(Chawdhury - v - MIAC - [2011] FMCA 275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWB v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 275

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Ukraine as a result of her use of the Ukrainian language – applicant providing voluminous material in support of her claims – whether the Tribunal overlooked any integers of the applicant’s claims, whether it gave proper, genuine and realistic consideration to the applicant’s evidence and whether the Tribunal should have translated documents into the Ukrainian language, considered.

Migration Act 1958 (Cth), ss.91R, 422B, 474

Cabal v Minister for Immigration [2001] FCA 546
Dranichnikov v Minister for Immigration (2003) 197 ALR 389
Htun v Minister for Immigration (2001) 194 ALR 244
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v SZJSS (2010) 85 ALJR 306
Minister for Immigration v SZMDS [2010] HCA 16
Minister for Immigration v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration (2004) 144 FCR 1
SZLSW v Minister for Immigration [2008] FCA 1321
WACB v Minister for Immigration (2004) 79 ALJR 94
WAEE v Minister for Immigration (2003) 75 ALD 630
X v Minister for Immigration (2002) 116 FCR 319

Applicant:

SZOWB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2714 of 2010

Judgment of:

Driver FM

Hearing date:

21 April 2011

Date of Last Submission:

23 May 2011

Delivered at:

Sydney

Delivered on:

27 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr M Murray

Solicitors for the Applicant:

AstonReid Legal

Counsel for the Respondents:

Mr P M Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2714 of 2010

SZOWB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

Everyone is entitled to expect to be free to speak their national language in their country of origin. The applicant in this case has advanced the surprising contention that she will be persecuted in her country of origin (Ukraine) by reason of speaking her national language. The applicant claims to be a refugee because of her fear of being persecuted as a result of exercising that entitlement. Her claim centres upon the vexed issue of language politics in Ukraine between Ukrainian and Russian language speakers. In the past, the Court has seen claims from ethnic Russians who fear persecution in Ukraine at the hands of ethnic Ukrainians. Following recent political changes in Ukraine, it now appears that the pendulum has swung in the other direction as is demonstrated by this present case.
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 November 2010.

The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant arrived in Australia on 17 March 2009. On 5 March 2010 she filed an application for a protection visa (court book “CB” 1-56).
The applicant attended an interview with the delegate on 17 June 2010. By letter dated 23 June 2010, the applicant was advised that the delegate had refused her application for a protection visa (CB 81-90).
The applicant filed an application in the Tribunal seeking a review of the delegate’s decision on 21 July 2010 (CB 94-97). The Tribunal conducted a hearing on 22 September 2010, which was attended by the applicant, her advisor and her daughter (CB 140-141; CB 205 at [54]).

Claims made by the applicant

The grounds for the application for the protection visa are set out in answers to questions 42, 43, 44, 45 and 46 in the applicant’s application for a protection visa (CB 52-55). The claims made by the applicant in that application may be summarised as follows:
a)the applicant claimed to be an ethnic Ukrainian, a speaker of the Ukrainian language and a practising Jehovah’s Witness (CB 53);
b)the election of Victor Yanukovych as President of Ukraine in 2010 exposes the applicant to the risk of “persecutions, repressions, harassment, imprisonment and even death”(CB 52);
c)President Yanukovych is a supporter of Russia, Ukrainians of Russian descent, the Russian language and the Russian Orthodox Church. This support is said to be at the expense of ethnic Ukrainians, the Ukrainian language and Ukrainian history, culture and values (CB 53);
d)during the Soviet era, the applicant could only speak Ukrainian in her home and her Russian neighbours accused her of being “xenophobic and chauvinistic” because she sent her daughter to a Ukrainian language school (CB 53); and
e)she would be harassed on account of her ethnic background or her religion or both (CB 53). She claimed that her ethnicity would become apparent to anyone to whom she preaches in the practice of her religion and as a result she will be targeted by “pro-Russian” people (CB 55).
In its reasons, the Tribunal records that the applicant made the following additional claims during her interview with the delegate:
a)one of her neighbours was “hostile” to her and used offensive language towards her after the applicant lodged a complaint with police (CB 201-202 at [33] and 204 at [50]);
b)another neighbour, an ethnic Russian, had placed rubbish in the attic above her apartment and refused to remove it (CB 202 at [34]); and
c)another ethnically Russian neighbour, who had “created a lot of trouble for the applicant”, including training her cat to urinate outside the applicant’s apartment door (CB 202 at [35].
In a letter to the Tribunal dated 10 September 2010, the applicant’s solicitors stated that her Russian neighbours have, and will continue to, “harass and persecute” the applicant. It was also said that the Ukrainian state will deny her effective protection from this harm (CB 125).
At her hearing before the Tribunal, the applicant repeated aspects of the claims made previously. She also stated that:
a)she was afraid to speak Ukrainian in public (CB 205 at [57] and 206 at [61]);
b)she was sure her name had become known to the state intelligence agency (CB 206 at [61]); and
c)she is not claiming to fear persecution because of her religion (CB 205 at [57] and 212 at [86]).
After the hearing, the applicant raised a further claim in a letter of

