Ganbat v Minister for Immigration and Multicultural Affairs

[2001] FCA 1371

FEDERAL COURT OF AUSTRALIA

Ganbat v Minister for Immigration & Multicultural Affairs [2001] FCA 1371

PUREV GANBAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1155 of  2001

SACKVILLE J
SYDNEY
24 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1155 OF 2001

BETWEEN:	PUREV GANBAT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	24 SEPTEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1155 OF 2001

BETWEEN:	PUREV GANBAT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	24 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 July 2001. The Tribunal affirmed a decision of a delegate of the respondent (“the Minister”) made on 11 May 2001 refusing to grant a Protection visa to the applicant. The application for review in this Court, which appears to have been prepared by the applicant himself, was filed on 3 August 2001. It does not specify any grounds available pursuant to s 476(1) of the Migration Act 1958 (Cth) (“the Act”), stating only that the details of the grounds of review “will be sent at a later date”. 

2. At a directions hearing held in this matter on 6 September 2001, orders were made for the applicant to file and serve written submissions in support of his application by 18 September 2001.  No such submissions were made.  At the hearing today the applicant has appeared in person with the assistance of a Russian interpreter but has not put forward any oral submissions in support of his application to this Court.  I should record that the applicant sought an adjournment of the proceedings.  For reasons already given, I declined to grant an adjournment.

   BACKGROUND

3. The applicant is a Mongolian national of Chinese ethnicity.  He was born on 30 June 1959 and spent his childhood in Ulan Batur, Mongolia.  He arrived in Australia from Mongolia on 16 October 1996 as a dependent of his then wife who held a student visa.  The applicant and his wife divorced on 16 October 1997 and his wife returned to Mongolia with his two children.  It was not until 23 March 2001, however, that the applicant applied for a protection visa.  At that time he was in immigration detention.  The applicant’s explanation for the delay in applying for a protection visa was that a Departmental officer advised him to “get married and stay here”.  He also claimed that he had been too nervous to apply for refugee status because of his concerns about the reaction of the Russian and Mongolian authorities.

4. The applicant claimed before the Tribunal that his Chinese ethnicity had caused him continuing difficulties during his childhood and thereafter.  He claimed to have been the victim of violent attacks when he was as young as six or seven.

5. After completing his secondary education, the applicant apparently went to Russia, where he studied economics, politics and science at a tertiary level.  The applicant claimed that his level of education, together with his knowledge of German and Spanish, meant that he was often in the company of high ranking officials during his period of compulsory military service with the Soviet Army.  As such, he said that he acquired knowledge of “secrets about the Soviet Army” and feared persecution from the Mongolian authorities as a consequence.

6. In his oral submissions to the Tribunal, the applicant also claimed to have been exposed to high level corruption within the Soviet Army during the period of perestroika.  Specifically, he claimed to be aware of profiteering that occurred during the transition of the Soviet Union to a market economy.  According to the applicant, his exposure to such corruption also exposed him to the risk of persecution upon returning to Mongolia.

   THE LEGISLATION

7. Section 65(1) of the Act provides as follows:

   “(1) After considering a valid application for a visa, the Minister:
              (a) if satisfied that:
     (i) …;

   (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; …

   is to grant the visa.”

8. Section 36 of the Act regulates applications made in relation to protection visas.  It relevantly provides as follows:

   “Protection visas
   (1) …;

   (2)    A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

9. Article 1A(2) of the Refugees Convention defines a refugee as any person who:

   “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

   THE TRIBUNAL’S REASONING

10. The Tribunal accepted that the applicant was a successful businessman and a person who had access to government officials at a high level.  However, it found that the applicant was not a credible witness and it was not satisfied that any of his significant claims had any basis in fact.

11. The Tribunal gave a number of reasons for not being satisfied about the truth of the applicant’s claims.  It considered that he had not given any plausible evidence about his claimed involvement in corruption of Soviet officers.  There were substantial inconsistencies in his evidence concerning the time he claimed to have spent in the Soviet army.  The applicant’s account at the hearing made no mention of his having any problems leaving Mongolia, yet he claimed that the authorities had been looking for him for a long period of time.  Moreover, during most if not the whole of this period, he had apparently lived at the same address in Mongolia.  The Tribunal also found that the applicant’s claims at the hearing were significantly different from those advanced in his written submissions. Further, the Tribunal rejected the applicant’s explanation for his delay in applying for a protection visa. 

12. The Tribunal summarised its findings as follows:

    “The Tribunal is satisfied that the applicant is a Mongolian national.  The Tribunal accepts for the purposes of making this decision that as a young person at school he was at times harassed and subject to severe school yard bullying in  part because he had an ethnic Chinese parent.  However, the Tribunal is not satisfied that his ethnicity has caused him any major problems in his later life.  His life story – in as much as the Tribunal accepts – indicates that he was able to complete tertiary study, find employment upon return to Mongolia, and then establish a comparatively successful business in Mongolia where he was free to travel in and out of the country on his business trips. 

    The Tribunal accepts that he was a reservist and had done some service for short periods.  The Tribunal does not accept that he was continually or annually subject to call-over….  His profile became that of a successful businessman who personally knew the President.  The Tribunal is satisfied that he was not…sought by the authorities before his departure, nor is he being sought now.  The Tribunal is of the view that his claims have been made up for the purposes of strengthening his application. 

    As to his…claims concerning problems faced by those who work for the military upon return from the West, the Tribunal has not found any information on this topic which would indicate that there [is] a problem in this area….

    The Tribunal is not satisfied that [the applicant] has a well founded fear of persecution for a Convention related reason.”

    CONCLUSION

13. As I have indicated the applicant did not put forward any grounds of review either in his application to this Court or in his oral submissions today. It follows that no basis has been advanced by the applicant for challenging the decision of the tribunal. It is, however, appropriate to reiterate the limited role that this Court plays in applications of this kind. The Court's powers are limited by Part 8 of the Act.  It can interfere with a decision of the Tribunal only if one of the specified grounds of review is made out. 

14. It is not a basis for review of the Tribunal's decision that the Court does not agree with the findings of fact made by the Tribunal.  Factual questions are for the Tribunal to decide not for this Court.  In making this comment, however, I am not to be taken as casting any doubt upon the Tribunal's findings of fact. 

15. The applicant did say in his submissions in relation to an adjournment that this case is of great importance to him.  I, of course, understand that.  Nonetheless, the task of the Court is to make decisions in accordance with the governing legislation.  On that basis, I have no alternative but to dismiss the application.

16. I consider that in this case there is no reason to depart from the general principle that the successful party should receive his costs.  Accordingly, I order that the applicant pay the Minister's costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             26 September 2001

The Applicant was unrepresented.

Counsel for the Respondent:	Ms N Abadee
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	24 September 2001
Date of Judgment:	24 September 2001