Federal Court Dismisses Appeal Challenging Refugee Status Decision

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[NAME] v [NAME] & [NAME] [1999]

FCA 1210 MIGRATION – appeal from decision of primary judge refusing application for review of Refugee Review Tribunal decision – whether breach of confidentiality, actual bias, failure to investigate – where applicants are citizens of the Republic of the Philippines. Migration Act 1958 (Cth) ss 420, 424, 440 and 476 Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2) [NAME] [NAME] v [NAME] and [NAME] [1999] FCA 951, cited [NAME] and [NAME] v [NAME] [1999] 162 ALR 577, followed [NAME] Affairs v [NAME] (1997)74 FCR 533, followed [NAME] ([NAME]) v [NAME] Affairs (1987) 15 FCR 4, followed [NAME] v [NAME] and [NAME] (1997) 151 ALR 505 applied [NAME] AND [NAME] v [NAME] AND [NAME] AND [NAME] AND [NAME] D1 of 1999 FRENCH, [NAME] JJ DARWIN 3 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

DARWIN DISTRICT REGISTRY D1 of 1999

BETWEEN: [NAME]

First Appellant

[NAME] Appellant

AND: [APPELLANT[NAME]

First Respondent

[NAME] Respondent

JUDGE: FRENCH, [NAME] JJ

DATE OF ORDER: 3 SEPTEMBER 1999

WHERE MADE: DARWIN

THE COURT ORDERS THAT: The appeal is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

DARWIN DISTRICT REGISTRY D1 of 1999

BETWEEN: [NAME]

First Appellant

[NAME] Appellant

AND: [APPELLANT[NAME]

First Respondent

[NAME] Respondent

JUDGE: FRENCH, [NAME] JJ

DATE: 3 SEPTEMBER 1999

PLACE: DARWIN

REASONS FOR JUDGMENT

FRENCH J: 1 I agree with the reasons given by [NAME] J and with the orders he proposes. Doctor [NAME] in his oral submissions to this Court identified clearly the four heads upon which the appeal was brought, they being actual bias, unfair procedures, misconstruction of the Migration Act 1958 (Cth) and the misapplication of or failure to apply international law with respect to human rights. 2 The relevant actual bias that must be established in this case is actual bias on the part of the Refugee Review Tribunal. To establish actual bias requires demonstration of a dysfunctional decision-making process, so that by reason of preconceived views or attitudes, the decision-maker is precluded from properly addressing the issues which are before him or her. This has recently been discussed by the [ADDRESS] in the matter of [NAME] [NAME] v [NAME] and [NAME] [1999] FCA 951. 3 There was no evidence of actual bias on the part of the Tribunal. Some of the appellants' submissions seemed to derive an inference of bias from findings adverse to the credibility of the appellants on the part of the Tribunal. That, of course, does not amount to bias. 4 The assertions of unfair procedure and misconstruction of the Migration Act have been dealt with by [NAME] J in his reasons. I simply observe that when [NAME] J dealt with this matter he dealt with it on a basis more favourable to the appellants than is now available, and the reason for that being that he assumed the correctness of the [ADDRESS]'s decision in [NAME] v [NAME] and [NAME] (1997) 71 FCR 300 and the availability of breach of section 420 as a ground of review. Since that time the High Court, in overturning [NAME], has precluded non-compliance with that section from being available as a ground of review. 5 On the question of the misapplication, or disregard, of international law with respect to human rights, the relevant international convention is the Convention Relating to the Status of Refugees. The question that was before the Tribunal is whether, on the facts as it found them, the appellants fell within the terms of that convention. There is nothing in their reasons, or in the reasons of his Honour, to indicate that they misconstrued the meaning or application of the Convention. 6 What, in large part, this appeal and the application to his Honour reduces to is a complaint about the factual findings of the Tribunal and the sufficiency of the evidence to support those factual findings. As I pointed out to Doctor [NAME] at the beginning of this appeal, this Court is seriously constrained by the provisions of the Migration Act in the extent to which it can review decisions of the Tribunal. A case could arise in which this Court could be persuaded that the Tribunal has made an error in fact and yet be precluded by the limitations of the law from doing anything about it. 7 The constraints which operate upon the Court are set out in s 476 of the Migration Act. His Honour applied the law correctly in relation to s 476 subject to what was later said by the High Court in [NAME]. 8 There is nothing to suggest either he or the Tribunal has fallen into reviewable error and this appeal must be dismissed. I agree also it should be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate: Dated: 3 September 1999

