Chiu v Minister for Immigration
[2007] FMCA 524
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBGF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 524 |
| MIGRATION – Review of Refugee Review Tribunal decision – application for protection visa – jurisdictional errors alleged arising out of Tribunal’s failure to contact official in country of nationality – allegation of bias – application refused. |
| Migration Act 1958 (Cth), ss.422B, 424, 474, 476 and Division 4 The Constitution, para.75(v) |
| Plaintiff S157 v The Commonwealth (2003) 195 ALR 24 Craig v The State of South Australia (1995) 184 CLR 163 Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCFC 61 Application S214 of 2003 v Refugee Tribunal and Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 375 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re. Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 WAIG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 74 Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 |
| Applicant: | SBGF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | ADG 218 of 2006 |
| Judgment of: | Lindsay FM |
| Hearing date: | 24 October 2006 |
| Date of last submission: | 20 November 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 16 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fardone |
| Solicitors for the Applicant: | Fardone & Co. |
| Counsel for the Respondents: | Ms Bean |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed on 4 August 2006 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 218 of 2006
| SBGF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings relate to an application pursuant to s.476 of the Migration Act 1958 (Cth) (hereinafter referred to as “the Act”). The applicant seeks orders by way of judicial review. This Court has the same original jurisdiction in relation to judicial review of Migration decisions as the High Court has under paragraph 75(v) of the Constitution of the Commonwealth of Australia.
None of the provisions of Section 476 of the Act, which deal with the circumstances in which the Court cannot exercise the jurisdiction, apply. In particular, the decision is not a primary decision. Section 474 of the Act, however, does apply and the decision, the subject of this application, is a privative clause decision and must be regarded as final and conclusive unless the decision can be demonstrated to have been vitiated by jurisdictional error as that concept was explained in relation to the provisions of the Act relating to migration decisions in Plaintiff S157 v The Commonwealth (2003) 195 ALR 24 and more generally as the concept was explained in cases such as Craig v The State of South Australia (1995) 184 CLR 163.
The application to this Court was filed within time on 4 August 2006.
The decision in respect of which an order for review is sought is that made by the Refugee Review Tribunal on 7 June 2006. The Tribunal affirmed the decision of the delegate of the Minister made on
13 January 2006to refuse the applicant’s request for a Protection Visa.
The applicant is a citizen of Belarus.
He arrived in Australia in October 2005 and made his application for a Protection Visa on 15 November 2005.
His claim for refugee status under the Refugees Convention and Refugees Protocol is based upon his fear of persecution on account of his political activity and his membership of a social group of scientist/lecturers.
The experiences of the applicant in Belarus said to ground his entitlement are discussed in considerable detail in the Tribunal’s decision. Ultimately, his claim for refugee status was rejected for the following reasons.
Firstly, there was the inference the Tribunal drew as to the reason for the inconsistency in the accounts given by the applicant in his original application to the delegate and his evidence before the Tribunal and in particular his evidence before the Tribunal as to specific problems experienced by him at the hands of Belarus authorities since September 2004. In rejecting his claim the delegate had referred to the applicant not taking an opportunity to seek protection when he had visited his sister in the Netherlands in July and August 2004. This inference had been the subject of specific reference in a Section 424A letter sent to the applicant by the Tribunal. The Tribunal considered and rejected his explanations for the inconsistency. It relied upon the inference drawn as a matter casting doubt on the applicant’s claims generally.
In the context of the drawing of this inference reference was made to one aspect of the post-hearing submissions made to the Tribunal by the applicant’s legal representatives relating to a phone call which, it was alleged, the Australian Embassy in Moscow had made to a
Mr Razuvanau, the Executive Director of the Belarusian Olympic Academy. The phone call related to the validity of a letter he had written in support of the applicant’s request for an Australian visa. This phone call features significantly in all of the arguments put to this Court but in the context of this aspect of the Tribunal’s decision, it was said that the telephone call had seriously jeopardised the applicant’s safety if he were to return to Belarus. The applicant contented that the absence of detail from his original application, which detail turned up later in his evidence before the Tribunal, was explicable in terms of his fear that the information would be communicated to the authorities in Belarus. As I understand the applicant’s contention the phone call and the danger it posed was referred to to support this explanation.
