NAKV v Minister for Immigration
[2003] FMCA 570
•19 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAKV & ANOR v MINISTER FOR IMMIGRATION | [2003] FMCA 570 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – whether failure to address claims, apprehended bias or denial of natural justice. |
Migration Act 1958
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Craig v South Australia (1995) 184 CLR 163
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113
WAEF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1121
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 75 ALJR 405
Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Kamal v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 818
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
| Applicant: | NAKV & NAKW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ516 of 2003 |
| Delivered on: | 19 December 2003 |
| Delivered at: | Sydney |
| Hearing Date: | 17 September 2003 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ516 of 2003
| NAKV & NAKW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 February 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicants protection visas.
The first applicant and his wife, the second applicant, are Russian citizens who arrived in Australia on 30 July 2000. They applied for protection visas on 5 September 2000 and a delegate of the respondent refused that application on 4 October 2000. The applicants applied to the Tribunal for review of that decision.
The first applicant (referred to as the applicant) claims to fear persecution on the basis of his political opinion, that is, his imputed support for, and involvement with, the rebels in Chechnya. The applicant claimed that his fear arose because of a number of events. He claimed that in early August 1996 he was sent to a village in Chechnya to work as an assistant to a military forensic medical team at a field hospital where unidentified bodies were kept. He claimed that on 23 August 1996 he had been approached by a man who asked him to help his ill wife by giving her an injection to bring her temperature down. He accompanied the man and was forced to give medical assistance, including an injection of antibiotics, to a man who had suffered a gunshot wound. He did not report this to anyone. He claimed that in September 1996 he was summoned by the security department, interrogated in relation to this event and beaten, dismissed from his employment in Chechnya and sent back to Russia where he was dismissed from his job. He claimed that in December 1996 he was again taken to a police station by the Federal Security Service, told that he had helped a terrorist, questioned, severely beaten and imprisoned with criminals who bashed him. He claimed that he asked the military public prosecutor’s office to investigate the offences of which he had been a victim but was told that what had occurred in Chechnya had been within the jurisdiction of the military prosecutor. He claimed that on two further occasions in 1997 he was interrogated as were his friends and acquaintances. According to the applicant he had to be hospitalised in February 1997 for treatment in relation to the effects of concussion suffered in December 1996 when imprisoned and bashed. He claimed that he then worked as a labourer and from March 1998 as an architect. He married the second applicant in November 1998.
War broke out again in Chechnya in August 1999. The applicant claimed that in late November 1999 he returned to Chechnya as a member of a civil construction team to prepare design drawings and plans for rebuilding schools, hospitals and other public buildings and to obtain specific information for builders as the company for which he worked had received orders to rebuild the infrastructure in Chechnya. On 8 – 9 December 1999 his group went to Gudermes, the second largest city in Chechnya. He claimed that on 12 December 1999 he was taken hostage by Chechen rebels or “militants” in the area. He could not pay a ransom so told them that he would assist them medically and was then forced to give medical assistance (working as a “doctor”) for injured rebels until 23 February 2000 when he escaped and left for Dagestan. He then discovered that his wife had been questioned about him by the Russian militia in his absence. He had then travelled to Moscow. The couple then came to Australia.
Tribunal decision
In its reasons for decision the Tribunal canvassed the applicant’s claims in his original application, in subsequent material provided to the Department and at the Tribunal hearing at which the Tribunal put its concerns to him for comment.
The Tribunal found that the applicant had fabricated his claims. It did not accept that he had ever been suspected of having pro-Chechen sympathies or of ever having collaborated with the Chechen rebels. It did not accept that there was a real chance that he would be persecuted for reasons of such real or imputed political opinion if he returned to Russia now or in the reasonably foreseeable future and was not satisfied that he had a well-founded fear of being persecuted for a Convention reason if he returned to Russia. As the applicant’s wife did not make specific claims in her own right the Tribunal was unable to find that she was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently neither the first applicant nor his wife satisfied the criteria for the grant of a protection visa.
