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CZAV v Minister for Immigration & Anor [2010] FMCA 20 (29 January 2010)

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CZAV v Minister for Immigration & Anor [2010] FMCA 20 (29 January 2010)

Last Updated: 1 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CZAV v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Protection visa – Refugee Review Tribunal – Application for review of decision affirming delegates refusal to grant protection visa – citizen of Togo – arrived in Australia on ‘visitor visa’ – on-shore application for protection visa – fear of persecution due to involvement in student or opposition politics – fear of being mistaken for activist identical twin brother – identical twin brother recognised as refugee in Hong Kong – well founded fear of persecution not made out – costs – application dismissed.


International Covenant on Civil and Political Rights 1966
Convention Relating to the Status of Refugees 1951 Art 1A(2)
Protocol Relating to the Status of Refugees 1967

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Ejueyitsi v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 328; (2006) 151 FCR 289
Kerr v American Express Australia Limited [2009] FCA 1219
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration& Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Applicant:
CZAV

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
CAG 25 of 2009

Judgment of:
Neville FM

Hearing date:
13 October 2009

Date of Last Submission:
23 October 2009

Delivered at:
Canberra

Delivered on:
29 January 2010

REPRESENTATION

Advocate for the Applicant:
Mr Ford

Solicitor for the first and second Respondent:
Mr Etuati

ORDERS

(1) That the Application be dismissed.
(2) That the Applicant pay the costs of the first and second Respondent.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 25 of 2009

CZAV

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

A. Introduction

  1. The Applicant, Mr. Davies,[1] is a citizen of the African country of Togo.
  2. He lodged an application with this Court on 15th June 2009. That application did not set out formally any final orders sought. It did, however, set out a ground of review in the following terms: “I ask Federal Court to review the decision of Refugee Review Tribunal.”
  3. Mr. Davies also sought an extension of time for judicial review and to prepare his application. As things have transpired, for reasons set out below, I do not need to deal with any extension of time issue.
  4. Mr. Davies’s affidavit (also filed on 15th June) in support of his application simply and solely stated: “I ask Federal Magistrates Court to review the decision of Refugee Review Tribunal.”
  5. On 12th October 2009, an Amended Application was filed. The orders there sought were:
  6. The grounds upon which those orders were sought were:
  7. There was no further or supplementary affidavit filed in support of the amended application.

B. `Mackenzie Friend’

  1. At the hearing, Mr. Davies was “represented” by Mr. H. Ford. I understand that Mr. Ford is legally qualified but not yet admitted to practice. I also understand that he is a migration agent and has acted in that capacity for a number of years. I gave Mr. Ford leave to appear on Mr. Davies’s behalf for the purposes of the hearing before me.[3]
  2. I also gave Mr Ford leave to file written submissions on behalf of Mr Davies. I will come to them in a little detail in due course. It may be observed generally, however, that although they were helpful to Mr Davies’s application and to the Court in a number of respects, a not insignificant part of them were nonetheless overtly political in orientation, particularly the unqualified attacks on the Refugee Review Tribunal and its procedures as perceived by Mr Ford.[4] Certainly in this regard, the submissions were less than helpful given the nature of the proceedings before this Court and the judicial authority possessed and responsibility exercised by me.
  3. In respect of the `political’ and procedural attacks on the Tribunal, I simply note – but need make no further comment - that similar or related matters have been raised in earlier cases, and before Courts of much higher authority than this one. For example, in Minister for Immigration & Ethnic Affairs v Guo, Kirby J said:[5]

