Kavun v Minister for Immigration and Multicultural Affairs

[2000] FCA 1156

FEDERAL COURT OF AUSTRALIA

Kavun v Minister for Immigration & Multicultural Affairs [2000] FCA 1156

MIGRATION – application for protection visa – error of law – findings of fact by Refugee Review Tribunal – administrative decision‑maker to be satisfied as to factual matters – satisfaction as to factual matters not for Federal Court of Australia or judge.

Migration Act 1958 (Cth): Pt 8

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 referred to

OLEKSANDR KAVUN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 334 of 2000

GRAY, MERKEL & GOLDBERG JJ
15 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 334 of 2000

BETWEEN:	OLEKSANDR KAVUN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GRAY, MERKEL & GOLDBERG JJ
DATE OF ORDER:	15 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

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 334 of 2000

BETWEEN:	OLEKSANDR KAVUN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GRAY, MERKEL & GOLDBERG JJ
DATE:	15 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GRAY J:

1. I agree with the reasons that Goldberg J has just pronounced.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:             15 August 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 334 of 2000

BETWEEN:	OLEKSANDR KAVUN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GRAY, MERKEL & GOLDBERG JJ
DATE:	15 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MERKEL J:

1. I also agree that the appeal is to be dismissed with costs for the reasons given by Goldberg J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:             15 August 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 334 of 2000

BETWEEN:	OLEKSANDR KAVUN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GRAY, MERKEL & GOLDBERG JJ
DATE:	15 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GOLDBERG J:

1. The appellant appeals from a decision of a Judge of the Court made on 22 March 2000 dismissing the appellant’s application to review the decision by the Refugee Review Tribunal (“the Tribunal”) on 4 November 1999 affirming the decision of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the appellant a protection visa.

2. The appellant is a citizen of Ukraine.  The appellant had worked as a sailor since 1991.  In October 1996 he was employed by InterMarine Shipping Company and joined the ship on which he travelled to Australia in Spain.  The appellant said that a few days before arriving in Australia he was warned by the captain of the ship that his employment was to be terminated because he had provided a false statement that he had never been convicted by the Ukrainian or any other authorities and that when they arrived in the next port he would have to return home.  The appellant deserted the ship in April 1997 and applied for a protection visa on 17 April 1997.

3. The appellant relied upon the following grounds before the primary judge:

   “1.Procedures that were required by the Act to be observed in connection with 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).”

4. The appellant appeared in person before the primary judge and was assisted by an interpreter as the appellant does not speak English.  The appellant was unable to advance any detailed submissions in support of the specific grounds upon which he relied before the primary judge.  He indicated to the primary judge that the substance of his complaint was a finding by the Tribunal rejecting the authenticity of documents which he tendered to the Tribunal which purported to be official documents of Ukraine but were in the Russian language rather than the Ukrainian language.

5. The primary judge considered in some detail the evidence including the documentary evidence placed before the Tribunal by the appellant.  Those documents included two statements indicating that he had been arrested on 8 September 1992 and 3 November 1992 on suspicion of calling for the violent overthrow of the constitutional system, a crime under Ukrainian law.  It also included a number of summonses to attend the Interior Department of Iliychevsk in 1996.  The issue before the Tribunal was the authenticity of these and other documents as they were in the Russian language and not the Ukrainian language.

6. The appellant claimed before the Tribunal that he had been persecuted by the Ukrainian security police but the Tribunal found, according to the primary judge, that there were good reasons for believing that the appellant was not telling the truth about his experiences in Ukraine.

7. The primary judge noted the Tribunal’s conclusion that the fact that the summonses were in the Russian language and not the Ukrainian language indicated that they were not genuine and that Ukrainian was the official language of Ukraine.

8. The Tribunal did not accept that the appellant had been placed under surveillance, that his house was searched, that his car was blown up, that his wife was attacked and that he was arrested, imprisoned and brutally beaten and threatened by the Ukrainian security police as he claimed.

9. The appellant informed the primary judge that one explanation for his confused evidence before the Tribunal was that he was sick and suffering from injuries but the primary judge noted that the alleged injuries occurred some time before the Tribunal hearing and that, in the event, the Tribunal did not accept much of the claims made by the appellant.

10. The primary judge analysed the Tribunal’s reasons in some detail and could not perceive any error of law in those reasons, nor could he perceive in the reasons anything that would indicate that the decision was affected by actual bias.  No submission was made to the primary judge that there was no evidence or other material to justify the making of the decision.  In any event, the primary judge found that there was evidentiary material before the Tribunal that could justify the conclusion it had reached.

11. The primary judge, following Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558‑559, reasoned at [22]:

    “Whilst a decision‑maker concerned to evaluate the credibility of testimony of a witness who claims to be a refugee will need to consider possible explanations for any delay in the 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.”

    His Honour was not persuaded that any of the grounds relied upon in the amended application for an order of review were made out and he dismissed the application. 

12. The appellant, who appeared in person, relied upon one ground in his notice of appeal:

    “The order 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 Judge Emmett J.”

    The Court did not receive any written submissions from the appellant.  Before the Court, in oral submissions the appellant, in essence, submitted that the Tribunal should have reached a different conclusion in relation to his claim that he had been persecuted for his political opinions and that it had made mistakes in relation to its factual findings against him which included rejecting the authenticity of the documents the appellant placed before it.  Put shortly, the appellant submitted that the Tribunal reached wrong conclusions on the evidence before it.  In particular he submitted that there was insufficient evidence before the Tribunal to reject his claim. 

13. The appellant did not particularise his ground of appeal in any way.  Nevertheless, I have been concerned to determine whether there might be any ground of appeal upon which the appellant might rely in relation to the reasoning of the primary judge.  I have been unable to find any error in the primary judge’s reasons.

14. The Tribunal considered the appellant’s claims in considerable detail and noted discrepancies in his evidence and also discrepancies between the appellant’s evidence and independent country information concerning Ukraine available to the Tribunal.  The Tribunal rejected the appellant’s claims and his supporting documents as false and found that the appellant was not telling the truth about his past experiences in Ukraine. 

15. The Tribunal made findings of fact which I am satisfied were reasonably open to it on the evidence before it.  Putting the matter shortly, findings of fact, if reasonably open to a Tribunal on the whole of the evidence and material before it, will not amount to an error of law:  Minister for Immigration and Multicultural Affairs v Epeabaka (1988) 84 FCR 411 at 420‑422. It was a matter for the Tribunal as to whether it believed the appellant or preferred one piece of evidence over another piece of evidence. It is important to appreciate that when considering the scope of judicial review under Pt 8 of the Migration Act 1958 (Cth), Parliament has made the satisfaction of an administrative decision‑maker (in this case relevantly the Tribunal), as to factual matters, and not of a judge or court, the determinant of eligibility for a protection visa: Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at 629.

16. In my view, the primary judge found correctly that there was no reviewable error in the Tribunal’s decision.  I would dismiss the appeal with costs.

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

Associate:

Dated:             15 August 2000

Counsel for the Appellant:	Appellant in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 August 2000
Date of Judgment:	15 August 2000