In reaching these conclusions the Tribunal considered each of the claims made by the applicant. It dealt first with his claim that in December 1999 he travelled to Gudermes in Chechnya in the course of his employment as an architect to assess and evaluate the condition of buildings. The Tribunal noted that the original decision-maker had not found it credible that the applicant would have been touring the city and surrounding countryside in early December 1999 planning for the rebuilding of schools, hospitals and other buildings as the Russian forces had only taken control of Gudermes on 12 November 1999 and Chechen forces were carrying out counter-attacks on the outskirts of the city by 1 December 1999. The applicant had provided the Tribunal with a translation of an extract from an article in a Russian language newspaper dated 6 January 2000 suggesting that the Chechen population had chosen peace and stability. However, the Tribunal found that this article was “transparently propaganda”. It also referred to independent evidence in support of its findings that the capital Grozny did not fall until early February 2000 after a sustained assault involving bombing from the air, surface-to-surface missiles and artillery strikes and that there were numerous displaced persons from Chechnya in January 2000. In relation to an article provided by the applicant from a Russian newspaper which suggested that the coverage of the war in Chechnya in the western media was biased, quite often false and openly anti-Russian, the Tribunal concluded on the evidence before it that it would be fanciful to suggest that Chechnya was not a war zone at the time the applicant claimed to have gone there to plan its rebuilding in early December 1999.
The Tribunal referred in its findings to the fact that it had put to the applicant in the course of the hearing (and this is confirmed in the transcript submitted by the applicant in these proceedings) independent information supporting this view of the situation in Chechnya and Gudermes at the relevant time. The Tribunal had also put to the applicant that it was difficult to accept that, in the circumstances it described, Russia was planning for the rebuilding of Gudermes or anything else in Chechnya at the time he claimed to have been there (December 1999). In response the applicant made oral and written submissions providing further information in support of his contention that the situation had not been as suggested by the Tribunal. However the Tribunal found that if anything the report provided by the applicant confirmed the unstable security situation in Gudermes at a time when the applicant claimed there were no security controls and that he could travel anywhere with his internal passport provided he registered with the military authorities. The Tribunal also considered a written submission from the applicant as to his view of the situation in Chechnya. However the Tribunal concluded that these comments did not reflect the reality of the situation in Chechnya referring to independent country information to the contrary. The Tribunal concluded that, having regard to the information available to the Tribunal in relation to the situation in Chechnya, and specifically in Gudermes, it was not credible for the applicant to claim that he visited Gudermes in early December 1999 as part of a group planning for the rebuilding of schools, hospitals and other buildings in Gudermes and the surrounding area. The Tribunal concluded that the applicant’s account of his visit to Chechnya in December 1999 was a fabrication.
The Tribunal found that it followed from these findings that the applicant’s account of his kidnapping by the Chechen rebels on
12 December 1999 was a fabrication. Hence, the Tribunal did not accept that the applicant was forced to provide Chechen forces with medical assistance or to sign a document indicating his support for the Chechen cause. Nor did it accept his account of a supposedly illegal crossing of the border into Dagestan in February 2000 or that his home was searched by the FSB, his wife summoned for questioning by the FSB or the local militia or that he was listed as missing in action in Chechnya.
The Tribunal considered that the documents the applicant and his wife produced in support of their claims were “likewise fabricated”. It did not accept that his family had told him that the FSB had come and asked about him since his departure from Russia. The Tribunal stated quite bluntly: “It will be obvious that I consider that the applicant has been prepared to advance an elaborate lie as the basis for his application for a protection visa. Having regard to my rejection of their evidence I do not consider that either the Applicant or his wife can be regarded as witnesses of truth”.