IN THE FEDERAL COURT OF AUSTRALIA

DARWIN DISTRICT REGISTRY D1 OF 1999

BETWEEN: [NAME]

First Appellant

[NAME] Appellant

AND: [APPELLANT[NAME]

First Respondent

[NAME] Respondents

JUDGE: FRENCH, [NAME] JJ

DATE: 3 SEPTEMBER 1999

PLACE: DARWIN

REASONS FOR JUDGMENT

[NAME] J: 9 The appellants in this matter are husband and wife who are citizens of the Republic of the Philippines. They appeal from a judgment from [NAME] who, on 22 January 1999, dismissed an application for review of a decision of the Refugee Review Tribunal ("RRT") given on 3 June 1998, which in turn affirmed a decision of a Ministerial delegate not to grant protection visas under the Migration Act 1958 (Cth) ("the Act"). 10 The appellants arrived in Australia on 22 November 1995 and lodged separate applications for protection visas with the Department of Immigration and [NAME] on 30 September 1996. On 1 April 1997, the Ministerial delegate refused to grant them protection visas. On 30 April 1997, each appellant sought review of those decisions in separate applications to [NAME]. 11 The question for consideration before [NAME] was whether the appellants were "refugees" within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Article 1A(2) of the Convention provides that a person is a refugee who: "… owing to a 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 …" 12 The appellants' claim is that they each have a well-founded fear of persecution for a Convention reason, namely that there is a real chance they will be killed for their perceived membership of a politically motivated rebel army if forced to return to the Philippines. They also claim that they are aggrieved in that they and their children have been placed in jeopardy of their lives by the world wide publication of the Court's decision. 13 As noted by [NAME], the claims of each appellant turn on the matters raised by Mr [APPELLANT] and for practical purposes the two appeals can be considered together in this light.

