NAGP v Minister for Immigration

[2003] FMCA 562

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAGP & ANOR v MINISTER FOR IMMIGRATION [2003] FMCA 562

MIGRATION – Application for review of Refugee Review Tribunal decision – whether Tribunal considered claims – relevance of applicant’s credibility – whether Tribunal obliged to make inquiries – whether bias or lack of procedural fairness – no jurisdictional error.

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1802
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Nagalingam v Minister for Immigration & Local Government & Ethnic Affairs (1992) 38 FCR 191
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Kopapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at 558 – 559
W148/2000 v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Multicultural & Affairs v Applicant S [2002] FCAFC 244
Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982

Applicant: NAGP & NAGQ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ279 of 2003

Delivered on: 9 October 2003

Delivered at: Sydney

Hearing Date: 9 October 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

2. That the Applicants pay the Respondent’s costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ279 of 2003

NAGP & NAGQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 28 November, 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicants protection visas. 

2. The applicants are a couple from the Ukraine who are in a defacto relationship.  Only the first applicant appeared at the Tribunal hearing.  He also represented both himself and his de facto wife (the second applicant) in the proceedings today.  The applicants applied for protection visas on 24 May 2000.  The delegate refused the applications on 22 September 2000.  They sought a review by the Tribunal on
   18 October 2000.  The Tribunal held a hearing on 21 November 2002 which the first applicant (to whom I will refer to as the applicant) attended. 

3. The applicants claim to fear persecution by reason of their religion.  They claimed to be associated with the Pentecostal Church in the Ukraine.  The applicant claimed to have become a member of the church in January 1999 and to have attended the church in the Ukraine.  He claimed that he had been beaten many times by members of the Ukranian Self Defence Organisation (the UNSO) and threatened by members of the Greek Catholic Church. 

4. He claimed to fear further harm from the UNSO and that the Ukrainian authorities would not protect him.  In its reasons for decision the Tribunal set out the claims that he made in his initial application to the Department and also the evidence he gave at the Tribunal hearing.  Also detailed were issues that the Tribunal had raised with the applicant in the course of the hearing in relation to aspects of his beliefs, Pentecostal beliefs and the history of the Church and his involvement with it in Ukraine and also in Australia.  According to the reasons for decision, the Tribunal also put to the applicant concerns that it had with aspects of his evidence in relation to his claims of persecution and aspects of independent information before the Tribunal in relation to the position of the Pentecostal Church and religious freedom in the Ukraine.  The Tribunal also heard from the applicants' migration adviser at the hearing. 

5. The Tribunal found that the applicant husband was not credible and had fabricated his claims in relation to past harm.  It gave reasons for such findings.  It expressed doubts about whether he was a member of the Pentecostal Church based on his limited knowledge in relation to Pentecostal beliefs and about the Pentecostal Church.  However it went on to say that even if the applicant had attended church services in the Ukraine it did not accept that the Church was attacked, that he had been attacked or threatened because he attended the Church or that he would be unable to practice his religion in the Ukraine, as such claims were inconsistent with independent information before the Tribunal as to religious freedom and acceptance of the Pentecostal Church in the Ukraine and with the absence of any reports of harm to or persecution of members of the Pentecostal Church in the Ukraine.  The Tribunal was not satisfied on the evidence before it that there was a real chance that he would be persecuted if he returned to the Ukraine for reasons of his religion or that he had a well-founded fear of persecution. 

6. As the second applicant had not accepted the invitation to attend the Tribunal hearing, her claims were determined on the evidence before the Tribunal.  The Tribunal had regard to the generality and lack in detail of her claims and to the absence of independent evidence of to suggest that Pentecostalists were persecuted in the Ukraine and the evidence of respect for the religion.  It concluded that it was unable to be satisfied on the evidence before it that there was a real chance that the second applicant would be persecuted if she returned to the Ukraine for reason of her religion or that she had a well-founded fear of persecution. 

7. The applicants filed an application in the Federal Court on

   
   

   23 December 2002 and the matter was transferred to this court.  In the application they claimed that the Tribunal did not interpret the law correctly or follow the correct methods in assessing their claims.  In an accompanying affidavit they raise a number of grounds.  To a large extent the grounds that they rely on take issue with the merits of the Tribunal decision.  Merits review is not available in the Court.  However, I have considered whether the affidavit material and the oral submissions today establish any ground for review. 

8. The applicants claimed that the Tribunal did not assess their claims in the appropriate fair and detailed manner, in particular that it did not go into the details of the claimed persecution but concentrated on whether or not the first applicant was a true believer.  The applicants do not identify any particular aspect of the claims not addressed by the Tribunal.  It is not apparent from the material before the court that the Tribunal failed to address any aspect of the claims of the applicant in the sense of failing to take into account a relevant consideration or failing to consider all the component integers of the claims (Craig v South Australia (1995) 184 CLR 163, Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Htun v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1802). The Tribunal is not obliged to deal with every item of evidence in its reasons (Yusuf at paragraphs [67] – [68]) and it does not follow that because the Tribunal has not mentioned a particular matter in its reasons that it has failed to consider it. I am not satisfied that the Tribunal failed to take into account any relevant consideration in this case. It considered the applicant’s claims but found that, even if he was a Pentecostal, he had not been harmed as claimed and his fear was not well-founded.

