Grichtchenko v Minister for Immigration and Multicultural Affairs

[2001] FCA 1482

FEDERAL COURT OF AUSTRALIA

Grichtchenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1482

SERGUEI GRICHTCHENKO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1171 of 2001

KATZ J
22 OCTOBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1171 of 2001

BETWEEN:	SERGUEI GRICHTCHENKO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	22 OCTOBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application be dismissed.

2The applicant pay the respondent’s costs of the proceeding.

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	N 1171 of 2001

BETWEEN:	SERGUEI GRICHTCHENKO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	KATZ J
DATE:	22 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court an application for review of a decision made by the Refugee Review Tribunal (“the RRT”).  The RRT made that decision on 4 July 2001. 

2. The RRT’s decision was one to affirm a decision which had earlier been made by a delegate of the present respondent, the Minister for Immigration & Multicultural Affairs (“the delegate” and “the Minister” respectively).  The delegate had made that decision on 28 June 1999.

3. The delegate’s decision had been one to refuse an application made to the Minister by the present applicant, Mr Serguei Grichtchenko, for the grant of a protection visa.  Mr Grichtchenko had made that protection visa application on 19 May 1999, having arrived in Australia on 20 April 1999 with a visitor visa valid for a one month stay.

4. Mr Grichtchenko, a Russian national, had claimed, in his protection visa application, that, owing to well-founded fear of being persecuted in Russia for reasons of political opinion, he was both outside that country and unwilling to avail himself of that country’s protection.  However, that claim had been rejected by the delegate and was again rejected by the RRT on its review of the delegate’s decision.

5. It is necessary for the purpose of Mr Grichtchenko’s application to this Court to refer to two aspects only of Mr Grichtchenko’s case before the RRT.

6. One aspect of Mr Grichtchenko’s case before the RRT, to which aspect I will return later in these reasons for judgment, had been related to his claim to have been a founder in Russia of an organisation called “Russians for the American Way of Life”.

7. The other aspect of Mr Grichtchenko’s case before the RRT, with which aspect I will deal immediately in these reasons for judgment, had involved the making of the following claims by him: on 23 February 1999, he had participated, in St Petersburg, in a public political demonstration against the authorities; that demonstration had been ended by violence on the part of the authorities; he had gone into hiding after that demonstration, fearing detention and other persecution by the authorities for reasons of his political opinion and activities; a friend had, on 22 March 1999, procured for him the Australian visitor visa which he had afterwards used on entering Australia; and he had, on 18 April 1999, departed Russia for Australia, using his own passport.

8. As can be inferred from what I have already said above about the RRT’s decision, the RRT did not accept that Mr Grichtchenko had a well-founded fear of being persecuted in Russia for reasons of his political opinion as a result of his participation in the political demonstration to which I have referred above.

9. First, the RRT inferred that Mr Grichtchenko had no such fear subjectively, relying for that purpose on the delay involved between, on the one hand, the dates of the demonstration, 23 February 1999, and the obtaining of his Australian visitor visa, 22 March 1999, and, on the other hand, the date of his leaving Russia, 18 April 1999.  It is apparent that the RRT took the view that a person who genuinely had such a fear as Mr Grichtchenko claimed to have would have been able to leave Russia for Australia, having obtained an Australian visitor visa, more quickly than Mr Grichtchenko had done.

10. Secondly and on the assumption that it was wrong in concluding that Mr Grichtchenko did not have such fear subjectively, the RRT concluded that such fear was not objectively well-founded.  Although the RRT accepted that Mr Grichtchenko might, on 23 February 1999, have attended, in St Petersburg, a public political demonstration against the authorities, the RRT did not accept that the authorities had had any adverse interest in him as a result of such attendance.  The RRT inferred an absence of adverse interest in him by the authorities both from their failure to apprehend him in the two months between his having gone into hiding and his departure from Russia and from his ability to leave Russia using his own passport.

11. In Mr Grichtchenko’s application to this Court for review of the RRT’s decision, which application was lodged by him in person, reliance was placed on three of the grounds of review set out in subs 476(1) of the Migration Act 1958 (Cth) (“the Act”) as that subsection read at the relevant time.

