Applicant A74/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 696

FEDERAL COURT OF AUSTRALIA

Applicant A74/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 696 APPLICANT A74/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S66 of 2003 FINN J 9 JULY 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S66 OF 2003

BETWEEN: APPLICANT A74/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 9 JULY 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S66 OF 2003

BETWEEN: APPLICANT A74/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: FINN J

DATE: 9 JULY 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is the first of a trilogy of matters before me which raise an identical issue. This accounts for the form of the judgment used in them. The other matters are Applicant A134/2002 and Applicant A56/2002. 2 An amended application in this matter, which has been remitted from the High Court, seeks judicial review of two decisions of the Refugee Review Tribunal ("the Tribunal") affirming decisions not to grant the applicant sisters protection visas. That application purports to found itself on the decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601. It was not supported by an affidavit notwithstanding the requirements of the Federal Court Rules, O 4 r 6. However, written submissions did accompany it. They did no more than restate in slightly expanded form the boilerplate terms of the amended application which were themselves a truncated version of the grounds in Muin. 3 The twin Muin grounds, if I can so describe them were (to abbreviate) that the applicants were denied procedural fairness in that (i) the applicants were misled into believing that documents before the Minister's delegate who made the RRT reviewable decision (ie the "Part B" documents) were sent to and were considered by the Tribunal so affecting the applicants' conduct in relation to the Tribunal; and (ii) the Tribunal took account of material adverse to their claims which was not before the delegate and of which they were given neither notice nor an opportunity to respond. 4 It is well accepted, as Gleeson CJ commented in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37] that: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 5 As has been made plain in a sequence of decisions of the Full Court of this Court, the precondition for making out a Muin challenge is the establishment of the factual substratum necessary to enliven it in the individual case in question: see eg NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350; SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351. So, for example, as Hill J observed in NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 at [16] in relation to a Muin Part B documents allegation: "What is important and it appears in the judgments in Muin itself is that in that case there was a factual sub-stratum firstly that the Tribunal had not read the documents whether or not they had been sent to it and, secondly, that the applicant had relied upon an assurance by the Tribunal that it had read the documents and, accordingly, had not put further material before the Tribunal." 6 On 3 June 2003 the respondent Minister moved to have the amended application struck out under O 20 r 2(1)(a) of the Federal Court Rules on the ground that it disclosed no reasonable cause of action. The burden of the motion was that the applicants had not provided any factual substratum for the Muin challenges. 7 On 6 June 2003 a judge of this Court gave the applicants leave to file affidavit material to lay the factual foundation for the allegations made in the amended application by 25 June 2003. 8 On 3 July an affidavit was filed by the applicants' migration agent. Though the affidavit is, in my view, quite unhelpful for reasons I will give later, the course I intend to take in light of its filing is to deal with the substantive application made by the applicants rather than deal with the matter under O 20 r 2. The parties, I should add, were forewarned that the substantive application would be dealt with if the motion was unsuccessful and came prepared to argue it. 9 The affidavit has been sworn by the migration agent who acted as the applicants' agent before the Tribunal. Objection was taken to my reception of it on the grounds of relevance in that (a) it assumed the critical facts necessary to lay the foundations for a Muin claim and (b) it dealt only with how the agent would, in consequence, have advised the applicants to act – and how they would have acted in light of those facts. 10 In relation to the Part B documents the agent deposed: "2. Had myself and/or the Applicant been aware of the fact that the Department of Immigration did not ever physically transfer to or send to the Tribunal all the Part B Documents and that the Tribunal had not looked at all the Part B Documents at any time prior to the making of the Tribunal's Decision then I would have advised the Applicant and received instructions from the Applicant to take the following steps. …" The suggested steps were then set out. 11 In relation to the "adverse information" Muin ground the agent stated: "3. Had myself and/or the Applicant been aware of the fact that adverse materials would be taken into account by the Tribunal prior to the making of the Tribunal's Decision then I would have advised the Applicant and received instructions from the Applicant to take the following steps." Again the suggested steps were outlined. 12 Counsel for the applicants now concedes that the "evidence" so given in relation to the Part B documents is incapable of supporting a Muin claim. In consequence reliance upon it has been abandoned. It was in any event untenable in the circumstances. 13 However, the applicants are still insisting on the "adverse information" challenge notwithstanding that I have no evidence as to what precisely that information is; no evidence as to what was put to the applicants or their agent at the hearing particularly concerning the substance of country information; and no evidence from them as to how they would have acted if the situation was as the migration agent baldly asserts. 14 I am asked to infer that there was such "adverse evidence" essentially, from the fact that the Tribunal for totally proper reasons took account of, and relied upon, country information which post-dated the date of the delegate's decision which information, counsel for the applicants asserts from the Bar Table, contains "adverse information". The delegate's decisions were made on 16 February 2000; the Tribunal's on 1 May 2002. 15 Put shortly the applicants' claims were based on alleged persecution they experienced as Albanian women who were both nationals of the Former Yugoslav Republic of Macedonia ("FYROM") and Muslims. 16 The delegate's decisions adverse to them dealt with their fears of persecution in the FYROM arising from the actions of private agents and action of the authorities. I need only note here that the reasons dealt generally with country conditions in relation to discrimination against ethnic minorities and particularly, in light of the applicants' claims, in relation to education, medical treatment and religious freedom. 17 The Tribunal's decisions (which were similar for all practical purposes) acknowledged explicitly that the applicants' claims would usefully be examined in the context of information about the FYROM "that has been collated by other sources". It then dealt with a considerable variety of sources beginning with a 1999 US Department of State Report and concluding with a document publishing comments of an EU envoy of 5 April 2002. The date of the hearing before the Tribunal, I would note, was 24 April 2002. 