FEDERAL COURT OF AUSTRALIA Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489 MIGRATION - protection visa - Refugee Review Tribunal affirmed decision of Minister's delegate not to grant visa - Tribunal empowered to consider visa application only if application "valid" - whether Tribunal considered a valid application - whether Tribunal correctly applied test "well-founded fear of persecution" - whether Tribunal adequately explained why discrimination did not amount to persecution - whether subjective fear of persecution was well-founded - whether Tribunal engaged in requisite process of speculation. Migration Act 1958 (Cth), s 45, s 45(2), s 46, s 47, s 47(3), s 69(1), s 415, s 415(1), s 475(1)(b), s 476(1), s 476(1)(a), s 476(1)(c) Migration Regulations, reg 2.07(1)(a), Sch 1 item 1126, Sch 2 subclass 866 Minister for Immigration and Multicultural Affairs v Hayman [1999] FCA 217 distinguished Tickner v Chapman (1995) 57 FCR 451 applied Prahastono v Minister for Immigration and Multicultural Affairs (FCA, 8 July 1997, unreported) referred Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 discussed SOULY PHANOUVONG & ORS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 470 of 1998 FINN J 3 NOVEMBER 1999 CANBERRA (HEARD IN MELBOURNE) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 470 OF 1998 BETWEEN: SOULY PHANOUVONG First Applicant SILALACK PHANOUVONG Second Applicant MAJURY PHANOUVONG Third Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FINN J DATE OF ORDER: 3 NOVEMBER 1999 WHERE MADE: CANBERRA (HEARD IN MELBOURNE) THE COURT ORDERS THAT: 1. the application be dismissed. 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 VG 470 OF 1998 BETWEEN: SOULY PHANOUVONG First Applicant SILALACK PHANOUVONG Second Applicant MAJURY PHANOUVONG Third Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FINN J DATE: 3 NOVEMBER 1999 PLACE: CANBERRA (HEARD IN MELBOURNE) REASONS FOR JUDGMENT 1 The three applicants in this proceeding - Dr Souly Phanouvong, Mrs Silalack Phanouvong, and their young daughter, Majury - are of Lao nationality. They have sought review under Part 8 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the Minister not to grant them protection visas. Both Mrs Phanouvong and her daughter suffer from the same serious endocrinological disorder and require expert medical attention. There are, on the evidence, clear compassionate grounds that could justify the applicants' being allowed to continue to reside in this country. Those grounds, though, are unavailing in proceedings in this Court under Part 8 of the Act. 2 Dr Phanouvong is an expert in pharmacology. He studied pharmaceutical science in Hungary from January 1988 to June 1991 and obtained a PhD in February 1992. He arrived in Australia in April 1993 to undertake a PhD in Medical Drug Policy. He was joined by his wife and daughter in Australia three months later. On at least one occasion since arriving in Australia the Phanouvongs have returned to Laos. 3 For some years now Mrs Phanouvong has suffered from what has been described by her specialist as "an uncommon endocrinological disorder known as multiple endocrine adenomatosis Type II (MEN II)". It is a relatively rare genetic condition which can result in the growth of phaeochromocytomas (adrenal tumours) in addition to a form of thyroid cancer. Mrs Phanouvong had one phaeochromocytoma removed in 1994 and another a year later. In 1995 she also underwent a thyroidectomy and has continued to suffer related medical problems. Her daughter also suffers from this genetic disorder. Her thyroid was removed in May 1997. 4 The medical evidence before the Tribunal was that the disorder required specialist management in a tertiary hospital setting without which the life expectancy of both mother and daughter would be greatly reduced. It was doubted whether the necessary medical resources would be available in Laos. 5 I advert to these medical matters at the outset. It is fair to say that they seem to provide the inspiration for the initial visa application and the real and understandable basis for the applicants' desire to remain in Australia. The Visa Applications 6 It is necessary to consider in some detail the manner in which the applications were made and considered by the Minister's delegate and by the Tribunal. The applicants' principal ground of review turns upon deficiencies in the documentation before the delegate and the Tribunal. 7 The applications were made on 2 March 1998 using the approved form, Form 886: see s 45(2) of the Act; Migration Regulations, reg 2.07(1)(a), Sch 1 item 1126, Sch 2 subclass 866. Part A of Form 886 was not filed (it is relevant only to applicants held in detention). One Part B was filed covering all three family members. At the end of Part B there appears a notice which reads: "Once you have completed this part of the application form and signed the declaration, you should complete either Part C or Part D depending on the grounds on which you seek protection." Three Part Ds were filed, one for each member of the Phanouvong family. Significantly, Part D is headed "Application for a member of the family unit" (emphasis in original). That heading is followed by a notice: "This part is for a member of the family unit who does NOT have their own claim to be a refugee, but is included in this application. If you DO have your own claims to be a refugee, complete a Part C instead." The counterpart heading to Part C reads: "Application for an applicant who wishes to submit their own claims to be a refugee" (emphasis in original). No Part C was filed by any member of the family on 2 March. 