FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v N 1038 [2000] FCA 1095 CITIZENSHIP AND MIGRATION – protection visa – application for order of review of Refugee Review Tribunal ("RRT") decision affirming decision of delegate of Minister refusing grant – appeal from decision of single judge setting aside RRT decision – whether RRT observed procedures required to be observed in connection with the making of the decision – whether RRT failed to comply with section 430 (1) of the Migration Act 1958 (Cth) – where after hearing RRT monitored developments in applicants' country of nationality – whether findings by RRT based on the monitoring of developments – where RRT reasons do not refer to any evidence or other material obtained in the monitoring of developments – whether validity of decision of Minister pursuant to section 65(1)(a)(ii) of the Migration Act 1958 (Cth) depends upon compliance by RRT with section 430(1) Migration Act 1958 (Cth) ss 65, 415, 417, 430, 476 Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 applied MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v N 1038 & ORS N 1038 OF 1999 SPENDER, MADGWICK & EMMETT JJ 9 AUGUST 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1038 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS APPELLANT AND: N 1038 FIRST RESPONDENT N 1038(A) SECOND RESPONDENT N 1038(B) THIRD RESPONDENT N 1038(C) FOURTH RESPONDENT JUDGES: SPENDER, MADGWICK & EMMETT JJ DATE OF ORDER: 9 AUGUST 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1038 OF 1999 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS APPELLANT AND: N 1038 FIRST RESPONDENT N 1038(A) SECOND RESPONDENT N 1038(B) THIRD RESPONDENT N 1038(C) FOURTH RESPONDENT JUDGES: SPENDER, MADGWICK & EMMETT JJ DATE: 9 AUGUST 2000 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 The respondents to this appeal, "N 1038", "N 1038(A)", "N 1038(B)" and "N 1038(C)" are citizens of Romania. They arrived in Australia in March 1995 and within that month lodged an application for Protection Visas. In June 1996, a delegate of the appellant, the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant Protection Visas. The respondents then sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). In December 1998, the Tribunal affirmed the delegate's decision not to grant Protection Visas. By application to this Court, the respondents sought an order for review of the Tribunal's decision. In August 1999, a judge of the Court ordered that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal for further consideration in accordance with law. The Minister now appeals to the Full Court from those orders. 2 The primary judge concluded that a particular course adopted by the decision maker after the hearing resulted in a breach of section 430(1)(d) of the Migration Act 1958 (Cth) ("the Act") and that, accordingly, procedures that were required by the Act to be observed in connection with the making of the decision were not observed. If that were so, that would be a ground of review by the Court under section 476(1)(a) of the Act. 3 The question of whether failure to comply with section 430(1) of the Act is a failure to observe procedures required by the Act to be observed in connection with the making of a decision has been the subject of disagreement among members of the Federal Court. The question has recently been considered a five judge bench of the Court – Minister for Immigration and Multicultural Affairs v Singh [2000] FCA845. While the question was not decisive of that case, the Court expressed a view on the question. A majority of the Court concluded that failure to comply with section 430(1) is capable of falling within section 476(1)(a) of the Act. Accordingly, it is necessary for this Court to consider the appeal on the assumption that failure to comply with section 430(1) falls within section 476(1)(a). 4 Against the possibility that the Full Court might hold that failure to comply with section 430(1) does not fall within section 476(1)(a), counsel for the respondents advanced an argument that the Minister's satisfaction or otherwise, under section 65(1)(a)(ii) of the Act, is reviewable for jurisdictional error where the Tribunal fails to comply with section 430(1). Section 65(1)(a)(ii) relevantly provides as follows: "After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the Regulations have been satisfied; and ……………………… is to grant the visa…" 5 Section 430(1) provides as follows: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 6 Counsel for the respondents argued that the reasons, findings and references to evidence required by that provision to be stated are relevant matters for the Minister to take into account in making his ultimate decision as to whether he is satisfied that the criteria of section 65(1)(a)(ii) have been satisfied. It was said that the Minister's satisfaction as to those criteria can only be validly made after consideration of the written statement prepared by the Tribunal in compliance with section 430(1). Where the Tribunal fails to comply with that section, there is nothing upon which the Minister could base his decision. 7 The contention appears to involve the proposition that, once a decision has been made by the Tribunal, and a statement in compliance with section 430(1) has been prepared, it is incumbent upon the Minister to consider that statement in order to be satisfied or otherwise as to whether the criteria referred to in section 65(1)(a)(ii) have been satisfied. Such a contention must be rejected. It overlooks the clear provisions of section 415 of the Act. 8 Under section 415(1) the Tribunal may, for the purposes of a review, exercise all the powers and discretion that are conferred by the Act on the person who made the decision. Under section 415(2) the Tribunal may affirm or vary the decision, remit the matter for reconsideration or set the decision aside and substitute a new decision. Under section 415(3) if the Tribunal either varies the decision or sets aside the decision and substitutes a new one, the decision as varied or substituted is taken to be a decision of the Minister. 9 Thus, the section makes abundantly clear that, following a decision by the Tribunal that varies or substitutes a decision of the Minister, the Minister has nothing further to do. It is the Tribunal that must be satisfied as to the matters referred to in section 65. It is not open to the Minister to consider those questions further. The only exception would be where, pursuant to section 417, the Minister substitutes a more favourable decision than that of the Tribunal. That provision has no application in the present circumstances. 