But as the Tribunal points out at page 16.8 of its reasons, it was not made clear to the Tribunal when the telephone call was made or what indeed was said. If it was made before the application for the Protection Visa on 15 November 2005, it suggests a simple check of the authenticity of the letter. If the telephone call was made after the application for a Protection Visa was lodged, it is not possible to see how it could have had any bearing on any reluctance on the applicant’s part to include any specific details.
In any event, the applicant’s legal representatives asked the Tribunal to contact Mr Razuvanau. They insisted that he should be contacted only on a private mobile telephone number. They said he would confirm the authorship of the letter. The telephone number was not provided and the call was not made and the failure so to do is one of the matters relied upon to establish jurisdictional error.
The second ground given by the Tribunal for rejecting the refugee status claim was the date of the applicant’s departure from Belarus. The Tribunal pointed out that he waited over a year from the time that his real difficulties with the authorities commenced (in September 2004) before leaving Belarus. The Tribunal pointed again to the availability of a further visa to visit his sister in the Netherlands. Once again this view was squarely put to the applicant in the s.424A letter. His response was to explain that he initially thought the pressure from the authorities would subside and that matters really only became difficult after February 2005 when he had spoken publicly at a university council meeting against the decision of the government to send graduates to work in areas allegedly contaminated with radiation in the aftermath of the Chernobyl incident. The Tribunal did not accept this explanation and drew attention to the serious allegations raised by the applicant as to what happened to him following September 2004. The Tribunal also rejected the explanation he gave for not seeking a further visa to visit the Netherlands (this was to do with a suggestion that staff at the German Embassy in Minsk who acted on behalf of the Netherlands government were more likely to provide information to the Belarus officials than the Australian Embassy that operated in Moscow). The Tribunal rejected this as a rationalisation by the applicant of his actions.
Thirdly, the Tribunal relied upon the terms of the letter from the Belarusian Olympic Academy as indicating that the applicant’s relationship with the authorities in Belarus was a much better one than he had tried to portray. When this was also referred to in the s.424A letter it elicited the explanation from the applicant’s legal representatives that Mr Razuvanau was his friend and that no-one knew of the letter but him and that he had written the letter to assist the applicant in obtaining his Australian visa. The suggestion was that the letter, whilst authentic in the sense that Mr Razuvanau had authored it, was not a letter that reflected the real attitude of the authorities in Belarus to the applicant.
As noted above, the Tribunal rejected the applicant’s suggestion that they should telephone the author on a private telephone number. The number was not provided but the Tribunal said that even if it had been it would not have utilised it because it was an insecure mode of communication. The applicant was submitting that Mr Razuvanau would be at some risk from the authorities himself if his authorship of the letter on behalf of the applicant had been disclosed. The Tribunal accepted the letter as genuine and indicative of support by the Belarussian Olympic Academy for the applicant and of the absence of any real problems in his relationship with them.
On account of those three reasons the Tribunal went on to make a serious of factual findings which cumulatively constituted a comprehensive rejection of the detail of the applicant’s claim. In particular, it found:
a)that the applicant was not an open critic of the regime;
b)that his telephones were not bugged by special forces as claimed;
c)that he was not visited by officers of the State Security Committee following his criticism of the university authorities;
d)that he was not approached in September 2004 at a bus stop by two men suggesting that he resign or he would meet with an accident, as he had claimed;
e)that he did not genuinely believe that his life was in danger following September 2004;
f)that his apartment was not broken into in June 2005;
g)that he would not be forced to resign from the Belarus State University of Culture following his criticism of the decision to send graduates to a Chernobyl-affected area;
h)that his job changes in 2005 were not related to alleged criticism of the regime;
i)that he was not beaten up when participating in a demonstration in 2005;
j)that, whilst it accepted that the applicant’s father had some history of political activism, it rejected his account of his father’s interrogation by security authorities following a trip to the Czech Republic in 2004;
k)that the applicant’s sister’s problems with the Belarus authorities in 1996 had nothing to do with persecution for Convention reasons;
l)that his dismissal from his job with the Minsk Executive Committee of Physical Culture and Sport following his failure to return to Belarus from Australia was not related to any Convention reason but to his decision to remain in Australia;
m)that he had not been denied advancement in his career for a Convention reason;
n)that no basis existed for finding that he was a member of any particular social group persecuted for any Convention reason;
o)that there was a not real chance that anyone in Belarus knew of his application for refugee status;
p)that there was not a real chance he would be persecuted on account of his application were he to return to Belarus; and
q)that even if any phone call was made by the Australian Embassy in Moscow to Mr Razuvanau, it did not establish that there was real chance that the applicant’s efforts to remain in Australia or his criticism of the government of Belarus would become known to the authorities in Belarus.
