FEDERAL COURT OF AUSTRALIA BRGAB of 2007 v Minister for Immigration & Citizenship (No 2) [2007] FCA 1992 Migration Act 1958 (Cth) ss 91R(1)(b), 91X(2), 424A(1), 424A(3), 430(1)(c) BRGAB of 2007 v Minister for Immigration & Citizenship [2007] FCA 1748 considered BRGAB of 2007 v MIAC[2007] FMCA 823 considered Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 cited VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 cited BRGAB OF 2007 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL QUD 185 OF 2007 BENNETT J 19 DECEMBER 2007 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 185 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: BRGAB OF 2007 Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BENNETT J DATE OF ORDER: 19 DECEMBER 2007 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to 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 QUEENSLAND DISTRICT REGISTRY QUD 185 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: BRGAB OF 2007 Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BENNETT J DATE: 19 DECEMBER 2007 PLACE: BRISBANE REASONS FOR JUDGMENT INTRODUCTION The student visa 1 The appellant is a citizen of Japan. She arrived in Australia in 1999 as the holder of a student visa. That visa was due to expire in March 2004 but it was cancelled in September 2003 pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) ('the Act'). The appellant challenged the cancellation of her visa before the Migration Review Tribunal ('the MRT'). Although the MRT found in her favour, the decision was handed down in June 2004, by which time her visa would have expired regardless. 2 The appellant sought judicial review of the MRT decision in the Federal Court. In July 2004 she secured a Bridging E visa ('the original bridging visa'), which was to remain valid for 28 days after completion of the judicial review proceedings. The appeal to the Federal Court was dismissed and leave to appeal to the Full Court of the Federal Court was refused in November 2004. In December 2004 the appellant applied to the High Court for special leave to appeal the decision of the Full Court to refuse leave to appeal. The appellant was deemed to have abandoned her application for special leave in January 2005 because she did not file a written case and a draft notice of appeal within 28 days of filing her special leave application. 3 The Minister concluded that the original bridging visa expired 28 days after the deemed abandonment of her special leave application. In May 2006 the appellant was detained in immigration detention pursuant to s 189 of the Act. 4 The appellant again sought the issue of a bridging visa. That decision was refused by a delegate of the Minister. The appellant's challenge to that decision was unsuccessful. 5 The appellant has succeeded in having her application for special leave to the High Court in respect of the original bridging visa reinstated. The protection visa 6 In July 2006 the appellant applied for a Protection (Class XA) visa ('the protection visa'). A bridging visa was granted to the appellant who was then released from immigration detention. In August 2006 a delegate of the Minister refused the application for the protection visa. The Tribunal heard the appeal from that decision in November 2006 and affirmed the decision of the delegate. 7 The appellant sought judicial review of the Tribunal decision in relation to her application for the protection visa in the Federal Magistrate's Court (BRGAB of 2007 v MIAC [2007] FMCA 823). Federal Magistrate Jarrett dismissed the appellant's application to set aside the decision of the Refugee Review Tribunal. Procedural matters 8 This appeal from the decision of Jarrett FM was set down for hearing on 7 November 2007. On that occasion the appellant made an application that I disqualify myself from hearing the matter. No proper basis was made out as to why I should disqualify myself (BRGAB of 2007 v Minister for Immigration & Citizenship [2007] FCA 1748 at [12]). 9 The appellant then applied for an adjournment. 10 For the reasons in BRGAB [2007] FCA 1748 at [18]–[25], the oral hearing continued as scheduled on 7 November 2007. The appellant chose not to make oral submissions on this occasion or to sit in the Court to hear the oral submissions made on behalf of the Minister (BRGAB [2007] FCA 1748 at [22]) to which she could later respond in writing. 11 I granted the appellant an extension of time in which to file and serve her written submissions after the hearing. The appellant subsequently made two requests that this time be extended on the basis of her incapacity to prepare those submissions because of her mental state. One of those requests was accompanied by a medical certificate. I granted the appellant extensions of time on both occasions. On the occasion of the last extension which was not as lengthy as that sought, the Court notified the appellant that no further extensions of time would be granted. No written submissions have been received from the appellant. On the extended day on which those submissions were due, the appellant sought a further extension. She now says that she now wishes to forward the Federal Magistrate's judgment to counsel who may be interested in her case and requests that the Court makes an Order 80 referral to that counsel. 