NARI v Minister for Immigration - [2004] FMCA 604

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARI & OTHERS v MINISTER FOR IMMIGRATION

[2004] FMCA 604

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal should take into account earlier Tribunal decision in relation to Applicant’s parents – whether Tribunal obliged to seek explanation and comment from parents of Applicant or to re-examine the issues and information addressed in the earlier Tribunal decision – whether finding that applicant’s mother’s actions ‘cast doubt’ on whether she had a subjective fear of persecution involved a jurisdictional error – whether Tribunal under obligation to make inquiries or to put reasoning or doubts to the applicant for comment.

Minister for Immigration & Multicultural Affairs v Sarrazola (No.2) 107 FCR 184

Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347
Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733
Soboleva v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 528
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 980
Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1791
Ibrahim v Minister for Immigration & Multicultural Affairs [2000] FCA 351
Witharana v Minister for Immigration & Multicultural Affairs (unreported) Federal Court, Wilcox J 21 December 1998
NABW v Minister for Immigration & Multicultural Affairs [2002] FCA 464
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1255
NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 45

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287

Commissioner for ACT Revenue v Alphaone Pty Limited) (1994) 49 FCR 576
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

NARI & OTHERS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ2038 of 2003

Delivered on:

15 October 2004

Delivered at:

Sydney

Hearing date:

5 April 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms R Pepper

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2038 of 2003

NARI & OTHERS

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 22 May 2003 affirming a decision of a delegate of the respondent made on 24 November 2000 refusing to grant protection visas to the applicants.
The applicants, who are husband and wife and their daughter, are citizens of Russia who came to Australia in 1996. Their daughter was born here in 1997. They applied for protection visas on 1 September 2000. The wife and daughter relied on the protection claims of the husband (referred to generally as the applicant). Prior to the applicant’s application his parents had also sought protection visas. Their applications had been refused by the Department on 26 March 1999 but on 19 April 2002 (prior to the decision of the Tribunal in this instance) the Tribunal (differently constituted) set aside those decisions and the applicant’s parents were subsequently granted protection visas. For convenience I refer to the Tribunal decision relating to the parents as the first Tribunal decision and to the Tribunal decision relating to the applicants which is the subject of these proceedings as the second Tribunal decision.
The applicant claimed to fear persecution by reason of membership of a particular social group (his family) and by reason of his political opinion. He claimed to fear that if he returned to Russia he would be persecuted by the Federal Security Service (the FSB) and the authorities in order to apply pressure to his father, who had information in relation to the persecution by the FSB of its political opponents which the FSB wishes to conceal. In support of his claim he referred to what had happened to his mother and claimed to fear that he would be subjected to persecution in the same way. Hence it is relevant to refer to his parents’ claims.
In his protection visa application the applicant’s father had claimed that since 1991 he had worked as the managing director of a petroleum company in Russia, but that in 1994 he had been forced to provide information to the intelligence services. In July 1995 he had disclosed to the FSB information about the whereabouts of a former colleague who was later killed. He refused to continue to work for the intelligence services and feared to return to Russia as he believed he would be persecuted. He had left Russia in August 1995.
The first Tribunal decision considered the claims of the applicant’s parents. That Tribunal accepted that the father had a genuine fear for his life at the hands of a corrupt bureaucracy which he was capable of exposing. It also accepted that he feared the Governor of the region with whom he had had a falling out after which the FSB or a similar body ‘had instructions to harm him’.
That Tribunal also accepted that the applicant’s mother had a well-founded fear of persecution. In October 1995 she had been questioned by the FSB about her husband’s activities and asked to sign a document implicating him. She refused and was taken to a mental asylum, but was released the next day after she signed the document. She subsequently went to Croatia where the applicant’s father was at that time but she returned to Russia in January 1996. In January 1996 she was dismissed from her employment. In March 1996 she was warned to leave her home which burned down shortly afterwards. In September 1996 she left Russia for Cyprus where she obtained a visa to come to Australia. The first Tribunal accepted that the applicant’s parents had received threatening phone calls in Australia and that letters had been sent to the Department of Immigration alleging that the applicant’s father had been involved in embezzlement. It accepted that the applicant’s parents had a well-founded fear of being persecuted for reasons of political opinion. The first Tribunal found that evidence of collusion between the Governor of the region from which the family came and the Federal Government in Moscow meant that there was nowhere in Russia to which the applicant’s parents could relocate where they would be safe from the persecution which they feared.
Since 1995 the applicant has lived outside Russia, initially in the USA (where the applicant studied English) and since March 1996 in Australia. The applicant came to Australia on a student visa. In 1999 he unsuccessfully applied for a business visa sponsored by his employer. He claimed that he had not applied for a protection visa earlier than September 2000 as he had believed that the political situation in Russia would change for the better and that he would be able to return. However he claimed that the danger that he and his family would become victims of persecution had become greater now that Mr Putin (who used to be the director of the Federal Security Service, the organisation which persecuted his parents) was in power.
The second Tribunal held a hearing in relation to this application on 31 March 2003. Both the applicant and his father gave evidence. The Tribunal reasons for decision detail at some length concerns raised by the Tribunal with the applicant and with the applicant’s father in relation to the claims. The applicant’s adviser made further submissions after the hearing in relation to matters raised in the course of the hearing.
The second Tribunal accepted that the applicant’s family (himself his parents and his sister) constituted a particular social group for the purposes of the Refugees Convention (see MIMA v Sarrazola (2001) 107 FCR 184 per Merkel J at [37] to [39] with whom Heerey and Sundberg JJ agreed).
In its reasons for decision the second Tribunal outlined the parents’ claims and the findings of the first Tribunal as well as the applicant’s claims including those made at the hearing and by the applicant’s adviser.