10 The Tribunal adopted an unusual course that was considered by the primary judge to give rise to a failure to comply with section 430(1)(d). That course was the subject of correspondence between the first respondent and the Registry of the Tribunal. Oral evidence had been given to the Tribunal on 23 April 1997 and again on 4 June 1997. A substantial period of time elapsed after 4 June 1997 without any decision being made by the Tribunal. On 1 October 1998, the Registry wrote to the first respondent. It is not clear whether the letter was written in response to an enquiry on behalf of the respondents. The letter said that the matter would be finalised by 23 October 1998 and went on to say: "[The Member] apologises for the lengthy delay in your matter and advises that the reason for the delay has been the need to consider the substantial changes which have occurred in Eastern Europe in recent years. In your hearing the Member put independent advice to you concerning the situation in Romania. However, the situation in Eastern Europe became unstable in countries neighbouring Romania throughout 1997. It is his opinion that before a decision could be made in your case it was necessary to be satisfied that any changes in Romania were lasting changes so that your particular circumstances could be considered fairly against those changes. He advises that he is now satisfied that he is in a position to finalise your matter and will do so by the above date." 11 Apparently the first respondent requested that he be furnished with any documents received by the Tribunal after 4 June 1997 since, on 6 October 1998, the Registry wrote again to the first respondent saying: "The Tribunal has received your request for copies of documents contained on your file which were received after your hearing of 4 June 1997. As discussed with your wife today, the presiding Member has informed me that there are no new documents other than those which you have submitted." 12 On 9 October 1998, the second respondent wrote to the Tribunal referring to the letter of 1 October 1998 and saying: "I understand that the Member considered necessary to wait another fifteen months after the initially proposed deadline in order to finalise our application. I have been given an explanation: it was necessary to be satisfied that any changes in Romania were lasting changes. It also appears to me that new investigations started in the meantime and that there is new information I am not aware of. New information could be as well the fact that the RRT does not have new evidence which would contradict the independent advice put to us by the Member in our hearing. If this is the case, could I please be sent all new informations which have been considered in relation to our application and which may be adverse to our case and also be given sufficient time to consider these informations and eventually comment on them. If on the contrary I misunderstood your letter, I sincerely apologise and respectfully request further explanation…" 13 The Registry's response of 16 October 1998 was as follows: "The member… has instructed me to inform you that there have been no additions to your file except for your own recent correspondence since the hearing. In regard to your letter of 9 October 1998 the Member has instructed me to inform you that he took into consideration the deterioration of the former USSR and former Yugoslavia. Both of these have common borders with Romania and, because of the instability and a deterioration in both of those regions following the hearing he was of the opinion that should this spill over into Romania or result in changes in the Government in Romania this would be relevant to your case. The Member monitored these changes through Human Rights reports following the hearing. However, despite the dramatic and tragic circumstances of both the former Yugoslavia and parts of the former USSR there is no evidence of any serious effects of this on Romania or that it has influenced any changes to the Government there. Since that was the case there was no further material which would be relevant to add to your file and, since there is now no indication that the turmoil in those countries will affect the situation in Romania the Member is confident that he can make a decision based on the material you presented and that which he put to you in hearing." 14 In its reasons, which it gave on 21 December 1998, some months after 23 October 1998, the date referred to in the Registry's letter, the Tribunal referred to the unusual course adopted by it. The critical paragraph in the reasons of the Tribunal is as follows: "After the Tribunal hearing I considered the deteriorating situations in countries bordering on Romania and, in hindsight, took the unnecessary precaution with a view to provide the most favourable consideration to the applicants to monitor the situation to see if the situation in the neighbouring countries of former Yugoslavia and the former USSR would have any influence on Romania such that the positive changes were threatened. This did not happen and Romania's slow but consistent moves away from the Romania of 1989 lead me to conclude that the changes in the last seven years have been substantial and positive." (AB 362-3) 15 The primary judge correctly observed that the function of the RRT is to decide review applications placed before it and not to monitor the ongoing international political or social circumstances in countries over a period of years. However, while the course adopted by the decision maker in assuming the role of ongoing monitor was unusual and irregular, it does not necessarily follow that there was a breach of section 430(1)(d). 16 The claims of the respondents arise out of the involvement of the first respondent with the Romanian secret police – "the Securitate". The first respondent claimed that he joined the Securitate because it would have been dangerous to refuse when he was invited to do so in December 1980. He said that from then on he participated in the activities of the Securitate only because he was compelled. The Tribunal said that the first respondent had been described consistently as an unwilling worker for the Securitate who was required to monitor the activities of various persons and report on them. It found that his role as a non-member of the Securitate was that of an informer and, according to later claims, an occasional courier. The Tribunal concluded, however, that there were large numbers of informers and that the first respondent was one of the thousands of informers used by the Securitate. The Tribunal concluded that the first respondent's requirement to report back to the Securitate and his lack of any authority in the organisation point to a role of someone used by the organisation to inform and therefore fit the description of an informer and occasional courier. 