X v Borsody & Anor [1997] FCA 489 (21 April 1997)

CATCHWORDS

MIGRATION - protection visas - review of Refugee Review Tribunal determination that applicant not a refugee - Article 1F of Convention relating to status of refugees - finding that applicant had committed either a crime against humanity or a serious non-political crime - application made on basis that no evidence existed to support that finding - whether application should be struck out as disclosing no reasonable cause of action - limits on "no evidence" ground of review under s 476(4) of Migration Act 1958 - whether Tribunal when acting under Article 1F of the Convention is required to reach a decision only if a particular matter is established.

Migration Act 1958 : s 36(2), s 40, s 65(1), s 475(1), s 476(g)

s 476(2)(b), s 476(2)(d), s 476(2)(g), s 476(3)(d),

s 476(3)(e), s 476(4), s 476(40(a), s 480, s 485

Pt 8

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903 : s 44

Migration Regulations 1994: Pt II, reg 2.04, reg 2.05

Sch 2, cl 866.211

Federal Court Rules: Or 20, r 2

Convention Relating to the Status of Refugees 1951

Article 1A, Article 1F

Dai Xing Yao v Minister for Immigration and Ethnic Affairs

(unreported, Black CJ, Davies and Sundberg JJ,

18 September 1996)

Minister for Immigration and Multicultural Affairs v Ozmanian

(1996) 141 ALR 322

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW)

[1964] HCA 69; (1964) 112 CLR 125

Walton v Gardner (1993) 177 CLR 378

Tho Xuan Doan v Minister for Immigration, Local Government and

Ethnic Affairs and Boland, (unreported, Olney J,

9 April 1997)

X v BORSODY & ANOR

No VG 77 of 1997

GOLDBERG J

MELBOURNE

21 APRIL 1997

FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY )

GENERAL DIVISION ) No 77 of 1997

B E T W E E N:

X

Applicants

and

AGNES BORSODY

(in her capacity as a member of

the REFUGEE REVIEW TRIBUNAL)

First Respondent

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

CORAM: GOLDBERG J

PLACE: MELBOURNE

DATE: 21 APRIL 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The applicants have leave to file an amended application for an order of review generally in accordance with the proposed amended application filed on 21 April 1997, such amended application to be filed by 4.00pm on 23 April 1997.

2. The respondents' motion filed on 16 April 1997 is dismissed.

3. The applicants pay to the respondents their costs of the applicants' motion filed 17 April 1997 and that otherwise there be no order as to costs in respect of the respondents' motion filed on 16 April 1997.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules

FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY )

GENERAL DIVISION ) No 77 of 1997

B E T W E E N:

X

Applicants

and

AGNES BORSODY

(in her capacity as a member of

the REFUGEE REVIEW TRIBUNAL)

First Respondent

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

CORAM: GOLDBERG J

PLACE: MELBOURNE

DATE: 21 APRIL 1997

REASONS FOR JUDGMENT

There are before the Court two notices of motion. In point of time the first notice of motion, filed on behalf of the respondents on 16 April 1997, seeks an order that the application filed on 26 February 1997 to review the decision of the Refugee Review Tribunal on 3 February 1997 be dismissed. The second notice of motion on behalf of the applicants filed 17 April 1997 seeks leave for the applicants to proceed with their application pursuant to s 476(g) of the Migration Act 1958 ("the Act"). I take that reference to be a reference to s 476(2)(g) of the Act, and the submission proceeded before me on that basis. In the same notice of motion the applicants seek leave to amend their application for review.

On 26 February 1997 the applicants filed an application for an order of review seeking to review the decision of the Refugee Review Tribunal ("the Tribunal") on 3 February 1997 that the applicants are not persons to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951. The Tribunal thereby affirmed a decision of the delegate of the Minister not to grant protection visas to the applicants. It is common ground that the Convention, which identifies the circumstances under which protection is to be given to refugees as defined, is incorporated by reference into the Act by virtue of s 36(2), s 40 and s 65(1) of the Act, reg 2.04 and reg 2.05 of Part II of the Migration Regulations 1994, and in particular, cl 866.211 of Sch 2 to the Regulations.

