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MIGRATION – appeal – alleged jurisdictional error and lack of procedural fairness – questions to appellant alleged to suggest commission of bribery – questions said to be contrary to public policy – whether questions gave rise to failure to carry out function of review – whether questions affected Tribunal’s decision

Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth)
Migration Act 1958 (Cth) ss 36, 420, 424

Convention Relating to the Status of Refugees (Opened for signature 28 July 1951. Entry into force 22 April 1954)
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VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 (15 September 2004)
Last Updated: 15 September 2004

FEDERAL COURT OF AUSTRALIA


VAT v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 255

MIGRATION – appeal – alleged jurisdictional error and lack of procedural fairness – questions to appellant alleged to suggest commission of bribery – questions said to be contrary to public policy – whether questions gave rise to failure to carry out function of review – whether questions affected Tribunal’s decision

Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth)
Migration Act 1958 (Cth) ss 36, 420, 424

Convention Relating to the Status of Refugees (Opened for signature 28 July 1951. Entry into force 22 April 1954)
Protocol Relating to the Status of Refugees (Opened for signature 31 January 1967. Entry into force 13 December 1973)

Craig v State of South Australia (1995) 184 CLR 163 referred to
Felton v Mulligan (1971) 124 CLR 367 distinguished
Jago v The District Court of New South Wales (1989) 168 CLR 23 cited
Minister for Immigration & Multicultural & Indigenous Affairs v WAFJ [2004] FCAFC 5; (2004) 203 ALR 581 cited
Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327 cited
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 cited
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited
Minister for Immigration & Multicultural Affairs, Re; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 referred to
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 referred to
NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137; (2003) 77 ALD 424 distinguished
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 cited
Refugee Review Tribunal, Re; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 cited
Ridgeway v The Queen (1995) 184 CLR 19 considered
Ruddock, Re; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 cited
VAT & VAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 59 affirmed

VAT & VAU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
V268 of 2004

WILCOX, GRAY AND RD NICHOLSON JJ
15 SEPTEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V268 OF 2004


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: VAT & VAU
APPELLANTS
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: WILCOX, GRAY and RD NICHOLSON JJ
DATE OF ORDER: 15 SEPTEMBER 2004
WHERE MADE: MELBOURNE


THE COURT ORDERS THAT:



1. The appeal be dismissed.


2. The appellants pay the 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

VICTORIA DISTRICT REGISTRY V268 OF 2004


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: VAT AND VAU
APPELLANTS
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: WILCOX, GRAY and RD NICHOLSON JJ
DATE: 15 SEPTEMBER 2004
PLACE: MELBOURNE


REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal in respect of the judgment of a Federal Magistrate (McInnis FM) given on 12 February 2004 following a hearing on 23 May 2003 (VAT & VAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 59). His Honour dismissed an amended application for review of a decision made in respect of each of the appellants by the Refugee Review Tribunal (‘the Tribunal’) on 4 October 2001. In its decision the Tribunal affirmed the decision of a delegate of the respondent that each of the appellants should not be granted a protection (class XA) visa. Although the notice of appeal was brought in the name of the first appellant, it is accepted by the respondent that it is applicable to each of the appellants.

2 The appellants are husband and wife in a de facto relationship who claimed to be citizens of Vietnam. They arrived in Australia on 9 April 2001. The delegate’s refusal of their application for protection visas occurred on 23 August 2001.

3 A protection visa may be granted under s 36 of the Migration Act 1958 (Cth) (‘Migration Act’) if the applicant for the visa is a person to whom Australia has protection obligations. Australia will have such obligations to a person who is a refugee within the meaning of Article 1A(2) of the Convention Relating to the Status of Refugees (opened for signature 28 July 1951, entry into force 22 April 1959) as amended by the Protocol Relating to the Status of Refugees (opened for signature 31 January 1967, entry into force 13 December 1973). It is convenient to refer to these two instruments, taken together, as the ‘Convention’. The Convention relevantly defines a ‘refugee’ as any person who:

‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...’.
4 The appellants separately left Vietnam illegally around 1990. They each travelled to Indonesia by boat. After spending many years at the Galang refugee camp, they were repatriated to Vietnam in 1996 through the auspices of UNHCR, but involuntarily. The first appellant was required to return to his home area upon repatriation. He claimed that the local authority placed restrictions on his right to work, required him to perform unpaid manual labour, and restricted his ability to leave the area. He said that as a result of those restrictions he went to Saigon, where he was able to find work as a motorcycle courier. Whilst in Saigon, he re-established his acquaintance with the second appellant, and later commenced a de facto relationship with her. He claimed that, when in Saigon, he was in difficulty because he did not have local house registration and did not have permission to work. He contended he had been arrested and detained on occasions. The second appellant claimed to have difficulties in terms of her employment, education for her son, and her ability to practice her religion. The appellants ultimately left Vietnam by boat in December 2000, again contrary to local laws, arriving some time later in Indonesia. In April 2001 they came to Australia by boat. Upon detection, they were placed in immigration detention. That led to them lodging the application for protection visas.

5 When the Tribunal hearing was conducted on 20 September 2001, the Tribunal member, Ms Boddison, addressed a number of questions to the appellants. She inquired of the first appellant how many times he had been detected by the police while living in Saigon. He replied that he was arrested so many times ‘and each time I have to buy myself out with money’. He added that ‘most of the time I was fined, monetary fine’. Later the following exchange occurred:

‘MS BODDISON: Did you get your money when you went back, resettlement money?
INTERPRETER: Yes, initially when I returned I received $240. Originally when I returned to my village, they did not agree to signed (sic) the paperwork for me to get the money, and then I approached the Disabled Veteran Office and they interfere with my local authority and they signed my paper for me to get the money.
MS BODDISON: Did the local authority ask for bribes from you in Hung My?
INTERPRETER: They didn’t ask for money from me, but they ask me to repair their – to do the mechanic works for them without pay.
MS BODDISON: This was after you came back from Galang?
INTERPRETER: No, before I left for Galang, but when I returned from Galang, they only restricted my movement.
MS BODDISON: Did you try and bribe them to see if they would lift that restriction?
INTERPRETER: I have no money to bribe them and another worry that if they accept my bribery, is okay, but if not, they would take it as a crime and put me in prison. So I would not dare to do so.
MS BODDISON: But you had enough money to buy a motorcycle. You must have had enough money to offer a bribe.
INTERPRETER: The money that I got, I spent for the Honda, this was the saving that I had worked in Galang.’
6 The Tribunal did not accept that the first appellant was constantly at risk of arrest and imprisonment when he was forcibly repatriated from Indonesia to Vietnam in August 1996. While accepting he may have suffered some discrimination from local authorities and had some minor difficulties because of his lack of registration in Saigon, the Tribunal found this treatment did not amount to ‘serious harm’, or systematic and discriminatory conduct. It said such treatment did not involve a threat to life or liberty, significant physical harassment or
ill-treatment, significant economic hardship, denial of access to basic services or denial of capacity to earn a livelihood, to the extent that such hardship or denial threatened the appellant’s capacity to subsist and therefore did not amount to persecution.

7 In reaching these views the Tribunal stated it did not accept that the local authority would have deprived him of all rights to earn a livelihood. It said that he had saved money from his time in Indonesia, which had enabled him to buy a motorbike, and had a resettlement allowance. It did not accept his claims that he had no money and thus could not pay to avoid unpaid labour.

8 In relation to the second appellant, the Tribunal did not accept that if the authorities believed she was an anti-government element they would have waited four years to accuse her after she returned to Saigon in 1996. Nor did it accept that she constantly had her household registration checked and her house searched, as she was residing legally in Saigon.

9 Additionally the Tribunal did not accept the claim by each of the appellants that they were persecuted by local authorities as a consequence of the imposition of requirements to perform unpaid labour, saying this was a duty of all Vietnamese citizens and was not persecution imposed for a Convention reason. It further found that the second appellant had not been persecuted in the past for having been repatriated to Vietnam.

10 In relation to a claim made by the second appellant that she had difficulties practising her religion, the Tribunal was not satisfied that such was the case or that there was a real chance of that occurring in the reasonably foreseeable future, and held that she did not have a well-founded fear of persecution for reasons of her religion.