8 On or about 16 March 1998 the applicants received a letter from the Department requesting that a Part C be completed and filed. A Part C was completed in the name of Mrs Phanouvong and delivered in person to an office of the Department on 20 March 1998. This Part C was apparently misplaced by the Department. The decision of the Minister's delegate refusing the applications for protection visas was made on 29 May 1998, the delegate noting in her Decision Record that "the applicants have not lodged a Part C". 9 On 23 June 1998 the applicants applied for review of that decision by the Tribunal. In Section D (entitled "Your reasons for making this application") of the relevant application form Dr Phanouvong claimed that: "[o]n 10 June 1998 at about 2.50 pm I rang [the Minister's delegate] requesting for clarification. She said she did not receive the Part C application from the Dandenong Office. … With this application for the RRT, I have filled in one Part C claiming to be a refugee myself. My wife, Mrs Silalack Phanouvong, has also re-filled out another one Part C (using the same claims she made previously) for the RRT." It would appear that these two Part Cs, like the one earlier filed with the Department, also went astray. A Tribunal file-note dated 20 August 1998 (the day before that of the Tribunal hearing of Dr Phanouvong's review) recounted his being informed that: "the Member had requested that form C's of his and wife's [sic] original application be submitted to the Tribunal as these were not attached to the Departmental file. He said that he did not have the original as he had submitted it to the Department with his original application. He stated that he did not take a copy of these forms but had a draft of what was submitted in the application. I requested that these be brought to the hearing tomorrow." (emphasis added) 10 In the course of the hearing the following day the Member noted that "there is no evidence anywhere on the files of your Part C claim" (Transcript, p 20). Dr Phanouvong gave oral evidence as to why he did not file a Part C when the application was first made to the Minister on 2 March 1998 (Transcript, p 21): "Before we hand in this application form I thought that from the humanitarian background base of the medical situation, the conditions of my wife and daughter, I thought we would be successful, or enough – sufficient information for the Australian authorities to consider and grant a visa for us. That's why I did not decide to fill in the C part of the application. But as we were rejected by the Immigration Department on the ground that we do not fit in the criteria of the United Nations convention, so I came back each time to declare something that would fit in that criteria." 11 The substance of the hearing related to the reasons Dr Phanouvong claimed entitled him and his wife to protection visas. 12 Towards the end of the hearing before the Tribunal attention was again directed to the missing Part C. It is convenient to set out part of that exchange (Transcript, pp 52-53): "DR PHANOUVONG: Yes. We receive the letter and a Part C form to us and then we filled it in as my wife's name because we thought that it would be sufficient enough to have one of the family doing it to fill in that form as a part of the application criteria. We fill that in and we put in the Dandenong office two weeks later. I have the exact date, 20 March. MS JENSEN: Okay. So you have a draft of that? DR PHANOUVONG: Yes, I have a draft of that. MS JENSEN: Yes. Then in - when you put in the application to the tribunal in June of this year, you said you put in another Part C. DR PHANOUVONG: Yes, I put in myself and I fill in but my wife didn't fill. MS JENSEN: Yes. Did you have a copy of those too? DR PHANOUVONG: Yes. MS JENSEN: Because we have nowhere on any of our files in the records of those ---" Soon thereafter the Tribunal was provided with a draft Part C for Mrs Phanouvong dated 20 March 1998 (being a draft of the Part C which Dr Phanouvong says was filed with the Department) and Part Cs for each of Dr and Mrs Phanouvong dated 21 June 1998 (being the two Part Cs which Dr Phanouvong says were filed at the Tribunal along with the application for review). I should note in passing that there is substantial identity between the 20 March and 21 June Part Cs completed in the name of Mrs Phanouvong. 