The Tribunal addressed the applicant’s claim to fear he would be persecuted to put pressure on his father and his reliance on what had happened to his mother. It stated that, as it had put to the applicant in the hearing, the fact his mother had returned to Russia at all, and then remained there (until September 1995), apparently waiting in hope of being granted a visa to travel to Australia, ‘casts doubt’ on whether she had a well-founded fear of being persecuted in Russia. It referred to the post-hearing explanation for this provided by the applicant’s representative (a submission that the mother might have thought that no further harm would occur to her after she signed the papers to obtain her release from a mental institution). The Tribunal continued:
“Nevertheless the fact remains that the Applicant’s mother, having left Russia, returned there, and then waited in a vain attempt to obtain a visa to travel to Australia (which she eventually obtained in Cyprus) rather than going to some country for which it might have been easier to obtain a visa.”
The Tribunal outlined the evidence that the applicant’s sister had left Vladivostok in 1996, later lived in the Baltic states and in Spain and was said to have changed her name and to have had the financial means to travel, unlike the Applicant’s mother. It set out the claim (made by the applicant’s father made in the hearing) that a few months after the applicant’s mother had left Russia some people with official identification had questioned the applicant’s 90 year old paternal grandfather at his home in Vladivostok about the applicant’s father. It was claimed that the questioners were aggressive and had hit the grandfather who had lost consciousness. The Tribunal found that the fact that nothing further had happened to the applicant’s grandfather since this incident cast doubt on whether there was a real chance that the applicant would be persecuted by reason of his relationship with his father if he returned to Russia now or in the reasonably foreseeable future.
The second Tribunal also had regard to the claims about two communications sent to the Department of Immigration in 1997 alleging that the applicant’s father had been involved in tax fraud, had links with the Russian Mafia and was connected with the deaths of two people. The applicant’s father had argued before the differently constituted first Tribunal that the fact that no criminal case had been instigated against him meant that there was no substance to these allegations and that the motivation in sending such communications to the Department could only have been to discredit him so that he would be deported. He had suggested that the only organisation that could have benefited from these communications was the FSB. That Tribunal had also accepted that the applicant’s father had received threatening phone calls in Australia in 1997 from a man who had asked him how he thought he could hide. However the second Tribunal decision went on to describe the different explanation given in a written submission of 7 April 2003 in connection with the applicant’s application. The applicant’s migration agent had said that the applicant’s father considered it implausible that the FSB would have opened a criminal case against him setting in train a request for his extradition, because the case would have attracted publicity and the applicant’s father would have revealed the facts which the FSB wanted to conceal (relating to persecution of their political opponents). The adviser nevertheless submitted that the applicant’s fear was well founded, based among other things on the communications sent to the Department of Immigration about his father. The second Tribunal noted that there appeared to have been no recurrence of such communications or of threatening phone calls since 1997. It therefore found it difficult to accept that the FSB, or the Russian authorities more generally, would be motivated to put pressure on the applicant by reason of his relationship with his father if he were to return to Russia now or in the reasonably foreseeable future.
In assessing the applicant’s claim the Tribunal found it relevant that, as it had put to the applicant in the hearing, the events which the applicant claimed gave rise to his fear of persecution had occurred in 1995 and 1996, but he had not applied for a protection visa until 2000. It had regard to the applicant’s explanation for the delay (that he already had a student visa and had then applied for a business visa which provided an opportunity to stay in Australia at a time his father was fearful for his son’s safety and was not certain that he would receive a protection visa). However, as Heerey J noted in Selvadurai v MIEA (1994) 34 ALD 347, it is legitimate for a Tribunal to take into account the delay in lodging the application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution. Having regard to the delay the Tribunal did not accept that the applicant had a genuine subjective fear of being persecuted if he returned to Russia now or in the reasonably foreseeable future.
The Tribunal stated that the fact that the applicant’s mother returned to Russia and remained there for about nine months, even after having supposedly been detained and threatened by the FSB, cast doubt on whether she had a genuine subjective fear of being persecuted at that time. It found, contrary to the applicant’s claim that the FSB would never give up the chase, there was nothing in the evidence before it to suggest that the FSB or the Russian authorities generally had manifested any interest in the applicant’s father since 1997. The evidence before the Tribunal was said to suggested that the FSB had in fact abandoned any attempt to force the applicant’s father to return to Russia since 1997.
The Tribunal then concluded that, even taking into account what happened to the applicant’s mother in 1995 and 1996, what happened to his grandfather a few months after the mother left Russia, the communications sent to the Department in 1997 and the threatening telephone calls received by the applicant’s father in 1997, it did not accept on the evidence before it that there was a real chance that the applicant would be persecuted by reason of his relationship with his father or by reason of his real or imputed political opinion if he returned to Russia now or in the reasonably foreseeable future. It was not satisfied that he had a well-founded fear of being persecuted for a Convention reason if he returned to Russia. The applicant’s wife and daughter did not make specific claims in their right.

