NAKV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 314

FEDERAL COURT OF AUSTRALIA

NAKV v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 314

NAKV and NAKW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 20 of 2004

SACKVILLE J
SYDNEY
24 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 20 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAKV and NAKW APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	24 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants 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 20 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAKV and NAKW APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	24 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE APPEAL

1. This is an appeal from a judgment of the Federal Magistrates Court given on 19 December 2003.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 18 February 2003.  The RRT had affirmed a decision of the delegate of the respondent (“Minister”) to refuse to grant the appellants a protection visa. 

2. The appellants, who are husband and wife, are Russian citizens.  They arrived in Australia on 30 July 2000 and applied for a protection visa on 5 September 2000.  Their application was refused on 4 October 2000 and they thereafter applied to the RRT for review of that decision.

3. The first appellant claimed to fear persecution in Russia on the basis of political opinion, namely his imputed support for and involvement with the rebels in Chechnya.  The second appellant claimed to be a member of the family unit of the first appellant and made no independent claim to fear persecution on one of the grounds specified in the Convention relating to the status of refugees (“Convention”). 

4. The appellants gave evidence before the RRT on 24 October 2002.  They were assisted by an interpreter in the Russian language and were represented by a solicitor.  The RRT delivered detailed reasons for rejecting their claims.  In substance, it found that the specific claims made by the appellants had been fabricated.  The RRT explained at length why it had reached that conclusion.

5. The appellants were not represented at the hearing in the Magistrates Court.  The appellants did not file any written submissions, but the first appellant made oral submissions to the Court.  The learned Magistrate distilled four grounds of review from the appellant’s oral submissions.  Her Honour, in a reserved judgment, gave careful consideration to each of these grounds and found them to be without substance.

6. The notice of appeal identifies the following grounds of appeal:

   “(a)the learned Magistrate erred in finding that the Tribunal did not make a jurisdictional error in affirming the decision to refuse a protection visa.

   (b)Some high relevant documents have been not released to the Green Book before the Magistrate Court.” (Emphasis in original.)

   The appellants did not file any written submissions in support of the appeal.  However, in his oral submissions, the first appellant referred to an affidavit he had sworn to which he annexed translations of several reports from Russian newspapers published in November and December 2000.  He complained that the RRT had not taken these documents into account in making its factual findings.

   THE CLAIMS

7. Having regard to the very careful reasons prepared by the learned Magistrate, which set out at length the appellants’ claims and the RRT’s reasons for rejecting those claims, I shall recount the claims only briefly.

8. The appellants relied principally on two matters to support the first appellant’s claim to fear persecution for a Convention reason in Russia.  The first related to an incident which was said to have occurred in August 1996, when the first appellant was working for the Russian military in Chechnya, as an assistant to a forensic medical team at a field hospital. He claimed that he was tricked into giving medical assistance to a Chechnyan rebel.  He said that, after this, he had been summoned by the security department, interrogated and beaten. He was dismissed from his employment in Chechnya and sent back to Russia, where he was dismissed from his employment.  He was interrogated on several further occasions and had to be hospitalised in February 1997 because of the effects of concussion suffered in December 1996 when he had been imprisoned and again bashed.

9. Secondly, the first appellant claimed that he returned to Chechnya in December 1999, as a member of a civil construction team.  He said that his duties involved assessing and evaluating the condition of buildings in Gudermes, a city near Grozny, with a view to planning the reconstruction of those buildings.  According to the first appellant, on 12 December 1999 he was taken hostage by Chechnyan rebels and, having told them that he would assist them medically, he was forced to give medical assistance to injured rebels.  This continued until late February 2000, when he escaped and left for Dagestan.  The first appellant said that he was terrified of being arrested by the Russian authorities and mistreated as he had been in 1996.

   THE RRT’S REASONS

10. As I have noted, the RRT found that the appellants had fabricated their claims.  It did not accept that the first appellant had ever been suspected of having pro-Chechnyan sympathies, nor of ever having collaborated with the Chechnyan rebels.  Similarly, the RRT did not accept that there was a real chance that he would be persecuted for reasons of real or imputed political opinion if he returned to Russia.