All of these findings led to the critical findings at CB page 21.8 that there was not a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion or his membership of any particular social group for the purposes of the Convention if he were to return to Belarus now or the foreseeable future and that consequently he did not have a well-founded fear of being persecuted for a Convention reason if he were to return to Belarus.
The first two of the applicant’s four grounds for alleging jurisdictional error related to the phone call issue. I should note at this point that at the hearing before me on 24 October 2006 the applicant’s legal representative sought to rely on his own affidavit relating to a conversation he, the solicitor, had had with Mr Razuvanau. It was not proposed to call Mr Razuvanau. It was said that Mr Razuvanau had confirmed the applicant’s account of why the letter was sent, ie. that Mr Razuvanau had written the letter but that the contents were untrue.
The Minister’s counsel, Ms Bean, objected to any reliance being placed upon the affidavit because of its hearsay nature and because of the issue it sought to explore, ie. it sought to adduce evidence that was not available to the Tribunal. I agreed with her submission. I declined to permit the applicant to rely upon the affidavit for those reasons.
After I had reserved my judgment those same legal representatives sought to re-list the matter. Upon it being re-listed they sought to rely upon a further affidavit of the solicitor which annexed a letter said to have been received from Mr Razuvanau and dated 30 October 2006 and a translation of that document by a Russian interpreter.
After some discussion and a short adjournment the applicant indicated that they were not proposing to seek to rely upon that affidavit.
The applicant contends that by not acceding to the request to contact Mr Razuvanau the Tribunal displayed bias against the applicant. The failure to contact Mr Razuvanau was said to indicate that the Tribunal was not prepared to investigate the matter further and had thereby denied the applicant a fair hearing.
It should be noted that the timing of the telephone call from the Embassy to Mr Razuvanau was not something that had been established and in fact was one of the matters the applicant was inviting the Tribunal to pursue.
The complaint in this regard about the Tribunal’s reasons seems to wrap-up together a bias complaint with a complaint in relation to a denial of procedural fairness. I will consider each of them separately. The complaint as to the absence of procedural fairness confronts especial difficulties in the light of the decision of the Full Court of the Federal Court of Australia in Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCFC 61 at paras.[61] to [70].
Section 422B of the Act provides:
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
Whatever the controversy that existed at an earlier time between individual Justices of the Federal Court in relation to the expression “in relation to the matters it deals with”, there is now no doubt that the common law natural justice hearing rule is excluded. In relation to matters arising as to that issue we are to look to whether or not the statutory requirements of Division 4 of the Act have been fulfilled. Different considerations arise with respect to the contention as to bias. That is not a matter excluded by s.422B (see Lay Lat at para.[67]).
Section 424 of the Act provides:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting sub-section (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies, by one of the methods specified in section 441A; or
(b) if the person is in immigration detention, by a method prescribed for the purposes of giving documents to such a person.
Though the Tribunal has the power to obtain information it is clear that no obligation to pursue the evidence arises. This issue was the subject of specific discussion by Edmonds J in Application S214 of 2003 v Refugee Tribunal and Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 375 at para.[34].
