NAMP v Minister for Immigration
[2003] FMCA 496
•13 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMP v MINISTER FOR IMMIGRATION | [2003] FMCA 496 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Ukraine – whether the findings made by the RRT were reasonably open to it on the material before it – no reviewable error found. |
Migration Act 1958 (Cth), s.424A
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 231
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration v Rajalingam (1999) 93 FCR 220
SGLB v Minister for Immigration [2003] FCA 176
| Applicant: | NAMP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ709 of 2003 |
| Delivered on: | 13 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 13 November 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ709 of 2003
| NAMP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 17 February 2003 and handed down on 11 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant. The applicant claimed political persecution in Ukraine. The background to the matter is accurately set out in paragraphs 1 through to 4 of written submissions prepared by Mr Potts, for the Minister. I adopt those paragraphs for the purposes of my judgment:
The applicant seeks review of a decision of the RRT made on 17 February 2003, and handed down on 11 March 2003 (court book, pages 73-99), affirming a decision of a delegate of the Minister made on 30 June 2000, refusing an application for a protection visa (court book, pages 35-39).
The applicant is a 25 year old Ukrainian national from the city of Zbaraz in the Ternopil Region of the Ukraine (court book, pages 12-13, 28). He entered Australia on 13 April 2000, on a temporary (Class TE) visa (court book, page 26). He lodged an application for a protection (Class XA) visa on 12 May 2000 (court book, pages 1-23). The applicant claimed that he was a person to whom Australia had protection obligations under the Refugee Convention, as amended by the Refugee Protocol. The applicant has a wife and a 5 year old daughter, who apparently continue to reside in the Ukraine, and were not applicants under the applicant’s protection visa application (court book, page 4). The applicant’s father, mother and sister also continue to reside in the Ukraine (court book, page 5).
The applicant claims persecution on the grounds of political opinion, and by virtue of his association with the All-Ukrainian Society, known as “Hromada”, and his participation in the political activities of Hromada. He claims that he was persecuted by the police and the Ukrainian Security Service because of his involvement with Hromada.
The Minister’s delegate refused the applicant’s application for a protection visa on 30 June 2000, on the grounds that the delegate was not satisfied that the first applicant was a person to whom Australia had protection obligations under the Refugees Convention, as there was not a real chance of persecution for a Convention reason if he returned to the Ukraine, and consequently his fear of persecution on return was not well founded (court book, pages 38-39).
Mr Potts also accurately summarises the RRT proceedings in paragraphs 5 through to 12 of his written submissions. I also adopt those paragraphs for the purposes of this judgment:
On 25 July 2000 the applicant applied to the RRT to review the delegate’s decision (court book, pages 40-44).
In statement accompanying his application for review (court book, page 44) the applicant asserted:
b)“The fact that there is no information to indicate that ordinary members of the Hromada Party in Ukraine are being targeted for prosecution by the authorities is not surprising. It is the universal practice when international observers pay attention only to the high profile politicians. However even low profile activists are targeted by the Ukrainian authorities because the existed [sic] regime is oppressing all sort [sic] of the real opposition.”;
c)“I disagree that I had a possibility of relocation within Ukraine. The Ukrainian Government has not abolished the “propiska” –compulsory resident’s registration, until now the authorities are [sic] controlling the movement of citizens within the country.”; and
d)“The decision-maker considers that I have no genuine fear of persecution because I did not apply for a protection [sic] immediately upon [sic] I arrived in Australia … At that time I was unaware of the procedure and needed an [sic] advice on how to apply.”
On 11 October 2002, the RRT invited the applicant to attend a hearing (court book, page 59-60). The applicant’s migration agent wrote to the RRT on 16 October 2002 (court book, page 62), indicating that the applicant wished to attend the hearing.
The applicant attended a hearing before the RRT on 5 November 2002. His migration agent did not. An interpreter of the Russian language also attended (court book, page 64). The hearing lasted for just under three and a half hours. The applicant gave evidence (court book, page 76) and the RRT discussed the applicant’s claims with him at the hearing (pages 78-82).