11 In relation to a claim by the appellants that they would be imprisoned for illegal departure, the Tribunal found that it was unlikely any penalty would be imposed on this occasion. Furthermore, it found that any penalty that may be imposed would be as a result of the non-discriminatory application of a law of general application and would not amount to persecution within the meaning of the Convention. It found there was no real chance that they would be persecuted in the reasonably foreseeable future if they returned to Vietnam and, therefore, their fear of persecution was not well-founded and they were not refugees.

12 In its reasons prior to reaching its findings, the Tribunal stated:

‘The applicant agreed that he received a resettlement allowance of US$240 from the UNHCR. The applicant was asked if he tried to bribe the local authority to lift the restrictions and he stated he did not have any money and he was afraid of being caught offering a bribe. It was put to the applicant that he had enough money to buy a motorcycle and he had his resettlement allowance. He stated that money was earned in Galang and US$240 does not go very far in Vietnam. It was put to the applicant that the UNHCR monitored returnees because it wanted to ensure they integrated and had employment and could support themselves. They would have intervened if he had been prohibited from working. He said he only knows what happened to him personally.’
13 On appeal to the Federal Magistrate a range of grounds was raised by the amended application for review. It is not necessary, in view of the way in which this appeal is focussed, to recount the way in which his Honour approached those grounds save to say that they are fully set out in his published reasons for judgment. In the course of those reasons, he referred to the fact that it had been specifically argued before him and in the written submissions that the Tribunal had taken a wrong approach to the issue of criminal conduct. He then quoted the above passage from the reasons of the Tribunal. He then continued:

‘22. Counsel for the Applicants had referred to transcript of the RRT proceedings where the first-named Applicant had been asked questions concerning the issue of trying to bribe local authorities to lift restrictions. The reference to the transcript did not advance the argument any further in my view though did confirm that the issue had been agitated as described by the RRT in the extract to which I have already referred. It was submitted in the context of that exchange that it is against public policy to use the failure of a person to commit a crime as evidence against him or her and further that there is nothing in the Migration Act which would allow the RRT to hold that a failure of an asylum seeker to commit what is a crime in his own country and what would also be a crime if carried out in Australia as evidence of lack of credibility or as material which could be used against an Applicant in denying a visa application.’

His Honour dealt with this issue in his reasoning as follows:

‘29. Whilst it may be true that there was an exchange [which] dealt with the issue of whether the first Applicant had tried to bribe a local authority to lift restrictions, it is my view that the context of that exchange was simply part of the overall material concerning the financial circumstance of the Applicant and whether indeed there was truly a restriction imposed. It was not put in the context that the Applicant should in fact bribe local officials or that he should be judged adversely for failing to do so. Rather it was part of the investigation open to the RRT in testing the credibility of the Applicant as to his financial resources and the use he made of those resources if he genuinely and truthfully believed that restrictions had been placed on him upon return.’
14 The grounds of appeal focus upon the manner in which the Tribunal dealt with the issue of a bribe and other illegalities. Six grounds of appeal are relied upon. Grounds one and two are introductory and do not plead specific error. Grounds three and four relate to the manner in which the Tribunal questioned the first appellant about bribery of officials in Vietnam. Ground five relates to the issue of the first appellant’s capacity to find work, albeit illegally. Ground six refers to the first appellant’s claim that by reason of his status as a repatriate person, he was called upon to perform unpaid labour in Vietnam more often than other citizens. Oral argument by counsel for the appellants on the hearing of this appeal was essentially put in terms of the issues raised by grounds three and four.

15 The appellants’ principal contention is that, in putting to the first appellant that he should have attempted to bribe Vietnamese officials, the Tribunal acted unfairly and outside its jurisdiction and that his Honour should have so found. Likewise, the appellants submit that the Tribunal acted outside its jurisdiction in finding that as long as the first appellant could find work, albeit illegally, he was not being persecuted by official restrictions on his employment. It is also contended that the Tribunal failed to consider his claim of persecution by the authorities, which called on him to perform unpaid labour more often than other citizens, and so the Tribunal acted outside its jurisdiction.