12. First, it was claimed that procedures that were required by the Act to be observed in connection with the making of the RRT’s decision were not observed (par 476(1)(a) of the Act). Mr Grichtchenko did not, however, identify in his application those procedures that were required by the Act to be observed in connection with the making of the RRT’s decision which had not, according to him, been observed.

13. (I note that, in his oral submissions today, Mr Grichtchenko did identify the procedures to which he had been referring in his application. They were a number of the procedures said to have been required to be observed by subs 430(1) of the Act.)

14. Secondly, it was claimed that the decision involved an error of law (par 476(1)(e) of the Act (wrongly stated in the application to be par 476(1)(c) of the Act)). Mr Grichtchenko did not, however, identify in his application either whether that claimed error was of the first or the second type referred to in par 476(1)(e) of the Act or what, according to him, that error of law was.

15. (The position in that respect was not made clearer by his oral submissions before me today.)

16. Thirdly, it was claimed that there was no evidence or other material before the RRT to justify the making of its decision (par 476(1)(g) of the Act). Mr Grichtchenko did not, however, identify in his application on which paragraph of subs 476(4) of the Act he also relied, reliance on one of the two paragraphs of that subsection being obligatory when one was relying on par 476(1)(g) of the Act.

17. (Again, the position in that respect was not made clearer by his oral submissions before me today.)

18. The present proceeding was before me for directions on 19 September 2001, on which date I gave directions for the filing, in advance of the hearing of the proceeding, of written submissions.  In written submissions, filed by Mr Grichtchenko in person in advance of the hearing, Mr Grichtchenko made no attempt to tie the various complaints which he made in those submissions about the RRT’s decision to any of the grounds of review on which he had relied in his application for review.

19. After summarising in those written submissions his claims and evidence before the RRT and the RRT’s findings and reasons, Mr Grichtchenko then effectively began his submissions by submitting that the RRT’s findings and its reasons for affirming the delegate’s decision concerning him “are nothing else but impertinent”.

20. He next submitted, as I understood it, that a majority of persons determined by Australian administrative authorities to be refugees within the meaning of the Refugees Convention had travelled to Australia on their own passports.

21. Whether that submission be correct as a matter of fact, I am unaware, nor did Mr Grichtchenko seek to put before me any independent evidence to support it.  (By saying that, I do not mean to imply that if he had done so, it would have been open to me to admit such evidence.) However, even if that submission be correct as a matter of fact, that would not mean that the RRT had fallen into some judicially-reviewable error in Mr Grichtchenko’s case because it had relied, in reaching its conclusions, on the fact that Mr Grichtchenko had been able to leave Russia travelling on his own passport.

22. I should, I consider, mention immediately that the role of this Court in reviewing decisions of the RRT is of a limited kind, which lawyers often find difficult to grapple with, and, in those circumstances, it is inevitable that people who are not legally trained will find that role even more difficult to grapple with.  I mention that matter now, because it appears to me to have significance for the submission which I have just been discussing and, indeed, for much else in Mr Grichtchenko’s submissions before me, both written and oral.

23. Mr Grichtchenko next submitted, as I understood it, that a majority of Russian refugee claimants who arrived in Australia with an Australian visa, particularly those who had used a Russian travel agent to arrange their travel (as Mr Grichtchenko claimed to have done), had been unable to leave Russia immediately after obtaining their Australian visas.

24. Again, whether that submission be correct as a matter of fact, I am unaware, nor did Mr Grichtchenko seek to put before me independent evidence to support it.  However, even if that submission be correct as a matter of fact, that would not mean that the RRT had fallen into some judicially-reviewable error in Mr Grichtchenko’s case because it had relied, in reaching its conclusions, on the fact that Mr Grichtchenko had not left Russia immediately after obtaining his Australian visa.  In any event, even if the RRT had fallen into some judicially-reviewable error in that respect, such error would have been an immaterial one, given the RRT’s alternative conclusion about the absence of well-foundedness of Mr Grichtchenko’s fear.