Given the applicant’s evidence at the hearing, on 5 November 2002 the RRT sent to the applicant a notice pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”), indicating that the RRT had information, which subject to any comments that the applicant wished to make, would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa. The notice related to the fact that at the hearing the applicant had claimed that:
a)in 1999 he was a security guard in charge of protecting the Hromada leadership and providing order at Hromada rallies;
b)false cases were brought against him by the police and the Ukrainian security service for the reason of his membership of, and security related work for, the Hromada Party; and
c)he had fled his home town in February or March 2000 and had hidden at a friend’s house in a different city until his departure from Ukraine;
d)and that all of these matters were new claims which the applicant had failed to mention in his original application for a protection visa, or in his application for review to the RRT. The applicant was told that this information was relevant because it raised doubts about his credibility (court book, pages 83-84).
On 29 November 2002, the applicant’s migration agent wrote to the RRT, in response to the s.424A notice (court book, pages 68-69). The applicant, through his migration agent, made various points in response to the notice, including the following:
a)“[the applicant] provided his former migration agent[1] with detailed information regarding his decision to flee from the Ukraine and apply for a protection visa here in Australia. The applicant claims when [his former migration agent] handed him the ‘translated’ statement and asked him to sign it [the applicant] found it quite unusual and even asked ‘why is it so brief?’. [The former migration agent] replied that he would have an opportunity to comment on the statement at the interview. He also said that to make a detailed statement the applicant would have to pay additional fees for translation”;
b)on his migration agent’s advice, the applicant contacted his former migration agent, and met with him on 13 November 2003, and the former migration agent provided an explanatory letter (referred to below); and
c)the applicant did not agree with his former migration agent’s statements that he saw the former agent only a few days before his visa expired.
The letter of the applicant’s former migration agent dated 13 November 2002 (court book, page 65) contained the following statements:
“[The applicant] approached me a few days before his Australian entry visa expires [sic] He was under a [sic] pressure of time and therefore had no opportunity to explain properly all particulars of his involvement in his party political activities in Ukraine. At that time he was in a state of depression and stress and was unable to recollect all details of what exactly happened to him in Ukraine. The process of preparation of his application to DIMIA made him more depressed. Due to the time limit it was agreed that just general information will be provided to the Department and he will provide more information to the Department on interview. Unfortunately he was not called for an interview with the Department’s officer.”
On 17 February 2003, the RRT made its decision, which was handed down on 11 March 2003, affirming the decision of the delegate of the Minister to refuse the grant of a protection visa to the applicant (court book, pages 73, 99).
[1] The former migration agent’s Appointment appears at CB 29.
Further, in paragraph 13 through to paragraph 17, Mr Potts deals accurately with the RRT decision and reasoning. I also adopt those paragraphs for the purposes of this judgment as follows:
The RRT correctly identified the inquiry that it was required to embark upon, and the relevant legal principles it needed to apply (court book, pages 74-76, 91).
In its reasons for decision, the RRT set out at length and with some care, the claims made by the applicant and the evidence given in support of his claim (court book, pages 76-83).
The RRT then reviewed at length and with care the information disclosed by the independent country reports (court book, pages 83-91).