Background and [NAME] decision 14 Mr [NAME] is a citizen of the Republic of Philippines. He claimed that through membership of a union in the Philippines he had formed a close and friendly association with a man named [NAME], who was an important figure in the [NAME] ("[NAME]"). [NAME] was also said to be a union leader. During the years of his association with [NAME], Mr [NAME] stated that he did not condemn [NAME], who was a known killer, because he considered [NAME] was acting in the best interests of the union cause. Throughout his association with [NAME], he claimed to have met other leaders of the [NAME] and to have become aware of their activities as well as their identities. The appellants claimed that if they were to return to the Philippines, Mr [NAME] would be invited to go back to the [NAME] and, if he refused, he would be killed. Mr [NAME] claimed that his eldest daughter, who is still in the Philippines, informed his wife and himself about persons making inquiries as to their whereabouts. 15 Mr [NAME] produced a number of letters from relatives in the Philippines. He also submitted a document, dated 29 December 1996, which stated that both applicants were wanted by the Philippines Police. The letter was said to be from the [NAME], to Mr [NAME] brother. The document reads, in part: "… on the intelligence finding of the Philippine National Police, your brother and sister-in-law are also wanted dead or alive by their former comrades in the Communist Party of the Philippines and they will be liquidated by the Liquidation Squad of the CCP, [NAME]." 16 Mr [NAME] submitted a letter dated 28 September 1997, said to be from the Chief of Police of [NAME] to Mr [NAME] father, which stated that the "Order of Battle have been (sic) changed" and that the father had seven days to "surrender your son and his wife to avoid the shoot to kill order." Also submitted was a letter of 4 October 1997, said to be from the applicant's father, claiming that the applicant was an enemy in his country and a Communist and wanted by the Government dead or alive. The letter claimed, in addition, that the father had been harassed by both government agents and members of the [NAME] on account of his son. Mr [NAME] submitted a document claimed to be a message to the [NAME] from the Chairman of the Central Committee of the Communist Party of the Philippines, dated 29 March 1997, and a letter from his daughter referring to persons coming back to the house and offering money for information as to the location of the appellants. 17 Mr [NAME] said in evidence that there were no charges against him in the Philippines which, as [NAME] noted, appeared to be contrary to his earlier claims that he was wanted by the Police. [NAME] proceeded to consider the country information. This included information as to the signing of an accord which could lead to the end of a thirty-year long war between the military and the [NAME]. 18 [NAME] made a series of findings in each decision. It accepted that each of the appellants were Philippine residents and that their cases should be considered in relation to the position in the Republic of the Philippines. However, [NAME] member said that there was very little else in the appellants' claims which it did accept. [NAME] found that the appellants were not convincing witnesses and that some of the documents were clearly false, including the letter of 29 December 1996 allegedly from the [NAME]. [NAME] pointed out that where applicants submit clearly false documents in an attempt to shore up their claims, doubts about their credibility are warranted. It considered, moreover, that there were serious inconsistencies in the evidence given by Mr [NAME] and that the claims of the close association with [NAME] were not plausible. In particular, [NAME] did not accept a number of assertions concerning the borrowing of a car by Mr [NAME], and did not accept that if Mr [NAME] was a close friend of Mr [NAME], he would not know Mr [NAME] address. [NAME] disbelieved the claim that Mr [NAME] continued a friendship with [NAME] knowing that he was a murderer. It also did not accept that, although Mr [NAME] was not associated with the [NAME], he would be perceived to be a member of the [NAME]. Nor did [NAME] accept that the appellants would be shot on sight by the Philippine National Police in circumstances where no charges had been raised against him in the Philippines. 19 The decision-maker found that the letter of 29 December 1996 lacked credibility, with its reference to Mr [NAME] and his wife having false [NAME] names, or non-de plumes in circumstances where Mrs [NAME] never claimed any close association with the [NAME]. 20 As a separate matter the decision-maker considered that, even if the appellants' version of events was accepted, no Convention ground had been satisfied by the claims. This was because [NAME] had stated that he was not a member of the [NAME] and had been opposed to its methods. He also acknowledged at the hearing that he had not been charged by the Police and was not wanted by them. In these circumstances, the decision-maker considered that he held no political opinion which might put him at risk with the authorities and that the Police had not imputed one to him. [NAME], in reaching this conclusion, again took into account the country information, in particular the fact that there was an amnesty in place for [NAME] members. 21 [NAME] considered that the appellants were not in danger because of the claim that Mr [NAME] knew [NAME] secrets. The decision-maker did not find his evidence plausible in this respect. In any event, even if there were a risk of harm it could not arise for any Convention-related ground. 22 In summary, because of internal inconsistencies in the evidence, the decision-maker found that the claims were not credible and considered that the applications must be dismissed. Further, with respect to Mrs [NAME] application, the decision-maker found that she had no difficulties or fears to tie her in with the Convention, in particular that she had no political profile, real or imputed. 23 For these reasons [NAME] dismissed the applications.

Decision of the Primary Judge 24 The matter then went before [NAME], by way of an application for review. The primary Judge referred to the relevant authorities and set out in his judgment the contents of the principal documents relied on by the applicants. His Honour referred to the strong findings on credibility. He found that there was no need for [NAME] to make independent inquiries because it was open to [NAME] to find that the appellants' case was lacking in credibility. At the time when his Honour gave his decision, the High Court had not given judgment in [NAME] and [NAME] v [NAME] (1999) 162 ALR 577. His Honour considered it appropriate, having regard to the decision of the [ADDRESS] in [NAME] v [NAME] and [NAME] (1997) 71 FCR 300, to make a positive finding that, on a fair reading of the transcript, [NAME] had acted according to substantial justice and the merits of the case. His Honour rejected a submission that no reasons had been given for the decision as required by s 430 of the Act. In addition, his Honour rejected the submission that there was no evidence or other material to justify the making of the decision in respect of a number of identified subject matters.