The application

The applicants filed an application in the Federal Court on 4 June 2003. The matter was transferred to this Court. The applicant claimed that the Tribunal did not look properly at relevant and credible evidence given by the applicant and his father, that it did not consider independent country information which was favourable to the applicant’s case and that it did not consider its own decisions regarding his parents.
An amended application was filed on 29 March 2004 which contends that the decision was infected by jurisdictional error. It otherwise takes the form of a submission. The applicant submitted that the Tribunal decision ‘is practically rested’ on its finding that the applicant’s mother ‘had no subjective fear of persecution’. He submitted that, in effect the Tribunal challenged its own earlier decision in which the mother was found to have a subjective well-founded fear of persecution. He asked ‘what findings, if any, has the Tribunal made to justify the claim?’
The applicant contended that the differently constituted Tribunal had explored a number of relevant issues and that if the present Tribunal was to re-examine the issues it had to act in similar manner, to raise the issues and seek comments on them. In particular it was said to be erroneous for the Tribunal to seek an explanation about his father’s circumstances from the son who had an understandable lack of knowledge of the matter. Instead the Tribunal should have sought comment from the applicant’s father and mother.
It was also contended that the Tribunal’s way of examining the case was erroneous and illogical because of his mother had no subjective fear her application would have been refused, not granted. It was submitted that if the fate of the applicant depended on the mother she had to be called to give evidence, that the Tribunal did not give her an opportunity to put her views (either orally or in writing) and that this ‘was an error within the meaning of section 424 of the Act.’
It was further contended by the applicant that the Tribunal had erred in finding that the authorities had not shown any interest in the applicant’s father since 1997. The father had been granted a protection visa in April 2003 (after the April 2002 Tribunal decision about his application). It was submitted that this matter was not in issue at the time of the second Tribunal decision and had nothing to do with the applicant. It was submitted in the alternative that the finding was wrong as the Tribunal knew that the authorities had shown considerable interest in the applicant’s father since 1997. He had received threats in 2001 and 2002. However the second Tribunal sought no information or clarification about this matter.
It was argued that:
“The Tribunal’s failure to consider the above mentioned issues, in light of the pervasive pattern of harm and availability of favourable and consistent with the applicants’ claims information must be interpreted as a failure to apply correctly the relevant law, as these issues related directly to whether the applicants’ fear of persecution was well-founded and ultimately relevant to their application for a protection visa.”
In oral submissions the applicant stated that he had not abandoned the grounds in his original application. He clarified that his concern with the second Tribunal decision related to its treatment of aspects of his parents’ claims as a basis for its finding that he did not have a well-founded fear of being persecuted for a Convention reason if he returned to Russia. Those concerns related first to the Tribunal’s finding about the fact that his mother had returned to Russia after going to Croatia after the events of October 1995 and remained there until September 1996 “apparently waiting in hope of being granted a visa to travel to Australia” and that this ‘cast doubts’ on whether she had a well-founded fear of persecution. The applicant submitted that in making such a finding the Tribunal came to the conclusion that his mother did not have a subjective fear of persecution and that this formed the reason or part of the reason for the Tribunal finding that he had no genuine subjective fear of being persecuted if he returned to Russia now or in the reasonably foreseeable future. It was submitted that a differently constituted Tribunal had accepted that the mother’s fears were well-founded. The applicant submitted that the second Tribunal fell into error in arguing against its own earlier decision without referring to the earlier findings in that respect and re-examining the issues explored by the earlier Tribunal and the relevant independent country information and without giving the applicant’s mother an opportunity to comment on the situation before finding that she had no subjective fear. It was said that the applicant had not asked his mother to give evidence at the second Tribunal hearing because the first Tribunal had found that she had a well-founded fear of persecution (and also because she had been traumatised in the past).