In the application for an order of review, the application was expressed to be made in accordance with the Administrative Decisions (Judicial Review) Act 1977 . However the Court has no jurisdiction under that Act in respect of judicially-reviewable decisions, which by virtue of s 475(1) of the Act include decisions of the Tribunal. Jurisdiction to review judicially-reviewable decisions is only provided for by Pt 8 of the Act and s 44 of the Judiciary Act 1903 : Dai Xing Yao v Minister for Immigration and Ethnic Affairs (unreported, Black CJ, Davies and Sundberg JJ, 18 September 1996); Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322. That defect is a matter that can, however, be remedied by proper amendment and is remedied in a proposed amended application for an order of review filed on 21 April 1997.

The grounds of the application filed on 26 February 1997 are:

"1. A breach of the rules of natural justice occurred in connexion with the making of the decisions.

...

2. The making of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which they were purported to be made in that:

(a) the first Respondent took irrelevant considerations into account in the exercise of the power;

(b) the first Respondent failed to take relevant considerations into account in the exercise of the power;

(c) the exercise of the power was so unreasonable that no reasonable person could have so exercised the power;

3. there was no evidence or other material to justify the making of the decisions;

4. the decisions were otherwise contrary to law."

The first ground is specifically excluded as a ground of review by s 476(2)(a) of the Act. The second ground is excluded as a ground of review by s 476(2)(d) of the Act, taken in conjunction with s 476(3)(d) and (e) and s 476(2)(b). The third ground was expressed in sparse terms and appeared to foreshadow the ground provided for in s 476(2)(g) to which I will refer later. The fourth ground in its terms identifies no reviewable ground.

On 5 March 1997 the respondents filed a notice of objection to competency on the grounds that the jurisdiction of the Court to try the application under the Administrative Decisions (Judicial Review) Act 1977 was specifically excluded by s 485 of the Act. A directions hearing was held on 18 March 1997 and after dialogue with counsel in relation to the unsustainability of a number of the grounds in the application, I granted leave to the applicants to file a motion, seeking leave to amend the application and seeking consequential orders, to be returnable before me on 2 April 1997. No such motion was filed by that date and on 2 April 1997 I vacated those orders and granted leave to the applicants to file and serve a motion by 14 April 1997 returnable on 18 April 1997 seeking leave to amend the application with any such motion to be supported by an affidavit exhibiting the proposed amended application with the grounds fully particularised. I also ordered that any motion for dismissal of the application was to be made returnable on 18 April 1997.

On 16 April 1997 the respondents' motion was taken out supported by an affidavit as no motion or affidavit by the applicants had been filed or served by that date. On 17 April 1997 the applicants' motion was filed together with two affidavits. The first applicant in his affidavit identified certain evidence which he had given before the Tribunal. The applicants' solicitor in his affidavit said that he was able to speak and understand the Arabic language, he had listened to the tapes of the hearing and confirmed that the evidence had been given as stated by the firstnamed applicant. When the motions came before me on 18 April 1997 I pointed out that the applicants' notice of motion was not in the form contemplated by my order of 2 April 1997 there being no proposed amended application placed before the Court either particularised or otherwise.

I gave leave for such an amended application to be filed by 10:00am on 21 April 1997 and otherwise adjourned the further consideration of the motions to 2:15pm on 21 April 1997. The applicants filed a proposed amended application which is still deficient in form in that the first respondent, the member of the Tribunal, should be excluded because of s 480 of the Act. That is a matter which can be cured as a matter of form and ought to be cured if the matter proceeds.

The reference to the Administrative Decisions (Judicial Review) Act 1977 has been removed from the proposed amended application and the application professes to be made in accordance with the Act. The grounds of the proposed amended application are specified as follows:

"There was no evidence or other material to justify the making of the decisions that the first applicant committed a war crime or alternatively a serious non political crime in that the person who made the decision was required by law to reach that decision only if it was established that the first applicant's orders or actions caused the deaths of innocent civilians and there was no evidence or other material from which the person could reasonably be satisfied that the first applicant's orders or actions caused the deaths of innocent civilians."

Mr Gunst, who appeared for the respondents, submitted that that amendment ought not to be allowed with the consequence that the application should be dismissed. As the original application is deficient in the respects to which I have referred Mr Gunst relies upon the provisions of Or 20 r 2 of the Federal Court Rules, and submits that it should appear to the Court that no reasonable cause of action is disclosed.

