Chelest, Alexie v Minister for Immigration & Multicultural Affairs

[1997] FCA 309

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)     No. NG 599 of 1995
)
GENERAL DIVISION	)

BETWEEN:             

ALEXIE CHELEST
First Applicant

FEODOSSIA CHELEST
Second Applicant

  AND:  

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

CORAM:

EMMETT J

PLACE:

SYDNEY

DATED:

26 MARCH 1997

EX TEMPORE REASONS FOR JUDGMENT

This is an application brought under section 476 of the Migration Act 1958 for review of decisions of the Refugee Review Tribunal of 25 June 1996. The amended application for an order of review states that the ground of the application is that the decisions involved an error of law, being an incorrect application of the law to the facts as found by the tribunal - a clear reference to section 476(1)(e).

The particulars appended to the statement of the ground are that the tribunal has assessed the objective basis for the applicant's claim to have a well-founded fear of persecution, against the evidence gathered by the tribunal, relating to the time at which the tribunal made the decision, namely, June 1996, and looking into the future, rather than assessing evidence as to the applicant's well-founded fear of persecution at the relevant time, which was January 1993, at the time at which they applied for refugee status.

Since the commencement of the proceedings the full court of this court has delivered its judgment in Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal  v. Mohinder Singh (Singh’s case). That was a decision of a full court comprised of five justices delivered on 24 January 1997.  In that decision, which was a unanimous decision of the court, the question said to have been raised by the appeal was whether the time at which a person's application for refugee status is to be assessed is the date on which the application for that status is lodged or the date of the determination of the application.

The appellants in that case argued for the latter, the respondent for the former. The court said that, putting authority to one side, the date of the determination seemed to be the proper time at which the assessment is to be made. After referring to the definition of "refugee" in the Convention, which refers to a well-founded fear, the full court said that the fear is not a fear in the abstract but a fear owing to which the applicant is unwilling to return and thus it must exist at the time the question of return arises, namely, at the date the decision is made whether the applicant is a refugee.

To require an applicant to show a well-founded fear at the time of determination rather than at the time of lodgment of the application produces a sensible result in cases where events occurring between the two dates make a choice between them necessary. The full court in that case upheld the appeal by application of those principles.  It is common ground between the parties before me that the ground stated in the amended application is not sufficient if the decision of the full court stands.  Even without that agreement my view is that the decision of the full court in Singh’s case is decisive of the application presently before me.  I am bound to follow the full court's decision and that inevitably leads to dismissal of this application.

However, counsel for the Minister has asked me to consider an alternative basis upon which, even if Singh’s case were reversed or were not binding, I should nevertheless dismiss this application. The court has a discretion under section 481 of the Migration Act, insofar as that section provides that on an application for review of a judicially reviewable decision, as is this case, the court may make all or any of orders specified in that section.

That is to say, the power which the court has under section 481 is to make an order if one of the grounds in section 476 is made out, so long as the court is satisfied that it is appropriate to make that order. .My attention was drawn to the decision of Foster J in Olga Denisenko v. Christine Hasket (sitting as the Refugee Review Tribunal and Minister for Immigration & Ethnic Affairs (29 May 1996 unreported), in which his Honour said that, having regard to the discretion under section 481, he would not set aside the tribunal's decision in that case even if he were satisfied that an error of law had been demonstrated in the approach taken. Counsel for the Minister contends that in this case, even if, as a matter of law, the crucial date is the date of application, any error law by the tribunal in choosing the date of determination as the crucial date could not have materially affected the decision.

For that reason it is said, in this case, the court would not grant relief even if error of law of the nature propounded in the amended application had occurred. No ground of appeal was raised to the effect that any of the findings of fact by the Tribunal had been vitiated by any error of law which is reviewable under section 476.

I was reminded of the observation by the High Court in Minister for Immigration and Ethnic Affairs v. Wu Shan Liang and Ors, 185 CLR 259, that any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision. In written submissions prepared by counsel for the Minister, reference is made to the findings of fact made by the Tribunal. The Tribunal found that the first applicant did not hold conscientious objections on political or religious grounds to being conscripted and that the basis for his objection to further military service was his fear of combat.

The Tribunal also found that the authorities had more than two years before the first applicant left Russia to prosecute him for being a defector or to send him to a combat zone and that they had done nothing.  The Tribunal was therefore unable to accept that the first applicant would be forcibly conscripted or prosecuted on his return to Russia.  It was contended that, even if the Tribunal had found that there was a real chance that the first applicant would be prosecuted or forcibly conscripted on his return to Russia, that would not have entitled him to refugee status either at the time of his application or at the date of determination of his claim, because the Tribunal had found that the basis of his objection to conscription was not related to a convention reason, it was not on religious or political grounds.

Further, there was no evidence that any punishment for avoiding conscription was being imposed in a biased way for a Convention reason. For that reason it did not amount to persecution for a Convention reason. It was said that, on the facts found by the Tribunal, the applicant was clearly not a refugee as at the date of his application for refugee status. 

The claim of the second applicant was said to be related to her fear of persecution by the military by reason of her relationship to her son.  On the basis that the first applicant's claim failed on that basis it could not be said, so it was argued, that at any of the relevant times the second applicant feared persecution for a convention reason.   The second applicant’s claim to fear of persecution by the Mafia was rejected for the same reasons as the claim of the first applicant.  Counsel for the Minister contended that that rejection was correct and that on the facts as found by the Tribunal the second applicant was never a refugee at any of the relevant times. The response from the applicants in relation to those submissions was no more than a restatement of the fact that the Tribunal looked at the most recent evidence it could find rather than the evidence as to the situation as at the date of application.

Nothing was put to me to suggest that, had the Tribunal considered the matter as at the date of application, there would, on the findings actually made by the Tribunal, have been a different decision. In the light of those matters, my view is that if I were required to consider the making of an order under section 481 because, contrary to the decision in Singh’s Case, the Tribunal had made an error of law, I would have declined to uphold the application and would have dismissed the application in any event.

When this matter was originally called on for hearing on 20 February 1997, counsel for the applicants indicated that he wished to abandon all of the grounds set out in the original application and sought and was granted leave to file an amended application specifying grounds which I have referred to in the reasons for judgment just delivered.  Counsel for the Minister has pointed out that even if this matter proceeds further and a different decision were reached in relation to the grounds specified in the amended application the costs thrown away by the amendment would have been lost in any event.

It therefore seems to me appropriate to note that even if I had upheld the application on the grounds specified in the amended application, I would have ordered the applicants to pay the respondent's costs up to an including the hearing on 20 February in any event.  Having regard to the way in which the matter has been disposed of, such an order does not appear to be appropriate, but if the matter does proceed further and the application is otherwise successful then my view is that an order such as that which I have just foreshadowed would be appropriate.

The orders I make are, the application is dismissed and I order the applicants to pay the respondent's costs.

I certify that this and the preceding five pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.

Associate:

Dated:               26 March 1997

Heard:            26 March 1997

Place:              Sydney

Decision:        26 March 1997

Appearances:  

Counsel for the applicant:                  S. Churches

Solicitor for the applicant:                 Newman & Associates

Counsel for the respondent:               E.Wilkins

Solicitor for the respondent:              Australian Government Solicitor