13 The Tribunal made its decision on 28 August 1998. It affirmed the decision of the Minister for reasons I will note later. Of the Part C aspect of the proceeding the Tribunal observed (Reasons, p 5): "The applicant indicated in his application for review that he had now filled in a Part C where he claims to be a refugee himself, and that his wife has also refilled out another Part C, using the same claims she made previously. These Parts were not attached to the RRT application for review, and the Tribunal therefore asked for the claims to be forwarded again. The originals were received by the Tribunal subsequent to hearing and are now on file." Notwithstanding the final line of the passage just quoted, I would re-emphasise that the Tribunal came into possession of copies of the Part Cs before the end of the hearing. The Claim Based on the Missing Part C 14 Shortly put, the claim made is that when the Tribunal considered the applicants' application it did not have a valid application before it to consider for want of a Part C. Though formulated as a claim under s 476(1)(a) of the Act, the application more properly invokes s 476(1)(c). No issue was taken with this in the present application. 15 Sections 45, 46 and 47 of the Act relevantly provide: "45 Application for visa (1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. (2) Without limiting subsection (1), the regulations may prescribe the way for making: … (b) an application for a visa of a specified class; … 46 Valid visa application (1) Subject to subsection (2), an application for a visa is valid if, and only if: … (b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3); … … 47 Consideration of valid visa application (3) To avoid doubt, the Minister is not to consider an application that is not a valid application." 16 It is contended by the applicants that these provisions, taken in combination, have the effect of precluding the Minister from considering applications that do not comply with regulations which prescribe the way in which those applications must be formulated. Though this Court is concerned only with decisions of the Tribunal and not of the Minister: see s 476(1); s 475(1)(b); the applicants have, nonetheless, submitted that, because of s 415 of the Act, the Tribunal is in the same position as the Minister in relation to invalid applications. 17 Section 415 provides: "415 Powers of Refugee Review Tribunal (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations." 18 The substance of the applicants' case is that the information contained in a Part C provided the sine qua non to a valid visa application. Here no valid visa application was made. The delegate could not consider the "application": the Act, s 47(3). The Tribunal in turn was obliged to concern itself, but did not, with whether there was a valid visa application to be considered because it was, relevantly, in the same position as the delegate: s 415(1). 19 The Minister's submission in response is twofold. The first is that whatever may have been the case prior to the Tribunal hearing, the Tribunal at that hearing did consider a valid application, Dr Phanouvong having been asked on the previous day to provide to the Tribunal the missing Part Cs and this he did at the hearing. It was those applications with those Part Cs that were considered by the Tribunal and they were at that stage part of valid visa applications. 20 The second submission in response is that even if the visa applications were invalid and the delegate failed to observe s 47(3), nonetheless a decision was made refusing protection visas and s 69(1) the Act saves that decision from invalidity. It was open to the applicants then to seek a review of that decision. The Tribunal's decision was based on its assessment of the applicants by reference to the criteria for the visa sought. That decision was one authorised by the Act. 21 Before considering these submissions I note that ss 45-47 of the Act fall within Subdivision AA, and that s 69(1) provides: "69 Effect of compliance or non-compliance (1) Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed." 22 Turning now to the Phanouvongs' visa applications, the forms initially lodged did not in my view constitute a valid application in the circumstances for want of a Part C. In saying this I note that the case was not one of an application lodged with the later provision of a Part C, or of information therefor, foreshadowed. Part C is clearly the operative part of Form 866. It is where the person making a claim for refugee status presents his or her substantive case. It is where the relevant history and claims are set out. In contrast, Part B records various factual details about the applicants while Part D identifies those family members who do not claim to be refugees. Part C is the animating force in Form 866. Without it, the "application" is an empty shell. 23 It is unnecessary for me to consider the subsequent administrative disorder within the Department after Dr Phanouvong supplied Part C forms to determine when it received a valid application, albeit the Part Cs were later mislaid by it. The issue that arises in this proceeding does not turn on when a valid visa application was made but on whether the delegate or the Tribunal "considered" a valid application. 