The applicant also contended that, before the Tribunal found that the authorities did not have any interest in his father from 1997, this should have been put to his father and that the Tribunal had to have information to justify the conclusion that the authorities had not shown later interest in his father. It was contended that under s424(sic) of the Migration Act the Tribunal had to give his father the opportunity to comment on that information. It was claimed that the father had not been asked whether there was any interest in him after 1997 and that he should have been. The applicant also stated that the Tribunal treatment of his delay in applying for a protection visa involved an error as he did not know the full extent of his parents’ situation ‘until the last moment’ and he had a student visa which allowed him to stay legally in Australia for a long time.
A significant part of the applicant’s submissions relate to the Tribunal treatment of the earlier decision of a differently constituted Tribunal (the first Tribunal decision). As indicated above, on 19 April 2002 the first Tribunal had found that both the applicant’s mother and father had a well-founded fear of persecution and were persons to whom Australia had protection obligations.
It is well established that there is no jurisdictional error in a Tribunal failing to refer to decisions of the Tribunal in relation to other applicants for protection visas making claims on the same ground (for example different decisions relating to the position of Jehovah’s Witnesses in Russia). It has been held that it is not necessary for a Tribunal to refer to such earlier decisions where the issue for determination is whether the Tribunal is satisfied on the material before it that the particular applicant before it has a well-founded fear of persecution in his or her country of origin (see Vassilieva v MIMA [2001] FCA 733, Soboleva v MIMIA [2001] FCA 528 and Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and also see Eloujenko v MIMA [2001] FCA 980 and [2001] FCA 1791 at [9]).
In Ibrahim v MIMA [2000] FCA 351 Marshall J considered a decision in which the Tribunal had found that Mogadishu was safe for members of an applicant’s clan despite the Tribunal having apparently decided the opposite some months earlier in a decision concerning that applicant’s sister. Marshall J held that the success of the sister’s application did not mean that the Tribunal was bound to grant the brother a protection visa, as it was bound to consider the evidence before it and come to a view about the merits of that application. As His Honour suggested, whether a person has a relevant well-founded fear of persecution must be considered at the time of the decision. A claim that may have succeeded at a previous time may be unlikely now to succeed as a consequence of a change in circumstances or because different country information is available and relied upon by to a later Tribunal. In some circumstances a Tribunal member may be entitled to take the view that a decision given by a differently constituted Tribunal is irrelevant to the task it has to perform of making up its own mind on the basis of the material before it (see Witharana v MIMA (unreported) Federal Court, Wilcox J 21 December 1998).
Relevantly in Soboleva Moore J referred to the decisions in Ibrahim and Witharana and continued at [26]: “However, where an earlier decision is both factually similar and temporally proximate to the circumstances of the application before the Tribunal and the earlier decision has been referred to and relied on by a party but not considered and referred to by the Tribunal, it may arguably give rise to error reviewable in this Court” (on the basis of a breach of s430 of the Act). In NABW v MIMA [2002] FCA 464 Sackville J pointed out that this passage referred to the law as it was prior to the repeal of the former Part 8 of the Migration Act and related to authorities interpreting s430 which were overruled by MIMA v Yusuf (2001) 180 ALR 1. Sackville J stated (at [15]) that even if the passage from Soboleva represented the current law relating to jurisdictional error, it would not help the applicant in NABW (who had relied on an earlier case concerning a successful application by a different family of Jehovah’s Witnesses from Russia) because the Tribunal in NABW had expressly referred to the earlier decision and noted that the circumstances in that case were different from those of the applicant.
More recently, in NARY v MIMIA [2003] FCA 1255, Moore J held in a cases where the applicant complained that a friend in a similar position had been successful in establishing an entitlement to a protection visa: “Other than possibly in exceptional circumstances (which are not present here), the fact that the Tribunal has not referred to, relied on or decided a matter consistently with other decisions of the Tribunal is irrelevant.” (at [10]). This decision was upheld on appeal in NARY v MIMIA [2004] FCAFC 45. No error was discerned in the Tribunal’s approach, let alone jurisdictional error (see [7]).
In this instance the mere fact that the Tribunal found that the applicant’s fear was not well-founded despite the fact that the earlier Tribunal had accepted that his parents’ fears were well-founded does not of itself establish jurisdictional error as contended. The Tribunal must consider all available evidence before it and cannot, in principle, be constrained by what it has decided in earlier cases (see Sellamuthu v MIMA (1999) 90 FCR 287 and Soboleva at [21]).
The Tribunal did refer to the earlier decision. It is important to consider precisely what the Tribunal found in relation to the applicant and what it said about his mother and her situation. The Tribunal’s findings in relation to the applicant’s mother were expressed in terms of an observation that the fact of the mother’s return and stay in Russia ‘cast doubt on whether she had a genuine subjective fear of being persecuted at that time’. Contrary to the submissions of the applicant the Tribunal did not find that his mother had no well-founded fear of persecution at the time of the earlier Tribunal decision. Nor, as contended, did it base its conclusions in relation to the applicant on a finding that his mother had no subjective fear of persecution or, indeed, solely on its doubts about the genuineness of her fear at the time she returned to Russia. Rather the Tribunal took into account a number of factors, including the fact of his mother’s return to Russia, its doubts about the genuineness of his mother’s fears at that time, its finding that there was no evidence that the Russian authorities had shown any interest in the applicant’s father since 1997 and also on the applicant’s delay in lodging his application for a protection visa.