The learning in relation to the threshold which has to be overcome in relation to an application under that order is clear. The test has been formulated in a number of authorities and there are two decisions of the High Court in which one finds its classic statements. In Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Dixon J (as he then was) said (at 91):

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle a court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

This passage was relied upon by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, where his Honour identifies the relevant principles that apply at 129 and 130. As well as referring to the judgment of Dixon J in Dey (supra) Barwick CJ identifies the test as being variously expressed: "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit of argument", "discloses a case which the Court is satisfied cannot succeed" and other formulations of a similar kind.

However Barwick CJ also pointed out that:

"I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

(See also Walton v Gardner (1993) 177 CLR 378, 393.)

The issue then which I have to consider, paraphrasing the relevant tests in the authorities to which I have referred, is whether the applicants' case is manifestly untenable and has no prospects of success. Mr Werden, who appeared for the applicants, draws attention to the fact that the Tribunal, which decided that the applicants were not persons to whom Australia had protection obligations under the Convention, made findings that the firstnamed applicant was a leader of the Liberal Party in Lebanon at the time gave orders to militia men under his command to kill Palestinian refugees who were inhabitants of the Sabra Refugee Camp and then made a finding as follows:

"His actions amount to a crime against humanity, or alternatively a 'serious non-political crime'.

He is therefore excluded from the protection afforded by the provisions of the Convention, as he is covered by exclusion clause 1F(a) or 1F(b)."

The incident or incidents which are referred to deal with incidents that occurred in relation to the Sabra Refugee Camp in which a large number of Palestinian refugees were killed. Article 1F of the Convention to which the Tribunal referred provides:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

Mr Werden submits that the Tribunal made findings of fact in respect of which there was no evidence to support such findings. He points to paragraph 34 of the decision where the Tribunal refers to evidence of the firstnamed applicant in these terms.

"He stated that after the assassination of Bashir Gemayel he gave orders for his unit to attack the inhabitants of the Sabra refugee camp. The orders were mainly to kill the leaders of the Palestinians in the camp if they could be found, but otherwise anyone could be killed. He gave the orders for people to be killed. He was present at the camp for some of the time when this was done. He has had no problems in Lebanon as a result of this, as he was not recognised."

Mr Werden submits in reliance on the affidavits before me (I do not have the transcripts of the evidence before me) that there was no evidence to support those propositions. He relied, in particular, on paragraphs 3 and 4 of the affidavit of the firstnamed applicant where he says:

"3. That at the time of the incident referred to in paragraph 34 of the Decision ... I was fighting the left, ie the Syrian Palestinian and other factions. In response to a tribunal question I gave evidence that I was a leader at the time and I was given orders by my superiors to send some 100 of members under my command to go to the Sabra Refugee Camp to attack and kill the leaders of the Palestinians.

4. I was also asked 'if they could not be found' to which I replied 'whoever answered back or whoever retaliated' or words to that effect."

Paragraph 5 of the affidavit says:

"In paragraph 34 of the decision the tribunal has found that the orders were mainly to kill the leaders of the Palestinians in the camp if they could be found but otherwise anyone could be killed. That is not what I recall saying."

Mr Werden, in his affidavit says that he can speak and understand the Arabic language which is the language in which the firstnamed applicant gave evidence at the hearing. Mr Werden says:

"I have listened to the tapes of the refugee tribunal hearing. I am able to state the instructions the firstnamed defendant has given me as to the evidence he gave to the tribunal on the particular issues raised above appears to be confirmed from the tape recordings."

The reference to the firstnamed defendant is obviously a reference to the firstnamed applicant.

Mr Werden, therefore, submits that the grounds identified in the proposed amended application come within s 476(2)(g) of the Act because in respect of the material upon which the Tribunal relies there is no evidence to support it.