4 October 2010 (CB 168-170). In that letter the applicant claimed:
a)her husband works as a ship captain and is currently employed by two politicians aligned to President Yanukovych;
b)ship owners in Ukraine have a practice of threatening employees and their families if the employees demand payment for unpaid wages; and
c)she fears violence from ship owners and their agents and this fear resulted in her daughter leaving Ukraine.
On several occasions, the applicant has provided the delegate and the Tribunal with articles from newspapers and other sources which were said to support her claim (see CB 19-45, 74-80, 98-105; 148-164; 171-193). With the exception of four articles attached to her application for a protection visa (CB 33-45) all of the articles were either in English or were accompanied by an English translation.
The following evidence was before the Tribunal:
a)documents submitted with the application for the protection visa which included:
i)
a biography of Yanukovych dated 1 March 2010 in which it was stated he was considered politically close to Russia

(CB 22), Patriarch Kirill attended his inauguration (CB 26), notes on the comment of Yanukovych that the Holodomor was not the genocide of the Ukrainian people and that he wanted the Russian language as the second state language in Ukraine (CB 27), that he draws his political support from the Russian-speaking Ukrainians in the east of the country and that he is disliked and mistrusted in Western Ukraine (CB 28); and
ii)
various articles from Pravda in Ukrainian and Russian

(CB 33-44).
b)documents and information submitted with the applicant’s letter dated 8 June 2010 including:
i)in the letter the applicant included information concerning her husband and her fear he would betray her (CB 70);
ii)an article dated 1 June 2010 concerning the death of a student (CB 72);
iii)an article dated 2 June 2010 also concerning the death of the student in police custody in which it is stated that “the issue of police torture and abuse is very real and urgently requires proper attention” (CB 73);
iv)an article dated 19 May 2010 in which it is stated “police continue to beat people ... innocent people are grabbed, beaten and only later do they establish whether they’re guilty or not” (CB 74);
v)an article in which police are said to have assaulted reporters (CB 75);
vi)an article dated 4 June 2010 in which it is said that a civic protest was crushed by police and local authorities (CB 76); and
vii)an article dated 4 June 2010 which discusses proposed legislation on personal data collection and its faults including the removal of historical and scientific information and there is no independent control (CB 79).
c)documents and information submitted with the applicant’s letter dated 20 July 2010 including:
i)the applicant stated that the new Government was promoting anti-Ukrainian policies and as a result of the new government policies she will be targeted even more and would have no protection (CB 92);
ii)an article dated 25 March 2010 in which it noted large protests against the comments of the pro-Russian education minister. The Minister claimed that the Western Ukrainians have virtually nothing in common with their compatriots in terms of mentality, language, religion or politics (CB 98);
iii)an article dated 6 May 2010 which states that the education minister changed policies on the use of the Ukrainian language (CB 99); and
iv)an article dated 27 May 2010 which states that journalists complained about censorship (CB 103).
d)
documents and information submitted with the letter dated

10 September 2010 from the applicant’s solicitor including:
i)an article in the New Atlantist in which it is stated that Yanukovych and his Government despise the Ukrainian language and culture, and are ridding the country of the Ukrainian language and culture (CB 129).
e)
additional evidence received at the Tribunal’s hearing on the