Accordingly, his Honour dismissed the application.

Grounds of appeal 25 In the Amended Notice of Appeal, the grounds raised are as follows:

1. The appellants have been placed in an intolerable jeopardy by the unpardonable breach of confidentiality, which breach is contrary to the Migration Act and the Privacy Act.

2. The primary Judge erred in not finding that: (a) [NAME] reasons were in breach of natural justice and of the purpose and requirements of s 420 of the Act. (b) [NAME] in dismissing the documents without investigation before [NAME] hearing created circumstances of actual bias and breached [NAME]'s practice directions. (c) [NAME] in denying discovery of new evidence to the [NAME] prior to the hearing were in breach of their practice direction. (d) [NAME] abused the Convention relating to the Status of Refugees by interpreting the refugee definition in a narrow and false way with regard to the [NAME] dismissing the best and clearest evidence of their refugee status without investigation or proof, and adducing the least favourable and most speculative evidence against them.

Further evidence 26 Attached to the submissions of Dr [NAME], on behalf of the appellants, is a bundle of material including two affidavits dated 28 May 1999 verifying documents together with other correspondence and some country information. Neither of the affidavits nor any of the country information was before [NAME]. It must be borne in mind that this Court is hearing an appeal from a decision of a primary Judge whose function was to decide whether [NAME] decisions on the material before that body, up to the date of its decisions on 3 June 1998, had made any reviewable error. That date is the critical time for consideration. The material now sought to be advanced cannot bear on that question because it came into consideration after that date; that is to say, the affidavits and the further country information, although the two letters the subject of those affidavits and the third letter attached to the submissions were in existence and were before [NAME]. The material may have some relevance to any application to the Minister that may be made under s 417 of the Act, but it cannot be admitted into evidence on this appeal. I should note that even if this material were admitted into evidence, it does not provide substantive probative material to warrant the finding of an error in the rulings of [NAME].