17 The Tribunal found that, having regard to the number of people involved in the Securitate and the number of informers, there was nothing the first respondent knew that was of greater significance than information known by many of the others. Accordingly, the Tribunal found that there was no basis for concluding that the first respondent would be of greater concern to former Securitate members than any of the thousands of other informers. Since there was no evidence that any people in that category had come to harm, the Tribunal concluded that the first respondent faces no real chance of harm for his minor role in the Securitate, which ended eight years ago. Accordingly, the Tribunal concluded that the first respondent would not face a real chance of persecution by the various organs of the government of Romania or at the hands of former members of the Securitate. It followed that the respondents are not persons to whom Australia has protection obligations under the Refugees Convention. 18 In the course of its reasons, the Tribunal made a number of observations concerning the situation in Romania, including the following: · Romania still has a number of areas in which there is evidence of human rights abuses. However, none of those areas is relevant to the respondents' claims. · The Romanian government generally respects the rights of its citizens, although several serious problems remain. · The activities of the intelligence organisations have been curtailed through a process of restructuring and parliamentary monitoring. · Romania's electors have moved decisively to reject the heritage of their past rulers. · Given the changes in the political situation in Romania, where the national government is dominated by the democratic convention, the respondents do not face a real chance of persecution for the first respondent's minimal role in the former Securitate should they return to Romania. · The situation in Romania with regard to freedom of movement of its citizens has changed substantially in recent years. · There is now freedom of movement within Romania and across its borders. The government places no restrictions on travel within Romania, except in the case of certain small areas used for military purposes. Nor do Romanian citizens who wish to change their places of work or residence face official barriers. The respondents would be able to move freely within Romania or travel overseas. · There is no real chance that the respondents would be considered traitors for having been overseas in Australia. 19 In the light of those findings, the Tribunal concluded that, while more progress needs to be made to eradicate fundamental human rights abuses in Romania, there is no evidence that people in the situation of the respondents face any real chance of persecution because of the former role of the first respondent in the Securitate. However, it is not clear from the reasons of the Tribunal whether the Tribunal was speaking as at 4 June 1997, when the hearing finished, or 21 December 1998, when the decision was made. That is significant in relation to the question of whether the Tribunal had regard to any material that it received after 4 June 1997 in reaching the decision. 20 The issue turns on the proper construction of the paragraph quoted above. The Tribunal appears to have had second thoughts about the course that it adopted of "monitoring the situation". With the benefit of hindsight, the Tribunal appears to have concluded that that course was unnecessary. If that is all that is meant by the paragraph, there would be no reason to think that the Tribunal had not concluded, on the evidence before it at the end of the hearing, that there was no real chance of persecution. If that is the case, while the course adopted by the Tribunal was irregular, it did not result in any failure to comply with section 430. 21 On the other hand, if the paragraph in question is to be construed as a statement that, at the time of reserving its decision, the Tribunal had some residual doubt that it wished to dissipate, and that, as a consequence of "monitoring the situation", that doubt had been dissipated, it would follow that the Tribunal's findings of fact were, at least in part, based on that monitoring. However, the Tribunal's reasons do not refer to any evidence or other material received after 4 June 1997 upon which it based its decision. The Registry's letter of 16 October 1998 refers to "Human Rights Reports", although there is no mention of those in the Tribunal's reasons. 22 The reasons of the Tribunal do not indicate one way or the other whether the Tribunal had formed a view as at 4 June 1997 as to whether there was a real chance of persecution of the respondents if they returned to Romania. If, on the material then before it, the Tribunal had formed the view that there was no real chance of persecution, then there was no warrant for the delay for the purposes of "monitoring the situation". The fact that the Tribunal considered that it was desirable to do so, however, rather suggests that the Tribunal had some residual doubt. The reasons ultimately published indicate that that doubt was dissipated by something. The reasons do not state what it was that the Tribunal took account of in that regard. 23 In the circumstances, the preferable construction to be given to the paragraph is that the Tribunal did entertain some residual doubt as to whether or not there was not a real chance that the respondents may be at risk of persecution for a Convention reason. Accordingly, it follows that the Tribunal's reasons do not refer to the evidence or other material on which at least part of the findings of fact were based. Therefore, the Tribunal failed to comply with the requirements of section 430(1) in relation to its decision of 21 December 1998. A ground within section 476(1)(a) was therefore established. The appeal should be dismissed with costs. Counsel for the Appellant: Mr G T Johnson Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondents: Mr R Killalea Solicitor for the Respondents: Susan N Goodsell Date of Hearing: 29 May 2000 Date of Judgment: 9 August 2000