22 September 2010 including:
i)an article dated 25 August 2010 stating that the Security Service (the SBU) has encroached on the freedom of speech and civil liberties, and the comment of the Ex-Deputy Ministry of Foreign Affairs, Valery Chaly, that the SBU was present in virtually all spheres of life in the country (CB 148-149);
ii)an article dated 10 September 2010 referring to the detention of a historian by the SBU (CB 155-157);
iii)an article dated 9 September 2010 which states that the historian was studying political repression and that was why the SBU arrested the historian (CB 158-159);
iv)an article dated 25 August 2010 concerning censorship and the ownership of certain television channels causing imbalance in their coverage of political events (CB 160-162); and
v)an article dated 31 August 2010 which states that the Government is cutting classes where tuition is in Ukrainian and moving senior school students into a national minority school with Russians as the language of tuition (CB 163).
f)
oral evidence given by applicant at the Tribunal hearing on

22 September 2010 including:
i)
the language known as “Surzhyk” which is halfway between Russian and Ukrainian is spoken (applicant’s evidence

(AE) 215);
ii)when she preaches the applicant speaks Ukrainian (AE 216);
iii)the applicant preaches door to door (AE 218);
iv)the applicant provided further details of the incidents involving the applicant’s neighbours (AE 205-215); and
v)the applicant said that the Government would provoke people such as the Russians in her building and on public transport (AE 220-221).
g)
documents and information submitted with the letter dated

7 October 2010 from the applicant’s solicitor including:
i)a letter from the applicant dated 4 October 2010 in which she explained further her concerns relating to her husband’s employment (CB 168 –169);
ii)an article dated 18 September 2010 concerning legislation about the use of the Ukrainian language and an example where employees are threatened to be fired (CB 173);
iii)an article dated 13 September 2010 which states that a pensioner was charged with hooliganism because he demanded that a bank officer speak to him in the Ukrainian language (CB 175);
iv)
an article dated 21 January 2010 which states that 18 people were dismissed because they spoke in Ukrainian

(CB 181-182);
v)an article dated 15 April 2010 which states that a pensioner was beaten up by the police for requesting the officers speak in Ukrainian (CB 184-185);
vi)an article dated 19 September 2010 which states that a maid was dismissed because she spoke Ukrainian (CB 187).

Decision of the Tribunal

In its reasons, the Tribunal referred to several sources of independent country information and made the following comments:
a)the 2001 census indicated that 77.8 per cent of Ukraine’s population were ethnic Ukrainians and 17.3 per cent were ethnic Russians (CB 208 at [75]);
b)
both Ukrainian and Russian are widely spoken in Ukraine

(CB 208-209 at [77]);
c)the Tribunal was not aware of any reports indicating that ethnic Ukrainians have encountered problems as a result of speaking Ukrainian in public and there was little evidence of Ukrainian speakers facing language based discrimination (CB 209 at [78] and [79]);
d)
language is a sensitive, highly politicised issue in Ukraine

(CB 210 at [80]);
e)many media and political commentators have describe President Yanukovych as “pro-Russian” and some of his political opponents have described him as “anti-Ukrainian” (CB 211 at [82]).
In reaching its conclusion, the Tribunal accepted that the applicant has experienced difficulties with her neighbours in the past and that some people in Ukraine may criticise her for speaking Ukrainian (CB 212 at [85] and [86]). However, the Tribunal characterised the problems faced by the applicant as “neighbourly disputes” which did not amount to persecution involving “serious harm” for the purposes of s.91R(1) of the Migration Act 1958 (Cth) (“the Migration Act”) (CB 212 at 86]).
In respect of the risk of future harm the Tribunal noted that Ukrainian nationalists are critical of President Yanukovych’s attempts to “upgrade the status of the Russian language”. However, the Tribunal did not accept that there is a real chance the applicant will suffer harm because she speaks Ukrainian (CB 212 at [86]).
The Tribunal also addressed the applicant’s claim that the Ukrainian government had infringed the rights of citizens. The Tribunal noted that few of the individuals said to be the target of this mistreatment were identified as ethnic Ukrainians. The Tribunal also found that independent country information suggests that ethnic Ukrainians have been free to protest against government policies (CB 212 at [87]).
In rejecting the claims relating to her husband’s involvement in the shipping industry, the Tribunal found that the claims were made late (i.e. after the hearing) in an attempt to strengthen her claim for protection. The Tribunal did not accept that the applicant, or her husband or daughter, were threatened with serious harm by the owners of ships or their agents (CB 213 at [88]).

