Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 (1 April 2005)

Last Updated: 6 April 2005

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50

MIGRATION – Refugee Review Tribunal – jurisdictional error – failure to have regard to country information – "no evidence" for decision – ignoring relevant material – application of s 91R – satisfaction of conditions in Item 7, Part 2, Schedule 1



Migration Act 1958 (Cth) s 91R
Migration Legislation Amendment Act 2001 (Cth) Item 7, Part 2, Schedule 1

















MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND INDIGENOUS AFFAIRS v VOAO & VOAP

VID 962 of 2004

WILCOX, FRENCH and FINKELSTEIN JJ
1 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VID 962 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	VOAO & VOAP RESPONDENTS
JUDGE:	WILCOX, FRENCH and FINKELSTEIN JJ
DATE OF ORDER:	1 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents’ costs.













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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VID 962 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	VOAO & VOAP RESPONDENTS

JUDGE:	WILCOX, FRENCH and FINKELSTEIN JJ
DATE:	1 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 This appeal is brought by the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) against a decision of Walters FM, in the Federal Magistrates Court of Australia, setting aside a decision of the Refugee Review Tribunal (‘the Tribunal’) in relation to applications for the grant of protection visas to the respondents.

The issues

2 It is not necessary to set out the facts found by the Tribunal. It is sufficient to note that Walters FM held that the Tribunal’s decision was vitiated by three jurisdictional errors: making a finding for which there was no evidence, denial of procedural fairness in relation to material contained in ‘country information’ (the year 2002 edition of a report on religious freedom issues by the Bureau of Democracy, Human Rights and Labor, US Department of State (‘the Report’)) and an incorrect decision that s 91R of the Migration Act 1958 (Cth) (‘the Act’) applied to the hearing before it.

3 As counsel for the respondents pointed out in their written submissions, for the appellant Minister to succeed she would have to persuade the Court that Walters FM erred in relation, at least, to both the first two alleged jurisdictional errors. On one view, the third issue does not arise.

4 In our opinion, the magistrate was clearly correct in respect of the first alleged jurisdictional error. So it is unnecessary for us to deal with the other two issues, although we will say something about the third matter.

The ‘no evidence’ point

5 Counsel for the appellant accept that an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence. They also accept that this error will amount to jurisdictional error if the Tribunal’s decision is based on such a finding. In our opinion this is such a case, although the application of the principle is here complicated by the circumstance that the relevant finding was of a negative, rather than positive, character.

6 Fundamental to the respondents’ claim before the Tribunal was that (as the Tribunal accepted) the male respondent is Jewish. He said that if he was returned to his native Kyrghyzstan, he faced a risk of persecution on that account. He supported his claim by reference to alleged events at a government agency where he had been employed until shortly before his departure for Australia. Apparently, the male respondent was blamed for the failure of a program being undertaken by that agency. The agency had been closed down and the male respondent lost his employment. The Tribunal seems to have been prepared to accept the male respondent’s account of the events at the agency, but it was not persuaded these events were connected to the male respondent’s Jewishness, or that any action that might be taken against him in relation to his former employment would be because of his Jewish religion or any other Convention reason.

7 However, the male respondent did not limit his claimed fear of persecution to matters arising out of his former employment. He put a wider claim, that Jewish people were subject to a general threat of persecution in Kyrghyzstan. Having regard to the nature of this claim, the Tribunal not unnaturally sought authoritative information about the treatment of Jews in Kyrghyzstan.

8 At the hearing, the Tribunal referred to the 2001 edition of the Report. After the hearing, and without informing the respondents that it had done so, the Tribunal obtained a copy of the 2002 edition of the Report. The Tribunal obviously regarded this document as important; a quotation from it occupies four of the ten pages of the Tribunal’s reasons for decision. The report was at the heart of the Tribunal’s reasoning process.

9 In that section of its reasons headed ‘Findings and Reasons’, the Tribunal briefly recounted the male respondent’s travel and passport details and then dealt with his claimed fear of persecution on account of his religion. The Tribunal said:

‘The Tribunal notes the country information above and remarks on the absence of any mention of either an event or an attitude that would support the applicant’s claim that he was and would be persecuted as a Jew in Kyrghyzstan. The country information submitted by the applicant with the 1 May 1999 submission only points to some resentment and there is no evidence of persecution against Jews in Kyrghyzstan. The Tribunal does not accept his claim that an inquiry by his mother would have produced the effect he claims; the claim that her mother’s search for her sister or relatives either in Russia or the Ukraine would firstly be of such import that the applicant’s place of work be appraised of this fact and that, further, the conclusion would be drawn that her children would be forced to change religion, is not only far fetched but is also illogical, given that the applicant has not claimed of being anything other than of the Jewish religion. The Tribunal is unable to discern what the mooted conversion amounts to. In addition, the applicant has implied that he left the country in fear of his religious persecution but, according to him, his "Jewishness" was only relevant "a couple of months" before his departure for Australia when his mother made the enquiries; the applicant had already visited the Australian Consulate in Alma Ata, as he stated, on 2 February 1997, that is, before his mother’s inquiries.