12 The matter was set down for hearing and orders were made to file submissions on 2 August 2007. The appellant's submissions were due to be filed by 30 October 2007. The hearing was scheduled for 7 November 2007. Since the hearing, the appellant has had over one month in which to file written submissions, being submissions that should have been filed prior to the hearing. That is, the appellant has had four months in which to prepare and file her submissions. 13 The appellant said at the hearing that she could not say when she would feel capable to prepare written submissions. The letters that she relied upon to demonstrate that she was not able to prepare submissions or do anything that would in any way cause her stress served to emphasise the fact that there is little likelihood that the appellant will be able to bring herself to prepare submissions, or to address the Court, or to take any steps in relation to the appeal in the immediate or foreseeable future. I do not see that any purpose will be served by a further extension of time. From the matters stated at the hearing, the demeanour of the appellant and the way that she conducted herself, her refusal even to sit and listen to the Minister's submissions and her subsequent applications for extensions of time, I am not satisfied that the appellant genuinely wishes the case to be heard. Rather, I am of the view that she wishes to defer the decision on the appeal indefinitely. 14 The appellant has been given ample opportunity to prepare written submissions both before and after the hearing. She was offered the opportunity to present oral submissions at the hearing and she demonstrated sufficient English skills to be able to do so. The appellant holds postgraduate degrees in Law from Universities in Japan. She has commenced a doctorate in Law in Australia. 15 The appellant appeared in person before the Federal Magistrate. She prepared and relied upon detailed written submissions in relation to that application. Those detailed contentions of fact and law are before me. The appellant drafted the notice of appeal herself and, as she acknowledged at the hearing, the grounds of that notice reflect the grounds of the application that had been advanced before his Honour (BRGAB [2007] FCA 1748 at [19]). The Tribunal decision 16 At the hearing before the Tribunal, the appellant abandoned the grounds set out in her application for the protection visa that were based on her ability to continue then current litigation in Australia. She advanced two new claims with which the Tribunal dealt: · A media release issued by the Australian Federal Police on 31 July 2006 in relation to charges brought against the appellant had been reported in Japan ('the AFP media release'). The Japanese authorities were aware of the fact that the appellant had been charged with criminal offences. The appellant was concerned about the effect of this media release in Japan where 99.8% of defendants who appeared before a judge in criminal cases were found guilty. · There had been entries posted on an Internet bulletin board in Japan ('the bulletin board') that said that the appellant must be a Korean or that she should be a Korean. She feared persecution based on the statement that she was of Korean nationality. She also told the Tribunal that the bulletin board was not the cause of persecution but evidence of it. The AFP media release 17 The Convention ground relied upon by the appellant was nationality: a Japanese who had been charged with a criminal offence. The appellant said that the Japanese government would not be interested if she were a national of another country. The Tribunal rejected this as a basis for Convention-based persecution. It concluded that, if she were stopped or interviewed at the airport on return to Japan as the appellant said she feared, or if she were subsequently required to report to the authorities, the essential and significant reason would not be her nationality but the fact that she had been charged with criminal offences in Australia. This would also be the reason for any impact on her access to employment as a scholar in Japan and on her ability to travel overseas. 18 The Tribunal noted that no submission was made by the appellant that her claim gave rise to membership of any relevant 'particular social group'. It did not accept that any persecution would be for reasons of her membership of such a 'particular social group', as distinct from the appellant's individual circumstances. 19 Further, the Tribunal did not consider that questioning at the airport or any requirement to report to the Japanese authorities in relation to the criminal charges brought in Australia amounted to persecution involving 'serious harm' as required by s 91R(1)(b) of the Act. The Tribunal did not accept that the fact that some people in Japan may regard the appellant as guilty of offences with which she had been charged would prejudice her access to employment as a scholar in Japan in such a way or to such as an extent as to amount to 'serious harm' as required by s 91R(1)(b) of the Act. Membership of a particular social group as a Japanese alleged or assumed to be a Korean 20 The appellant also contended before the Tribunal that people believed that she is a Korean or decided to treat her as a Korean because of the bulletin board. 