Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of decision of Refugee Review Tribunal affirming not to grant a protection visa - Bulgarian applicant claiming persecution because her parents were former members of the Communist Party - decision of Refugee Review Tribunal affirmed.

VCAM v Minister for Immigration [2003] FMCA 6 (24 January 2003)

VCAM v Minister for Immigration [2003] FMCA 6 (24 January 2003)
Last Updated: 29 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VCAM v MINISTER FOR IMMIGRATION
[2003] FMCA 6



MIGRATION - Review of decision of Refugee Review Tribunal affirming not to grant a protection visa - Bulgarian applicant claiming persecution because her parents were former members of the Communist Party - decision of Refugee Review Tribunal affirmed.

Migration Act 1958, ss.54, 424A, 441A(2), 474; 474(1); 475A

Judiciary Act 1903, s.39B

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228;

R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598;

Minister for Immigration and Multicultural & Indigenous Affairs v Shamry (2001) FCA 919;

Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 577;

VDAA v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1071;

VAAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1201



Applicant:
VCAM



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 552 of 2002



Delivered on:


24 January 2003



Delivered at:


Melbourne



Hearing Date:


29 October 2002



Judgment of:


Bryant CFM



REPRESENTATION

Counsel for the Applicant:


Mr T Fernandez



Solicitors for the Applicant:


T A Fernandez



Counsel for the Respondent:


Mr G Gilbert



Solicitors for the Respondent:


Clayton Utz



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 552 of 2002

VCAM


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Background

1. The applicant, a female citizen of Bulgaria, arrived in Australia on

18 August 1999 as a holder of subclass 421 sport visa. Her former spouse and three children remained in Bulgaria.

2. The applicant subsequently applied for and was granted a subclass 66 visitor (short stay) visa. On 23 September 1999 the applicant lodged an application for protection visa with the Department of Immigration and Multicultural Indigenous Affairs ("the Department") pursuant to the relevant provisions of the Migration Act 1958 (Cth) ("the Act").

3. A delegate of the respondent refused the applicant's application for a protection visa and the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision.

4. This application is an application for a review of the decision of the Tribunal given on 21 February 2002. By that decision the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. The applicant seeks a review of that decision under s.475A of the Act and s.39B of the Judiciary Act 1903 (Cth).

5. It is accepted that this application, having been instituted on 11 April 2002, is governed by the amendments to the Act which came into effect on 2 October 2001.

6. The decision under review is a privitive clause decision and thus subject to s.474(1) of the Act which provides:

(1) A privitive clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any Court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any count.

7. The effect of s.474 is to render valid any decision of relevantly, the Tribunal, save for a decision made in bad faith or a decision made in breach of the jurisdictional factor or a "fundamental" or "structural" requirement contained in the Act; per NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. The restriction on the scope of review is that identified by

Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615-616. The applicant made written submissions and gave sworn oral evidence to the Tribunal.

8. The applicant was born in Sophia, the Bulgarian capital, and her initial application stated she lived and worked in that city in the tourist industry and had never been to another country. At the hearing she agreed that she had visited her cousin in Australia in 1989-1990 and had then returned to Bulgaria before living in France from 1990 until 1994. Whilst she was there her application for recognition as a refugee was refused. So also, was an application to migrate to Australia. While her application form stated she worked for the same State organisation until 1999, she told the Tribunal she had worked privately after her return from France.

9. In her initial application she stated that in May 1999 she was attacked and assaulted by offenders who called her a "communist bitch". She claimed subsequently, she and other family members received phone and letter threats and both she and her husband were dismissed from their respective jobs. Her husband could now only work if he was self-employed. She told the Tribunal that she attended a secret meeting in May 1999 to protest about the ruling UDF party. She believed that she was followed after that meeting and does not know who assaulted her or why they did so, just that she believes that it was connected with her attendance at the secret protest meeting.

10. The applicant explained that she had encountered difficulties because her father and her parents-in-law were former members of the Communist Party and, further, her family had forbidden connections with Bulgarians who had fled to the West. She stated that she actually had history of opposing the communists and she could not expect protection from the Bulgarian authorities because she had escaped from those authorities.

