FEDERAL COURT OF AUSTRALIA VCAS of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 368 MIGRATION – application for a protection visa - judicial review – whether error of law in not making a finding as to an applicant's country of nationality – whether no evidence of a particular fact – whether decision based on a particular fact Migration Act 1958 (Cth) ss 36(2), 476(1)(b) and 476(1)(g) Raza v Minister for Immigration and Multicultural Affairs [2002] FCA 350 – applied Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCA 104 - applied Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 - applied VCAS OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 237 OF 2002 MERKEL, GOLDBERG AND KENNY JJ 20 NOVEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 237 OF 2002 On appeal from a single Judge of the Federal Court of Australia BETWEEN: VCAS OF 2002 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MERKEL, GOLDBERG AND KENNY JJ DATE OF ORDER: 20 NOVEMBER 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT the appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 237 OF 2002 On appeal from a single Judge of the Federal Court of Australia BETWEEN: VCAS OF 2002 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MERKEL, GOLDBERG AND KENNY JJ DATE: 20 NOVEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant claims to be a national of Sierra Leone, to be of Creole ethnicity and to be a Jehovah's Witness. He stated that he left Sierra Leone in October 2000 for refugee came in Guinea and subsequently travelled to Australia as a stowaway on two boats. After his arrival in Australia the appellant lodged an application for a protection visa, which was refused by a delegate of the Minister. The Refugee Review Tribunal ("the RRT") affirmed the decision of the delegate. 2 The appellant applied to the Court under Pt 8 of the Migration Act 1958 (Cth) ("the Act") for review of the decision of the RRT. The primary Judge (Marshall J) dismissed the application with costs. The appellant appealed to a Full Court against the decision of the primary Judge. The law to be applied is that which existed prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 3 The appellant claims that he fears persecution should he be forced to return to Sierra Leone on grounds inter alia of imputed political opinion, religion, ethnicity and as a member of a particular social group. The RRT formed an adverse view of the appellant's credibility and concluded that it was unable to accept his account of the experiences upon which he relied to found his claim of having a well-founded fear of persecution if returned to Sierra Leone. The RRT also was unable to conclude that the appellant was a national of Sierra Leone and stated that it could not make a finding as to his nationality. Accordingly, the RRT concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"), with the consequence that he did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 4 The primary judge concluded that the RRT was not bound to consider whether the appellant feared persecution if he was returned to another country close to Sierra Leone and that the "no evidence" ground was not made out in relation to the RRT's finding that Kissy was the major port in Sierra Leone. 5 Before the Full Court the appellant relied on three grounds of appeal. The first ground was that the RRT erred in law by failing to consider, and make findings in respect of, the appellant's country of nationality, the country to which the appellant would be returned in the event his application failed, and whether that country was "a safe third country" or was likely to refoule the appellant to Sierra Leone where it was claimed he could face a real chance of persecution for a Convention reason. Reliance was placed on Art 33 of the Convention, which provides that contracting states are not to expel or return a refugee to the frontiers of territories in which the life or freedom of the refugee would be threatened on account of the refugee's race, religion, nationality, membership of a particular social group or political opinion. It was contended on the appellant's behalf that it was not sufficient for the RRT to state that it was unable to determine whether the appellant was a national of Sierra Leone. It was said to be necessary for the RRT to determine the appellant's country of nationality and, in particular, whether there was a real chance that he may face persecution for a Convention reason if returned to a country other than Sierra Leone or if returned by that country to Sierra Leone. 6 A similar argument was rejected by the Full Court in Raza v Minister for Immigration and Multicultural Affairs [2002] FCA 350 ("Raza"). In Raza the RRT found that it could not be satisfied the appellant was an Afghan national and therefore it could not be satisfied that he had a well-founded fear of persecution if returned to Afghanistan. In dealing with a submission about the consequences of the failure to determine the appellant's nationality, the Full Court stated at [21]-[23]: "21. The submission is not sustainable. The task of the Tribunal in considering an application for review in respect of the refusal of a protection visa is to determine (inter alia) whether the applicant for review satisfies the criterion for the grant of such a visa under s 36. Relevantly, s 36 provided: '36(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.' This criterion is reflected in Schedule 2 of the Migration Regulations which, pursuant to reg 2.03 sets out criteria for the grant of various classes of visa. Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas. Both include as a criterion that: '…The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.' The primary obligation which qualifies as a protection obligation arises out of Art 33 of the Refugees Convention: see Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 at 559 ('Al-Sallal') and Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 ('Applicant C'). Under that Article the contracting states undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The obligation, which is otherwise known as the prohibition against refoulement, is owed to a refugee who is defined in Art 1A(2) of the Convention as any 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.' Part 7 of the Migration Act, as it stood at the time relevant to this appeal, deals with the review of protection visa decisions. A decision to refuse to grant a protection visa is reviewable by the Tribunal (s 411(1)(c)). Applications for review to the Tribunal are made under s 412 of the Act and, if a valid application is so made, the Tribunal must review the decision (s 414). The powers of the Tribunal under s 415 of the Act authorise it to exercise all the powers and discretions conferred by the Act on the person who made the decision. It may affirm or vary the decision or remit the matter for reconsideration. 