The applicant has claimed that the enmity against him and in particular his being blamed for the ‘failure’ of the privatisation program was because of his Jewish faith. However, by his own account, the problems with the privatisation program, real or imagined, have been ascribed to a number of people who used to work with him as well as him. This is not an indication that he was individually targeted, let alone for his being a Jew.

The Tribunal finds that the applicant does not face a real chance of persecution for the Convention reason of religion, should he return to Kyrghyzstan.’

10 The respondents draw attention to the opening sentence in this passage, in which the Tribunal referred to ‘the absence of any mention of either an event or an attitude that would support the [male respondent’s] claim that he was and would be persecuted as a Jew in Kyrghyzstan’. They say this statement, although accurate in relation to the 2001 edition of the Report was simply wrong, as applied to the 2002 edition. That edition, although generally reassuring about the treatment of Jews in Kyrghyzstan, contains the following statement:

‘In March 2002, members of the country’s Jewish Cultural Society reported that they had heard calls for violence against Jews issued in Russian and Kyrgyz from a loudspeaker at a mosque in central Bishkek. According to the Israeli Embassy in Almaty, the Government is investigating.’

11 It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation. In finding an absence of any mention of an event that would support the male respondent’s claim, the Tribunal ignored this statement. Whether or not the reported event occurred, the cited passage was certainly a mention of an event that, if it happened, was supportive of the male respondent’s claimed fear of persecution on account of his Jewishness. Moreover, if it happened, it was indicative of an attitude that would support that claim.

12 The passage set out in para 10 above did not appear in the 2001 edition of the Report. This may explain why the Tribunal member failed to have regard to it when preparing his reasons for decision. Whatever the reason for the omission, it was incorrect for the Tribunal to make the statement that it did.

13 The situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than ‘no evidence’. However, the label does not matter. On any view of the matter, the Tribunal fell into jurisdictional error. That means that Walters FM was correct in granting prerogative relief.

The application of s 91R of the Act

14 The issue as to whether s 91R of the Act applied to the Tribunal’s hearing of this case depended on the proper interpretation of Item 7 of Part 2 of Schedule 1 of the Migration Legislation Amendment Act 2001 (Cth). This Act introduced a new Subdivision AL into Division 3 of Part 2 of the Act. The new s 91R is contained in that Subdivision.

15 Item 7 is in the following terms:

‘Subdivision AL of Division 3 of Part 2 of the Migration Act 1958 (other than section 91X) applies in relation to:

(a) an application for a protection visa made after the commencement of this item; and
(b) an application for a protection visa made before the commencement of this item, where the visa was neither granted, nor refused, before the commencement of this item; and
(c) an application for a protection visa made before the commencement of this item, where:

(i) a decision to refuse to grant the visa was made before that commencement; and
(ii) an application for review of that decision is or was made to the Refugee Review Tribunal or the Administrative Appeals Tribunal (whether before, at or after that commencement); and
(iii) the Refugee Review Tribunal or the Administrative Appeals Tribunal made a decision on that review after that commencement.’

16 Walters FM noted that it was not in dispute that Item 7 commenced in October 2001 or that the applicants had applied for a protection visa in August 1998. Their application for review by the Tribunal was made on 9 October 1998. Accordingly, subparas (i) and (ii) of para (c) of Item 7 were clearly satisfied in relation to the decision to be made by the Tribunal in this case. The question was whether item (iii) was satisfied. Walters FM held it was not. His Honour said, at paras 71-79:

‘Mr Farouque argued that Item 7(c)(iii) cannot be satisfied because the paragraph requires that a decision be "made" after the commencement of Item 7 (in other words, after October 2001). He referred to the Concise Oxford Dictionary, and to the definition of "made" as the past and past participle of "make".