There was some suggestion the Tribunal was obliged to call the sister as witness before it could make the findings that it did, but that suggestion must be rejected. While it is the case that it is the Tribunal which ‘obtains’ or ‘acquires’ evidence (see Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 at [36]), this says nothing about whether the Tribunal was obliged to call the applicant’s sister. It was for applicant to place such material as was necessary to persuade the Tribunal of his claims before the Tribunal. The Tribunal was under no obligation to verify or investigate the applicant’s claims, including by calling his sister as a witness. The Tribunal has no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate (eg. s.427(1)(d); WAGJ of 2002 v Minister for Immigration & Multicultural [2002] FCAFC 277 at [21], [24] and [25]). Even if the applicant had made a response under s.426 that the sister be called (which he did not) the Tribunal would not have been obliged to do more than have regard to the applicant’s wishes. The Tribunal did not commit jurisdictional error by failing to call the applicant’s sister as a witness, or by making the findings it did, having not called the sister as a witness.
In this case it is clear that applicant did not even ask the Tribunal to call Mr Razuvanau. If they had asked for him to be called they would be obliged to give consideration to it but no obligation to call him is entailed by Section 424 of the Act. Not only was no such request made but no information was provided by the applicant as to how the Tribunal would go about contacting Mr Razuvanau, ie. a telephone number or address. All the Tribunal had was the applicant’s assertions that Mr Razuvanau would say that he had written the letter simply to assist the applicant and that he would be personally endangered if Belarusian authorities knew of his conduct. There was not even a statement from Mr Razuvanau that had been provided to the applicant or his legal representatives to that effect.
It is drawing a very long bow indeed to suggest that any breach of s.424 arises on account of the failure to call or obtain evidence from Mr Razuvanau. No ground of jurisdictional error arises in this regard.
The applicant contends that in some way this failure to obtain evidence from Mr Razuvanau itself is indicative of bias on the part of the Tribunal. I have already indicated that bias is not excluded by s.424B but I am unable to identify if the failure to take up the invitation to obtain evidence from Mr Razuvanau is a matter which would ground a suggestion of bias as that expression has been explained by the High Court in the context of migration cases in Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17. The party asserting actual bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” (see Gleeson CJ & Gummow J at para.[69]). I do not understand the contention of bias in this regard as set out in the contentions filed by the applicant on 23 October 2006 to be raising the question of apprehended bias. It is an allegation of actual bias. It was not a contention that was made in the application filed on behalf of the applicant. Even were I to interpret the contention as to bias being one of apprehended bias the mere failure to call
Mr Razuvanau or to contact him in itself would not be capable of grounding an apprehension of bias in any “hypothetical fair minded lay person who is properly informed of the nature of the proceeding”. That expression is to be found in the judgment of the High Court in Re. Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at para.[28], wherein the Court explains the principles relating to apprehended bias in non-curial proceedings such as those before the Tribunal.
The second ground of the application contends that the Tribunal “failed to properly discharge its duties” in failing to ascertain if the Australian Embassy had telephoned Mr Razuvanau. I will take that as being an allegation that the Tribunal fell into jurisdictional error in that regard. As I understand the applicant’s contentions, if the Tribunal had found out that the Australian Embassy had telephoned Mr Razuvanau it would have had material on which it could base a finding that the applicant was fearful for his position and safety if he were to return to Belarus. I think the reasoning is that Mr Razuvanau would have told of his own apprehensions about being put at risk on account of receiving the phone call at work and that the possibility of him having been overheard itself jeopardised the applicant’s safety. In addition, I think it is also suggested that the Tribunal could infer the applicant’s fears from the fact that Mr Razuvanau held similar fears in the circumstances of the phone call being made. Presumably, this ground also agitates the contention that the timing of the phone call could have been ascertained and that if it were established that it was made before the applicant lodged his Protection Visa then that would provide an explanation for the applicant not including certain detail in the material lodged at the time of his Protection Visa application. I have dealt with this latter contention in paragraph 11 hereof. All of this reasoning is very tenuous. Whether the Australian Embassy in Moscow telephoned Mr Razuvanau or not (and the Tribunal appears to accept at CB page 17.2 that it did) it is very difficult to see how it could have given rise to a fear on the part of the applicant as to the provision of specific details in his application for a Protection Visa. Mr Razuvanau himself is, after all, favourably disposed to the applicant on the applicant’s own case. The argument by analogy does not have any substance either. Mr Razuvanau had good reason to be apprehensive that the organisation for which he worked may have discovered he had made false representations in a letter written on the applicant’s behalf. Any such fear would not be for a Convention reason. His alleged fears do not add to the coherence or credibility of the applicant’s contention that he held fears for Convention-related reasons. There is no substance in this ground.