After noting the “difficulties of proof faced by applicants for refugee status” (court book, page 91), and that it had “significant concerns regarding the applicant’s credibility”, the RRT and made the following findings:
a)no adverse inference should be drawn from the applicant’s failure to make certain claims in his initial application, and the RRT should give the applicant the benefit of the doubt and accept that he may not have received proper and adequate advice from his former migration agent (court book, page 92);
b)the applicant was a citizen of Ukraine (court book, page 92);
c)the applicant joined Hromada in January 1999 (court book, page 93);
d)due to his background as an athlete he was asked by the local party chairman to assist with security at Hromoda rallies (Court book, page 93);
e)the applicant acted as head of security for Hromada at a number of Hromada rallies in his home town in 1999 (court book, page 93);
f)the applicant attended four Hromada rallies in 1999 (court book page 93-95);
g)following the first rally the applicant’s house was searched, first by the police and then by the Ukrainian Security Service (court book, page 93);
h)the RRT was not satisfied that the applicant’s house was searched essentially for the reason of his membership of Hromada, his attendance at the rally, his political opinion and/or his political activities (court book, pages 94, 96);
i)following the second rally in mid August 1999, and following a fight that broke out at that rally, the applicant was arrested, detained, beaten and made to sign a confession (court book, page 94);
j)the RRT could not be satisfied that the essential and significant reason behind the applicant’s brief period of detention and mistreatment had been his membership of Hromada and activities on behalf of that party, or his participation in a political rally (court book, pages 94, 96);
k)the third rally passed without incident (court book, page 94);
l)following the fourth rally in September 1999, during which someone threw a Molotov cocktail into the crowd, the applicant was arrested, detained, beaten, threatened and made to sign a confession (court book, page 94);
m)there was no evidence before the RRT to suggest that the applicant was mistreated by the police for the reason of his political opinion, or because of his membership of, or activities on behalf of, Hromada (court book, pages 95, 96);
n)the applicant’s claim that in March 2000 he was “called in” by police, and asked to sign a confession stating that he was the head of a criminal gang dealing in arms and extorting money, and that he was told that if he signed the confession he would be freed on bail and not be put in gaol, and that he was given one night to “think about it,” was “highly implausible” (court book, page 95);
o)the RRT did not accept the applicant’s claim that he was summoned by the police in order to implicate himself in a serious criminal case (court book, page 96);
p)the RRT was satisfied that the applicant had not suffered harm in the past for the reason of his political opinion as a member of Hromada (court book, page 96);
q)independent evidence before the RRT strongly suggested that the authorities had only shown adverse interest in the top national leadership of Hromada (court book, page 96);
r)there was no evidence in the sources consulted by the RRT that ordinary members or supporters of Hromada had been or were a target of persecution or harassment by the Ukrainian authorities (court book, page 97);
s)the applicant was an ordinary member of the party for a mere 13 months, and apart from attending four rallies and voluntarily acting as a security guard at those rallies, he involved in no other form of political activity (court book, page 97);
t)the applicant was no longer a member of Hromada, having resigned from the party in February 2000 (court book, page 97);
u)the RRT did not accept that the applicant’s profile and low level involvement with Hromada would bring him to the attention of the Ukrainian authorities if he were to return then or in the foreseeable future (court book, page 97); and
v)the applicant had not experienced harm for the reason of his political opinion in the past, and he did not face a real chance of being seriously harmed by the Ukrainian authorities for reason of his actual or imputed political opinion upon his return to Ukraine, either at that time, or in the reasonably foreseeable future (court book, page 97).
The majority of the applicant’s evidence regarding what had occurred in the Ukraine was accepted. The RRT simply found that that evidence did not disclose that the applicant’s mistreatment was for a Convention reason. It also found no evidence to suggest that Ukrainian authorities were likely to target ordinary Hromada members.
The application I have before me was filed in the Federal Court on 1 April 2003 and subsequently transferred to this Court by order of His Honour Gyles J on 17 April 2003. The applicant seeks that the RRT's decision be set aside and that the matter be remitted to the RRT for further determination plus costs.
As the applicant is not legally represented, he would not ordinarily be entitled to any costs order, even if he were successful. Three grounds are set out in the application as supporting the application. The first is that the RRT had no evidence to justify its decision. The second is that the RRT's findings contradicted available country information. The third is that the RRT's decision is based on incorrect findings and dubious facts. The applicant noted on the application form that a detailed statement elaborating upon those grounds would be submitted later.
