Federal Court: Refugee Review Tribunal Failed Procedural Fairness

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [NAME] & Multicultural & Indigenous Affairs [2005] FCA 1638 MIGRATION – appeal – whether procedural fairness accorded to appellant in relation to internal relocation

[NAME] v [NAME], Local Government and Ethnic Affairs (1994) 52 FCR 437 - applied Kioa v West (1985) 159 CLR 550 - applied [NAME] v [NAME] Affairs (2003) 129 FCR 168 - applied Pilbara Aboriginal Land Council Aboriginal Corporation [COMPANY] v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 – applied [NAME] Affairs v Respondents S152/2003 (2004) 205 ALR 487 - applied [NAME] v [NAME] Commission (1986) 161 CLR 141 – applied [NAME] v [NAME] Affairs (2003) 133 FCR 541 – cited [NAME] v [NAME] Affairs [2005] FCA 942 - cited [APPELLANT] v [NAME] AFFAIRS AND REFUGEE REVIEW TRIBUNAL VID 255 of 2005 MERKEL J 11 NOVEMBER 2005 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 255 OF 2005

BETWEEN: [APPELLANT]

APPELLANT

AND: [APPELLANT] FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

[APPELLANT] TRIBUNAL

[APPELLANT] OF ORDER: 11 NOVEMBER 2005

[APPELLANT]

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be added as the second [APPELLANT] and the title to the proceeding be amended accordingly.

2. The appeal be allowed.

3. The orders made by the Federal Magistrates Court on 16 March 2005 be set aside and, in lieu thereof, the following orders be made: (a) a writ of certiorari issue calling up and quashing the decision of the Refugee Review Tribunal made on 18 September 2003; (b) a writ of mandamus issue directing the Refugee Review Tribunal to hear and determine the appellant's application for a protection visa according to law.

4. The [APPELLANT] pay the appellant's costs of and incidental to the appeal and of the application to the Federal Magistrates Court. 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 VID 255 OF 2005

[APPELLANT]

APPELLANT

[APPELLANT] TRIBUNAL

[APPELLANT]