Mr Gunst, who appeared for the respondents, correctly pointed out that the issue was not whether or not a war crime had been committed; that is not what the Tribunal had found. The issue was whether or not there was any evidence (although he submits the total proceeding is ill founded) that there were serious reasons for considering that the firstnamed applicant had committed a crime against humanity or a serious non-political crime. Mr Gunst submitted as a threshold question that, paraphrasing the words of s 476(4) of the Act, there is no provision of any law that required the particular matter identified by the applicants to be made out in the sense that you cannot find any provision that says: "If a particular matter is established that is the basis upon the which you must find a person is not a refugee". He submitted that Article 1F of the Convention, which provides a number of alternatives, does not fit the provisions of, or come within, s 476(4) of the Act.

Mr Gunst also submitted that in any event it cannot be said there was no evidence from which the Tribunal could reasonably be satisfied that the particular matter was established because when one looks at the evidence, to which I have already referred, there was some evidence from which the Tribunal could draw that conclusion.

The Act provides a number of provisions in Pt 8 which identify the grounds upon which a person is entitled to say "I am a refugee or I am entitled to a protection visa or I am entitled otherwise to be dealt with in a particular way". As was pointed out by Olney J, in Tho Xuan Doan v Minister for Immigration, Local Government and Ethnic Affairs and Boland, (unreported, 9 April 1997):

"The limitations imposed by section 476(4) on the application of the ground referred to in section 476(1)(g) are such that the ground will rarely, if ever, be available to an applicant who has been unsuccessful before the Tribunal. This is so because it is not possible to identify any particular matter that is required by law to be established in order to justify a decision that an applicant is not a refugee."

His Honour went on to say:

"In this case the facts as found did not satisfy the Tribunal that the applicant was a refugee. The Tribunal was not required by law to make any particular finding in order to be not so satisfied."

During the course of the argument I canvassed with counsel the question of what might be the subject matter of a successful application under s 476(4). Counsel were not immediately able to identify such a circumstance and were not able to draw to my attention any decision where a successful application had been made relying upon s 476(4) because of the fact that, as Olney J pointed out, one will most often not be able to identify a matter of law to be established to justify a finding that a person is not a refugee.

However, the respondents' motion is an application for summary dismissal, and I bear in mind the principles of law to which I have already referred in Dey (Supra) and General Steel Industries Inc (supra). Article 1F requires consideration because its opening words are:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: ..."

Article 1A of the Convention provides that in certain circumstances a person shall be considered to be a refugee. The relevant provisions of the Convention are made applicable by relevant provisions of the Act. I consider that there may be an argument available (and I form no concluded view at this time) that Article 1F provides that if there are serious reasons for considering in relation to a person the relevant matters then set out, then the Convention says that the person is not to be regarded as a refugee.

In other words if any of the circumstances contemplated by Article 1F are established the applicant is not a refugee. It seems to me that it is arguable at this stage that the operation of Article 1F, having regard to its relationship with Article 1A and the relevant provisions of the Act, is such that this may be one of the rare cases available under s 476(4)(a) to an applicant who has been unsuccessful before the Tribunal. An applicant may be able to say that the Tribunal in effect found that the provisions of Article 1F applied to the applicant but they do not apply because there was no evidence before the Tribunal to establish that there were serious reasons for considering the matters specified in Article 1F.

At this early stage, on the material before me, remembering that the motion is for summary dismissal, I am not satisfied that the argument is so hopeless or so totally untenable (and I paraphrase the tests to which I have already referred in Dey (supra) and General Steel Industries Inc (supra)) that the argument is not open as a matter of law; it may be. I think the issue requires a more comprehensive and detailed argument and in any event it is not appropriate to deal with it on a summary application under Or 20.

I must confess to being troubled by the matter, especially by the cogency of Mr Gunst's submissions. The matter which concerns me is that if Article 1F does not have this sort of operation it is very difficult to see what scope there is for any operation of s 476(4)(a). In any event, I rely upon the terms of Article 1F in the context in which it appears to reach the conclusion at this stage on this summary application that the matter is arguable and not wholly untenable. But that does not end the matter.

Mr Gunst says, accepting for the moment that the argument of law is available (although his submissions are to the contrary), s 476(4) provides that not only do the applicants have to establish that the person who made the decision was required by law to reach that decision only if a particular matter was established; he says the applicants must also establish that there was no evidence or other material from which the person could reasonably be satisfied that the matter was established.