C. Background & Procedural History

  1. The Applicant arrived in Australia on 10th July 2008, travelling on a Togolese passport. At that time he held a ‘visitor visa.’
  2. On 31st October 2008, the Department of Immigration and Citizenship (“the Department”) notified the Applicant that his application for a Protection Visa, which had been lodged on 4th August 2008, had been denied.
  3. The Decision Record in relation to that determination was before the Court in the Court Book provided by the Department (pp. 56-66). The Delegate who made the decision was Mr. D. McIntyre.
  4. Summarily stated, the Applicant’s contentions to the Delegate were as follows.
  5. The Applicant claimed that he left Togo “because of the student movement which happened at our university.”[6] Mr. Davies claimed that his twin brother was accused of being an organiser of this movement, that his brother was (and seemingly still is) a member of the opposition party (Union of Forces for Change: “UFC”), that his brother had participated in a student demonstration in 2004, and that his brother was the author of a newspaper story that was critical of the Togolese government. Mr. Davies claimed that his brother has since fled Togo and been granted refugee status in Hong Kong. In his protection visa application, Mr Davies also said that his brother has since moved to Canada “with Canadian approval.”
  6. Mr. Davies claimed that (a) he too had been involved in the student movement, albeit at a level of involvement much lower than his brother, and (b) he feared that the military authorities in Togo would likely mistake him for his activist, identical twin brother.
  7. After summarising Mr. Davies’s claims for protection and listing specific material that was before him, the Delegate then considered the operation of s.36 of the Migration Act 1958 (“the Act”) in relation to the facts and the application for a protection visa by Mr. Davies.
  8. The Delegate’s findings are set out in paragraph 7 of the Decision Record.[7]
  9. Relevant country information regarding Togo from the US State Department, published in March 2008, and from the UN News Centre and UNHCR, was also set out in the Decision Record.[8] I deal with “country information” below.
  10. Delegate’s Decision: The following may be observed from the Delegate’s Decision Record:
  11. The Delegate’s `formal reasons’ are set out in the Court Book provided.[10] I need not consider them in detail. It is sufficient to note the following from the `reasons.’
  12. First, the Delegate doubted whether Mr Davies was actively involved in student or opposition politics. He found that he may have been involved in pamphlet distribution in 2004, and noted that Mr Davies seemed unsure that he was even still a member of the UFC.
  13. Secondly, the main focus of the Delegate’s decision related to Mr Davies’s concern about being mistaken for his activist brother. In this regard, the Delegate noted that those who were involved in student protests in 2004 were pardoned, also in 2004, by the President of Togo.
  14. The Delegate also made certain findings that might generally be described as going – adversely – to the credit of Mr Davies’s testimony. The findings were predicated upon inconsistent and or implausible claims by Mr Davies. The issue of “credit” featured more prominently in the proceedings before the Refugee Review Tribunal (“the Tribunal” or “the RRT”). I will discuss such matters when I consider the decision of the Tribunal later in these reasons.
  15. In the light of the pardons granted to those who were actively involved, and more actively involved in student/opposition politics than Mr Davies, and that these pardons occurred in 2004, the Delegate had great difficulty in seeing that Mr Davies could reasonably satisfy the Refugee Convention[11] requirement that he had a `well founded fear of persecution on return to Togo.’