22. The decision with which the Tribunal is concerned in this case, is the refusal to grant a protection visa on the basis of an application made by a person who claims to have a well-founded fear of persecution for a Convention reason if he is returned to the country of his nationality, Afghanistan. That is the matter which comes before the Tribunal, by way of review, when it determines whether or not a protection visa should be granted. The Tribunal was not at large to consider and make findings relevant to the question of Australia's non-refoulement obligation under Art 33 generally when the appellant's claims or circumstances do not raise those issues: cf Applicant C. A question relating to refoulement might arise where a claim to a real chance of persecution in country A is based on a fear of refoulement by country B to country A. In that circumstance it is relevant for the Tribunal to consider whether there is a real chance that country B will return the claimant to country A: see Al-Sallal at 559. 23. The administrative arrangements that may be made by the Executive for the return of an unsuccessful applicant for a protection visa to another country will, no doubt, have to be made in accordance with Australia's international law obligations under the Refugee Convention and, in particular, by reference to Art 33. That may bring in a wider range of factual considerations than those before the Tribunal when it determines the application for a protection visa. It is not a necessary part of the Tribunal's duty, if the evidence before it and reasonable inquiry does not permit, to make a finding that an applicant is of a particular nationality or country of origin. In such a case the Tribunal is concerned to determine whether it is satisfied that the applicant's claim for a protection visa on the ground that he is a refugee as defined by Art 1A(2) of the Convention is made out: see Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCA 104 at [12]. In this case the Tribunal has discharged its function by its rejection of the appellant's claims. It did not have to go beyond those claims. That is not to say that a positive finding of nationality or country of residence is precluded. It is not, however, mandated. The second ground of appeal would therefore fail." 7 In the present case no claim about the operation of Art 33 was made by the appellant, who was represented by the Refugee and Immigration Legal Centre Inc before the RRT, and the appellant was unable to point to any evidence or material which was accepted or not rejected by the RRT which would raise the kind of question referred to by the Full Court in Raza at [22]. In any event, the non-refoulement principle in Art 33 did not arise because the RRT did not accept that the appellant had a well-founded fear of persecution for a Convention reason. In those circumstances the RRT in the present case, as it did in Raza, discharged its function without error of law when it rejected the appellant's claims. As was stated by the Full Court at [23] in Raza the RRT did not have to go beyond those claims. See also Hussaini v Minister for Immigration and Multicultural Affairs [2002] FCA 104 at [13]. Accordingly, the first ground of appeal has not been made out. 8 The second ground of appeal, which was based on ss 476(1)(g) and (4)(b) of the Act, was that there was no evidence or other material to justify the making of the decision because it was based on a particular fact that did not exist. The fact that was said not to exist was that Kissy is the major port in Sierra Leone. The submission is without substance. First, there was material before the RRT upon which it was entitled to rely to make a finding that the major port in Sierra Leone is at Kissy. The finding was based on independent information about Sierra Leone in document V01/12609, which was a compilation of country information held by the RRT. The compilation drew on a BBC report and a CNN report to conclude that the main port area in Freetown is at Kissy. 9 Second, the RRT made its fact finding concerning Kissy in the context of considering the appellant's knowledge of the geography of the area in which he claimed to have lived in Sierra Leone. In that context the RRT drew upon a number of matters, including the appellant's apparent lack of knowledge about Kissy, to conclude that his awareness of the geography of the area was inconsistent with his claim to have lived where he lived for as long as he had claimed. The reference to Kissy was merely one matter amongst others that was relevant to that particular credibility finding, which itself was merely one matter amongst others that led the RRT to make a number of other adverse findings (including credibility findings) against the appellant. In these circumstances the RRT's decision could not be said to be "based on" the particular fact that was said not to exist as on no reasonable view of the decision could that particular fact be said to be critical to the making of the decision: see Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 at 414-415 [56] and [58], 427-428 [116] and 439 [157]. 10 Third, the evidentiary fact upon which the RRT appeared to rely in making the relevant adverse credibility finding against the appellant was that he was unaware that the port at Kissy was the major port in Sierra Leone, stating, instead, that the major port was at Port Loko. The Tribunal found that this was wrong as a matter of fact. The Port Loko was, so the Tribunal found, a town on a river some 50 kms from the coast and not an ocean port at all. 11 The third ground of appeal was that the RRT made adverse findings concerning the appellant's evidence of how he arrived in Australia and travelled to Melbourne. This issue was raised by the applicant himself in submissions filed on his behalf in the Tribunal. In our view there is also no substance in this ground. The RRT was entitled to take into account any matters that it regarded as logically probative of the appellant's credibility in making adverse findings as to credit. When making credibility findings the RRT is not limited to considering the claims or the facts upon which the appellant's claim to be entitled to a protection visa is based. 12 For the above reasons we are satisfied that no error has been demonstrated in the reasoning of the primary judge in the present matter and the appeal is to be dismissed with costs. 13 The Court would like to record its appreciation of counsel appearing pro bono for the appellant and for the assistance given to counsel by those involved in the preparation of the present appeal on behalf of the appellant. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Merkel, Goldberg and Kenny. Associate: Dated: 20 November 2002 Counsel for the Appellant: Mr E Heerey (appeared Pro Bono) Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Clayton Utz Date of Hearing: 20 November 2002 Date of Judgment: 20 November 2002