9. As to the associated complaint that the Tribunal concentrated on whether it believed the first applicant’s claims, credibility was a matter that was before the Tribunal and it was appropriate for it to consider.  As the Tribunal acknowledged in its reasons for decision, the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well founded or that it is for the reason claimed.  It is for the applicant to satisfy the Tribunal that the statutory elements are made out.  The Tribunal is not required to accept uncritically any or all of the allegations or claims made by an applicant.  (See Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, and Nagalingam v MILGEA (1992) 38 FCR 191). In this case the Tribunal raised its concerns about the first applicant’s claims with him in the course of the hearing. It properly considered credibility. Findings on credibility are matters of fact for the Tribunal par excellence:Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407 and so long as the Tribunal's credibility findings were open to it no error is demonstrated in such conclusions: Kopapillai v MIMIA (1998) 86 FCR 547 at 558 - 559 and W148/2000 v MIMA (2001) 185 ALR 703 at [64] – [69].

10. The Tribunal considered the application on the basis that the applicant did attend the Pentecostal Church services in the Ukraine but rejected his claims of harm as fabricated.  The Tribunal's findings in this respect were open to it for the reasons it gives, in particular the independent country information to which it referred, that explicitly stated that the Pentecostal Church suffered no harm or repression in the Ukraine and the absence of any reports of mistreatment in the independent information before the Tribunal.  As McHugh J stated in Chan v MIEA (1989) 169 CLR 379 at 425 it is unlikely that a State party is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his country of nationality.

11. In relation to the independent information, the applicant complained that the Tribunal used only non-Ukrainian material and failed to make investigations about the true situation in the Ukraine.  He took issue with the factual findings of the Tribunal as to the situation of Pentecostals in the Ukraine.  However, it is  for the applicant to satisfy the Tribunal and to put his case to the Tribunal.  There is no suggestion that any independent material was submitted by the applicant or by his migration agent which the Tribunal failed to take into account.  The Tribunal was not obliged to make inquiries as suggested or to refer to Ukrainian media sources (MIMA v Applicant S [2002] FCAFC 244 and Prasad v MIMEA (1985) 6 FCR 155). The failure of the Tribunal to make its own inquiries will rarely amount to legal error. This is not a case where material centrally relevant to the decision was readily available. The Tribunal invited the applicants to submit any new documents or written evidence that they wished the Tribunal to consider in a letter of 18 October 2000. In the hearing aspects of what was suggested in the independent evidence before the Tribunal were put to the first applicant for his comment. There is no suggestion that he or his adviser sought to put contrary documentary evidence to the Tribunal in response. No error is apparent in the Tribunal's treatment of the independent information. Nor does the applicant's claim that the Tribunal failed to make a proper investigation establish any jurisdictional error.

12. The applicants claimed, implicitly in the affidavit and expressly in the hearing, that the Tribunal member was biased.  A party who alleges bias carries a heavy onus.  It is a rare case in which bias will be established simply from the published reasons of the Tribunal.  (See Minister for Immigration and Multicultural & Indigenous Affairs v Jia [2001] HCA 17 and SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). In this case, there is nothing before the court other than the published reasons of the Tribunal and the documentation associated with the processing of the application. There is no evidence as to the manner in which the hearing was conducted other than what was said in the Tribunal reasons for decision. These reasons reveal that the Tribunal, appropriately, given the inquisitorial nature of the proceedings, asked the applicant a number of questions and that he provided answers. There is nothing in the material before me to suggest pre-judgment or indeed that the Tribunal was dishonest in its task or reckless in the manner of its decision-making. Nor does the material before the court suggest that there is any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application. Neither actual or apprehended bias is established (Refugee Review Tribunal Re Ex Parte H (2001) 75 ALJR 982).

13. Other complaints were raised in oral submissions and I address those that do not relate simply to merits review.  The applicant complained that the Tribunal member treated the case in a very formal way, failed to carry out an appropriate investigation in relation to the situation in the Ukraine, did not understand the true situation in the Ukraine, and that while at the hearing the applicant was ready to tell the Tribunal certain matters in relation to how he came to his religious beliefs and practised on an every day basis, and about Ukrainian authorities and their attitude to Pentecostals but that the Tribunal member was not interested in such facts.  Insofar as those claims raise an allegation of actual bias, as indicated, the material does not establish actual or indeed apprehended bias.  Nor in the material before me is there anything to suggest any lack of procedural fairness either in the conduct of the hearing or in any other way.  The applicants were invited to the requisite hearing.  They had the opportunity to give evidence and to address concerns raised by the Tribunal, such as in relation to the situation of the Pentecostal Church in the Ukraine.  The first applicant attended the hearing.  The second applicant did not.  They also had the opportunity to provide information to the Tribunal in relation to the situation in the Ukraine.  The Tribunal expressed doubts about the applicant’s commitment to the Pentecostal Church but considered his application on the basis that he did attend Pentecostal services in the Ukraine.  In so far as the applicant takes issue with the Tribunal findings of fact in relation to the situation in the Ukraine, this is a disagreement with the merits of the Tribunal decision and does not establish a ground for review by the court. 

14. Finally, while not addressed separately in the applicant's submissions, there is no error apparent in the Tribunal treatment of the claims of the second applicant.  As no jurisdictional error is apparent, the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The applicants have been wholly unsuccessful and it is appropriate that they meet the respondent's costs. Bearing in mind the nature of this and other similar matters I consider that an appropriate amount of costs in the matter is the sum of $3,500 and that the amount should be set pursuant to the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  9 October 2003