The Tribunal also rejected the applicant’s account of his first visit to Chechnya in August 1996. It noted that his prior occupation had been as a night shift attendant at the Rostov morgue and referred to the duties that he claimed to carry out. It did not accept that the military authorities would have required his assistance to undertake specified duties when they had their own facilities. Such concerns had been put to the applicant in the hearing. Nor did the Tribunal accept the applicant’s account of the incident in which he claimed he was forced to provide assistance to a wounded man. Although he was not a doctor the applicant told the Tribunal that he had agreed to go with the man who had approached him and asked him to help his wife. In the hearing the Tribunal had raised with the applicant its concerns that he lacked the necessary training to give medical assistance such as was said to have been sought or to give an injection of antibiotics. It addressed his responses and those of his migration agent.
It also took into account the fact that the applicant had given conflicting accounts of the medical equipment he had taken with him in this incident. Again the Tribunal concerns about such inconsistencies were put to the applicant in the hearing and his comments addressed. Further, the Tribunal had regard to the fact that the applicant had conceded in the hearing that antibiotics in liquid form for injection had to be kept in a refrigerator and therefore could not have formed part of the portable first aid kit which he had claimed had been issued to him. The Tribunal also raised with the applicant its concerns about the implausibility of a terrorist seeking his help rather than that of someone with specialist medical training. He claimed that the others had all been out in the field identifying bodies. Having regard to its view of the applicant’s credibility and the inconsistencies and implausibilities in his claims the Tribunal concluded that this claim was also a fabrication. It did not accept that the applicant went to Chechnya in August 1996 as an assistant to a forensic medical team, that he accompanied a man to provide medical assistance to his wife or was forced to provide assistance to a wounded man who was a terrorist. Nor did it accept that the applicant was subsequently summoned to the Security Department, interrogated, imprisoned and suffered violence to try to make him confess that he had collaborated with the militants, or that he was told that he was no longer needed in Chechnya and dismissed from his job in Rostov with no explanation.
Since the Tribunal did not accept the applicant’s claims about the incident or indeed, that he went to Chechnya in 1996, it did not accept that he was regarded thereafter by the Russian authorities (or by the FSB) as someone with pro-Chechen sympathies. Moreover it did not accept that in December 1996 he was detained, beaten and imprisoned with criminals who bashed him and tried to rape him. The Tribunal regarded the document the applicant produced relating to his hospitalisation in February 1997 as being of doubtful validity but concluded that even if it were genuine it merely suggested that he suffered a head injury on 5 December 1996. The Tribunal did not accept that the applicant suffered such an injury in the circumstances or for the reasons he had given. Nor did it accept that later in 1997 the applicant was summoned to the Interior Department on two occasions after explosions in the Rostov region which were blamed on Chechen terrorists.
Having regard to such findings the Tribunal did not accept that there was a real chance that if the applicant returned to Russia now or in the reasonably foreseeable future he would be arrested or imprisoned or otherwise persecuted because the Russian authorities or the FSB in particular suspect him of collaborating with the Chechen rebels. The applicant’s representative had submitted that because of circumstances in Russia there was a greatly increased anti-Chechen attitude and that the applicant would be at great risk of persecution because he was suspected of pro-Chechen attitudes. However, as the Tribunal did not accept that the applicant had ever been suspected of having pro-Chechen sympathies or of having collaborated with the Chechen rebels it did not accept that there was a real chance he would be persecuted for reasons of such a real or imputed political opinion if he returned to Russia now or in the reasonably foreseeable future.
This application
In the application for review the applicant claimed that the Tribunal exceeded its jurisdiction in making its decision and erred in law in arriving at that decision. No particulars were provided and no written submissions were filed. However in oral submissions the applicant claimed that the Tribunal had identified a wrong issue or asked itself the wrong question, that it had ignored relevant material or relied on irrelevant material, that there had been a denial of natural justice, that the Tribunal had failed to address or make findings on particular claims and/or that the Tribunal had shown apprehended or ostensible bias. The applicant wife did not attend the hearing and made no separate claims.
