Caragay, Mercedes v Minister for Immigration & Multicultual Affairs & Anor [1997] FCA 1345

FEDERAL COURT OF AUSTRALIA IMMIGRATION - Review of decision of the Refugee Review Tribunal - Whether Tribunal acted according to substantial justice - Discussion of interrelationship between s 420 and s 476 Migration Act 1958 (Cth)ss 420, 476 Eshetu v Minister for Immigration & Multicultural Affairs (1997) 145 ALR 621, applied. Venayagamoorthy Velmurugu & Anor v Minister for Immigration and Ethnic Affairs & Anor (Full Federal Court, 5 November 1997, unreported), applied. MERCEDES CARAGAY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR NG 837 of 1995 EMMETT J SYDNEY 6 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 837 of 1995

BETWEEN: MERCEDES CARAGAY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

KAY RANSOME sitting as

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 6 NOVEMBER 1997

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed. 2. the applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 837 of 1995

BETWEEN: MERCEDES CARAGAY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

KAY RANSOME sitting as

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 6 NOVEMBER 1997

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: On 13 May 1991 the applicant applied for refugee status. That application was refused by a delegate of the Minister on 17 August 1992. On 21 September 1992 an application for review of that decision was lodged. That application came before the Refugee Review Tribunal ("the Tribunal") which decided the question on 6 October 1995 and published reasons for doing so. The decision of the Tribunal was that the applicant is not a refugee. The decision under review was varied pursuant to the amendments to the Migration Act 1958 (Cth) ("the Act") so that the decision had the effect of a decision to refuse to grant the applicant a protection visa. The applicant now applies to this Court for review of the decision of the Tribunal. The ground of the application to this Court is that procedures required by the Act to be observed in connection with the making of the Tribunal's decision were not observed. Section 476(1)(a) of the Act relevantly provides that, subject to section 476(2), an application may be made for review by the Federal Court of a judicially reviewable decision on grounds which include the following: ...that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; It is common ground that the decision of the Tribunal was a judicially reviewable decision. Section 476(2) provides that certain matters are not grounds upon which an application may be made under section 476(1). They are: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. That provision is significant in relation to the contention advanced on behalf of the applicant in relation to the alleged failure to observe procedures required by the Act. Section 420(2)(b) of the Act provides that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case. The complaint of the applicant is that there was a failure to act according to substantial justice in reviewing the decision of the delegate. There are two bases upon which that contention was advanced. The first relates to the alleged conduct of the NPA. The applicant appeared at a hearing before the Tribunal on 12 September 1995 and was accompanied by her representative, Ms Belen Oag of Belan Oag Solicitors. Following the hearing, Ms Oag made a written submission on behalf of her client's application. The conclusion of the Tribunal as stated in the reasons was that it was very difficult to assess the applicant's claims in the absence of any proof from an independent source. The Tribunal accepted the very particular difficulties of proof faced by applicants for refugee status and that an applicant who is otherwise credible should, unless there are good reasons otherwise, be given the benefit of the doubt. However, there were a number of aspects of the case which led the Tribunal to doubt the veracity of the applicant's claims. The applicant lived in the Philippines from her birth in 1944 until 1989. The basis for her contention that she had a well-founded fear of persecution by reason of political opinion was said to be that she was suspected of being a sympathiser with the New Peoples Army ("NPA"). The contention was that she was caught in the middle between the New Peoples Army and the military. She said the military thinks she is a member of the NPA and a military spy. She said she is afraid that she will be harmed by one or other of these groups. In its conclusions, the Tribunal said that the major matter put forward by the applicant was that the NPA tried to recruit her and when she refused, threatened to harm her. The Tribunal noted that the NPA had been responsible for the deaths of many prominent people, including mayors, police commanders and business people. The Tribunal recorded that the applicant had told the Tribunal that the NPA tried to recruit her from about 1980 and that the NPA would come and sleep at her house because they were trying to recruit her. The Tribunal found that it was inherently implausible that NPA members would sleep uninvited at the applicant's house at a time when the applicant was working for the government as a municipal treasurer. The Tribunal said that it was implausible that the NPA would so identify themselves to a person who was not committed to their cause. The Tribunal said that the applicant's account of her involvement with the NPA does not accord with available information about recruitment practices of the NPA. In its