D. Appeal to the RRT

  1. The Applicant lodged an Application with the RRT on 20th November 2008. At that time, his Application was being handled on his behalf by Mr Steele, a migration agent. Mr Steele was notified in December 2008 of the Application having been lodged.
  2. On 21st January 2009, Mr Steele advised the RRT that he had not received notice of Mr Davies’s hearing that was scheduled for 22nd January 2009 at 9.30am in Canberra. Arrangements had been made to conduct the hearing by video conference with the Member (of the RRT) being in Sydney and Mr Davies being in Canberra.[12]
  3. On 30th January 2009, Mr Steele confirmed to the RRT that he was no longer `acting’ for Mr Davies, and that “Clare” from Companion House was now acting on his behalf.[13]
  4. A further notice was sent to Mr Davies on 4th February 2009 according to which he was advised that the Tribunal had granted him an extension of time within which to provide further material concerning his Application. The time by which that material was required was 13th March 2009.
  5. On 6th February 2009, the RRT was notified that Ms Clare O’Rourke of Companion House was now an authorised representative to receive relevant information on behalf of Mr Davies.
  6. Among other materials provided to the RRT were two documents from the UNHCR in Hong Kong. The second of them (noted below) confirmed that Mr Davies’s brother was recognised as a refugee and that he was granted protection in Hong Kong “pending a durable solution.” The first document provided to the RRT is dated 26th August 2005; the date on the second document is illegible. Both documents were provided to the Court.[14]
  7. Also before the Court were reports, in 2007 and 2008, from Amnesty International and notably a disturbing one from Mr Nowak, who provided a Report as the UN Special Rapporteur “on torture and other cruel, inhuman and degrading treatment or punishment [on] a mission to Togo.” These materials contain concerning reports of detention, corporal punishment, beatings to extract confessions, torture and shooting.[15]
  8. Such reports are alarming. However, particularly in the light of the material that was before the Delegate from UNHCR (among others) to which I have previously referred, it is unclear either how wide-spread any of the matters referred to are, or the exact context and circumstances of them. Such comments should not detract from how troubling the reports are.
  9. Mr Davies sent to the Tribunal by facsimile on 6th March 2009 a letter which confirmed that he had contacted his twin brother to ask him to obtain his brother’s record of interview, and related documents, which confirm his recognition by the UNHCR as a refugee in Hong Kong. Mr Davies also requested the Tribunal to with-hold making any decision until he had provided it with his brother’s material from Hong Kong and until he (the Applicant) had appeared before it.
  10. By statutory declaration dated 13th March 2009, Mr Davies confirmed that his former migration agent had not informed him of the original hearing date before the RRT, which had been scheduled for 22nd January 2009.[16]
  11. Ms O’Rourke provided to the RRT a copy of the US State Department 2008 Human Rights Report for Togo.[17] That Report is dated 27th February 2009. It details the situation in relation to, among other things, arbitrary or unlawful deprivation of life, disappearance, arbitrary arrest or detention, arrest and detention, freedom of speech and the press, freedom of assembly and association, and government corruption and transparency.
  12. By letter dated 16th April 2009 Mr Davies was invited to appear before the RRT. He was notified that the hearing was to take place on 14th May 2009, and that it would be conducted by video conference.[18] In fact, Ms O’Rourke advised the Tribunal that Mr Davies would attend the hearing in person in Sydney.
  13. Mr Davies provided to the Tribunal a statutory Declaration, dated 11th May 2009, in support of his Application.[19] In it he set out his family history and background, his involvement in politics and the student movement in Togo with his identical twin brother (who bears an almost identical name to Mr Davies), the three occasions (twice in 2004 and once in 2006) that the military came looking for him. On each occasion he escaped.
  14. In that same Declaration, Mr Davies described his departure from Togo to Ghana where he resided, he said, for four years. He also described (at par.23 of the Declaration) the somewhat unusual circumstances surrounding his application for a protection visa in July 2008.
  15. By letter to the Presiding Member of the RRT, dated 11th May 2009, Mr Davies provided or referred to parts of the US State Department Report for 2008 in relation to Togo. This Report appears to be different to the US State Department Report, dated 25th February 2009.[20] In any event, Mr Davies accented the US State Department’s concerns in relation to “serious human rights problems.” He also referred to a number of reports of possible unrest in Togo leading up to and surrounding the Presidential election in 2010.[21]
  16. By letter dated 15th May 2009, the RRT notified Mr Davies of the decision to refuse to grant him a Protection (Class XA) Visa.
  17. The next section of these reasons deals with the formal challenges to the RRT’s decision, which upheld the decision of the Delegate not to grant Mr Davies a visa. As recorded by the RRT, the Delegate “refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees [sic] Convention.”[22]