It is apparent from the Tribunal reasons for decision (the only evidence of what occurred in the hearing) that in the course of the hearing the second Tribunal had raised its concerns about the fact of the mother’s return to and stay in Russia in a vain attempt to obtain a visa to travel to Australia rather than going to some other country for which it might have been easier to obtain a visa. It noted the explanation of the adviser that the applicant’s mother might have thought that no further harm would occur after she signed the papers to obtain her release from the mental institution.
Moreover, the Tribunal found that even taking into account the events which involved the applicant’s parents (and grandfather) it did not accept that there was a real chance that the applicant would be persecuted by reason of his relationship with his father or by reason of his real or imputed political opinion if he returned to Russia now or in the reasonably foreseeable future. It was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to Russia. Such findings about the well-foundedness of the applicant’s fears are not based on a finding the mother did not have a well-founded fear of persecution. It was open to the Tribunal to take into account all the material before it including the evidence of the mother’s actions after October 1995. The fact of the earlier Tribunal decision did not compel a different approach. The Tribunal had regard to the earlier decision in determining whether it was satisfied that the applicant had a well-founded fear based on all the evidence before it. It was not bound to adopt the conclusions of the earlier Tribunal but, in any event, it did not reject those conclusions or make findings directly inconsistent with those of the first Tribunal. Its obligation was to determine whether satisfied that the applicant had a well-founded fear of persecution. It was entitled to reject the applicant’s claim to have a genuine subjective fear of persecution having regard to the material before it and his delay in applying for a protection visa. It was also open to the Tribunal on the material before it not to accept that there was a real chance that the applicant would be persecuted by reason of his relationship with his father or by reason of political opinion if he returned to Russia now or in the reasonably foreseeable future and that hence any fear was not well-founded.
To the extent that adverse inferences were drawn by the Tribunal with respect to evidence presented by the applicant (or his father at the hearing) there is no suggestion that such matters were not put to the applicant for comment.
In so far as the applicant’s complaint is that there was an inconsistency between the first Tribunal’s treatment of his parents and the second Tribunal’s treatment of him, no jurisdictional error is established. His parents’ circumstances were relevant but not determinative. The Tribunal did consider the familial relationship of the applicant and his father and the impact it had on the applicant’s alleged fear of persecution. Its findings were open to it. Factual findings are a matter for the Tribunal. Merits review is not available in this court. No jurisdictional error is apparent in this respect.
The applicant also contended that the Tribunal should have given his mother an opportunity to put forward her views on whether she had a subjective fear and that the failure to do so constituted ‘an error within the meaning of section 424 of the Act.’ I am not satisfied that the Tribunal’s failure to call the applicant’s mother to give evidence or to give her an opportunity to put forward her views constituted jurisdictional error. As outlined above, the Tribunal did not find that the mother had no well-founded fear of persecution contrary to the earlier Tribunal decision.
Section 424 does not assist the applicant. It allows the Tribunal to get any information that it considers relevant. The section does not oblige the Tribunal to make inquiries (although if the Tribunal does get information it must have regard to it). It is for the applicant to put his case to the Tribunal.
Moreover the Tribunal reasons for decision record that the Tribunal raised with the applicant and his father (whom the applicant brought to the Tribunal hearing) its concerns in relation to these matters. The applicant was given the opportunity to make further submissions after the hearing. He did so through his migration agent’s written submission dated 7 April 2003 to the effect that while the decision of the mother to go back to a country where she could be subjected to harm was ‘somewhat dubious’, given the fact that she had signed papers and was released from the mental institution it might be suggested that no further harm would occur. The submission pointed out that the incidents which resulted in the decision to flee Russia took place after her return to Russia and her decision, regardless of whether it was right or wrong, was said to be based on explainable reasons which were accepted by the earlier Tribunal as convincing. It is apparent from the Tribunal reasons for decision that it had regard to these explanations, albeit that doubt remained about the mother’s state of mind at that time. Indeed the Tribunal expression of doubt about whether the mother had a genuine subjective fear at the time was consistent with the submission that, given that she had signed the document and been released from the mental institution, she might have thought that no further harm would occur to her.