The application, evidence and submissions

These proceedings began with a show cause application filed on

16 December 2010. At the trial of this matter the applicant abandoned all but two of the seven grounds in that application. The grounds in that application which were pressed are:
2. The Refugee Review Tribunal failed to take into account relevant considerations such as the political connections of the Applicant and as to the Applicant’s religious denomination, that is, as a Jehovah’s Witness.
6. Documents provided by the Applicant were disregarded, rejected or not considered. The Refugee Review Tribunal failed to or refused to have documents translated into the Ukrainian language to allow consideration.
It was apparent during the trial of the matter that there was an issue of whether the Tribunal had considered all elements or integers of the applicant’s claims. In the light of that, I gave leave for the applicant to file and serve an amended application and additional submissions after the trial. The amended application filed on 16 May 2011 contains the following grounds:
1. The Tribunal failed to consider or deal with an essential integer or integers of the Applicant’s claim in that;
(a) the Tribunal failed to consider that the Applicant will be persecuted for reasons of her ethnicity, in particular her use of the Ukraine language, by Ukrainian citizens and that the Government of Ukraine will not be willing or will not be able to protect her from that persecution.
(b) the Tribunal failed to consider that the Applicant will be persecuted for reasons of her ethnicity, in particular her use of the Ukraine language, by the Government of Ukraine.
2. The Tribunal failed to give proper, genuine and realistic consideration of the Applicant’s evidence.
The Minister seeks the rejection of grounds 1(b) and 2 in the amended application as going beyond the scope of the Court’s leave. I will not do so because order 1 made on 21 April 2011 did not, in its terms, restrict the content of the amended application permitted to be filed and, while the reason for the leave was the issue of whether the Tribunal had overlooked a part of the applicant’s claims, the other matters raised in the amended application were touched upon at the trial, albeit lightly.
I received as evidence the court book filed on 10 February 2011. I also received as an exhibit[1] a bundle of documents constituting evidence that the applicant put before the Tribunal. Pages 174 to 226 of that bundle of documents purport to be a transcript of the hearing conducted by the Tribunal. The Minister objected to the receipt of that evidence on the basis that there was no verification of the transcript and no indication who prepared it. The applicant ultimately elected not to rely upon the transcript. I have, accordingly, excluded it from consideration.
[1] Exhibit A1
In relation to ground 2 in the original application, the applicant contends that the Tribunal failed to take into account the applicant’s religion (she is a Jehovah’s Witness) as aggravating the risk that she faces in speaking the Ukrainian language, because her religion calls her to proselytise.
In doing so she goes from door to door speaking Ukrainian.
In relation to ground 6 in the original application, the applicant relies upon the decision of the Federal Court in X v Minister for Immigration[2].
[2] (2002) 116 FCR 319
In relation to ground 2 in the original application, the Minister points out that at the Tribunal hearing the applicant stated that she did not claim to fear persecution on account of her religion (CB 205 at [57] and 212 at [86]). In relation to ground 6 in the original application, the Minister points out that the Tribunal’s reasons expressly state that the documents provided by the applicant were considered (CB 212 at [85]). The Minister distinguishes X v Minister for Immigration on the basis that there was nothing in this case which gave rise to a duty to translate documents into the Ukrainian language. The Minister also submits that the decision in X v Minister for Immigration should not be followed as it applies to a different legislative context, prior to the introduction of ss.474 and 422B of the Migration Act.