21 The Tribunal accepted that people said on the bulletin board that she must be Korean. The Tribunal considered whether there was a real chance that the appellant will be persecuted because of any perception arising from such statements that she is Korean. The Tribunal did not accept that there is a real chance that people who actually know the appellant or who will be making decisions which affect her future will be influenced by such comments. The Tribunal did not accept that there is a real chance that she would suffer 'serious harm' as required by s 91R(1)(b) of the Act because of such perception on the part of some sections of the community in Japan. Application in the Federal Magistrates Court and the current Appeal 22 The grounds of the application in the Federal Magistrates Court are: 1. The Tribunal failed to consider and determine the Applicant's claims. Particulars (i) The Tribunal made no reference to the following testified at the hearing: (a) Unlike Australia, there is no spent sentence legislation in Japan and a criminal record is a basis of discrimination for a criminal for the rest of his or her life. (b) Unlike Australia, there is no 'charge' system in Japan. (c) Unlike the Australian police, the Japanese police do not arrest anyone without evidence sufficient to convict because the Japanese prosecutors must decide whether or not to indict an arrested suspect within 48 hours or within such other strict time limits specified in Japanese law. (d) Unlike the Australian police laying a charge without evidence, the Japanese prosecutors never indict a suspect without evidence sufficient to convict which is evident from the data that 99.8% of accused are convicted as reported by ABC 'Lateline'. (e) Japanese people believe that the Applicant has been indicted rather than that she has been charged and hence has been convicted in accordance with the success rate of Japanese prosecutions. (ii) The Tribunal, by disregarding the Applicant's evidence referred to in the foregoing paragraph (i), failed to consider the Applicant's claim of her fear of persecution for reason of a perceived or alleged criminal record. Particulars (i) The Tribunal failed to make a finding as to the chance of prosecution of the Applicant in Japan where a jury a system will not be introduced until 2010. 2. The Tribunal misunderstood and misapplied the legal principles relevant to a particular social group within the meaning of Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol. Particulars (i) A person who has been charged with criminal offences in Australia falls within a particular social group in Japan. 3. The Tribunal made express findings that are not supported by evidence or otherwise failed to comply with the obligation imposed by s 424A(1) of the Act. Particulars (i) The Tribunal 'assume[ed]' that the people making decisions on employment will be aware of the distinction between being charged and being convicted. (ii) The Tribunal 'assume[ed]' that the people making decisions on the Applicant's future employment will take the distinction between being charged and being convicted into account. (iii) The information referred to in the foregoing paragraphs (i) and (ii) was not notified to the Applicant in writing or by any other means prior to the decision. 4. The Tribunal asked itself a wrong question or applied a wrong test. Particulars (i) The Tribunal considered whether people who knew the Applicant or who would be making decisions which affect the Applicant's future in Japan would be influenced by comments posted on an Internet bulletin board and failed to consider whether there were people in Japan who might persecute the Applicant. 5. Such and other grounds that are not currently within the knowledge of the unrepresented Applicant. 23 The grounds of appeal are: (1) Failing to hold that the Tribunal made express findings that are contrary to evidence or otherwise failed to comply with the obligation imposed by s 424A(1) of the Act. (2) Failing to hold that the Tribunal had failed to consider and determine the appellant's claim. (3) Holding that the Tribunal misunderstood and misapplied the legal principles relevant to a particular social group within the meaning of Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol. (4) Failing to hold that the Tribunal asked itself a wrong question or applied a wrong test. (5) Such and other grounds that are currently not within the apprehension of the unrepresented appellant. 24 In the Federal Magistrates Court, the grounds were elaborated in detailed written submissions. The appellant also made oral submissions to the Federal Magistrate. I shall consider those submissions in respect of the grounds of appeal. Ground 1 of the appeal/ Ground 3 of the application 25 The appellant asserted that there was no evidence to support the Tribunal's finding or assumption that people making the decision on the appellant's future employment would be aware of and apply the distinction between being charged and being convicted. Such an assumption formed the basis of and was a critical step in the conclusion of no serious harm. It follows, the appellant contends, that there was jurisdictional error. 26 Federal Magistrate Jarrett held at [43] that the Tribunal was entitled to draw inferences, such as the assumption made, as part of the fact finding process. The drawing of inferences was, his Honour said, nothing more than the Tribunal discharging its fact finding function. His Honour was correct in this finding. 