JUDGE: MERKEL J

DATE: 11 NOVEMBER 2005

PLACE: [APPELLANT] FOR

JUDGMENT 1 The appellant, who is a citizen of Russia, applied for a protection visa claiming that he is a refugee to whom Australia owes protection obligations under the Refugee Convention because he has a [APPELLANT]-founded fear of persecution by reason of his Jewish ethnicity. A delegate of the [APPELLANT] refused the application and the Refugee Review Tribunal ('[NAME]') affirmed that refusal. The appellant made an unsuccessful application for review to the Federal Magistrates Court ('[NAME]') and has appealed to the Court against the orders of the [NAME] dismissing his application with costs. 2 In its decision the [NAME], after considering the evidence in relation to the appellant's claim that he had a [APPELLANT]-founded fear of persecution on the basis of his Jewish ethnicity, expressed certain doubts about the appellant's claim of past persecution in Krasnodar, his home town in Russia. Nonetheless, the [NAME] stated: '[h]aving weighed this evidence, the Tribunal gives the applicant the benefit of the doubt and accepts that the harm which befell him was for a Convention reason (namely ethnicity) and that he had a [APPELLANT] founded fear of persecution in Krasnodar where he is apparently [APPELLANT] known.' 3 However, the [NAME] concluded that, because 'the applicant could reasonably relocate to another area' (see [APPELLANT] v [NAME], Local Government and Ethnic Affairs (1994) 52 FCR 437 ([NAME])), he was not a person to whom Australia has protection obligations under the [NAME]. 4 The main ground of appeal is that the [NAME] failed to accord procedural fairness to the appellant by failing to put him on notice that relocation in Russia was an issue on which the outcome of his case might turn. It was common ground that, at the date of its decision, a failure by the [NAME] to accord procedural fairness to the appellant could found a claim of jurisdictional error on its part. 5 Procedural fairness requires that a decision-maker bring to a party's attention the critical factor on which the decision is likely to turn so that the party may have the opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587, 629 and 634 and [NAME] v [NAME] Affairs (2003) 129 FCR 168 at 177-178 ([27]). 6 In Pilbara Aboriginal Land Council Aboriginal Corporation [COMPANY] v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 [70] I stated: 'The overriding principle is that the decision-maker must bring to the applicant's attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see [NAME] at 587 per [NAME] J; [NAME] v [NAME] Affairs (1989) 21 FCR 472 at 481. It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its "essential features": see [NAME] v Refugee Review Tribunal (1996) 42 ALD 241 at 247; [NAME] v [NAME], Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; [NAME] [COMPANY] v [NAME] (1995) 55 FCR 221 at 230; [NAME] v [COMPANY] (1984) 6 FCR 587 at 600-601; [NAME] v [NAME], Local Government and Ethnic Affairs (1993) 45 FCR 540 at 548.' 7 It is common ground that the question of internal relocation was not raised as an issue in the appellant's application or by the delegate of the [APPELLANT] ('the Minister') when the delegate refused the application. It was also not expressly raised as an issue by the [NAME] or by the appellant in the course of the application to the [NAME] to review the decision of the delegate. However, the Minister relies upon the following passage from the transcript of the hearing before the [NAME] as having sufficiently raised the issue of internal relocation: 'Member: What I don't understand is from these papers of yours you'd obviously lived next to them for a while, why did they pick a particular day in September 1999 to bash you up? Appellant: [redacted] 8 No question was asked, nor was any issue raised, by the [NAME] at the hearing about the possibility or reasonableness of the appellant relocating to another part of Russia so as to avoid the persecution he claimed to have suffered. Also, the appellant was not challenged or queried about the above answer, which merely sought to explain why the appellant thought a particular day in 1999 had been chosen to 'bash him'. 9 Although the [NAME] concluded that the [NAME] had accorded procedural fairness to the appellant, I do not consider that the above passage establishes that the appellant was aware of the factor on which his case was likely to turn, and upon which it did in fact turn, or that the factor was brought to the appellant's attention. It is relevant that that factor was not whether the appellant could or couldn't relocate. Rather, it was whether, at the date of the decision of the [NAME] (18 September 2003), the appellant could reasonably be expected to locate to another area in Russia where he would be expected to have effective state protection from the persecution in respect of which he had a [APPELLANT]-founded fear: see [APPELLANT] at 442 and [NAME] Affairs v Respondents S152/12003 (2004) 205 ALR 487 ('S152') at 494-496 ([25]-[29]). Nothing in the material before the Court indicates that that factor was drawn to the appellant's attention by the [NAME] or that he was otherwise aware that it was a factor of significance in relation to his application, let alone a factor on which the outcome of his case may turn. A matter that lends further support to that conclusion is that the evidence relied upon by the Minister relates to an event in September 1999 but the relevant period for the consideration of relocation was September 2003. 10 The Minister accepted that, if there has been a failure to accord procedural fairness in the present case, the issue is whether, had the appellant had been accorded procedural fairness, that could not possibly have produced a different result: see [NAME] v [NAME] Commission (1986) 161 CLR 141 at 147 and [NAME] v [NAME] Affairs (2003) 133 FCR 541 at 557-558 ([91]-[95]). The issue of the reasonableness of any relocation will involve humanitarian considerations relevant to a particular applicant: [redacted] 11 However, the Minister also contended that the appeal should fail in any event because the [NAME] made an alternative finding of effective state protection for the appellant. As the appellant's claim was one of persecution by [NAME], S152 is authority for the contention that such a finding could have resulted in his claim failing in any event. However, as was explained in S152 at 494-496 ([25]-[29]), the relevant issues concern: (a) whether the state is unwilling or unable to protect a person in the position of the claimant from the harm the claimant has suffered; and (b) if that question is answered in the affirmative, whether that justifies a conclusion that the claimant is a victim of persecution for a Convention reason and that it is owing to a [APPELLANT]-founded fear of such persecution that the claimant is unwilling to avail himself or herself of the protection of the claimant's country. 12 In my view, although the [NAME]'s reasons referred to a legal requirement that 'it may be enough that the government has failed or is unable to protect the [appellant] from persecution', the [NAME] did not make any finding on that issue or on the matters discussed in the passages I have cited in S152. The [NAME] made certain observations about the police not disregarding, and even investigating, the appellant's complaints but those observations, in context, fall [APPELLANT] short of a finding that the appellant would have effective state protection as that concept has been explained in S152. Also, the observations relate to 1999 rather than the period relevant to relocation, September 2003. 13 Finally, as explained above, the relevant issue in a relocation case relates to effective state protection in the place where the appellant may be relocated, that is, elsewhere in Russia,. That issue was not considered by the [NAME] in its decision. Conclusion 14 For the foregoing reasons, I am satisfied that the [NAME] erred in rejecting the appellant's claim that the [NAME] failed to accord procedural fairness in relation to the issue of internal relocation and that the [NAME] was in error in dismissing the application for review. The appellant is entitled to orders allowing his appeal, setting aside the orders of the [NAME] and the decision of the [NAME] and to a further order that the matter be remitted to the [NAME] to be determined according to law. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J.

Associate: Dated: 11 November 2005

Counsel for the Appellant: [redacted]

Counsel for the Respondents: [redacted]

Solicitor for the Respondents: [redacted]

Date of Hearing: 11 November 2005

Date of Judgment: 11 November 2005