E. Challenge to RRT’s Decision

  1. For ease of reference I set out again the grounds upon which the RRT’s decision was challenged in this Court. The grounds in Mr Davies’s Amended Application were:
  2. The scope within which an intermediate Court, such as this one, can exercise its review functions is defined both by statute and by a large and always growing body of jurisprudence emanating from the High Court and the Federal Court.
  3. This is also to state the obvious and unchallenged principle that in applications of the kind currently before me this Court cannot undertake a review of the merits of the decision by either the Delegate or by the RRT. Nor can this Court, as it were, merely substitute its own decision for that of the administrative body entrusted to make the decision. There is abundant authority for these statements of principle.[23]
  4. Nor can a Court such as this one trespass beyond the parameters of judicial review, in effect, as advocated by Mr Ford, into re-defining, for example, the administrative procedures which should or should not be adopted by the RRT, or in prescribing (contrary to statute and prevailing jurisprudence) that a presumption of refugee status should operate in favour of any applicant. All such matters are the preserve of the legislature in a democracy such as Australia. Moreover, even if I undertook such an adventurous course, with a very high level of certainty one could predict that the decision would be challenged in the Federal Court. In my view, there would be a high level of probability of such a challenge succeeding.
  5. Given the nature and scope of Mr Ford’s submissions, it is apt to quote Kirby J’s straight-forward comments in Guo: “The Judicial Branch authoritatively clarifies and declares the law as it applies to the facts found. The Executive Branch, by power vested in it by the Legislature, performs its functions according to the law as so clarified and declared. Neither branch usurps or intrudes upon the functions proper to the other.”[24]
  6. I mention these things at the outset because Mr Ford advocated very forcefully on behalf of Mr Davies that this Court should embark upon a number of courses of action which had the twofold object (at least) of (a) seeking to curtail what he sees as on-going flaws in the processes of the RRT, and (b) ensuring that Mr Davies secured the protection visa which he seeks. In relation to the latter I have no doubt about the earnest desire of Mr Davies to seek refugee status and that he seeks to live in the safety and relative tranquillity of Australia. In this regard, he comes readily into the understandable category of persons of whom Gummow and Hayne JJ spoke in Abebe. In that case, their Honours said:[25]
  7. A brief overview of the RRT’s decision is important in order to consider properly the grounds of challenge.
  8. First, the RRT considered the operation of ss.65(1) and 36(2)(a) of the Migration Act. Section 36 relates to protection visas and the protection obligations of Australia: in particular, whether the “non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion....”
  9. Section 65 relates to the actual `decision to grant or refuse to grant a visa.’ The substantive part of this section requires the Minister to be satisfied of various criteria, and if not `so satisfied, is to refuse to grant the visa.’[26]
  10. Secondly, the RRT set out the definition of “refugee” in Article 1A(2) of the Convention. The RRT also referred to a clearly non-exhaustive list of High Court authorities, which have considered the definition of “refugee” in the Convention.
  11. Thirdly, in pars.12-18 of its decision, the RRT set out the essential elements as to what constitutes a “refugee” for the purposes of the Convention. In my view, the RRT did so in unexceptional terms. As well, and because of the nature and content of Mr Davies’s application, the RRT referred in some detail to s.91R of the Migration Act, which relates to what constitutes “persecution” under the Convention and under the Act.
  12. Fourthly, the RRT set out the attempts to contact him in relation to the first hearing, and, upon learning of the relative lack of assistance provided by his first migration agent, scheduled a further hearing for Mr Davies.
  13. Fifthly, the RRT recorded Mr Davies’s claims in relation to his brother’s activities in Togo in 2004, as well as his own experiences. In particular, the RRT inquired of Mr Davies why the authorities would be likely to be interested in him more than five years after the relatively few events that involved his brother.
  14. Sixthly, the RRT also recorded, quite briefly, the large number of refugees who had left Togo following the presidential elections in 2005. These refugees had fled to Ghana and Benin. The RRT recorded, at [31], that during 2007-2008, the return program had resulted in there being only approximately 5000 refugees now in exile. As well, the UNHCR had advised of there being a monitoring program in place in relation to human rights abuses involving returning refugees. The RRT recorded that to date “no incidents involving a returnee had been reported.”
  15. In terms of “findings”, the following may be noted: in the absence of “convincing corroboration of this claim”, it found that there was no satisfactory answer provided to the question (noted above) as to why the Togolese authorities would or should be “interested” in Mr Davies now more than five years after events that essentially or primarily involved his brother rather than being directly involved himself in those events.
  16. This led to the RRT finding, at [36] – [38] of its Record, that while there is a degree of instability in Togo that could reasonably give rise to Mr Davies’s understandable apprehension,[27] the facts of the case as presented did not satisfy the Convention and legislative requirement of there being a “real risk of harm amounting to persecution.” The RRT found that Mr Davies’s level of involvement with the main opposition party to have been “at a low level.”
  17. The RRT found that Mr Davies’s concerns, which were predicated upon his identical twin brother’s involvement in opposition and or student politics in 2004, to be “far fetched.”
  18. In the light of the above findings, the RRT found (at [40]) that Mr Davies did not have a “well founded fear of persecution in Togo.” I turn to the specific grounds of challenge to the RRT’s decision.
  19. Impermissible Burden of Proof: There is a significant range of authority that prescribes (and proscribes) the approach which this Court must adopt in relation to appeals such as the one currently before me. In particular, I am guided by the remarks of the High Court in Chan,[28] and especially by the systematic approach of Kirby J in Wu Shan Liang.[29] In particular, contrary to Mr Ford’s submission, to which I have previously referred, even in circumstances where there is demonstrable legal error on the part of the Tribunal, according to Kirby J: “Refugee status is not automatically granted.”[30]