reasons, reference was made to a book called "Silent War" by Victor Corpus, a former member of the NPA which contains the following statement: Recruitment for membership of the NPA is never done through coercion or force. Reference was also made to information supplied by the Department of Defence in a briefing on 19 August 1992 (contained in CISINFO document PHL00260, 20 August 1992) containing inter alia the following: Coerced recruitment is not a feature of the NPA. In its reasons, the Tribunal noted that coerced recruitment is not a feature of the NPA which is a clandestine insurgent force in the Philippines. The applicant says that no reference was made to the two documents to which I have just referred in the course of the hearing and that the failure to do so was a failure to act according to substantial justice. The second matter relied upon is the way in which the Tribunal dealt with the applicant's alleged membership of the Yellow Ladies' Brigade. The Tribunal recorded that the applicant had stated that her treatment at the hands of the NPA stemmed in part from her association with an organisation called the Yellow Ladies Brigade which operated in support of Corazon Aquino. The Tribunal said that it had been unable to find any mention of that organisation in any of the material available to it about the Philippines and also noted the inability of the applicant to recall that organisation and her association with it at a departmental interview. The Tribunal said that it did not accept her explanation that she was confused at the time and unable to remember. The Tribunal considered that the significance of the organisation should have been remembered by the applicant and that the departmental officer at the interview gave her every opportunity to mention the association and prompted her to do so. The Tribunal said in its conclusions that the fact that the applicant failed to mention the organisation, combined with the fact that the Tribunal can find no record of the organisation, leads the Tribunal to conclude that the applicant has fabricated her association with the organisation. The applicant complained that she was not told that the Tribunal had been unable to find any record of the organisation. The applicant contended that the failure to tell her that some significance attached to the failure to find any such record was a failure to act according to substantial justice. There has been some controversy in this court as to the relationship between section 476(1)A and section 420(2)(b). That controversy has to some extent been put to rest by the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, and the decision in Venyagamoorthy Velmurugu & Anor v Minister for Immigration and Ethnic Affairs & Anor, (Full Court, 5 November 1997, unreported). Davies J in Eshetu, observed (at page 624) that in his opinion section 420 describes procedures with which the Refugee Review Tribunal is bound to comply and that a breach of them is a ground of review under section 476(1). Burchett J generally agreed with that conclusion. Finkelstein J in Vellupillai Arulampalam Thambythurai & Anor v Minister for Immigration and Multicultural Affairs & Anor (16 September 1997, unreported), observed (at p.9) that: ...the duty to "act according to substantial justice and the merits of (a) case" is a duty to adopt and apply all those procedures that are necessary to ensure, so far as may be possible, that the decision-maker is able to arrive at a decision that is both just and in accordance with the merits. Counsel for the applicant submitted that a duty to act according to substantial justice entails a duty to act so as to ensure that the result is one which would not strike a judge as being fundamentally unfair (see Cairns J in Middleton v Middleton [1966] 1 All ER 168 at 172-3). His Lordship there was concerned with the principle that an English court has a discretion to refuse to recognise a foreign decree of divorce which offends against English ideas of substantial justice and referred to Formosa v Formosa [1962] 3 All ER 419. In that case the expression "substantial justice" is used in a very broad sense and cannot perhaps be further defined than by saying that "what strikes an English judge as being fundamentally unfair is contrary to substantial justice". In Yao-Jing Li v Minister for Immigration and Multicultural Affairs (24 April 1997, unreported), Foster J also observed (at p.37) that substantial justice is not a concept which admits of easy definition. His Honour referred to the explanatory memorandum in respect of section 420 which contains the following: "Substantial justice" is used to emphasise that it is the issues raised by the case, rather than the process of deciding it, which should guide the RRT [Refugee Review Tribunal] in making its decisions. It is intended that the RRT will operate in an informal non-adversarial way that will facilitate applicants putting their own case in their own words. His Honour thought that it was neither necessary nor desirable to undertake the task of defining substantial justice and that it was sufficient for present purposes that he express agreement with the general thrust of the explanatory memorandum that the term "substantial justice" is concerned with the decision of the issues raised in the case rather than the process of deciding them. He observed that considerations of natural justice focus upon due process in the making of decisions and that, whatever else substantial justice may require, it certainly demands that a decision actually be made in respect of the significant issues posed in the case.