27 The appellant then contended that if there were such evidence to support the Tribunal's finding, the Tribunal was obliged by s 424A(1) of the Act to provide it to the appellant for comment unless it falls within the categories in s 424A(3) of the Act. The appellant submitted that the information does not fall within s 424A(3)(a) as the information is about people who will make a decision regarding the appellant's future employment and not about people who have power to decide the employment of a Japanese national, a woman or other class. The appellant also submitted that the information does not fall within ss 424A(3)(b) as the information was not provided by the appellant, but is contrary to her evidence. 28 Section 424A of the Act does not require the Tribunal to give information to the appellant which is information that the appellant has given to the Tribunal for the purposes of the application. Determinations, thought processes or subjective appraisals of the Tribunal in considering the issues involved in this matter are not required by s 424A(1) to be given to the appellant (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]). 29 The Federal Magistrate considered that the information that formed part of the reasons of the Tribunal was information given by the appellant to the Tribunal so that s 424A(3)(b) of the Act applies, or was part of the reasoning and thought processes of the Tribunal, which do not fall within the scope of s 424A(1). There is no error in that conclusion. Ground 2 of the appeal/ Ground 1 of the application 30 The integer of the appellant's claim said not to have been considered by the Tribunal related to the claimed fear of persecution for reason of a perceived or alleged criminal record. The appellant also contended that people with a criminal record constituted a particular social group and that such a claim should have been considered by the Tribunal. 31 Specifically, the appellant submitted that the Tribunal overlooked her evidence in the following respects: · that, unlike Australia, there is no spent sentence legislation in Japan and a criminal record is a basis of discrimination for a criminal for the rest of a person's life; · that there is no "charge" system in Japan; · that the Japanese police do not arrest anyone without evidence sufficient to convict because Japanese prosecutors must decide whether or not to indict an arrested subject within strict time limits; · that the Japanese police never indict a suspect without evidence sufficient to convict; this is evident from the data that 99.8% of accused are convicted, as reported by the ABC's Lateline programme; and · Japanese people believe the appellant has been indicted rather than charged, and hence that she has been convicted. 32 The only claim to persecution within the meaning of s 91R of the Act said to have been considered was an alleged failure on the part of the Tribunal to make a finding as to the chance of prosecution of the appellant in Japan. The argument seemed to be that an absence of a jury system and a conviction rate of 99.8% of those charged is sufficient to amount to a well-founded fear of persecution. The appellant asserted that the Tribunal failed to consider and determine the seriousness of the harm. That is not correct. The Tribunal devoted some significant part of its reasons to that very subject. 33 Federal Magistrate Jarrett cited the Tribunal reasons and found that the Tribunal did not fail to consider the appellant's case that she might be considered by some in Japan to have been convicted of, or guilty of, the offences of which she was charged in Australia (BRGAB [2007] FMCA 823 at [35]). The Federal Magistrate noted that the Tribunal concluded that she would not suffer 'serious harm' even if that assumption were made. Failure to refer to the specific evidence of the detail of Japanese criminal law and procedure did not reveal error. Federal Magistrate Jarrett pointed out at [37] that, with respect to the claim that the Tribunal failed to make a finding as to the chance of prosecution in Japan, no offence was identified and the Tribunal was not obliged to accept speculative assertions unsupported by evidence. 34 I respectfully agree with the Federal Magistrate. It is clear that the Tribunal did consider each of the issues it was required to consider for the purposes of making a decision. Section 430(1)(c) of the Act requires the Tribunal to set out the findings which it made and which it considered to be material. It does not oblige the Tribunal to make findings on every question of fact which is objectively material (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [9] and [67]–[68]). There is no jurisdictional error in circumstances where the Tribunal has not specifically made mention of a particular piece of evidence in its reasons. As Jarrett FM said at [36], 'the case put by the [appellant] was considered, but rejected, by the Tribunal'. 35 This ground of appeal has not been established. Ground 3 of the appeal/ Ground 2 of the application 36 The appellant's complaint is that the Tribunal failed to identify the relevant principles for the determination of a particular social group within the meaning of Article 1A(2) of the Convention. The Tribunal did not discuss the principles of such determination. Federal Magistrate Jarrett pointed out at [38] that the appellant did not put her case on the basis that she was a member of a particular social group. The Minister concedes that the Tribunal did not follow the usual course when determining whether a group or class to which an appellant claims to belong is capable of constituting a particular social group under the Convention; namely whether there is an identifiable social group and whether the appellant is a member of such a group. 