16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.

17 It is contended for the appellants that in introducing the subject of bribery the Tribunal (1) exceeded its jurisdiction, (2) put at risk the integrity of the decision-making process generally and of the Tribunal in particular, and (3) denied procedural fairness to the appellants.

18 In support of the first submission, the appellants say that the Tribunal acted contrary to public policy and so acted beyond jurisdiction. It is said that the above-quoted questions put by the Tribunal member, considered in their context, suggested to the first appellant that he had enough money to bribe the local authorities so that he could be relieved of the restrictions they placed on him and that he should have done so. The consequence was, it is suggested, that the Tribunal acted against public policy: cf Felton v Mulligan (1971) 124 CLR 367. It is submitted that public policy is against suggesting to a witness before a Tribunal that he or she should have offered bribes, this being borne out by the enactment of the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth). In addition it is said that the Migration Act does not offer any support for the asking of such questions.

19 In support of the second submission, the appellants say that there is a public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of the propriety by those entrusted with powers of law enforcement: Ridgeway v The Queen (1995) 184 CLR 19 at 41 per Mason CJ, Deane and Dawson JJ. In addition it is said to establish that the Tribunal failed to act according to substantial justice and the merits of the case as required by s 420 of the Migration Act.

20 In support of the third submission, it is contended that the hearing was not ‘fair and just’: cf Jago v The District Court of New South Wales (1989) 168 CLR 23 at 57. This is because the first appellant was invited by the questions to incriminate himself. It is also said to be because the Tribunal failed to treat him with appropriate respect: NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137; (2003) 77 ALD 424 at [17].

21 The written submissions of the respondent contend that there appears to be no authority on the question of whether a privative clause decision could be set aside on the basis that questioning of an applicant was contrary to public policy (if that was found to be the case). However, it is submitted the issue does not arise for determination in this case. This is said to be because the manner in which the Tribunal conducts a hearing is (subject to considerations such as procedural fairness, the need to deal with relevant considerations, and apprehended or actual bias) a matter for the individual judgment of the person comprising the Tribunal. The nature of the questioning is said to have been based upon the member’s understanding of the situation facing people repatriated to Vietnam. It is denied that the member taxed or pressed the first appellant in the course of that questioning. It is said the Tribunal did not make any finding about bribery of the local authority, vis-a-vis the lifting of restrictions, or at all. As a result, the respondent submits, the Tribunal’s questions about bribery turned out to be irrelevant. Furthermore it is contended that there was no suggestion in either the transcript or the decision that the Tribunal thought that the first appellant should have bribed the local authority. Additionally the respondent submits that there is no suggestion in either of those sources that the Tribunal was taking into account, adversely to the first appellant, or at all, his failure to offer a bribe. Likewise it is said there is no suggestion that the Tribunal approved of the first appellant working illegally. Finally the respondent submits that there is no substance in the appellants’ claim that the Tribunal treated the first appellant with disdain and in a disparaging way. The circumstances in NAQS were entirely distinguishable.

22 It is not apparent to us why it was that the Tribunal member thought it necessary to pursue the issue of bribery with the first appellant. Although he had earlier in his responses referred to buying himself out of arrest with money, he appeared to relate that to monetary fines. Even if that were not the case, the issue of bribes only arose as a most peripheral issue to the testing of the first appellant’s credibility in relation to his ability to extricate himself from the requirements of local authorities. There seems to have been no relevant justification for her second or third questions on the topic of bribery.

23 As a question of fact, however, there is no evidence that the asking of the questions had any adverse impact on the first appellant at all. There are two reasons for this. The first is that his responses to the questions were all to his credit. The second is, there is nothing in the reasons for decision of the Tribunal which supports any finding that the questions and responses involving the subject of bribery were taken into account adversely or at all. The statement by the Tribunal that it did not accept the first appellant’s claims that he had no money and thus could not pay to avoid unpaid labour should be understood against the background of country information which was before the Tribunal. The country information stated that it is often the case that those working in better paid jobs employ labourers to carry out community labour duty on their behalf and that it was not an offence to so avoid compulsory labour duty. The Tribunal’s statement should also be understood in the context that it is the duty of all Vietnam citizens to perform such labour and therefore the requirement is not persecution for a Convention reason.

