minister's Second Reading Speech, was enacted specifically to overcome the effect of the decision in Miah not just in relation to the part of the Act with which that decision was concerned, but other parts of the Act containing like procedural requirements. The section is not entirely without difficulty in its application. It is a statement of legislative intention about the effect of Div 4 of Pt 7 of the Act as "… an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with". That is to say the procedural requirements set out in Div 4 so far as they are referable to the requirements of procedural fairness in relation to the right to be heard are to be treated as exhaustive. They are to be treated as exhaustive in relation to the matters with which Div 4 deals. Division 4 is concerned generally with conduct of a review by the Tribunal. One of the matters with which it deals, under that rubric, is the provision to an applicant of information that "… the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review…". That is to say it deals with the provision to the applicant of information, known to the Tribunal, which would be adverse to the applicant's application. When read with s 422B, in my opinion, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant's right to comment on adverse material which is known to and is to be relied upon by the Tribunal. I am bound by WAAJ to conclude that the latter section does not extend to the provision of country information of the kind complained about in this case. Such information is "… not specifically about the applicant or another person". And to the extent that, in this case, it concerns the approach of the Vietnamese Government to persons who are members of official and unofficial religions it may also be said to be "… just about a class of persons of which the applicant or other person is a member". 58 Section 422B will no doubt require further exploration in terms of its construction and the identification of the "matters" to which it applies. In my opinion, however, and for the reasons I have expressed, the third ground also fails. Conclusion 59 For the preceding reasons, each of the grounds of review fails and the application must be dismissed with costs. I certify that the preceding fifty nine (59 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)s 424, s

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