11. In reaching these conclusions, the RRT considered each of the claims made by the first appellant.  It dealt first with the claim that the first appellant had been taken hostage in December 1999.  It found that the first appellant’s claims as to the position in Chechnya at that time were not credible.  He had suggested that Gudermes was relatively peaceful in December 1999, but the RRT concluded on the evidence that Chechnya was a war zone at the very time the first appellant claimed to have gone there to plan for its rebuilding.  The RRT accepted (as the appellant’s representative had submitted to the RRT) that Vladimir Putin had visited Gudermes on 2 January 2000.  However, it did not accept that the Russian authorities were planning in December 1999 to rebuild Gudermes or anything else in Chechnya.  The RRT referred to independent news reports which indicated that Grozny did not fall until early February 2000, after a sustained assault, and that the Chechnyan rebels had attacked Gudermes in mid-January 2000 and had used it for rest and recreation in the middle of 2000.

12. The RRT concluded that the first appellant’s account of his visit to Chechnya was a fabrication, as was his claim that he had been kidnapped by Chechnyan rebels.  Indeed, the RRT rejected every element of the first appellant’s account.  It specifically found that neither of the appellants could be regarded as a witness of truth.

13. The RRT also rejected the first appellant’s account of his visit to Chechnya in 1996.  It found many inconsistencies in the first appellant’s version of events.  These inconsistencies had been put to the first appellant for his responses and the RRT considered those responses to be implausible.  Thus the RRT did not accept that the first appellant had been detained, beaten and imprisoned in 1996.  While the RRT did not rule out that the first appellant had suffered an injury in December 1996, it did not accept that the injury had occurred in the circumstances and for the reasons he claimed.

    THE REASONING OF THE MAGISTRATES COURT

14. The four grounds of review identified by the Magistrate were that the RRT had:

    (i)asked the wrong questions;

    (ii)ignored relevant material or relied on irrelevant material;

    (iii)denied the appellants procedural fairness; and

    (iv)demonstrated bias towards the appellants.

15. Her Honour observed that, to a large extent, the appellants’ disagreement with the conclusions of the RRT rested on their disagreement with the factual findings made by the RRT.  In essence, they were seeking merits review. 

16. So far as the first two grounds identified by the Magistrate were concerned, these turned on a claim that the RRT had failed to make findings or to address particular claims submitted by the appellant.  Her Honour found that the appellants had not identified any particular claims that the RRT had not addressed. They had merely referred to particular pieces of independent evidence and to claims which the RRT had considered but did not believe.  As her Honour correctly pointed out, the RRT’s refusal to accept the claims does not establish that it had failed to address them.  Her Honour concluded that the RRT had considered the claims of the appellants and had made findings of fact in relation to them.

17. In relation to the question of procedural fairness, the Magistrate pointed out that there is no obligation upon the RRT to alert an applicant to its thinking one way or another, or to the ultimate decision likely to be made.  Her Honour accepted that there might be circumstances where the RRT would be obliged to alert an applicant to the possibility that an adverse view might be taken of his or credibility.  In this case, however, the first appellant had been alerted to that possibility because the delegate had regarded his claims as implausible.  The appellants’ representative had addressed the delegate’s concerns in written submissions made to the RRT prior to the hearing.  Moreover, the RRT, at the hearing held on 24 October 2002, had put a number of its concerns in relation to the first appellant’s credibility to him for comment.  After the RRT hearing, the appellants’ representative made further written submissions which, once again, addressed questions of credit.  In these circumstances, it was clear that the appellants were aware that their credibility was in question and that they had had a full opportunity make submissions to the RRT on that issue.

18. The Magistrate rejected the appellants’ contention that the RRT’s decision was affected by apprehended or actual bias.  Her Honour examined the RRT’s reasons and also the transcript of the hearing. She was satisfied that there was no actual bias, pointing out that “errant fact-finding” (if it had occurred) does not constitute actual bias.  The RRT’s findings on credibility were a matter for it.  The RRT’s reasoning could not be said to be contrary to the evidence, unreasonable or hopelessly flawed.  Its findings were open to it.  There was nothing to suggest that the RRT member had exhibited a hostile attitude to the appellants at the hearing or failed to obtain readily available information that might have assisted their case.  Nor was there any real likelihood that a reasonable observer might entertain a reasonable apprehension that the RRT might not bring an impartial and unprejudiced mind to resolution of the application.

19. For these reasons, her Honour concluded that the appellants had not established any jurisdictional error.  Accordingly, she dismissed the application.

    THE FIRST APPELLANT’S AFFIDAVIT

20. The first appellant swore an affidavit to which he annexed translations of several articles published in Russian newspapers in November and December 2000 (the “News Reports”).  I took him to be requesting the Court to admit the evidence on the appeal pursuant to Federal Court of Australia Act 1976 (Cth), s 27. Section 27 provides that:

    “in an appeal the Court should have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken [in a variety of ways].”  (Emphasis added.)

    As I understood the first appellant, he contended that the RRT had erred by not taking the News Reports into account when making its findings that he had not been in Chechnya in December 1999 and that he had not been taken hostage as he had claimed.  This contention was not advanced before the learned Magistrate.

21. The construction of s 93A(2) of the Family Law Act 1975 (Cth), a provision very similar to s 27, was discussed in CDJ v VAJ (1998) 197 CLR 172. The joint judgment (McHugh, Gummow and Callinan JJ) makes it clear (at 200) that the statutory discretion is not to be limited by the common law principles governing the reception of evidence after verdict in a jury trial. Thus the tests stated in Wollongong Corporation v Cowan (1955) 93 CLR 435, which emphasise finality in litigation and the unavailability of the evidence at trial, are not necessarily applicable to cases where an application to adduce further evidence is made under s 27. Nonetheless, although the discretion conferred by s 27 is “more ample” than the common law principles recognise, it is not unfettered: CDJ v VAJ, at 201.  As the joint judgment in CDJ v VAJ explained (at 201):

    “One consideration in construing s 93A(2) is its remedial nature.  Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous.  The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.  A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.”

22. The first appellant adduced no evidence that the News Reports were before the RRT.  On the contrary, the evidence strongly suggests that they were not.  The RRT’s reasons identified the submissions made to it on the appellants’ behalf.  Those submissions, and the documentation annexed thereto were included in the appeal book.  None of the News Reports was annexed to the submissions made to the RRT.  Indeed, the first appellant frankly acknowledged from the bar table that he did not know whether his representative had put the News Reports to the RRT.

23. In these circumstances, in my view, the first appellants’ affidavit should not be admitted into evidence on the appeal.  The RRT took into account the material submitted to it on the appellants’ behalf, including Russian newspaper articles that purported to describe the situation in Chechnya in late 1999.  It did not consider that those articles advanced the appellants’ case.  The RRT found, for example, that an article from “Red Star” of 6 January 2000, which suggested that the Chechyan population had chosen “peace and stability”, was “transparently propaganda”.

24. The RRT was under no obligation to seek out articles in Russian newspapers, in addition to those submitted on behalf of the appellants, that suggested that the Russians were making progress in Chechnya in general, and in Gudermes in particular, in late 1999.  The RRT had material to that effect before it.  It also had a substantial body of independent country information that, in its view, contradicted the more optimistic views expressed in the Russian media.  The RRT had to assess this material.  Its conclusion was that it was “fanciful” to suggest (as the first appellant had) that Chechnya was not a war zone in December 1999, when he went there in order (so he said) to plan the rebuilding of Gudermes.

25. I should add that one of the newspaper articles relied on by the first appellant stated that Vladimir Putin had visited Gudermes on 1 January 2000.  The RRT accepted a written submission made on behalf of the appellants that Mr Putin had indeed visited Gudermes at about that time.  However, it did not accept that Chechnya by that time had ceased to be a war zone, or that Russia at the time was planning to rebuild Gudermes.  It plainly would have made no difference to the RRT’s reasoning had the report of Mr Putin’s visit to Chechnya been before the RRT.

26. Since the News Reports would not establish error on the part of either the RRT or the Magistrate, they should not be admitted into evidence on the appeal.

27. The appellants did not repeat, on the appeal, the arguments that they had advanced in the Magistrates Court.  I should record, however, that I see no error in the way her Honour dealt with those submissions.  In substance, the appellants’ complaint is that the RRT rejected the first appellant’s account of events in Chechnya.  As her Honour observed, that complaint invites a review of the merits of the RRT’s decision. Such a review was not available before the Magistrate and it is not available in this Court.

    CONCLUSION

28. The appeal must be dismissed.  The appellants must pay the Minister’s costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville .

Associate:

Dated:             24 March 2004

The Appellant was self-represented.

Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 March 2004
Date of Judgment:	24 March 2004