24 In any event the appellants’ case fails to make out any error of law establishing jurisdictional error. Neither in the grounds of appeal nor in oral argument did the appellants’ case clearly identify which ground of jurisdictional error the appellants seek to invoke. We agree with the respondent that no authority has been produced to support the contention that excess of jurisdiction by a Tribunal can arise from its acting in breach of public policy. Felton at 377 is speaking of an instance of attempted ouster of jurisdiction in a court arising under statute and is entirely distinguishable from the asking of questions in the Tribunal as a preparatory step to the making of findings of fact and delivery of reasons.

25 Section 420 of the Migration Act cannot provide any foundation for establishing excess of jurisdiction: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611. The Ridgeway case states principles applicable to the weighing of public interest considerations in the usage of unlawfully obtained evidence. So far as it refers to the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety, we do not consider that public interest to be put at risk by the questioning quoted earlier in these reasons. That is so even acknowledging that the functions of the Tribunal are an exercise of executive rather than judicial power. The Tribunal member was entitled under the Migration Act to question the first appellant. Even if some of the questions were ultimately seen to be irrelevant, the asking of those questions did not involve non-observance of any law.

26 Nor is the concept of procedural fairness invoked here. It is not part of the appellants’ case that they were denied the opportunity to put their case to the Tribunal or that their application was decided on some matter in relation to which they were not given the opportunity to state their case: the Aala case; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327; cf Minister for Immigration & Multicultural & Indigenous Affairs v WAFJ [2004] FCAFC 5; (2004) 203 ALR 581 at [68] and [93]. The fairness referred to in the Jago case arose in the context of criminal process and the right to a speedy trial. It is not descriptive of the concept of procedural fairness as such.

27 The present case is also entirely distinguishable from the circumstances which arose in NAQS. That case involved a number of circumstances which were found to be extreme. They involved interruptions, failure to allow explanations, denial of the opportunity to call witnesses and acting with a closed mind amounting to bias so as not to provide a hearing of the requisite fairness and character required by the Migration Act. Here the appellants say that the nature of the questioning involving questions relating to bribery, was so offensive to notions of justice that it should be found there was a failure to provide a hearing of the requisite character. Without in any way intending to suggest that the questioning relating to bribery was either necessary or appropriate, we do not accept that submission. Aside from the questioning upon which the appellants rely, the hearing and the reasoning of the Tribunal was free of any other features which may be thought to have vitiated the hearing. Once asked and answered, the questions in issue played no further part in the Tribunal’s decision-making process.

28 In reply it was contended for the appellants that s 424, in requiring a Tribunal to ‘have regard to’ information it has obtained in making the decision on the review, had the consequence that the Tribunal must have had in its mind the fact that the first appellant had not bribed the officials in the way said to have been suggested in the questioning. In our view the submission cannot succeed in fact or at law. The answers to the questions did not provide the Tribunal member with anything other than denials of bribery. If the section required that information to be regarded, it was irrelevant. As a matter of law the section is directed to requiring a Tribunal to have regard to relevant information.

29 The grounds of appeal as pressed dealt with circumstances which were said to have affected only the hearing of the first appellant’s application. In oral argument it was suggested for the appellants that the nature of the questioning was such that it seriously affected the ability of both appellants to conduct themselves in the hearing. However, this was not an issue raised before his Honour. Nor was it an issue on which any evidence was provided. It is therefore without foundation. The consequence is that even if the appeal had been made out it could only have led to the first appellant succeeding on this appeal.

30 For these reasons we conclude that the appellants have not made out a case for setting aside the judgment of the Federal Magistrate. Accordingly the appeal must be dismissed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Gray and RD Nicholson.



Associate:

Dated: 10 September 2004



Pro Bono Counsel for the Appellants: Mr B Cooney



Pro Bono Solicitor for the Appellants: Asia Pacific Lawyers



Counsel for the Respondent: Mr G Gilbert



Solicitor for the Respondent: Blake Dawson Waldron



Date of Hearing: 25 August 2004



Date of Judgment: 15 September 2004
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