  20. It seems to me to follow, axiomatically, that if refugee status does not automatically follow where legal error is established on the part of the Tribunal, it clearly also cannot be the starting point for either the Delegate or the Tribunal that a person is or should be considered (or presumed) to be a refugee and that the hearing before the Delegate and the Tribunal should proceed on that presumption. As well, such a starting point is contrary to both the Convention and the Act.
  21. The legislative fact is that the Delegate must be satisfied of the criteria prescribed under the Convention and the Act in relation to the status of the applicant and whether he or she, in this case, Mr Davies, has satisfied the criteria that would entitle them to claim status as a refugee.
  22. Mr Ford referred me to the decision of Weinberg J in Ejueyitsi v Minister for Immigration & Multicultural & Indigenous Affairs,[31] in relation to “burden of proof.” As helpful and important as that case is, it is plainly distinguishable from the case before me. The challenge before Weinberg J was that of “merits review.” The case before me is for judicial review. And in any event, it was not a mere semantic argument before Weinberg J where, at [91] of the judgment, his Honour referred to the error of a decision-maker to require that there be discharged a “persuasive burden of proof.”
  23. I find the approach of the Tribunal in this case to be in conformity with the principles set out in the High Court authorities to which I referred earlier in this judgment. This is also to say that the question was, and is, not one of where any burden of proof – persuasive or otherwise – lay. Rather, in conformity with the authorities mentioned, the apposite question was/is whether the Delegate, and subsequently the Tribunal, was satisfied that the requirements of the Convention, and the Act, in relation to a `well founded fear of persecution’ were met. The Delegate found that they were not satisfied; the Tribunal found that there was no error in the findings of fact and the application of principle by the Delegate.
  24. In my view, the observations of Gleeson CJ in Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002,[32] are more apposite to the facts and circumstances of this case than those of Weinberg J in Ejueyitsi
  25. At [3] of S20/2002, the Chief Justice said: “By reason of ss 65 and 415 of the Act, if the Tribunal was not satisfied that the relevant statutory criterion for a protection visa was satisfied, the Tribunal was bound to affirm the delegate's decision.”
  26. A little later in the same judgment, Gleeson CJ said, at [6]:
  27. In my view, what the Chief Justice described is what took place in this case. I accept the Respondent’s submission that the criterion prescribed in s.36(2)(a) of the Act had not been satisfied. The first ground of challenge to the Tribunal’s decision must fail.
  28. Relevant/Irrelevant Considerations: This second ground of challenge to the Tribunal’s decision relates, to a significant degree, to Mr Davies not accepting the findings in relation to his credibility. In this regard, the observations of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham are important. In particular, McHugh J said, at [67]:[33]
  29. The comments of his Honour apply to the findings of both the Delegate and the Tribunal here. It is not within the ambit of this Court’s authority to disturb them and to substitute its own view regarding the facts. The Tribunal made findings regarding credibility in relation to Mr Davies. As the comments by McHugh J make plain, such a finding is/was for the primary decision-maker. That is, it is not for this Court to interfere with them in the absence of a legal reason to do so.
  30. But, as the submissions on behalf of the Minister make plain,[34] it was not on the basis of credibility that the Tribunal rejected the challenge to the Delegate’s decision. It was because the Tribunal was not satisfied that Mr Davies had a well-founded fear of persecution in accordance with the Convention’s, and the Act’s, requirements.
  31. The Tribunal’s decision was also challenged on the grounds of it having taken into account irrelevant considerations and or not taking into account relevant considerations. Among other things, Mr Ford contended that it was inherently impossible for Mr Davies, and by implication almost all applicants who seek refugee status, to be able to furnish the Delegate and or the Tribunal with sufficient evidence to establish the status sought. This is to say that it is inherently implausible that almost all regimes from which a person seeks refuge will readily provide evidence of persecution. In part, this same argument underpinned his advocacy that there be, in effect, a presumption in favour of refugee status, which would then have to be rebutted by the Minister.
  32. But in these respects, the submission(s) is ill-founded. Again, as the Respondent’s written submissions point out, Mr Davies has not identified any consideration under the Act [or the Convention] which the Tribunal wrongly took into account, or wrongly omitted to take into account. Accordingly, the challenge on this ground also must fail.
  33. Fair Conduct of the Hearing: This third ground of challenge seems predicated upon an assertion (a) regarding the conduct of hearings generally before the Tribunal (i.e that they are akin to the Spanish Inquisition), and (b) regarding the conduct of Mr Davies’s hearing in particular.
  34. The nature and conduct of Tribunal hearings is clearly set out in the High Court authorities to which I have referred. They are not curial proceedings; they are administrative and they are inquisitorial. Under s.353 of the Act, they are to be conducted `fairly, justly, economically, informally and quickly.’ It is sufficient to note that there is no evidence before this Court of the proceedings before the Tribunal (e.g. the transcript). In the absence of any such evidence, any submission in relation to Mr Davies’s hearing can and must be treated as assertion only.
  35. In Abebe v Commonwealth of Australia,[35] at [187], Gummow and Hayne JJ described the function of the Tribunal in the following way: "The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out."
  36. Their Honours’ comments effectively deal with the challenges by Mr Davies in relation to both “burden of proof” as well as (perhaps somewhat more obliquely) in relation to the requirement of the Tribunal to conduct the hearing before it fairly.
  37. Moreover, very recently, the High Court has stated again the inquisitorial nature of proceedings before the Tribunal. The Court went on to say that this inquisitorial function “... does not ... impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.”[36]
  38. And, should it need to be said, there is no warrant for this Court to comment generally on the way in which the Tribunal conducts its affairs generally or hearings in particular matters. The Court can decide and comment only on issues that are specifically brought before it. This Court is not a forum for political advocacy through which the Act and its operation are sought to be changed.
  39. The third ground of challenge must also fail.