In relation to ground 1 of the amended application, the applicant relies upon the decisions in WAEE v Minister for Immigration[3] and Minister for Immigration v SZJSS[4].
[3] (2003) 75 ALD 630
[4] [2010] HCA 48; (2010) 85 ALJR 306
The Minister concedes that the applicant’s claim included a claim that the Ukrainian government was unwilling or unable to provide her with effective protection against persecution by non state agents (Ukrainian citizens of Russian descent) and further concedes that the Tribunal made no express finding as to whether the government of Ukraine was unable or unwilling to provide protection against such harm. However, the Minister contends that it was not necessary for the Tribunal to make such a finding as the relevant threshold question was not satisfied – in other words, the applicant did not establish a well-founded fear of persecution from non state agents[5].
[5] See Minister for Immigration v SZANS (2005) 141 FCR 586 at [54]
The Minister further contends that the applicant, in ground 2, is seeking to apply the language of “proper, genuine and realistic” consideration to seek merits review[6].
[6] See Minister for Immigration v SZJSS (2010)85 ALJR 306 at [32]-[37]

Consideration

In relation to the original application, I prefer the submissions of the Minister.
Ground 2 states:
The [Tribunal] failed to take into account relevant considerations such as the political connections of the Applicant and as to the Applicant’s religious denomination, that is, as a Jehovah’s Witness.
A decision-maker is only required to have regard to those considerations mandated by legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd[7]. In the case of the Tribunal, the Migration Act requires it to consider claims made by the applicant and any component integers of those claims: Htun v Minister for Immigration[8].
[7] (1986) 162 CLR 24
[8] (2001) 194 ALR 244 at [42] per Allsop J
In respect of the applicant’s asserted political connections, the only evidence of such connections was her involvement with the politicians who employ her husband. Even if such evidence amounted to an integer of her claim, the Tribunal took these connections into account. The Tribunal’s reasons indicate that:
a)it asked about the applicant’s involvement with her husband’s employers (CB 206 at [65]); and
b)
it considered her asserted political connections when considering whether the applicant had been threatened by ship owners