25. I should, I consider, add that, during the course of his oral submissions before me today, Mr Grichtchenko drew attention to the fact that the Australian visitor visa which had been granted to him on 22 March 1999 had been granted, not in St Petersburg, where he lived, but in Moscow, something which, one would think, would inevitably mean some delay in his obtaining the documentation necessary for him to depart Russia after the grant to him of the Australian visitor visa.

26. That is a matter which, it appears to me, casts doubt on the weight which the RRT gave to the delay between the grant of the visa to Mr Grichtchenko and his leaving Russia.  However, questions of the weight to be given to items of evidence before the RRT are not for me to decide, but only for the RRT to decide.

27. Mr Grichtchenko next submitted, as I understood it, that it was necessarily the case that every refugee claimant arriving in Australia had, in order to arrive here, avoided arrest in the refugee claimant’s country of nationality.  It therefore followed that the RRT had acted illogically in rejecting Mr Grichtchenko’s claim that he had avoided arrest in Russia for two months before leaving that country.

28. As to those submissions, it is sufficient to dispose of them simply by noting that persecution and even claimed persecution can, of course, take many forms, of which actual or threatened arrest is only one type.  It will be apparent therefore that it was wrong as a matter of fact for Mr Grichtchenko to submit that it was necessarily the case that every refugee claimant arriving in Australia had, in order to arrive here, avoided arrest in the refugee claimant’s country of nationality.  The factual foundation of those submissions being wrong, it is unnecessary to discuss them further.

29. Mr Grichtchenko then referred by file number to twenty decisions regarding protection visa applicants made either by Ministerial delegates (five decisions), the RRT (fourteen decisions) or a Full Court of this Court (one decision).  His purpose in doing so was said to be to establish that the RRT’s findings regarding him “are groundless, illogical and preposterous”.

30. I mention immediately that I do not have access to decisions of Ministerial delegates on protection visa applications and so have been unable to obtain access to those decisions of Ministerial delegates on protection visa applications referred to by Mr Grichtchenko in his written submissions.  I do have access, on the Internet, to some, although not all, of the decisions of the RRT, but have not sought to obtain access to those decisions of the RRT referred to by Mr Grichtchenko in his written submissions.  Finally, I obviously have access to all earlier decisions of this Court and have located the decision of this Court referred to by Mr Grichtchenko in his written submissions.  That decision was not, however, one of a Full Court of this Court, as stated in his submissions, but rather a decision of a Judge of this Court, namely, Moore J.  That decision was V v Minister for Immigration & Multicultural Affairs (27 August 1998, unreported).

31. As I understood it, Mr Grichtchenko’s purpose in referring in his written submissions to those twenty decisions was to demonstrate that there existed many instances in which protection visa applicants had obtained decisions on their applications favourable to them, nonetheless though: they had left their country of nationality using their own passport; they had been in hiding before leaving; and there had been a delay between their obtaining an Australian visa and their leaving.

32. Restricting myself, for the moment, only to the one decision of this Court among Mr Grichtchenko’s twenty decisions, Mr Grichtchenko has plainly misunderstood the effect of that decision.  That was a case in which an unsuccessful protection visa applicant of Russian nationality unsuccessfully sought judicial review of the adverse RRT decision on a ground which, even if it had been successful, would have had no implications for the lawfulness of the RRT’s findings and reasons in the present matter.  (I note also that Moore J’s reasoning in that case has, in any event, been overtaken by the decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, which decision would make the failure of the application in V’s case inevitable, if it were now being decided.)

33. I note that Mr Grichtchenko informed me today, during the course of his oral submissions, that he had obtained advice from a number of Australian lawyers and (I gathered) migration agents about the ground of review which appeared at the relevant time in par 476(1)(a) of the Act and that he had been assured by them that the ground of review in that paragraph would be made out if the RRT failed to comply with its obligations under subs 430(1) of the Act.