11. The applicant had a passport that was issued in December in 1998 and expired in 2003. She used it to legally leave Bulgaria in August 1999. She obtained a bridging visa that permitted her to leave Australia for a brief period in March/April 2001, on the basis that she was going to visit a sick aunt in Belgrade, Yugoslavia. However her letter of

23 April 2001 states her aunt died before she departed so she changed her schedule and returned to Bulgaria in March 2001 to visit her sick son. Whilst she was there, she had her passport renewed. She explained that her friend at the airport had helped her through security checks on arrival and departure. She told the Tribunal that she returned to Bulgaria to attempt to obtain a visa for her son to leave. She said that she had separated from her husband and her youngest child lived with her mother. She was obliged to renew her passport because a new type of passport had been issued since she obtained hers. She said that she kept a low profile for the three weeks she remained in Bulgaria and presented both passports when she departed. She was interrogated at the airport but her friend intervened and she was allowed to proceed.

12. The applicant produced various documents in support of her claims, including evidence that her parents-in-law were Communist Party members and closely affiliated with the communist regime before its fall in 1989.

13. The information that was before the Tribunal indicated the applicant lived in France for some time, was forwarded to DIMIA by Geelong Police. The Department forwarded it to the Tribunal. It appears the information was sent from Bulgaria. There is a series of documents relating to work, residence and refugee status in France but has no covering letter. The Tribunal showed it to the applicant who opined that her disgruntled husband must have sent it, particularly as it included original documents that had formerly been in his possession. She told the Tribunal that she feared for her safety and her advisers submitted that if her husband could cause difficulties by sending those documents to Australia, he has probably also approached the Bulgarian authorities and now her life is at risk at the hands of the Bulgarian officials.

The Tribunal's Reasons

14. The Tribunal accepted that the applicant was a national of Bulgaria and that her family and her husband's family were connected with the former communist regime and that they had western connections. The Tribunal also accepted that she was assaulted in May 1999 and that she has subjective fears that she might encounter some harm if she returns to her country of nationality.

15. The Tribunal accepted the applicant's explanation that she did not disclose that she had previously been in Australia or resided in France in her initial application because she feared her protection visa application would be rejected.

16. While the Tribunal accepted that she was assaulted in 1999 it also accepted that she did not know who assaulted her or why she was assaulted, although it did not doubt she believed it was men who followed her from a meeting she'd attended to protest about the policies of the UDF.

17. The Tribunal was satisfied that the assault was an isolated incident that was unrelated to actions by the government at the time. In arriving at that conclusion it noted that she was willing to return to Bulgaria after she left Australia in 1990, that she made no claim she was harassed between 1994 and May 1999 and that she was able to work during that period; that she was willing to obtain and use passports issued by Bulgarian authorities and that she was willing to return to Bulgaria in 2001; that she changed her passport on that visit; that she was permitted to enter and exit the country several times without significant hindrance.

18. The Tribunal considered the relevant country information in relation to the Bulgarian political environment. The Tribunal found that there are ongoing human rights abuses in Bulgaria but that the available information did not support a conclusion that supporters of opposition parties in general faced a real chance of persecution on account of their political opinions. In relation to the applicant's claim that she was assaulted in 1999 because she had attended a meeting to protest about UDF policies, the Tribunal noted that the UDF has now been replaced by the NDSV.

19. The Tribunal had significant doubts that the applicant was assaulted in 1999 for reasons of her political opinions, particularly as that was a single isolated incident. Even if it was satisfied that her assailants were motivated by her political opinions, the Tribunal was not satisfied that there is a real chance that she faces any persecution by that reason should she return to Bulgaria. The Tribunal found that although she said she actively expressed anti-communist and anti-UDF opinions, her evidence only disclosed one incident of harm after 1994. The Tribunal found this to be consistent with information from various sources which document human rights abuses that suggests that political attacks are uncommon. The Tribunal also found this to be inconsistent with her willingness to return to Bulgaria in 2001 and avail herself of state protection by paying a replacement passport.

20. The Tribunal noted that it did not know who sent the documents related to her sojourn in France to Australian authorities. The Tribunal found that it was likely that it was her estranged husband as she suggested. The Tribunal further noted that the fact that those documents contradicted some of the information provided by the applicant in her initial application was of minimal significance as she quite adequately explained why she failed to disclose such information. It was plausible that the applicant's husband sought to create difficulties for her in pursuing her refugee application in Australia. However the outcome of her case rested largely on an acceptance of her reasons for leaving Bulgaria in 1999 and an assessment of what might happen if she now returned. It did not rest on any repercussions of a failure to disclose her stay in France.

21. As to her submission that her husband might be able to sway the Bulgarian authorities to harass her, the Tribunal noted that this was not the case when she returned in 2001 in an attempt to take her son from her mother's care and arrange for his departure.