(CB 213 at [88]).
Further, I accept that even if the Tribunal failed in its reasons to expressly refer to the applicant’s political connections there was no jurisdictional error. Any need to make a finding in respect of her political connections had been subsumed within the broader factual finding upon which that issue was premised (i.e. whether the applicant had been threatened by the ship owners): WAEE v Minister for Immigration[9].
In the case of the applicant’s religion, in her application for protection, the applicant claimed to fear harassment on the basis of her religion (CB at 53). However, during the Tribunal hearing the applicant stated that she did not claim to fear persecution on account of her religion: (CB 205 at [57] and 212 at [86]).
The Tribunal has no obligation to consider a claim which is not articulated and does not arise from the materials before it: NABE v Minister for Immigration (No 2)[10]. For the same reason, the Tribunal is not required to consider a claim which, although raised, is not supported by evidence and was subsequently withdrawn.
[10] (2004) 144 FCR 1 at [60]
By the time of the Tribunal hearing, the applicant was not advancing any separate claim based on her religion. The point of her referring to her religion was to emphasise the risk that she faced in dealing with Russian speakers when she spoke Ukrainian. Her proselytisation was said to have placed her at greater risk than an ordinary Ukrainian speaker.
At [86] of the Tribunal decision (CB 212) the Tribunal stated:
The applicant told the Tribunal that she is not claiming to fear persecution because of her religion. She told the Tribunal that her main fear is because she speaks Ukrainian. The Tribunal accepts that some people in Ukraine may criticise the applicant for speaking Ukrainian. However, the Tribunal must be satisfied that the applicant fears persecution, and under s.91R(1) of the Act, persecution must involve “serious harm” to the applicant and systematic and discriminatory conduct. The Tribunal is not satisfied that the applicant has suffered persecution in the past. The details provided by the applicant to the Tribunal relate to neighbourly disputes, and not persecution. In relation to future harm, the Tribunal must be satisfied that there is a real chance of persecution occurring in the reasonably foreseeable future if the applicant returns to Ukraine. The Tribunal has considered the country information set out above, and accepts that some Ukrainian nationalists argue that the current President may attempt to upgrade the status of the Russian language. However, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution because she speaks Ukrainian.
While the Tribunal expressed itself broadly it is apparent that the Tribunal did not accept that the applicant was exposed to a real risk of harm because she speaks Ukrainian, regardless of what activities she undertakes. I do not accept that in making its general finding the Tribunal overlooked the impact of the applicant’s proselytisation on the level of risk to which she was exposed.
Ground 6 states:
Documents provided by the Applicant were disregarded, rejected or not considered. The [Tribunal] failed to or refused to have documents translated into the Ukrainian language to allow consideration.
I accept the Minister’s submission that, to the extent this ground of review alleges the documents provided by the applicant were not considered, there is no factual basis for the claim. The Tribunal’s reasons expressly state that the documents provided by the applicant were considered (CB 212 at [85]). However, even if this was not the case, the Tribunal would not have fallen into jurisdictional error. Jurisdictional error should not be inferred too readily simply because a piece of relevant evidence is not expressly stated as having been considered: WAEE v Minister for Immigration[11].
[11] (2003) 75 ALD 630 at [47]
In respect of the documents which were not translated, the Tribunal was under no general obligation to arrange a translation: WACB v Minister for Immigration[12]; Cabal v Minister for Immigration[13].
[12] (2004) 79 ALJR 94 at [98] per Kirby J
[13] [2001] FCA 546 at [25]
To the extent the decision in X v Minister for Immigration[14] suggests that a duty to translate documents may arise in particular circumstances, the duty did not arise in this case as:
a)there is no evidence that the applicant explained to the Tribunal the relevance of the untranslated documents: X v Minister for Immigration[15];
b)there is no evidence of whether the untranslated documents were material to the issues before the Tribunal: X v Minister for Immigration[16];
c)there is no evidence that the applicant requested the Tribunal to translate the documents; and
d)the applicant was represented by solicitors experienced in immigration matters who were in a position to advise the applicant of the need to provide the Tribunal with translated documents: SZLSW v Minister for Immigration[17].
[14] (2002) 116 FCR 319
[15] (2002) 116 FCR 319 at [30] per Gray J
[16] (2002) 116 FCR 319 at [53] per Moore J
[17] [2008] FCA 1321 at [17] per Rares J
In relation to the amended application, there is no doubt that the applicant articulated a fear of harm from non state agents (Russian speakers) in Ukraine as well as the Ukrainian state itself. There is also no doubt that the Tribunal dealt with the applicant’s claim to fear harm from the Ukrainian State. Relevantly, the Tribunal said at [87] and [88] of its reasons (CB 212-213):
Dealing with the applicant’s claim that the authorities have arrested and mistreated some activists, including journalists in Ukraine, since the new President came into power, independent country research indicates that few of these individuals were identified as advocates of ethnic Ukrainian or Ukrainian nationalist causes. The exceptions were two reports regarding Ukrainian nationalists protesting when the Head of the Russian Orthodox Church visited Ukraine, and several reports dealt with the arrest of one historian from a Ukrainian Nationalist Museum. Indeed, recent reports suggest that many Ukrainians were able to protest about government actions perceived to be against ethnic Ukrainian interests in 2010, without being harmed or arrested. One example of this was in October 2010, when the Kiev Post reported on a large demonstration against increased recognition for the Russian language without indicating than any protestors were injured or arrested, and indeed protestors were willing to go on the record with the comments on the issue. The Tribunal finds this country research to be very compelling in coming to the conclusion that the applicant does not have a well-founded fear of persecution because she speaks Ukrainian.
The Tribunal has considered the recent claims relating to the applicant’s husband in her letter dated 4 October 2010. During her Tribunal hearing, the applicant was asked about her husband and she said he works in Ukraine and he has nothing to fear. When asked by the Tribunal why she had not told her husband about her application for protection, she said that he does not understand much about these matters and is not aware of Refugee visas. She later stated during the Tribunal hearing that she did not tell her husband because he is involved with the President’s Party and has been with politicians for seven years, so she fears for his life. She made no reference to any of the matters set out in this most recent letter. The Tribunal accepts that he may have had some difficulty in the past covering expenses for his ship’s crew, but does not accept that he, the applicant, or their daughter, were threatened with serious harm, as claimed. The Tribunal does not accept that their daughter had to secretly leave Ukraine, and that the applicant and her daughter did not reveal where she was residing. The Tribunal is of the view that the applicant provided these late claims relating to her husband’s situation in Ukraine in the hope that they would strengthen her own refugee claims.