F. Conclusion.

  1. Two final matters should be stated. First, almost en passant, Mr Ford indicated that the Dean of Melbourne University Law School had suggested that, as a matter of international law, courts should proceed on the basis that a person is presumed to be a refugee until the contrary is established. For understandable reasons, it is not appropriate to comment on such a proposition/assertion.
  2. Secondly, in addition to what has already been said, two final comments from the High Court, in my view, highlight two large hurdles that stand imposingly in the way of Mr Davies’s challenge to the Tribunal’s decision succeeding. The first comment, which in many ways describes the basis of, if not the submissions themselves, which were made on behalf of Mr Davies, was in Minister for Immigration and Multicultural Affairs v Eshetu, where Gleeson CJ and McHugh J said:[37]
  3. The second comment notes, again, the problem for Mr Davies, in effect, seeking to have this Court review the merits of the decision of the Tribunal. As Brennan J said in Waterford v Commonwealth “even if there were incorrect findings, or conclusions of fact, that, of itself, would not amount to an error of law.”[38]
  4. For the above reasons, in my view, there are no legal bases upon which this Court can or should intervene in the decision of the Tribunal. Accordingly, the appeal must be dismissed with costs.

I certify that the preceding 85Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !eighty-fiveeighty-five (85) paragraphs are a true copy of the reasons for judgment of Neville FM