24 Given the view I take of the significance of Part C, it is clear that the "application" considered by the delegate was not a valid application and ought not to have been considered: s 47(3). Nonetheless the decision made by the delegate, though made in noncompliance with s 47(3) is, I consider, a valid decision by virtue of the force of s 69(1) of the Act albeit it is valid unless and until set aside by the Tribunal on application to it: cf Minister for Immigration and Multicultural Affairs v Hayman [1999] FCA 217 at par 21. Furthermore, in the usual case (i) because the Tribunal has the same powers and discretions as the delegate and hence the s 47(3) limitation on its consideration of an invalid application, but (ii) because its decisions are not protected by an equivalent provision to s 69(1) of the Act, its review of a delegate's decision made in non-compliance with s 47(3) ought result in that decision being set aside. In its place a new decision should be substituted acknowledging that, there being no valid application, the "application" before the Tribunal could not be considered. As Finkelstein J observed in Hayman'scase, above at par 22, "if the Minister is only able to consider a valid application for a visa, so too is the tribunal". 25 Insofar as the Tribunal is concerned the present case, though, is not the usual case. The Tribunal was alert to the deficiency in the Phanouvongs' applications. It required that the Part Cs be brought to the hearing; it obtained them at the hearing; and it was an application embodying those Part Cs that was the subject of proceeding before the Tribunal. While the circumstances are unusual, the conclusion is unavoidable that the applications "considered" by the Tribunal were valid applications. Importantly in relation to the Part Cs sought by, and provided to, it the Tribunal engaged in "an active intellectual process directed at [those documents]": cf Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. In those circumstances, it was open to the Tribunal to exercise all of the powers and discretions conferred by the Act on the delegate in relation to those now valid applications: s 415(1). 26 Accordingly I am of the view that the first challenge made to the Tribunal's decision must fail. The Refugee Status Claim 27 This can be dealt with relatively briefly. It lacks substance. The essence of Dr Phanouvong's claim to refugee status as reflected in his Part C and his evidence before the Tribunal is that: (i) his family fought against the communists in the civil war and he in consequence would not be accepted into the communist Laotian People's Revolutionary Party ("LPRP") that has controlled the country since 1975; (ii) his family suffered privation as a result of a currency change in 1976 when his father lost his assets; (iii) he entertains different political opinions to those of the regime in Laos but he would be arrested and punished if he ventilated his opinions publicly; (iv) there is discrimination against non-LPRP members especially against professionals and scientifically educated persons, and this is reflected in their displacement from their bureaucratic positions and in relegation therein; (v) he anticipates he will experience such discrimination; (vi) human rights are denied in Laos; and (vii) an anonymous letter indicated that the Laotian authorities were aware that he was interested in the democracy movement and this would make it unsafe for him to return to Laos. 28 Mrs Phanouvong's claim to refugee status is based on the following: (a) her father was secretary to a member of the Laotian royal family, was arrested and imprisoned after the LPRP came to power, and died shortly after his release in 1980; (b) she and her family suffered in consequence of the bad perception the community had of them; (c) as with her husband she objected to the political situation in Laos and to the denial of human rights; (d) her step-father was arrested and detained for 21 days because her mother ran a guest house and all guest house owners were suffering this fate because it was thought a number of them were conducting the business of prostitution; and (e) her medical condition required ongoing treatment and monitoring. 29 The Tribunal in its reasons accepted that the families of both applicants suffered in the aftermath of the civil war and that thereafter they may have suffered distrust and discrimination from some individuals but that this did not amount to persecution by reason of their imputed political opinion. In this the Tribunal pointed to the education and employment both were able to secure; to Dr Phanouvong's overseas study and public sector position; and to the fact that neither ever had been arrested or detained. 30 The Tribunal considered in detail and rejected Mrs Phanouvong's claim to the extent that it was founded on circumstances surrounding her step-father's detention. It rejected the claim that Dr Phanouvong's activities and interests that demonstrated support and sympathy for pro-democracy forces inside and outside of Laos were such as would attract the interest of the Laotian authorities. It placed little weight on the anonymous letter, given its timing, provenance, and that it was unsigned. 