The Tribunal is not satisfied that she or her daughter have anything to fear in relation to her husband’s activities in Ukraine.
I reject ground 1(b) in the amended application on the basis of the above reasons of the Tribunal.
I also reject ground 1(a). The Tribunal rejected at [85] of its reasons (CB 211) the applicant’s claims of past persecution, saying:
The Tribunal has considered all the material in the Departmental file, and the applicant’s evidence during her Departmental interview, and before the Tribunal. The Tribunal has also considered the material forwarded in support of the applicant’s claims. The Tribunal accepts that the applicant speaks Ukrainian, and that she has encountered some difficulties with her Russian neighbours in the past.
I accept that the Tribunal’s consideration leading to that finding included the applicant’s claims in relation to the actions of Russian speakers who are non state agents. I also accept that, while the Tribunal’s reasoning at [86] (CB 212) is relatively brief and general, its rejection of the applicant’s claim to be at risk of future persecution as a Ukrainian speaker should be taken to include a rejection of her claim of a fear of harm by non state agents. In reaching that conclusion I agree with the Minister’s submission.
First, the Tribunal’s finding in respect of future harm in [86] was not expressly stated to be limited to consideration of harm from the Ukrainian state.
Secondly, the Tribunal’s conclusion in respect of future harm was made with express reference to the independent country information referred to earlier in its reasons. The Tribunal on several occasions referred to the absence of any independent country information indicating that Ukrainian speakers faced persecution in Ukraine: (CB 206 at [61]; 208 at [77]; 209 at [78] and [79]). None of these references are expressly stated to be limited to persecution by the state and should be taken to include persecution by non-state agents. The Tribunal stated:
Approximately 29 to 34 million Ukrainians (that is, about 60 to 70 per cent Ukraine’s population) speak Ukrainian as a first language, and reports indicate that both Ukrainian and Russian are widely spoken in Ukraine. No reports were found to indicate that Ukrainian speakers have encountered difficulties in recent years as a result of using Ukrainian in public, and Ukrainian remains the only official state language. However, language is a politically charged issue in Ukraine, and Ukrainian nationalists have often claimed that any upgrade in the state of the Russian language would threaten the Ukrainian language. President Viktor Yanukovych’s recent efforts to improve the status of Russian have met strong condemnation from Ukrainian nationalists and other advocates of the Ukrainian language. Reports indicate that approximately 60 to 70 per cent of Ukraine’s population identifies Ukrainian as their first language, while 30 to 40 per cent are native speakers of Russian. Both Ukrainian and Russian are widely spoken in public in Ukraine, through there are regional differences in the prevalence of each language. According to the Christian Science Monitor and Reuters, for example, Ukrainian is more common in the west of the country, while Russian is dominant in the east and south. Ukrainian remains the only official state language, but Russian is reportedly widely used in business and media communications.
No reports were found to indicate that Ukrainian citizens have encountered problems as a result of speaking Ukrainian in public in the Ukraine in recent years. Prior to 2010, there were some reports of Russian speakers claiming to experience difficulties as a result of the government’s Ukrainian language policy. The US State Department’s 2009 Human Rights Report on Ukraine, for example, said that
organizations and political parties in the Russian-speaking community complained that the increased use of Ukrainian in schools, college entrance exams, the media and the courts put them at a disadvantage.
Little evidence was found to suggest that speakers of Ukrainian have experience similar differences or any other kind of language-based discrimination since Yanukovych came to power in February 2010. However, there is plenty of fearful rhetoric on the language issue from Ukrainian nationalists.
(footnotes omitted)
The references in paragraphs [77] and [78] (CB 208-209) are particularly relevant as they relate to the absence of any evidence of Ukrainian speakers experiencing “problems” or “difficulties” when using their language in public. An absence of serious harm when using the language in public logically includes an absence of serious harm caused by members of the public (i.e. non state agents).
Thirdly, the context in which the Tribunal considered the risk of future harm in its reasons indicates that the Tribunal considered the risk posed by non state agents. Contextual factors which support this conclusion are that:
a)the Tribunal’s consideration of future harm in [86] commences, without disjuncture, immediately following its consideration of past harm, which consideration included at [85] claims of harm from non state agents;