22. Considering all these matters the Tribunal was not satisfied that her husband was in a position to persuade Bulgarian authorities to persecute her for any convention reason.

23. Having considered her claims in the context of current and foreseeable circumstances in Bulgaria, the Tribunal concluded that she did not have a well founded fear of persecution for convention reasons. She was not a person to whom therefore Australia had protection obligations.

The applicant's contentions

24. The Tribunal contravened section 424A of the Act by failing to bring "to the notice of the applicant prior to the hearing" documents sent to the Minister and or the Tribunal regarding her stay in France.

25. Secondly, that the Tribunal contravened section 54 of the Act in that it failed to have regard to all of the information in the application. In particular it is contended that the Tribunal did not have regard to the applicant's claims of persecution by reason of her familial connections with the communist parties.

Was the Tribunal in error?

26. The complainant claims that the date stamp receipt by the Tribunal on the documents sent to them by an anonymous person was 10 November 2000 with a hearing in February 2002 and that the documents had been on the file for over twelve months with no notice to the applicant. The applicant also contends that the duty cast on the Tribunal has not been complied with because there was no opportunity for the documents to be translated.

27. It appears to be common ground that until the hearing the applicant was unaware of the existence of the documents and that they had not been served on the applicant.

28. In Minister of Immigration and Multicultural Affairs v Shamry (2001) FCA919, the Full Court confirmed that section 424A has an ongoing operation until the Tribunal delivers its decision. This partly because section 424A applies to information which the Tribunal considers "would" be the reason or part of the reason for affirming the decision under review. Emmett J and Alsopp J (with whom Heerey J agreed) said at paragraph 94 that ultimately it is the Tribunal's reasons for decision which will disclose whether information has that particular character, and is by reference to those reasons that the Tribunal's compliance with section 424A will be measured.

29. Although it appears the Tribunal did not comply with section 424A of the Act because it failed to give the applicant in writing particulars of the information prior to the hearing obtained from an unknown source about her stay in France, that failure must be measured in the light of the applicant having an opportunity to comment upon the material before the Tribunal. In the circumstances the applicant has not in fact been deprived of an opportunity to learn of material adverse to her claim or comment upon it. She was able to comment upon it and in any event the Tribunal accepted that the applicant did adequately explain why she failed to disclose the information. Furthermore, that information was not the reason or part of the reason for affirming a decision under review.

30. The Respondent's failure to comply with section 424A in the circumstances, has not in fact deprived the applicant of the opportunity to learn of material adverse to her claim or to comment upon it. "In practical terms, she had the opportunity which section 424A is intended to provide." [Per Mansfield J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA577.]

31. The Respondent contended that there was no obligation under section 424A to give particulars of the information identified by the applicant because the information was not the reason or part of the reason for affirming the decision tor review.

32. However, even if the obligation under section 424A was enlivened she was shown the information and invited to comment on it at the hearing and more importantly it was not information which affected or might affect the outcome of her claim.

33. The applicant does not contend that the decision of the Tribunal was made in bad faith. She contends that a breach of section 424A is a breach of a fundamental or structural requirement contained in the Act [NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228].

34. As Heerey J said in VDAA v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1071 at [27]:

"In any event, the judgments of the majority in NAAV make it clear that `jurisdictional' or `structural' or `inviolable' factors or elements are matters which arise at the initiation or activation of the decision making process." [See per von Doussa J at 625].

Likewise Black CJ at V7 (in relation to the Wang appeal thought that the particular area of decision making had to be "enlivened" and "enlivened only by a notice having a particular quality".

His Honour then observed at paragraph 28 that:

"By contrast, the decision which the Tribunal made as to satisfaction to the Applicant's answering the definition of refugee came at the end of the process. The Tribunal had embarked on this task lawfully."

In this case the alleged breach of section 424A cannot be said to have taken place at the "initiation or activation of the decision making process" and the jurisdiction of the Tribunal was enlivened in the manner contemplated by the majority in NAAV.

35. I agree with the submissions of the respondent that even if there was an obligation pursuant to section 424A there is no breach merely because particulars and information were not given prior to the hearing. Section 441A(2) contemplates that the relevant document may be handed to an applicant by the RRT.