31 Finally in relation to employment discrimination - which seems central to Dr Phanouvong's case - the Tribunal observed: "The Tribunal accepts that the applicant may not be able to, or may not wish to, join the LPRP because of his background. The Tribunal accepts that democracy does not exist in Laos. The Tribunal accepts that the system in Laos is such that the most senior positions in government and in the bureaucracy may be reserved for those who are members of the LPRP, and that the applicant therefore may not obtain benefits that might accrue as a member of the party. The Tribunal also accepts that the applicant feels that his skills and experience, and those of other specialists, are not valued in Laos. Nevertheless, the applicant has still been able to undertake tertiary study in Laos, and to obtain senior positions in his profession. He has been allowed to study overseas at post-graduate level on two occasions, and has not indicated that he had any difficulty in being approved by the government for this stay, in obtaining a passport, or to travel out of the country. He has returned to Laos for fieldwork, most recently in 1996, and has not indicated any difficulty in entering or leaving the country for these purposes. Based on the past experience of the applicant in regard to his education and employment and the fact that he has held senior positions in his profession, the Tribunal concludes that the applicant does not face a real chance of persecution through denial of employment for a convention reason. Even if the applicant did have to undertake some other position within the Laotian Department of Public Health on return, because he was not now as well-supported by his superiors as in the past, this in the Tribunal's mind would constitute discrimination, and not persecution." 32 This observation was followed by quotation from Hill J's judgment in Prahastono v Minister for Immigration and Multicultural Affairs (FCA, 8 July 1997, unreported) that acknowledged that discrimination in employment for a Convention reason may constitute persecution. 33 I should add that in its narrative of evidence the Tribunal referred to country information that indicated that the Laotian government had only slowly eased restrictions on basic freedoms but that, by 1998, did not suggest arrests being made of political prisoners. 34 The applicants case is that the Tribunal misapplied the test "well-founded fear of persecution" in that (i) it found discrimination but did not explain why this was not persecution; (ii) it accepted the applicants' evidence concerning their fears and hence should have found these to be well-founded; and (iii) it failed to engage in the requisite speculation in determining whether their fear was well-founded. 35 The case put to the Tribunal was at best a slender one. To contrive grounds of review in relation to the Tribunal's findings on their alleged refugee status, the applicants have sought to engage in a close - and I would interpolate contrived - critical textual analysis of the Tribunal's reasons in the hope that error may be divined. Not only is this impermissible, it is unfair to the Tribunal in this instance given the material before it: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. 36 All three criticisms made of the Tribunal's application of the test are ill-founded. First, in each instance in which the Tribunal referred to "discrimination" it went on to indicate by reference to the setting and the circumstances why in its view it did not constitute persecution. Its indications were sufficient in the circumstances. Contrary to the applicants' assertion the case is not one of lack of explanation: cf Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389-390. Secondly, acceptance in the main of the applicants' evidence - and for that matter of such subjective fear as they entertained in consequence - did not of itself require a finding that their fear had a real substantial basis: cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. Thirdly, the Tribunal did have regard to the risk of persecution that could be apprehended and did so against the background of a significant past from which it could, and did properly in the circumstances, inform its "speculation as to what was likely to occur in the future": Guo's case at 574-575. The past in this instance gave little comfort to the applicants in establishing their claim. 37 The applicants do have a significant claim for humanitarian consideration. It is unfortunate that it has been clouded by a refugee claim that could well be regarded as colourable. 38 I will dismiss the application. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Counsel for the Applicant: Mr T A Fernandez Solicitor for the Applicant: Nathan Legal Practitioner Counsel for the Respondent: Mr R M Niali Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 August 1999 Date of Judgment: 3 November 1999