The third ground complains that the Tribunal erred in rejecting the applicant’s claim because of concerns as to his credibility arising from inconsistencies in his evidence. Reliance is placed upon a passage from the judgement of Kirby J in Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32 at para.[73.7].
There is no doubt that the Tribunal rejected a number of contentions advanced by the applicant in response to matters raised in the s.424A letter, and especially the explanation advanced for the delay of the applicant in leaving Belarus, taken together with the option apparently available to seek a further visa to visit the Netherlands. The applicant’s explanation for not taking up that option was also rejected.
The inferences drawn by the Tribunal on the basis of these concerns as to the applicant’s accounts are set forth in some detail at CB pages 17 and 18.
It was somewhat difficult to understand precisely what jurisdictional error is said to arise from these considerations. The respondent’s counsel interpreted the submission as one which suggested that the Tribunal fell into jurisdictional error in the use it made of these inconsistent accounts. I am adopting the applicant’s use of the word “inconsistent” when, in truth, “unsatisfactory” might be a better categorisation of the Tribunal’s response to the explanations proffered by the applicant in respect of these issues that had been put in the s.424A letter. Nevertheless, it is true that the Tribunal was suggesting that certain aspects of the applicant’s claims had been in effect invented to post-date his trips to the Netherlands in 2004. In these circumstances the applicant before me might be taken to have been raising the matters of caution in relation to credibility issues described by the Full Court of the Federal Court in WAIG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 74 at para.[30]:
In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented.
Even bearing in mind the need for circumspection in relation to such findings I have difficulty in identifying any error in the way the Tribunal responded to the applicant’s explanations for the lack of detail as to events post-dating September 2004 in the applicant’s original application. The Minister’s counsel drew my attention to the passage in the decision of the Full Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558:
“whilst the decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are not possible explanations for the delay or inconsistency.”
The Tribunal had real difficulty with the fact that reference to a number of events said to ground the applicant’s fears which occurred after 2004 were not referred to in the applicant’s original application. Related to that was its concern as to his not seeking a further visa to the Netherlands and his delay in leaving Belarus in October 2005. The Tribunal gave the applicant notice of its concerns and an opportunity to provide an explanation. It did not accept his explanations. Some of the explanations raised in response to the s.424A letter were not given when the same issues were raised at the hearing before the Tribunal (for example see the Court Book at page 18.3). These are matters that have arisen from the Tribunal going about its work of inquiry and testing of the claims of the applicant. The Tribunal has explained its reasons for coming to the conclusions it did. I am unable to identify any error let alone any jurisdictional error involved in the way in which it went about assessing the various claims of the applicant.
The last ground was one which contended that the Tribunal overlooked the applicant’s claim to be at risk or persecuted on account of his political opinion. The grounds set forth in the application simply states “that the Tribunal erred in that it failed to consider whether the applicant could be persecuted for his own political opinions.”
As the Minister’s counsel has pointed out in her written submissions (paragraphs 14 to 16 inclusive), that contention simply cannot be made out. The Tribunal considered the risks of persecution arising from both the claims as the applicant’s own activity and that of his father. Its ultimate conclusion was that there was not a real chance of persecution on account of the applicant’s political opinion.
In his written submission the applicant’s counsel suggested that his affidavit of 23 October 2006 outlining his conversation with Mr Razuvanau (see paragraphs 10 and 18 hereof) gave weight to the contention in relation to the Tribunal overlooking the claim for persecution on account of political opinion. I have already dealt with the applicant’s complaints about the way in which the issue of
Mr Razuvanau was dealt with by the Tribunal. All that the Tribunal had to say in relation to this issue is relevant to all aspects of the claim for fear of persecution for a Convention-related reason. No discrete issue arises for consideration in relation to the way in which it dealt with his alleged fears of persecution on account of political opinion. There is no merit in this ground.
For the foregoing reasons the application filed on the 4 August 2006 will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 16 April 2007
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