34. I take it that that advice was given to Mr Grichtchenko before the High Court’s decision in Yusuf on 1 May 2001.  Before that decision, that advice would have been correct.  Since that decision, that advice would have been wrong.

35. So far, I have been dealing with the only Federal Court decision among Mr Grichtchenko’s twenty decisions.  As to the remaining nineteen decisions, Mr Grichtchenko’s reliance on them was misplaced, even assuming that they were instances in which protection visa applicants had obtained decisions on their applications favourable to them, nonetheless though: they had left their country of nationality using their own passport; they had been in hiding before leaving; and there had been a delay between their obtaining an Australian visa and their leaving.

36. In Teubner v Humble (1963) 108 CLR 491 at 503-04, Windeyer J said the following about a certain approach taken by counsel in a motor vehicle negligence appeal: “I should add that we were referred by counsel to a number of decisions in other cases of road accidents.  But decisions on the facts of one case do not really aid the determination of another case.” Such a proposition would be equally true about other decisions of Ministerial delegates and the RRT regarding refugee claimants, if an attempt were being made to rely on such decisions before another Ministerial delegate or the RRT.  Reliance on such decisions in order to establish judicially reviewable error by the RRT in a particular case is, if possible, even less helpful.

37. Having dealt with Mr Grichtchenko’s attempted reliance on the twenty decisions, I mention that the balance of his submissions regarding the first aspect of his case before the RRT were, in the main, an attempt by Mr Grichtchenko to repeat, in the guise of submissions, evidence which he had given before the RRT about the merits of his claim to be a refugee.  For that reason, I need say nothing about those submissions in these reasons for judgment.

38. I turn now to the second aspect of Mr Grichtchenko’s case before the RRT to which I have referred above.

39. It will be recalled that Mr Grichtchenko had claimed before the RRT to have been a founder in Russia of an organisation called “Russians for the American Way of Life”.  Early in its statement of findings and reasons, the RRT stated that that organisation had “had a web site at one stage, on which the Applicant[’s] name appeared”.  Later in its statement of findings and reasons, the RRT stated: “I note that the Applicant claims to be a founder of a dissident political organisation.  The only remaining trace of this organisation seems to be a memory of a web site and a business card”.

40. Having drawn attention in his submissions before me to the latter statement by the RRT, Mr Grichtchenko then drew attention to the fact that, in the delegate’s decision record, the delegate had stated that the delegate had examined the organisation’s Web site.  Mr Grichtchenko then submitted that it was apparent from the delegate’s statement that the delegate had “had no reason to doubt that our organisation did exist”.

41. As with Mr Grichtchenko’s submissions on the first aspect of his case before the RRT, his submissions regarding this aspect of his case before the RRT seek, in substance, merely to re-agitate the merits of his case.

42. As I have mentioned at the outset of these reasons for judgment, the delegate’s decision on Mr Grichtchenko’s protection visa application was made on 28 June 1999, while the RRT’s decision was not made until 4 July 2001.  It is apparent that while, on the first of those two dates, the organisation’s Web site was accessible, on the second of them, it was not.  Indeed, in his written submissions before me dated 6 October 2001, Mr Grichtchenko asserted that the site was not presently operational.  I am unable to discern any reason why it would not have been open to the RRT on 4 July 2001 to conclude that the organisation itself was no longer in existence and to rely, in reaching that conclusion, on the fact that the organisation’s Web site was no longer functioning.  Certainly, the fact that the delegate had concluded over two years earlier that the organisation was then in existence would be no impediment, whether factually or legally, to the RRT’s reaching such a conclusion.

43. Indeed, if the RRT had reached a particular factual conclusion in Mr Grichtchenko’s case simply by reason of the fact that the delegate had earlier done so, that, in itself, would have amounted to error by the RRT: see my reasons for judgment in Aung v Minister for Immigration & Multicultural Affairs [2000] FCA 1562 (3 November 2000, unreported), particularly at [7].

44. In the circumstances, Mr Grichtchenko’s application will be dismissed with costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:             30 October 2001

The applicant appeared in person.
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 October 2001
Date of Judgment:	22 October 2001