The applicant took issue with the Tribunal’s conclusion that his account of his visit to Chechnya in December 1999 was a fabrication. To a large extent his disagreement with the Tribunal conclusions in this respect was a disagreement with the findings of fact and sought merits review which is not available in this Court. He claimed that he had provided the Tribunal with evidence to support his claims as to the situation in Chechnya at the relevant time (December 1999) including copies of press reports and his note forwarded with submissions of
5 November 2002. However the material relied on by the applicant was referred to in the Tribunal reasons for decision. It was open to the Tribunal to place such weight on this material as it saw fit and to prefer contrary independent evidence. The Tribunal did have regard to the material the applicant put before it as well as to other independent evidence referred to in the reasons for decision. In this regard, it is not necessary for the Tribunal to refer to every specific item of evidence before it. The Tribunal put to the applicant in the hearing the concerns that it had with his claims, in particular that it was difficult to accept that in circumstances described in independent evidence (including independent evidence relied on by the applicant) Russia had been engaged in planning for the rebuilding of Gudermes or anything else in Chechnya at the time the applicant claimed to have been there in December 1999. The Tribunal had regard to the applicant’s comments in response to its concerns and also the comments by the applicant in his undated note provided to the Tribunal after the hearing.
I am satisfied that not only was the Tribunal aware of the material relied on by the applicant but also that it is apparent from the Tribunal reasons for decision that it considered such material in light of all of the material before it in making its findings. It was open to the Tribunal on the material before it to conclude that what the applicant was putting forward did not, as the Tribunal put it, “reflect the reality of the situation in Chechnya”. In making such findings the Tribunal referred to independent country information to the contrary. The applicant takes issue with such findings but the question is not whether the Court or indeed a differently constituted Tribunal would make the same findings but rather whether there is a jurisdictional error in the manner in which the Tribunal approached its task. The Tribunal properly set out the law and determined the relevant issues. I am not satisfied that the Tribunal has identified a wrong issue or asked itself a wrong question or that it has ignored relevant considerations or relied on irrelevant considerations in the sense considered by the High Court in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
The Tribunal did not err in failing to make findings or to address particular claims or the documentation provided by the applicant as submitted. The applicant did not identify any particular claims that were not addressed but referred to particular pieces of independent evidence and to claims which the Tribunal considered but did not believe. However the Tribunal’s failure to believe his claims does not establish that it failed to address such claims. Further, as Allsop J, with whom Heerey J agreed, stated in Paul v MIMA [2001] FCA 1196 at [79] “whatever maybe the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction … they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.” The obligation on the Tribunal to consider all the claims of the applicant and their component integers is to be distinguished from errant fact-finding (see Htun v MIMA [2001] FCA 1802 at [42] per Allsop J). The claims and their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 and MIMA v Yusuf (2001) 180 ALR 1. In this case the Tribunal did consider the claims of the applicant and their component integers. It made findings of fact with which the applicant disagreed but this does not establish a jurisdictional error in the manner contended or in any other way.
There is no obligation on an administrative Tribunal to alert the applicant to its thinking one way or the other or to the ultimate decision to be made (Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113 per Merkel J). However, when the central issue in proceedings is the question of credit (as here) if the issue could not reasonably be expected to have been in issue in the proceedings or to have been brought to the attention of the applicant as “in the ring” (see Kioa v West (1985) 159 CLR 550) then there may be an obligation on the Tribunal to alert the applicant to its relevance in accordance with the principles of natural justice (see for example the decision of the Full Court in WAEFv Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1121).
In this case the applicant was alerted to the possibility that his credibility or lack thereof may be a reason for a negative decision. First his credibility was in issue in the decision of the original decision-maker which turned on the plausibility of the claims that he had made. The original decision-maker’s concerns in this respect were addressed by the applicant’s representative in submissions to the Tribunal. Further, at the Tribunal hearing on 24 October 2002 the Tribunal put a number of its concerns in relation to the applicant’s credibility and the plausibility of his claims to him for comment. After the Tribunal hearing the applicant’s legal representatives were given the opportunity and did make further written submissions which, again, addressed questions of credit or associated with the credibility of the applicant’s claims. The applicant provided information in support of his claims and in the note provided to the Tribunal he also addressed the Tribunal concerns in relation to his view of the situation in Chechnya and whether or not the Russian government was engaged in rebuilding work in December 1999. In the Tribunal statement of reasons the Tribunal records matters that it put to the applicant in the hearing, and the applicant’s responses as well as its conclusions. In light of this material it is clear that the possibility that the Tribunal might not accept the applicant’s claims was brought to the applicant’s attention.
The documents that the applicant submitted in support of his claims were regarded by the Tribunal as having been provided in support of fabricated claims (see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30). The Tribunal gave reasons for preferring evidence contrary to the information and opinions provided by the applicant. It proceeded on the basis that, if genuine, the document relating to hospitalisation in February 1997 merely suggested that he suffered a head injury on 5 December 1996. No error is apparent in its treatment of this material.
The applicant also complained generally about the attitude of the Tribunal member and contended that there was apprehended or ostensible bias. I have considered not only the Tribunal reasons for decision but also the transcript of the hearing provided by the applicant. First there is no suggestion nor am I satisfied that there is any actual bias on the part of the decision-maker. Errant fact-finding does not constitute actual bias. (see von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668).
In this case the Tribunal made adverse findings. It found that the applicant had fabricated his claims. The Tribunal decision turned on its findings of credibility. This is a matter for the Tribunal par excellence Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 75 ALJR 405 at [417]. The approach of the Tribunal was to assess the claims made and to arrive at conclusions as to past events before considering future possibilities in respect of the applicant’s return to Russia. This is in accordance with MIMA v Guo (1997) 191 CLR 559. Indeed, I am not satisfied that any of the adverse findings are contrary to the evidence or unreasonable or that the reasoning process was hopelessly flawed. The Tribunal findings were open to it on the material before it for the reasons that it gave. Furthermore having considered the transcript of the hearing there is nothing to suggest that the Tribunal member exhibited a hostile attitude in the hearing or failed to inquire or to obtain readily available information in relation to relevant matters. Nor on the material before me am I satisfied 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 resolution of the application (Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17). As Gleeson CJ, Gaudron and Gummow JJ stated in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [5] the principles of apprehended bias when applied outside the judicial system (as here) must take account of the different nature of a Tribunal and different character of the proceedings (also see Jia at [100], [187]) consistently with the approach of Mason J in Kioa v West (1985) 159 CLR 550 at 585). The Tribunal is of a non-curial nature and has an inquisitorial role. The credibility of the applicant was clearly in issue. The decision-maker in such circumstances had necessarily to test the applicant’s evidence and confront him with adverse matters and inconsistencies as the Tribunal did. I am not satisfied that the manner in which the Tribunal conducted the hearing could reasonably be seen as hostile or intimidating or that it indicated a possibility of a lack of impartiality. The Tribunal did not use the language of pre-judgment. Neither actual nor apprehended bias has been established.
The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. It is not for the Court “on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal” (Kamal v MIMIA [2002] FCA 818 at [36]).
I have also considered generally whether the material before me reveals any denial of natural justice. The applicant had the opportunity to and did address the concerns of the Tribunal. Relevant issues were “in the ring”. In the course of the hearing the applicant tendered to the Court an untranslated document which he said was the false document that he used to cross the border into Dagestan. However such material was not before the original decision-maker or the Tribunal. It is not open to the Court to consider fresh claims by the applicant or fresh evidence in relation to his claims in an application for review of the Tribunal decision. No denial of natural justice is apparent. Nor are any of the other grounds put by the applicant made out.
As no jurisdictional error has been established I have no alternative but to dismiss the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 19 December 2003
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