Reasoning 27 The first ground of appeal, namely that there was jeopardy by the breach of confidentiality, is not an available basis for judicial review under s 476 of the Act. [ADDRESS] is constrained by the provisions of that section and the restrictive provisions contained therein. There is nothing in the material to indicate that any order was made by [NAME] under s 440 of the Act, which confers a discretion to order non-disclosure of evidence given before [NAME] or any information given to [NAME]. In those circumstances, there could be no breach of any order made by [NAME]. Nor is there any indication that any relevant application for suppression of material was ever made to [NAME] or the Court. As was pointed out by Counsel, there is a reference in par 34 of his Honour's judgment, to an application to tender an affidavit in relation to [NAME] allegedly sending a letter to the Philippines. This affidavit was not admitted nor was any explanation given as to the basis of the allegations. In view of the foregoing, there is no substance in the first ground. 28 The second ground is that the decision of [NAME] was made in breach of natural justice. However, under s 476(2)(a) of the Act, this is not an available ground for review of [NAME]'s decision. Likewise, as a consequence of the High Court decision in [NAME] it is clear that breach of the procedures of s 420, even if they had taken place, would not amount to a ground of review under s 476(1)(a) of the Act. 29 The third ground is that [NAME], in dismissing Mr [NAME] documents without investigation, showed actual bias and breached [NAME]'s own practice directions concerning investigations of the collection of evidence. In view of the findings by [NAME] as to lack of authenticity of the letters from the [NAME] and Chief of Police, I do not consider that there was any requirement for [NAME] to make further inquiry in relation to the documents. In particular, I consider that the approach taken in par 21 of his Honour's decision was appropriate and correct in principle. That principle is that [NAME] is under no general obligation to investigate the correctness or accuracy of documents submitted: see [NAME] ([NAME]) v [NAME] Affairs (1987) 15 FCR 4 at 8-9 and [NAME] Affairs v [NAME] (1997) 74 FCR 533 at 560-1. In any event, even if [NAME] was under some obligation to make further investigations, failure to do so could not establish, of itself, that the decision-maker was actually biased. 30 The allegation of actual bias is said essentially to arise from the alleged failure to follow procedures. This allegation has not been made out. Reliance was also placed on [NAME]'s failure to make a decision most favourable to the applicants under s 424, [NAME]'s Annual Report dealing with rejection of claims by [NAME] (which was not before [NAME]) and [NAME]'s rejection of the authenticity of the two documents, referred to earlier, relied on by the applicants. None of these matters either taken alone or cumulatively lend any support to an allegation of actual bias. Indeed, (in submission 10) Dr [NAME] falls back on the notion of "apprehended bias" but, of course, this is not an available ground of review. Nor is there any evidence that bias could have been reasonably apprehended. 31 Actual bias calls for a high standard of proof because it is a grave allegation: see [NAME] v [NAME] Affairs (1997) 151 ALR 505 at 555, per [NAME] J. There must be shown to be an actual prejudgment, hostility, prejudice or predisposition to decide the question in a particular way. There are very few reported cases on actual bias. No doubt this is because of the inherent difficulty in proving an actually bias state of mind in the decision-maker at the relevant time. 32 The expression "actual bias" is often used in contrast to an apprehended bias, where there may, in fact, be no bias but a reasonable perception or apprehension of bias. By reason of the restricted provisions in s 476, the court cannot have regard to apprehended bias in judicial review of a decision of [NAME]. In the present case, there is no material to support the existence or operation of actual bias in the decision-maker in this sense. 33 Actual bias cannot be established by reliance upon statistics in an Annual Report that all applications in a one year period from [NAME] for a protection visa had been rejected. There may be many reasons for such rejection. For example, country information may have led the Minister to make the decisions in question. However, each case must be looked at on its own facts and the Court has no information as to the basis, of course, on which any of these rejections occurred. 34 Accordingly, this ground has not been made out. 35 Insofar as it is alleged that [NAME] failed to comply with its "practice directions". I am not satisfied that any relevant non-compliance has been established, nor that such a failure would amount in itself to a valid grant of review. 36 The fourth ground of appeal is that [NAME] denied discovery of new evidence prior to the hearing. [ADDRESS] is not satisfied that there has been breach in this respect. The country information referred to in the decision was not specific to the appellants and did not need to be disclosed to them. In any event, the decision-maker in fact put the country information as to the amnesty to the appellants. 37 As to the fifth ground, which is that that [NAME] "abused' the Convention and took an incorrect and narrow approach, I do not consider that on a fair reading of [NAME]'s decision there was any failure to take the correct approach. [NAME] referred to the relevant case law and provisions and approached the evidence in an appropriate manner. 38 The detailed written submissions of Dr [NAME] are largely either a repetition of the above grounds of appeal or they are based on material which was not before [NAME]. I consider that the findings as to the documents were open to [NAME] on the material before it. With respect to the argument based on s 424, there is no obligation on [NAME] to give reasons for not making a finding "on the papers". A decision under s 424 means that the appellants' case should proceed to a hearing at which the appellants would be given a full opportunity to present their case to [NAME]. The fact that the papers were found insufficient to dispense with a hearing does not, in any way, indicate any predisposition as to the outcome of the application. The outcome of the application will depend on the material placed before [NAME] on the hearing and the submissions made based on that material together with matters raised in the course of the hearing. There is no evidence that [NAME] failed to properly consider or apply that provision. 39 For the above reasons I consider that the appeal should be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] .

Associate: Dated: 3 September 1999

IN THE FEDERAL COURT OF AUSTRALIA

DARWIN DISTRICT REGISTRY D1 of 1999

BETWEEN: [NAME]

First Appellant

[NAME] Appellant

AND: [APPELLANT] FOR IMMIGRATION

AND [RESPONDENT] AFFAIRS

First Respondent

[NAME] Respondent

JUDGE: FRENCH, [NAME] JJ

DATE: 3 SEPTEMBER 1999

PLACE: DARWIN

REASONS FOR JUDGMENT SACKVILLE J: 40 I agree with each of the judgments that has been delivered and with the orders that have been proposed.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 3 September 1999 Appellants appeared in person with Dr [COUNSEL].

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Hearing: 3 September 1999

Date of Judgment: 3 September 1999