Mr Farouque pointed out that neither the RRT nor the Administrative Appeals Tribunal had made a previous decision on the applicant’s application for review at the time of the decision of the RRT in March 2003. He argued that the decision referred to in Item 7(c)(iii) cannot be a decision made by the RRT in March 2003. Item 7(c)(iii) requires a pre existing decision. The very fact that the RRT makes a decision cannot -- for that reason alone -- cause Item 7(c)(iii) to be triggered (as it were). Mr Farouque argued that such an interpretation would be illogical, as it would mean that a decision made by the RRT would "enliven the application of different law for that very decision".

Ms Moore argued that Mr Farouque’s submission was itself illogical, because it would mean that Item 7(c) would only apply to matters that had been remitted back to the RRT after judicial review. That is the only way that a "previous decision" can be made.

Ms Moore also argued that acceptance of Mr Farouque’s submission would result in an unacceptable "hiatus" effect in relation to the operation of Item 7 (and, therefore, in the application of section 91R). She described the "hiatus" as follows:

Section 91R would apply to a visa application made after 1 October 2001 (Item 7(a)). It would also apply to a visa application made before 1 October 2001, but for which there had been no decision to refuse or grant it before 1 October 2001 (Item 7(b)). Yet it would not apply to the only other possible variation of dates -- namely, a visa application made before 1 October 2001 for which there had been a decision to refuse or grant it before 1 October 2001, an application for review made (before or after 1 October 2001) and an RRT decision after 1 October 2001.

It is not usual for legislation to apply retrospectively. If it is Parliament’s intention that legislation should have retrospective effect, then there can be no doubt that Parliament should say so clearly.

An examination of Item 7 reveals a variety of tenses and expressions. The word "made" appears in Item 7(a) and (b). It also appears in the preamble to Item 7(c). The expression "was made" appears in Item 7(c)(i), and the expression "is or was made" appears in Item 7(c)(ii). Item 7(c)(i) and (ii) are both in the passive form. In Item 7(a) and (b), and in the preamble to Item 7(c), the word "made" is adjectival.

Item 7(c)(iii), including the word "made", is in active form. In my opinion, its meaning is clear. For the relevant subdivision (incorporating section 91R) to apply in relation to an application for a protection visa made prior to the commencement of item 7, the RRT must have already made a decision on any relevant review after the commencement date. Whether or not a perceived hiatus exists is not to the point. The variety of tenses and expressions used in item 7 reveals that the draftsman clearly intended that the various words used should be given their usual meaning. Why else would one form of words be used in one provision and not in another? Item 7(c)(iii) could have been drafted to read:

(a)	A decision on that review is or was made by the Refugee Review Tribunal or the Administrative Appeals Tribunal after that commencement (see item 7(c)(ii)); or
(b)	the Refugee Review Tribunal or the Administrative Appeals Tribunal makes a decision on that review after that commencement.

In each of the above examples, it could be argued that the RRT is obliged to give effect to the relevant subdivision (including 91R) at the time that it considers its decision. But that is not the case when regard is had to the manner in which item 7(c)(iii) has been drafted.

I agree with Mr Farouque’s submission that, in the present case, the decision referred to in item 7(c)(iii) cannot constitute a reference to the decision of the RRT on 4 March 2003.’ (Original emphasis)

17 Regardless of the correctness of Walters FM’s view about this issue, it is clear (and common ground) that item (iii) will be satisfied in respect of the decision to be made at the future Tribunal hearing that will flow from the orders made by Walters FM. As between the parties, the point is moot. However, counsel for the appellant pressed us to deal with the point, on the basis that it might be important in other cases.

18 Having regard to the time that has now elapsed since the commencement of Subdivision AL, we suspect there will be few cases in which this point will arise. However, we intimate, without going into the issue at any length, that we respectfully disagree with the view expressed by Walters FM. There is no apparent reason why Parliament would have wished to confine the operation of item (iii) to cases where the Tribunal is carrying out a second, or subsequent, hearing of a particular application for review, as distinct from a first hearing of that application. It is difficult to see any rational basis for such a distinction. We think it likely that the word ‘made’ was used in the sense of ‘makes’; that is, it was intended to cover both first and subsequent Tribunal decisions.

19 The appeal should be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of Court.

Associate:

Dated: 1 April 2005

Counsel for the Applicant:	Mr C Horan
Solicitor for the Applicant:	Blake Dawson Waldron
Counsel for the Respondent:	Ms D Mortimer SC Mr C Dowling
Date of Hearing:	18 February 2005
Date of Judgment:	1 April 2005