Nothing further was submitted by the applicant in writing prior to today's hearing, but at the hearing the applicant read from a prepared statement in which he explained the grounds of review that he has put forward. Generally, the applicant's concerns with the RRT decision go to the merits of the decision rather than the legality of it. The applicant is concerned that the presiding member took the view that he would not face a serious risk of persecution should he return to Ukraine because he was only a low level operative within the Hromada party in Ukraine and only for a period of 13 months.
The applicant is also concerned that the presiding member failed to accept that the harm which the applicant was found to have suffered at the hands of the Ukrainian authorities, in particular the police, was for a Convention reason. The presiding member found that even though the applicant had been mistreated by the police, this was not for a Convention reason, but rather because the applicant had been detained following violence at Hromada political rallies and had been apparently targeted as a suspect in those violent events.
In the RRT’s view, while there was improper action taken by the police, this was in pursuit of ordinary police activity rather than action targeted at the applicant as a Hromada member or supporter. The RRT also noted that while several leading members of the Hromada party have been the subject of criminal action in Ukraine, there was no evidence of any general persecution or harassment of Hromada party members or supports by the Ukrainian authorities.
The applicant sought to argue that if leaders are persecuted, then ordinary supporters or members could equally be persecuted. However, the available country information did not support the proposition that there is any general hostility by the Ukrainian authorities against Hromada members or supporters. The applicant's factual arguments were largely accepted by the presiding member. He did not accept one significant argument that the Ukrainian security services had sought to extract a confession of serious criminal activity against the applicant and had given the applicant time to think the matter over. The presiding member found this proposition implausible.
In my view, the limited adverse findings on credibility made by the RRT were reasonably open to it on the material before it. The key findings by the presiding member on this issue are set out on pages 95 and 96 of the court book. In my view, the applicant's claims were carefully and generously considered by the presiding member. In other respects, I accept Mr Potts's submissions contained in paragraphs 28 to 32 of his written submissions. I adopt those paragraphs for the purposes of this judgment:
Only the first ground of review articulated in the applicant is capable of constituting jurisdictional error. The respondent accepts as a matter of law that the making of findings and the drawing of inferences in the absence of any evidence may amount to jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 231; SGLB v Minister for Immigration [2003] FCA 176. The principle does not however have any application to the decision of the RRT in this case. All of the findings made, the majority of which involved the acceptance of the applicant’s version of events, were based upon evidence before the RRT. The evidence in the form of country information provided ample foundation for the findings made with respect to Hromada. It cannot be said that there was no evidence on which any of the findings made were based. The ground of review is demonstrably without substance, and should be rejected.
The second and third grounds of review articulated in the application complain about findings of fact made by the RRT. The applicant’s complaints about factual findings are essentially complaints going to the merits of the RRT’s decision. The applicant does not complain in any relevant way about the manner in which those facts were found, nor in the circumstances would there be any basis for him to do so. The findings of facts made by the RRT were open to it based upon the evidence before it. Even if the RRT committed an error in its interpretation of the country information, or some other evidence, which it is submitted that it did not, as Kenny J said in Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [146]:
A Tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning.
The limited adverse finding on credit made against the applicant was open to the RRT on the material before it. The finding was, therefore, as far as it went, a legally proper rejection of the applicant’s credibility: Kopalapillai v Minister for Immigration (1998) 86 FCR 547. There was no legal error in that finding.
The RRT assessed the applicant’s real chances of facing future persecution on the basis of his political opinion and concluded, without expressing any doubt as to its findings, that the applicant faced no real chance of persecution. Accordingly, given those findings, the RRT was not then bound to consider whether its findings might be wrong: Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559. There was no reviewable error in those findings.
The RRT’s decision does not otherwise disclose any reviewable error.
There is no legal error in the decision and reasons of the RRT. The RRT proceedings are not vitiated by any jurisdictional error.
In the circumstances, the decision of the RRT is a privative clause decision. Accordingly, the application must be dismissed, having regard to the terms of s.474 of the Migration Act. I will dismiss the application.
I will order that the application be dismissed and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 December 2003
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