36. The second argument advanced by the applicant is that the Tribunal contravened section 54 of the Act, in that it failed to have regard to all of the information in the application. It is suggested that the Tribunal did not "have regard to" the applicant's claims of persecution by reason of her familial connections with the Communist Party. It is contended that the information appearing at page 6 of the court book epitomises the applicant's claims for a visa. The applicant says that she was attacked close to her home in Sofia and called a "communist bitch". She says "all these events occurred because of my family's strong and prominent communist background". That material is contained in the written application for the protection visa applied for by the applicant. She further relies upon the evidence of Mr Granchov (witness) appearing at page 15 of the Supplementary Court book in which he says "I think she has no political pro-allegiance, but because of her relatives being communist, and her husband's father also was a member of the Communist Party and very much up in the hierarchy, there could be some sections that like to silence the people who need to know something". The Tribunal said (at page 237 of the Court Book) "as the applicant claims that she faces persecution for reasons for political opinions and membership of a particular social group comprising of families with ties to the former Communist regime and with western links, it is usual to examine her claims in the context of the Bulgarian political environment."

37. The applicant contends that the Tribunal has correctly stated the issue for decision but has then failed to address that issue. The applicant contends that the Tribunal then goes on to consider the country information and to say:

"As pointed out to the applicant that the Tribunal, available information indicates that there are ongoing human rights abuses in Bulgaria, but does not support a conclusion that supporters of opposition parties, in general, face a real chance of persecution on account of their political opinions. (Court book, p. 239.)

This the applicant contends was not the point being made by the applicant which was that she was facing persecution not by reason of being a supporter of an opposition party but by being part of a family with ties to the former Communist regime.

38. The applicant further contends that support for this proposition is given by the Tribunal making reference to "the absence of reports of politically motivated attacks on opposition figures". (Court book,

p. 240). The applicant thus contends that the real issue is not considered by the Tribunal, namely the persecution being suffered by the applicant because of her family ties. This, it is contended, is a breach of section 54 which creates an inviolable limitation in that the Act is not being complied with.

39. The following conclusions indicate however, that the Tribunal did consider the question of persecution for political beliefs. In particular the Tribunal was satisfied that the assault on the applicant was an isolated incident and unrelated to actions by the government of the time. It also took into account that she was willing to return to Bulgaria after she left Australia in 1990; that she made no claim she was harassed between 1994 and May 1995; and that she was able to work during that period; that she was willing to obtain and use a passport issued by Bulgarian authorities and that she was willing to return to Bulgaria in 2002; that she changed her passport on that visit; that she was permitted to enter and exit the country several times without significant hindrance. In essence, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for convention reasons.

Conclusion

40. The decision which is the subject of this proceeding is a privative clause decision under section 474(1) of the Act and severely operates to restrict this court's power to review that decision. The restriction on the scope of review is that identified by Dickson J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615-6. The applicant can only succeed in her application for review if she can demonstrate that her case falls within the principles enunciated by Dickson J in Hickman. A decision will be validated under review provided that certain conditions are fulfilled. These are:

a) the purported exercises are a bona fide attempt to exercise the power;

b) it relates to the subject matter of the legislation; and

c) it is reasonably capable of being referred to in the power.

d) The Hickman clause cannot affect the operation of a provision which encloses "inviolable limitations or restraints" upon jurisdictional powers of a decision-maker.

41. Given the findings by the Tribunal it is difficult to see how it could be said, even without recourse to section.474(1) that the Tribunal had committed an error which went to jurisdiction by not addressing specifically the applicant's familial links to the Communist Party. However, even if that argument were available the effect of section 474(1) is to preclude it from being reached. It is difficult to see how in the framework of the Act a failure to address a particular claim can fall within the concept of breach of an inviolable limitation or restraint upon the jurisdiction or powers of the RRT ("the Tribunal"). "In any event the judgments of the majority in NAAV make it clear that `jurisdictional' or `structural' or `inviolable' factors or elements are matters which revise that initiation or activation of the decision making process." [Per Heerey J in VDAA v Minister for Immigration and Multicultural and Indigenous Affairs; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs and VAAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1201].

42. Notwithstanding her initial application, the applicant put her case in a somewhat different way to the Tribunal. At page 232 of the court book, the Tribunal described the difficulties because her father and parents-in-law were former members of the Communist Party, and the assault upon her as two distinct and separate claims. The Tribunal records the applicant as having told them that the assault after the meeting in 1999 was because of her attendance at the secret protest meeting and not her familial connections.

43. For the reasons I have given, I have reached the view the applicant has not established a basis upon which the court should exercise its power under s.39B of the Judiciary Act and the application should be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 20 January 2003
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia