Kavun v MIMA
[2000] FCA 370
•22 MARCH 2000
FEDERAL COURT OF AUSTRALIA
Kavun v Minister for Immigration & Multicultural Affairs [2000] FCA 370
MIGRATION – protection visa – application for review of a decision of Refugee Review Tribunal (‘the Tribunal’) refusing grant – whether procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision were observed
Migration Act 1958 (Cth), subss 476(1)(a), (e), (f) & (g)
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547, considered
OLEKSANDR KAVUN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1367 OF 1999
EMMETT J
22 MARCH 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1367 OF 1999
BETWEEN:
OLEKSANDR KAVUN
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
22 MARCH 2000
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
N 1367 OF 1999
BETWEEN:
OLEKSANDR KAVUN
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
22 MARCH 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a citizen of the Ukraine. He deserted his ship in Australia in April 1997 and applied for a protection visa on 17 April 1997. On 27 May 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused the application for a protection visa. The applicant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 4 November 1999 the Tribunal affirmed the decision not to grant a protection visa. On 23 November 1999 the applicant filed an application for an order of review of the decision of the Tribunal.
When the matter was called on for hearing this morning the applicant filed an amended application without opposition from the Minister. The grounds stated in the amended application are as follows:
1.Procedures that were required by the Act to be observed in connection of the making of the Decision were not observed (s. 476(1)(a)).
2.The Decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both (s. 476(1)(e) of the Act).
Particulars
The finding by the Tribunal that the documents produced in support of his claims were fabricated for the purposes of supporting his application for a protection visa was not reasonably open to it on the evidence.
3. The Decision was affected by actual bias (s. 476(1)(f) of the Act).
4.There was no evidence or other material to justify the making of the Decision (s. 476(1)(g) of the Act).
The applicant appeared in person before me. He does not speak English and was assisted by Mr Benjamin Perkis who translated the proceedings into the Russian language. In the course of the proceedings before the Tribunal, the applicant was represented by a solicitor.
The applicant was unable to advance any detailed submissions in support of the specific grounds to which I have just referred. However, he indicated that the substance of his complaint was a finding made by the Tribunal concerning the authenticity of documents that were tendered to the Tribunal. The Tribunal rejected the authenticity of those documents because they purported to be official documents of the Ukraine but were in the Russian language rather than Ukrainian. The applicant sought to place before me evidence consisting of E-mail communications with a European legal firm concerning the use of Russian in the Ukraine, following its independence in 1991. I rejected the tender of that material on the basis that it was not relevant to any issue that it is open for me to decide.
I have considered the detailed reasons of the Tribunal published on 4 November 1999. The applicant’s evidence was summarised in some considerable detail by the Tribunal in its reasons. In support of his case before the Tribunal, the applicant produced copies of a number of documents, including the following:
(1)a statement indicating that he was arrested on 8 September 1992 on suspicion of calling for the violent overthrow of the constitutional system, a crime under Article 62 of the Criminal Code of the Ukraine;
(2)a statement indicating that he was arrested again on 3 November 1992 on suspicion of calling for the violent overthrow of the constitutional system;
(3)an ambulance medical report indicating that his wife was hospitalised on 29 June 1995;
(4)an ambulance medical report indicating that the applicant was hospitalised on 25 September 1995;
(5)a medical report indicating that the applicant was hospitalised on 10 November 1995;
(6)certificates indicating that the applicant was hospitalised from 1 December 1995 to 15 December 1995 and again from 22 January 1996 to 10 February 1996;
(7)a death certificate in respect of Stanislav Verbitsky;
(8)summonses addressed to the applicant to attend the Interior Department of Illiychevsk on 11 August 1996, 27 August 1996; 1 September 1996 and to attend the Illiychevsk City Court on 9 November 1996 in relation to charges under Article 62 of the Criminal Code of the Ukraine; and
(9)three undated letters purporting tobe from the applicant’s wife.
In the course of the hearing before the Tribunal, the applicant’s solicitor asked the Member whether he had independent evidence indicating that the official documents in Russian from the Ukraine were bogus. The Tribunal indicated that there was ample evidence that Ukrainian was the official language of the Ukraine. The applicant also referred to the fact that a copy of the Criminal Code of the Ukraine, which he possessed, and an extract from which was produced to the Tribunal, were in Russian. The Tribunal indicated that it had no doubt that the Criminal Code was available in both languages but that the point was that the official language of Ukraine was Ukrainian. In relation to the question of whether the documents supplied by the applicant were genuine, the applicant’s solicitor requested that they be referred to the “document examination unit” so that advice could be obtained on the genuineness of them.
The applicant asserted before the Tribunal that many Ukrainian Government authorities continue to use forms designed in the Soviet era that were originally printed in Russian. He also asserted that, despite the official policy of using the Ukrainian language, many officials continue to use the Russian language when completing documents. Article 10 of the Ukrainian Constitution, it was said, specifically guaranteed the use and protection of the Russian language.
The Tribunal found that there were good reasons for believing that the applicant was not telling the truth about his experiences in the Ukraine. He claimed to have been persecuted by the security police of the Ukraine (‘the SBU’), because of his involvement in an obscure political movement, the Peoples Front of Ukraine, referred to by the Tribunal as the ‘PFU’. The Tribunal noted that it had not been able to uncover any reference to the PFU.
The Tribunal acknowledged that that did not mean that such a movement did not exist. However, it raised the question as to why the PFU should have been targeted by the security forces in the way claimed by the applicant. The applicant was unable to describe to the Tribunal the political aims of the PFU in any detail. The Tribunal considered that it was clear from the lack of any reference to the PFU that it had been “spectacularly unsuccessful” in rousing the people.
The applicant’s representative submitted to the Tribunal that a group that diverged from the mainstream might be at risk of violence and that there was nothing inherently unbelievable about the SBU being used against a political activist because the politicians were trying to keep power, using whatever means were necessary. The Tribunal noted that such a submission, however, assumes that the PFU posed a threat to the politicians yet there was nothing in the evidence before the Tribunal to suggest that it did.
The Tribunal considered there were good grounds to question the characterisation of the applicant as a political activist. The Tribunal considered that, at the hearing, he showed a lack of familiarity with political developments in the Ukraine. The Tribunal concluded that it was implausible that the members of the PFU, or the applicant in particular, would have been targeted in the Ukraine because of their political views.
The applicant also claimed before the Tribunal that he had been targeted because in 1995 he had learned from his own sources about corruption in the city administration. However, the Tribunal considered that the applicant's evidence at the hearing with regard to that aspect of his claims was confused. Quite apart from the confusion and contradictions in the applicant’s own evidence regarding various events that were summarised by the Tribunal, the Tribunal considered that there were further grounds for regarding his account as implausible. The Tribunal put to the applicant reports from the United States State Department that human rights organisations have not reported any complaints of violations of human rights by the SBU.
In the light of the advice from the US State Department, the Tribunal also referred to the fact that, having left Ukraine, the applicant did not apply for protection until he reached Sydney. The applicant flew to Spain on 1 November 1996, according to evidence before the Tribunal. He said that he was taken directly from the airport to his ship. He said that he did not apply for refugee status in Spain because he had been depressed and had needed breathing space to have some rest. He also said that Europe was very close to Ukraine and that his wife had been left without means of subsistence and that he had to make some money to support her.
The Tribunal observed that while there is no rule that persons claiming to be refugees must apply in the first country they come to that is a signatory to the Refugees Convention, the fact that an applicant does not do so may cast doubt on the genuineness, or at least the depth, of his claimed fear of persecution. The Tribunal considered that the reasons given by the applicant for no having sought protection in Spain suggest that seeking protection from persecution was not uppermost in his priorities at the time he left Ukraine.
The Tribunal considered that the fact that the summonses, to which I have referred above and which the applicant produced, are in Russian and not Ukrainian indicates they are not genuine. The Tribunal noted that Ukrainian is the official language of Ukraine. While the Tribunal accepted that there are many Russian speakers in Ukraine and that they predominate in the Crimea and form a sizeable minority in the eastern and southern parts of Ukraine, that did not affect the fact that Ukrainian is the state language or the official language. The Tribunal considered it reasonable to expect official documents, such as the purported summonses, to be in the official language.
An opportunity was given to the applicant to produce further evidence after the hearing in relation to the use of Russian in the Ukraine. The Tribunal considered that evidence produced by the applicant after the hearing did not assist his case. The Tribunal considered that the evidence produced indicated that official documents such as death certificates should be in both Ukrainian and Russian whereas those that he had produced were not. The Tribunal concluded that the purportedly ‘official’ documents that the applicant produced in purported corroboration of his claims are not genuine.
The Tribunal did not accept that the applicant was placed under surveillance, that his house was searched, this his car was blown up, that his wife was attacked, that he was arrested, imprisoned, brutally beaten and threatened by the SBU as he claimed. The Tribunal did not accept that the applicant was repeatedly arrested and beaten by the police or the SBU as a result of his involvement in the PFU. The Tribunal considered that it was implausible that the applicant would have got into trouble in Ukraine by reason of his involvement in the PFU after Ukraine won its independence from the former USSR. Nor did the Tribunal accept that since he left the Ukraine the applicant’s wife has again been attacked and has been forced to live in hiding from the Ukrainian authorities.
The applicant submitted to the Tribunal that all of those things had happened because he had information about corruption of the city administration of Odessa. The Tribunal did not accept that there was any truth in the applicant’s claims that the Ukrainian authorities were looking for him and that he will be arrested and imprisoned or murdered on his return to Ukraine by reason of his having in his possession compromising material regarding the city administration of Odessa. The Tribunal considered that the applicant’s claims in that regard were implausible and they had been fabricated for the purpose of supporting his application for a protection visa.
The Tribunal did not accept that the applicant would have been arrested for striking, as claimed, unless he had broken the law in some way, for example, by holding an unlicensed demonstration. The Tribunal did not accept that the applicant had been singled out for arrest and prosecution by reason of his political views or that he was being treated differently from anyone else charged with a similar offence. The Tribunal concluded that provided the applicant keeps his political activity within the bounds of the law, he will not have a well-founded fear of being persecuted by reason of his political opinions if he returns to the Ukraine now, or in the reasonably foreseeable future. The Tribunal therefore concluded that the applicant does not have a well-founded fear of being persecuted for a Refugees Convention reason if he returns to the Ukraine.
Before me the applicant said that one explanation for his confused evidence before the Tribunal was that he was sick and suffering from his injuries. The alleged injuries, however, occurred some time before the Tribunal hearing and, in any event, the Tribunal did not accept much of the claims made by the applicant. No submission has been made before me concerning failure to observe procedures required by the Act in connection with the making of the decision. I do not perceive any error of law in the reasons that I have read. I do not perceive anything in the reasons that would indicate that the decision was affected by actual bias and no further evidence has been adduced before me. No submission was made that there was no evidence or other material to justify the making of the decision. Indeed, the material that I have summarised indicates that there was evidentiary material before the tribunal that could justify the conclusion reached. The decision was essentially a decision of fact in respect of which there is no review by this Court. The Tribunal considered the applicant's claims in considerable detail. The primary reason for its conclusion was the marked change in stories between that given in the original application for a protection visa and that given to the Tribunal. The tribunal also had regard to the disparity between the applicant’s account and independent country information concerning the Ukraine that was available to it.
The tribunal rejected the purportedly ‘official’ documents as constituting corroboration. While one might have some disquiet about the conclusion reached by the Tribunal concerning the language in which the documents are written, that is ultimately a matter for the Tribunal. It is a matter for the Tribunal as to whether it believes the applicant, or prefers one piece of evidence to another.
Whilst a decision-maker concerned to evaluate the credibility of the testimony of a witness who claims to be a refugee will need to consider possible explanations for any delay in making of claims and for any evidentiary inconsistencies, there is no rule that a decision-maker may not reject an applicant's testimony on credibility grounds unless there is no possible explanation for the delay or inconsistency. Nor is there a rule that a decision-maker must hold a positive state of disbelief before making an adverse credibility assessment in a refugee case - Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558G to 559A.
In the absence of any submissions on behalf of the applicant, other than the statements to which I have referred, I am not persuaded that any of the grounds relied on in the amended application for an order of review is made out. Accordingly, I propose to order that the application be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 7 April 2000
Counsel for the Applicant: The applicant appeared in person assisted by an interpreter Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 March 2000 Date of Judgment: 22 March 2000
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