VMOT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 140

FEDERAL COURT OF AUSTRALIA

VMOT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 140 VMOT, VMOU and VMOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL VID 125 OF 2005 SUNDBERG, MARSHALL and NORTH JJ 1 AUGUST 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 125 OF 2005

ON APPEAL FROM THE DECISION OF THE HONOURABLE JUSTICE GRAY

BETWEEN: VMOT, VMOU and VMOV

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

AND

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGES: SUNDBERG, MARSHALL and NORTH JJ

DATE OF ORDER: 1 AUGUST 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be added as a respondent.

2. The appeal be dismissed.

3. The appellants pay the first respondent's costs of the appeal.

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 VID 125 OF 2005

ON APPEAL FROM THE DECISION OF THE HONOURABLE JUSTICE GRAY

BETWEEN: VMOT, VMOU and VMOV

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

AND

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGES: SUNDBERG, MARSHALL and NORTH JJ

DATE: 1 AUGUST 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellants appeal from the decision of Justice Gray dismissing their application to review the decision of the Refugee Review Tribunal affirming the decision of the Minister's delegate not to grant them protection visas. 2 The principal question before the primary judge, and the only issue on the appeal, was whether the Tribunal denied the first appellant procedural fairness when it relied on information, which it did not communicate to him, in refusing his visa application. This was country information from government sources relating to Albania, the first appellant's country of origin. 3 The information was DFAT and British Home Office information which the Tribunal used to support its finding that low level members of the Democratic Party in Albania were unlikely to be harassed by the Albanian government. 4 The primary judge posed the issue before him as follows: "Ordinarily, withholding of information on which the decision‑maker relies against the interests of a party to the decision is a denial of procedural fairness. If it deprives that party of the possibility of a successful outcome, then a remedy is usually available. See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 …. In the present case, therefore, the question is whether an opportunity for the first appellant to respond to the DFAT and British Home Office information about the treatment of Democratic Party members in Albania might have made a difference to the outcome." His Honour referred to the contents of an affidavit in which the first appellant gave an account of what he would have said to the Tribunal if he had been given an opportunity to answer the material on which it relied. He would have pointed out that the Socialist Party is in effect the former communists, who changed their name. He referred to the dangers posed to low level political activists. He said he had not been able to obtain more specific up to date information. 5 The primary judge noted that it was apparent from the Tribunal's reasons that it was aware of the identity between the former communists and the current Socialist Party. His Honour pointed out that during the Tribunal hearing the first appellant had made the point about the danger to low level political activists. He said: "An examination of the transcript of the Tribunal hearing makes it clear that the issue of present day danger to Democratic Party activists was canvassed at length at the Tribunal hearing. The first applicant was given plenty of opportunity to make whatever points he wished to make about that issue. As his affidavit shows, when compared with the transcript of the Tribunal hearing, the first applicant said all that he could have said about that issue. It is therefore clear that the Tribunal's reliance on additional information about that issue did not operate to deprive the first applicant of the opportunity of a successful outcome. He said what he could say on the subject. He failed to persuade the Tribunal that his case ought to be accepted." The relevant ground of appeal is that the primary judge erred in concluding that the withholding of the country information did not deprive the appellants of a successful outcome to the application. 6 The first appellant appeared in person. He was assisted by an interpreter. He was unable to advance any argument beyond what appeared in his notice of appeal or to elaborate on the grounds in it. 7 The primary judge correctly posed the question before him in the manner we have set out. It accorded with relevant High Court authority. His Honour considered the facts in the light of the applicable test. He found, as he was entitled to do, that the first appellant had already made all the submissions he claimed he would have made had the documents been available to him, and that he had failed because the Tribunal had not accepted those submissions. His Honour was correct in refusing relief, because all the first appellant claimed to have lost was the opportunity to repeat submissions that had already been made. 8 On the application of the Minister we have added the Tribunal as a respondent. In doing this we should not be taken to accept that it is necessarily appropriate for the Tribunal to be represented by the same solicitors as the Minister, as is apparently proposed. 9 The appeal should be dismissed.