In other words, in this case, I would have to be satisfied that there was no evidence from which the Tribunal could reasonably be satisfied that there are serious reasons for considering that the firstnamed applicant's actions amounted to the commission of a crime against humanity, or a serious non-political crime. The findings of the Tribunal in paragraph 99 are expressed in absolute terms: namely, that the firstnamed applicant's actions amounted to a crime against humanity, or alternatively, a serious non-political crime. What Article 1F provides is that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has committed the relevant crimes.

Mr Gunst then submits that when one accepts, as I must do, that the firstnamed applicant said, in response to the words "If they could not be found", that is, if the leaders of the Palestinians could not be found, the words "whoever answered back, or whoever retaliated" there is then some evidence from which the Tribunal find that the firstnamed applicant gave orders to the militia men under his command to kill Palestinian refugees. Mr Werden says that conclusion does not follow from those words and he asked, by way of example, what should someone do if they were under attack themselves.

I have a considerable amount of unease in dealing with an evidentiary matter at this stage of the proceedings on an application for summary dismissal, especially when I am told that there is a transcript of evidence in existence. Notwithstanding the fact that there is affidavit evidence before me I am most uneasy about deciding a matter seeking summary dismissal on the basis that there is evidence of particular matters without having the transcript of the relevant parts of the hearing before the Court. Mr Werden's affidavit is, on one view, somewhat qualified when he says:

"I have listened to the tapes of the refugee tribunal hearing. I am able to state the instructions the firstnamed defendant has given me as to the evidence he gave to the Tribunal on the particular issues raised above appears to be confirmed from the tape recordings."

What is referred to in this part of Mr Werden's affidavit is a recitation of what is also stated in paragraphs 3, 4 and 5 of the firstnamed applicant's affidavit. I am troubled by what the words "whoever answered back or whoever retaliated" mean, and it may be that one needs to look both further back, and further forward in the transcript, to obtain a better understanding of the context in which those words appear. Mr Gunst says that the very fact that the firstnamed applicant says "I said, whoever answered back, or whoever retaliated", was some evidence from which the Tribunal could reach the conclusion that the firstnamed applicant gave orders to kill the Palestinian refugees who were inhabitants of the Sabra refugee camp. Stated so baldly, I have a considerable amount of unease on a summary application as to whether it is appropriate to say that there was some evidence to support the Tribunal's finding from the evidence that is referred to in the affidavit.

It seems to me, therefore, at this stage, that I should allow the amendment sought, subject to the applicants deleting the name of the first respondent, and that I should, at this stage, not accede to the motion of the respondents of 16 April 1997 that the application be dismissed.

On one view it might be said that I have sufficient material before me and that nothing further will be led at the final hearing. Of that I am not sure because I think it desirable, if possible, that there be before the Court a transcript of what was exactly said so that the Court is confident that it has before it all the relevant evidence without there being a shadow of a doubt as to what was said.

I will therefore order that the applicants have leave to file the amended application for an order of review generally in accordance with the proposed document filed this day, such amended application to be filed by 4:00pm on 23 April 1997.

I will dismiss the respondents' notice of motion filed 16 April 1997.

On the question of costs the applicants have sought an indulgence by their notice of motion. Mr Werden submitted that because costs were awarded against the applicants on 18 April 1997, the respondents have obtained the costs of the inconvenience, or the default, into which the applicants may be said to have fallen. I think the position would be different if the application which is before the Court on 21 April 1997, had been propounded on 18 April 1997 and the argument had been able to proceed then. There would then have been an opportunity to save a further day's costs. I think, in all the circumstances, the hearing today has been brought about by the default of the applicants, and their inability to come to grips with the particular issue which they finally did, in respect of which I have found, for the moment, in their favour in the sense that their case as now put, should be allowed to proceed. In all the circumstances, I make no order as to costs on the respondents motion for dismissal, but I order the applicants to pay the respondents their costs of the application to amend filed 17 April 1997.

Counsel for the applicants: Mr G Werden

Solicitors for the applicants: Werdens

Counsel for the respondents: Mr C Gunst

Solicitors for the respondents: Australian Government

Solicitor

Date of Hearing: 21 April 1997

Date of Judgment: 21 April 1997

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg

Associate:

Date: 6 June 1997