18 The applicants had raised with the Tribunal the conditions in their country in 2001 and explicit reference was made by one of them to fighting in that year between Albanian rebels and the Macedonian army. A significant part of the country information referred to by the Tribunal was in relation to that fighting and associated events. 19 The Tribunal considered that the course of the material to which it referred was "representative of the situation in Macedonia as it has recently unfolded". It demonstrated ongoing ethnic tensions and consequent risk to some ("nearly always men"). The Tribunal's conclusions are encapsulated in the following: "Overall, the available information does not lead the Tribunal to conclude that the Applicant or her sister face a real chance of being persecuted because they are Albanian, Muslim and female. The Tribunal does not accept that either of them have been persecuted in the past, although it has no reason to doubt that they have been the target of low-key discrimination such as insults and curt treatment by officials. Such conduct as they have endured in the past is not of sufficient seriousness to amount to persecution. It is plausible that since they have left, their remaining siblings fled during the riots of 2001, but that situation arose in peculiar circumstances and was brought under control. Since then, the Albanian and Macedonian political groups have made some compromises and the international community has established the groundwork for further developments. The Applicant's parents have remained in [Bitola] without being persecuted. The situation is obviously not perfect – it is not yet properly stable as there is still, no doubt, some lingering mistrust and tension. It is likely that the Applicant will encounter some low-key discrimination at the hands of the general population if she returns to FYROM but, as distasteful as such discrimination must be, the Tribunal is satisfied that such discrimination would not be persecutory in the sense required by section 91R of the Migration Act, and it finds that she can return without facing a real chance of being persecuted." 20 While accepting that there was a deal in the "new" country information relied upon that was actually favourable to their case (in the sense of highlighting deteriorating circumstances in the FYROM), the applicants' submissions rely in particular on a report of August 2000 (after the delegate's decision) which they contend was adverse to their case but which was significant in the Tribunal's reasons. That report, which dealt with tensions between the Macedonian and Albanian populations "at that stage", contained the following which was characterised as adverse: "Compared with the rest of the region (Montenegro apart) Macedonia has been something of a multi-ethnic success story. The country has thus far managed to maintain a relatively high degree of stability. Gloomy scenarios about the country's disintegration and a possible division amongst its neighbours have not materialised. But its citizens' increasingly contradictory views of inter-ethnic relations are worrying. Ask ethnic Albanians about the state of current relations and they are likely to reply that relations have never been better. Ask ethnic Macedonians and they are likely to respond that relations have never been worse. This gulf between these two peoples is what shapes the country's uneasy coexistence. Albanians are by far the largest national minority in Macedonia, and their status within the state and their attitude towards it have a direct bearing upon Macedonia's long-term stability and viability." This was claimed to have been influential in the following way in that the Tribunal's reasons went on: "In the context of the above information [including the quotation], the Tribunal is satisfied that, understandably, the Applicant has exaggerated her claims. It accepts that the Applicant has encountered some abusive and discriminatory remarks from students, neighbours and others in the general population from time to time. It does not accept that she was abducted and raped as she claimed in her written submissions. It was a claim she discarded at the RRT hearing." 21 The applicant then relies upon the following observations of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at 269-270 to support its procedural fairness claim: "In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it." The applicants relied as well on the same judge's reasons in Muin. 22 The respondents, in contrast, have submitted that there is no factual material at all before me that provides any such basis for so scrutinising the Tribunal's reasons. The matters that were in issue as a result of the delegate's decision were abundantly clear and related to conditions in the FYROM as they affected Albanians. The Tribunal properly dealt with the rebellion, the more so as it had been raised by one of the applicants. The 2000 report that was particularly relied upon by the applicants was simply part of the narrative of events etc over time. It was not properly to be characterised as adverse material. There was no other significant change in circumstances, or an event, or a judgment or opinion expressed in the country information relied upon that would in fairness have required disclosure to the applicants. In any event, the Tribunal did not accept that the applicants had been persecuted as a matter of fact. 23 The first comment I would wish to make about the applicants' cases is that the documentary form in which they have been advanced and the "evidence" relied upon seems almost to have been contrived to ensure their failure. The use of standard forms unashamedly drawn from Muin is a practice to be deprecated. 24 Secondly, I am not prepared to infer in light of the migration agent's affidavit and the fact that the Tribunal referred to sources that post-dated the delegate's decision that there has been a denial of procedural fairness. No evidence has been given (other than from the Bar Table) as to what if any of the country information was relied upon as being adverse and why this was so. No evidence was given of the matters raised by the Tribunal at the hearing or of the submissions made, notwithstanding that evidence of this was readily available. Unlike in Muin there are no agreed facts. I am merely being asked to infer that adverse information (whatever sins that description might cover) was used by the Tribunal though the substance of it was not put to the applicants. That inference is not the most probable deduction which may reasonably be drawn from the known facts: cf Holloway v McFeeters (1956) 94 CLR 470 at 477. I will not draw it. The applicants had the means available to them to provide evidence on the matter. But they have left it as a subject of speculation. 25 I would say in addition on the material before me that, the 2001 rebellion apart, I do not consider the information relied upon was other than similar in character to, and on the continuum of, the information used by the delegate. The rebellion was raised by the applicants and was properly dealt with by the Tribunal. The remaining information does not appear to have raised circumstances, events, etc, or to have contained judgments, etc that ought in fairness to have been put explicitly to the applicants. In this I agree with the respondent Minister's submissions. 26 I will make no order on the Notice of Motion and I will dismiss the application.