37 However, the Tribunal did consider whether the appellant feared persecution for reason of membership of a particular social group being persons who had been charged with criminal offences in another country. The Tribunal concluded that, whether or not the appellant was a member of such a social group, she would not suffer serious harm. 38 Although the Tribunal is not required to make the case for the appellant, it is obliged to consider the claims as presented. The Tribunal did consider whether the appellant belonged to any particular social group or would fear persecution due to the membership of such a group. Although the Tribunal did not follow the usual course in such a determination, the Tribunal did not fail to consider this potential claim. 39 No jurisdictional error is apparent here. Ground 4 of the appeal/ Ground 4 of the application 40 The appellant asserts that the correct question that the Tribunal should have asked was whether she had a well-founded fear of persecution based on her perceived nationality of Korean. She complained that the Tribunal did not consider whether people who knew the appellant or would be making decisions about her future in Japan might regard the appellant as a Korean, independently of comments on the bulletin board. 41 The evidence relied upon by the appellant as to her alleged perceived nationality was the bulletin board. This was the only place where the comments linking her to a Korean nationality were made. She did not contend that people who knew her or would make decisions on her future would form the perception independently. 42 Federal Magistrate Jarrett found that the Tribunal did consider this issue (at [46]). His Honour did not examine whether the Tribunal had specifically considered whether persons perceived to be Korean formed a particular social group. 43 The Tribunal, for the purpose of its reasons, accepted that membership of such a social group could form a basis for an allegation of a well-founded fear of persecution. The Tribunal accepted that people said on the bulletin board that the appellant must be Korean and considered whether there was a real chance that she will be persecuted because of any perception arising from such statements that she is Korean. The Tribunal did not accept, for the reasons it gave, that the appellant will suffer persecution involving 'serious harm'because of that perception. 44 The Tribunal did consider these issues and, on the basis of the evidence before it, did not find that the appellant would suffer persecution. Whether or not the bulletin board can be seen to be the cause of persecution or the evidence of it, the Tribunal found no evidence of serious harm. As correctly found by the Federal Magistrate, no jurisdictional error of the Tribunal arises on this ground. Ground 5 of the appeal/ Ground 5 of the application 45 The appellant did not identify any additional ground but stated that where an appellant is unrepresented, the Court has an obligation to review the material critically in order to prevent any injustice. 46 It is for the appellant to advance her case, not for the Court. Federal Magistrate Jarrett's decision shows that his Honour considered and reviewed the Tribunal decision. Disclosure of matters personal to the appellant 47 The appellant's name is not published by virtue of s 91X(2) of the Act. The appellant seeks an order that no material be published that might identify her. That seemed, on her submission, to extend to her country of nationality. 48 From the evidence, it is apparent that the appellant has given an interview to the media in which she has identified her name and country of origin. She confirmed at that time, 24 July 2006, that she was not making any allegation against the Japanese Government or anything in Japan. She asserted that there is no human rights oppression in Japan. The AFP media release was on 31 July 2006. The appellant was not named. Her nationality was identified. 49 Accordingly, although the appellant's name will not be published by virtue of s 91X(2) of the Act, I do not consider that it is necessary to remove references to her country of origin. CONCLUSION 50 None of the grounds of appeal have been made out. The Tribunal asked itself the correct questions, applied the correct legal principles and properly considered all of the material before it. The Tribunal was not satisfied that the appellant could meet the relevant criteria for a protection visa under the Act. 51 The appellant has not established that the Federal Magistrate fell into error. 52 At the hearing, the appellant asked that the costs of the hearing follow the event. The Minister consented to that course. 53 The appeal is dismissed. The appellant is to pay the Minister's costs of the appeal. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 18 December 2007 The Appellant was self represented Counsel for the Respondents: Ms A L Wheatley Solicitor for the Respondents: Clayton Utz Date of Hearing: 7 November 2007 Date of Judgment: 19 December 2007