It may be that the reference to s424 should have been a reference to s424A of the Migration Act. However section 424A does not assist the applicant. It does not extend to requiring the Tribunal to advise the applicant of its ‘subjective appraisals, thought processes or determinations’ (VAF v MIMIA [2004] FCAFC 123 at [24] per Finn and Stone JJ). In any event the Tribunal reasons for decision state that not only discussed its concerns with the applicant at the hearing, it also gave the applicant, through his adviser, an opportunity to make further written submissions after the hearing. There is no lack of procedural fairness apparent (Commissioner for ACT Revenue v Alphaone Pty Limited) (1994) 49 FCR 576 at 592). The Tribunal was not obliged to invite the applicant’s mother to the hearing or to give her an opportunity to comment. She was not the applicant in this instance. It invited the applicant in accordance with its s425 obligations and gave him an opportunity to advise of potential witnesses. He indicated that he wanted the Tribunal to take evidence from his father. It did so. It also allowed further submissions after the hearing.
The Tribunal did not find that the applicant’s mother had no well-founded fear either at the time of the earlier Tribunal decision or at the time of its own decision. It was not re-determining the mother’s claim to be a refugee It expressed doubt about her state of mind in 1996 based on the undisputed evidence of her return to Russia and stay there in a vain attempt to obtain a visa to Australia rather than going to some other country for which it might gave been easier to obtain a visa. However it accepted what the applicant claimed had happened to his mother in 1995 and 1996. It raised its doubts with the applicant and gave him an opportunity to comment at and after the hearing. No lack of procedural fairness is established. No jurisdictional error is apparent in the manner in which the Tribunal conducted the review or in the manner in which it made factual findings relating to the applicant’s mother or otherwise dealt with his claims based on her experiences.
The applicant contended generally that the Tribunal should have examined issues canvassed in detail in the earlier hearing (about the situation in Russia and attempts to blackmail his father as well as about his mother’s delay in leaving Russia). However, as indicated above, the Tribunal was not redetermining the question of the applicant’s parents’ entitlement to protection visas. Country information about the political situation in Russia which impacted on the father’s fears did not have to be reconsidered.
The applicant also took issue with the Tribunal findings about the lack of any evidence of interest by the authorities in his father since 1997. However the finding that there was nothing in the evidence before the Tribunal to suggest that the FSB or the Russian authorities generally had manifested any interest in the applicant’s father since 1997 is consistent with the applicant’s written claims and the Tribunal account of the hearing. The applicant had the opportunity to make submissions after the hearing. The Tribunal findings are not inconsistent with the findings made by the differently constituted Tribunal in April 2002 which referred to and considered a faxed letter and anonymous e-mail to the Department in January and July 1997. That decision does not refer to later threats to his father that the applicant now claims occurred. The findings of the second Tribunal were open to it on the material before it.
The Tribunal also had regard to the earlier Tribunal’s acceptance that the applicant’s father had received threatening telephone calls in Australia in 1997 from a man who asked him how he thought he could hide. In the written submission from the adviser provided after the hearing it was claimed that the applicant was certain he would be subject to harm if he returned to Russia and that the factors that made his fear justified and well founded were the past persecution of the applicant mother and the fact that the applicant’s father was said to be still on the authority’s black list. In support of this submission the only material referred by the adviser to was the letter and email sent to the Department of Immigration in 1997. The Tribunal was not under an obligation to ask a specific question of the applicant’s father about the interest of the Russian authorities in him after 1997 as submitted by the applicant. There is nothing on the material before me to establish that the Tribunal was aware of any later manifestation of interest in the father. The applicant’s father was given the opportunity to put evidence to the Tribunal during the Tribunal hearing and the applicant’s representative was given the opportunity to make submissions after the hearing. No lack of procedural fairness to the applicant in relation to his father’s situation is established. On the material before the Court no jurisdictional error is apparent in the respect contended.
The applicant also contended in the alternative, that the state of the authorities’ interest in the father since 1997 was not in issue as the father had been granted a protection visa in 2003 after the 2002 Tribunal decision. However it was open to the Tribunal to have regard to any evidence before it about manifestations of interest in the applicant’s father in the context of assessing the applicant’s present fear based on his membership of his father’s family.
The other aspect of the Tribunal decision with which the applicant took issue was its treatment of his delay in application for a protection visa. The applicant submitted that this issue was satisfactorily addressed by him. Such contention seeks merits review which is not available in the Court (MIEA v Wu Shan Liang (1996) 185 CLR 259). It is not for the court to determine whether it would have reached the same conclusion as the Tribunal. The Tribunal findings were open to it on the material before it and no jurisdictional error is apparent. As the Tribunal observed, Heeley J stated in Selvadurai v MIEA (1994) 34 ALD 347 that it is legitimate to take into account such delay in assessing the genuineness or at least the depth of the applicant’s claimed fear of persecution.
None of the grounds raised in the original and amended applications or in oral submissions establish jurisdictional error. Nor is any apparent on the material before the Court. While it is understandable that the applicant, who is self-represented, may believe that as his parents have been accepted as refugees he must also be accepted, this is not the case. As indicated above, the Tribunal conclusions were open to it on the material before it for the reasons it gave and no jurisdictional error is apparent. The application must be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 15 October 2004