Diane Vichlenkova v Minister for Immigration and Multicultural Affairs

[1998] FCA 1782

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – application for judicial review of Refugee Review Tribunal - Tribunal disbelieved applicant's account - applicant provided incredibly inconsistent information - no realistic explanation of contradiction except disbelief - futility of court's intervention - possibility of actual bias - possibility of impermissible inference

Bhiuyan v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Wilcox J, 14 October 1998), referred to

DIANE VICHLENKOVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1082 of 1998

MADGWICK J
15 DECEMBER 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1082 of 1998

BETWEEN:	DIANE VICHLENKOVA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK
DATE:	15 DECEMBER 1998
PLACE:	SYDNEY

SHORT MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application for review will be dismissed.

1. The applicant is to pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1082 of 1998

BETWEEN:	DIANE VICHLENKOVA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK
DATE:	15 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:  In this matter the applicant seeks judicial review of a decision by the Refugee Review Tribunal ("the Tribunal") not to interfere with a decision by a delegate of the Minister for Immigration and Multicultural Affairs that she was not entitled to a protection visa, for the reason that she was not a refugee within the meaning of the relevant Convention. 

The applicant is a woman in her early twenties whose maternal grandmother was of Chechen nationality and ethnicity and of the Muslim faith.  The applicant's claim was that, following the outbreak of the civil war waged by President Yeltsin against the Chechen people in Chechenya, and the prominence of some Chechen persons in the Russian underworld, the part-Chechen ancestry of the applicant, her brother and her mother had become known to malign Russian racists.  These racists had, among other things, she claimed, attacked and beaten her mother, caused the family to receive threatening letters, ransacked the family home, inscribed anti-Chechen slogans in and about their home and finally attacked her, knocking her unconscious.  When she awoke the words "Chechen bitch" were written on her long coat.  She also claimed that she had been dismissed from her employment as a school teacher of English on account of her perceived Chechen background.

The Tribunal disbelieved the applicant.  Crucially the Tribunal member pointed to the fact that the applicant's identificatory documents all showed her nationality to be Russian.  The Tribunal regarded it as quite far fetched to believe that anyone would consider her or members of her family to be Chechen, as opposed to Russian or Tartar, particularly since all her official papers showed that she was nothing other than Russian.

The second and, with respect to the Tribunal, much stronger reason for rejecting the applicant's claim, is the fact that she had stated in the interview, held by the department, that her own fiancee (with whom she had been friendly for an extended period, and in fact later married) had no idea that she had any Chechen ancestry.  Yet, in contradistinction to this, she was able to state that complete strangers were able to ascertain this fact.  The Tribunal member commented:

"The Tribunal finds this implausible and does not accept the applicant's explanation [presumably given in evidence before the Tribunal - nobody put the transcript in evidence before me] that there are official lists of those Chechen.”

The startling significance of that apparent contradiction becomes even clearer when the chronology put forward by the applicant is considered.  The attacks on her family she says began in November 1995 with an attack upon her mother, and continued until "December 1996".  She married her fiancee on 10 December 1996 and had known him for about 18 months.  If the attacks on the applicant and her family occurred for any reason, they must have been of devastating concern and significance to her.  If they occurred for reasons perceived by the family as being to do with the family's supposed Chechen links, then that factor must have been so singular and indeed so difficult to conceal amongst members of her nuclear family, that it defies human comprehension that her fiancé would not have become aware either of the family's background or of the supposed belief of the supposed attackers.

There is, as conceded by counsel for the applicant, no possible realistic explanation for this contradiction, except that, in relation to these quite crucial matters, the applicant is not to be believed.  The strength of this reasoning, furnishes, in my opinion, an exceptional instance of the futility of the court intervening, assuming that reviewable grounds for intervening might otherwise be shown.

It seems to me that there might well be grounds which, looked at alone, may justify the court in intervening.  For example, in response to the applicant's claim that she was of "Caucasian" appearance and that this would aid her identification as a person who might be of Chechen descent, the Tribunal member took it upon himself to observe that:

“The applicant looks similar to any other Russian person - and is not of the physical profile as mentioned in the information cited above (being dark skinned young males) who are commonly imputed to be Chechen and against who[m] a great deal of discrimination may be suffered at the hands of Russians generally.”

If the Tribunal member was applying any expertise he had as to the appearance of Russian people (and this would be something of a novel field for such expertise) he was at the very least obliged, in my opinion, to raise this suggestion with the applicant and give her the chance to respond to it.  If he had some fixed view about what Russian people generally looked like, questions might arise of the possibility of actual bias.

There are other instances where, at least arguably, the Tribunal member committed the logically fallacious and legally impermissible exercise of disbelieving an assertion by the applicant that event X occurred and then proceeding, in the absence of any other evidence, to find affirmatively that event X had in fact not occurred.  That is but an instance of drawing an inference which the material before the Tribunal furnished no basis for drawing:  see Bhiuyan v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Wilcox J, 14 October 1998).

It is not necessary to consider these matters further or even to finality because, to my mind, it really does defy reason to suppose that there could be any result of further consideration of the matter by the Tribunal other than rejection of the applicant's claims. 

Accordingly, the application for review will be dismissed and the applicant is to pay the respondent's costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:             15 December 1998

Counsel for the Applicant:	K Duncombe
Counsel for the Respondent:	A Nanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 December 1998
Date of Judgment:	15 December 1998