Associate: D-R Gale


Date: 29 January 2010

[1] S.91X of the Migration Act 1958 proscribes the publication of the name of an applicant for a protection visa. In order to ensure that there is no breach of s.91X, it is customary in proceedings involving refugees to assign an assemblage of letters as his or her `legal identity’, so to speak. In my view, such a course has the potential – doubtless unintended - to de-personalise, if not to de-humanise the person or persons involved. It might also be said to risk (however remote) failing to honour the applicant’s inherent and inalienable dignity as a member of the human family as required under standard international instruments to which Australia is a signatory: see, for example, the preamble to the International Covenant on Civil and Political Rights 1966. For the purposes of these reasons, therefore, as a mark of respect for a person who has sought the protection of the legal system of this country, I have taken the liberty of assigning to the Applicant a specific but non-identifying name rather than a disembodying assemblage of letters.
[2] In Mr Ford’s Written Submissions on behalf of Mr Davies (I deal with Mr Ford’s `position’ shortly), filed on 12th October, he gave `notice of amendments’ in relation to “grounds of application” in the following terms: “That the Refugee Review Tribunal unlawfully imposed on the Applicant an impermissible burden of proof; that the Refugee Review Tribunal made a number of jurisdictional errors of law by taking into account a number of irrelevant considerations and failing to take into account a number of relevant considerations; that the Refugee Review Tribunal made a jurisdictional error by failing to conduct its hearing in a fair manner.”
[3] For a recent consideration of the circumstances and principles that apply to a court exercising its discretion to allow a person to appear as a “Mackenzie friend”, see the judgement of Collier J in Kerr v American Express Australia Limited [2009] FCA 1219.
[4] See for example pars.31, 33, & 38 of Mr Ford’s Submissions, filed 12th October 2009.
[5] (1997) 191 CLR 559 at p.590, internal citations omitted.
[6] See Court Bk. p 7: Department of Immigration and Citizenship, Form C, Application for Protection (Class XA) visa, 4 August 2008.
[7] See Court Bk. pp.58-60.
[8] Court Bk. pp.60-63.
[9] Each of these matters is set out in some detail in the Court Bk. at pp.60-63.
[10] See Court Bk. pp.63-66.
[11] That is, the Convention Relating to the Status of Refugees 1951, now read with the Protocol Relating to the Status of Refugees 1967 (“the Convention”).
[12] It would appear that Mr Davies’s sister had a decision reviewed by the RRT on 22nd January 2009. See Case Note 2918250 of 23rd January 2009: Court Bk. p.86. The same Case Note also records details regarding Mr Steele being unwell, but that he would nonetheless contact Mr Davies.
[13] See Case Note 2931937: Court Bk. p.87.
[14] See Court Bk. at pp.107 & 108.
[15] See Court Bk. pp.111-121. Mr Nowak’s Report is at Court Bk. pp.119-121.
[16] The Statutory Declaration is at Court Bk. pp.149-152.
[17] See Court Bk. pp.154-161.
[18] Nowhere in the proceedings was there an issue in relation to the proceedings being conducted via video conference. In this regard, see s.429A of the Migration Act.
[19] The Statutory Declaration is at Court Bk. pp.200-207.
[20] See Court Bk. pp.154-161.
[21] The letter of 11th May is at Court Bk. pp.218-221.
[22] Par.3 of the Decision Record of the RRT. The Decision Record of the RRT is at Court Bk. pp.226-233.
[23] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at p.40 (Mason J); Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J); Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at pp. 341 (Mason CJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at pp.271-271 (Brennan CJ, Toohey, McHugh & Gummow JJ) and at pp.291-293 (Kirby J); Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at pp. 344 [63] (McHugh, Gummow and Hayne JJ).
[24] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at p.600 (internal citations omitted).
[25] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 pp.577-578 [191]. Part of these same observations were repeated by Kirby J in Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at p.31 [73].
[26] The RRT also referred to the further criteria for the grant of a protection visa set out in Part 866 of Schedule 2 to the Migration Regulations 1994.
[27] The RRT said, at [36] that “... a generally insecure situation in the country was not enough.”
[28] See, for example, the comments of Gaudron J in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at p.413. This passage was cited with approval in the joint judgment of Brennan CJ, Toohey, McHugh & Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at p.281.
[29] [1996] HCA 6; (1996) 185 CLR 259 at pp.291-293.
[30] [1996] HCA 6; (1996) 185 CLR 259 at p.292 (point 6).
[31] (2006) 151 FCR 289.
[32] (2003) 198 ALR 59.
[33] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
[34] Written Submissions, filed 23rd October 2009, pars.13 & 14.
[35] (1999) 197 CLR 510.
[36] See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ). See the further discussion by the High Court in the same case of the distinction between a duty to inquire and the responsibility of the Tribunal to review at [18] – [23] & [25].
[37] (1999) 197 CLR 611 at p 626 [40].
[38] [1987] HCA 25; (1987) 163 CLR 54 at p 77.

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