b)the Tribunal’s consideration of both past and future harm was prefaced by a general finding in the third and fourth sentences of [86] that while “some people in Ukraine may criticise the applicant for speaking Ukrainian” such criticism would not amount to persecution – the reference to “some people” must be taken to include non state agents; and
c)the wording of the first sentence of [87] (“Dealing with the applicant’s claim that authorities have arrested...”) – this sentence operates as a disjunctive and makes clear that the reasoning in [87] (which relates to the actions of the state) is separate from the reasoning in [86] (which includes consideration of non state agents).
Fourthly, while the Tribunal might have expressed itself more clearly, it is of no legal consequence whether the Tribunal’s reasoning in respect of future harm may not have separated persecution by the state from persecution by non state agents. It was open to the Tribunal to make a general finding encompassing both. The Tribunal’s finding that there was not a real chance that the applicant would suffer persecution because she speaks Ukrainian was a finding of “greater generality” which subsumed the issue of persecution by non state agents and made it unnecessary for the Tribunal to make a specific finding in respect of that aspect of the applicant’s claim: WAEE v Minister for Immigration[18].
Indeed, it is not surprising in this case that the Tribunal’s reasoning considering the risk of harm from non state agents overlaps with the reasoning considering state harm. This is because there was a clear connection between the persecution the applicant claimed to fear at the hands of the state and that which she claimed to fear from non state agents. The applicant’s claim to fear harm from non state agents was based on the premise that the allegedly pro-Russian policies of the current Ukrainian government would inspire or embolden ethnic Russians to persecute Ukrainian speakers. This is clear from the applicant’s claim that “the current government will provoke people to act”: (CB 206 at [61]). In these circumstances, the reference to a possible attempt by President Yanukovych to upgrade the status of the Russian language in the penultimate sentence of [86] does not give rise to the inference that the Tribunal considered the risk of future harm only in respect of persecution from the state. Rather, the position of the current government was a matter relevant to both persecution by the state and persecution by non state agents.
By reason of the above matters, I accept that the Tribunal in its reasons did make a finding in respect of the applicant’s future risk of harm from non state agents.
Ground 2 in the amended application also fails.
The Tribunal is not obliged to refer in its reasons to every piece of evidence submitted by the applicant: WAEE v Minister for Immigration[19]. In this case, however, it is clear that the Tribunal did have regard to the documents and information provided by the applicant. This is evident from:
a)the statement in the Tribunal’s reasons that it took into account the material provided by the applicant (CB 212 at [85]);
b)the numerous references in the Tribunal’s reasons to the specific documents provided by the applicant (CB 200 at [25]; 201 at [26]; 203 at [46]; 205 at [55]; 206 at [62]-[63]; 207 at [69]); and
c)the fact that, in reaching its conclusion, the Tribunal specifically discussed the evidence submitted by the applicant, e.g. documents in respect of the arrest of a Ukrainian historian (CB 212 at [87] and CB 155-159, 164).
It is a matter for the Tribunal to determine whether to accept particular evidence and what weight should be given to such evidence.
In circumstances where it is clear the Tribunal had regard to the evidence in question, I accept that ground 2 of the amended application is an attempt to employ the language of “proper, genuine and realistic consideration” to seek merits review of the Tribunal’s assessment of the evidence: Minister for Immigration v SZJSS[20] where the High Court stated at [32]-[37]:
The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of "proper, genuine and realistic consideration" to register the Court's response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS.
The Minister's submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal's decision, when the Tribunal said that it gave the letters "no weight" it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal.
It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula "proper, genuine and realistic evaluation" in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.
Whether the letters were "highly supportive" or "powerfully corroborative" (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.
The conclusion that the Tribunal erred in giving "no weight" to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
Further, the Federal Court's conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error. (endnotes omitted)
[20] (2010) 85 ALJR 306

Reasonable minds may differ on the conclusions the Tribunal might properly reach based upon the voluminous material before it. That is the point. The conclusions reached by the Tribunal on that material were open to it.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 27 June 2011

[9] (2003) 75 ALD 630 at [47]

[18] (2003) 75 ALD 630 at [47]

[19] (2003) 75 ALD 630 at [47]