NARL v Minister for Immigration - [2004] FMCA 369

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARL v MINISTER FOR IMMIGRATION

[2004] FMCA 369

MIGRATION – Application to review Refugee Review Tribunal decision – whether Tribunal should have asked ‘what if I am wrong?’

Migration Act 1958

Minister for Immigration and Multicultural and Indigenous Affairsv Rajalingham (1999) 93 FCR 220

Applicant:

NARL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1729 of 2003

Delivered on:

14 May 2004

Delivered at:

Sydney

Hearing date:

14 May 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr M Wigney

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1729 of 2003

NARL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 May 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of Russia, arrived in Australia on 26 October 2000. He lodged an application for a protection visa on 14 November 2000. On 7 December 2001 a delegate of the respondent wrote to the applicant outlining adverse information held by the Department which could result in his application being refused. The applicant was given an opportunity to comment on that information, which related, among other things, to information which suggested that the applicant had travelled widely outside Russia. On 7 January 2002 a response to the adverse information was received from the applicant's migration agent. On 17 January 2002, a delegate of the respondent refused the protection visa application. On 12 February 2002 the applicant applied to the Tribunal for review of the decision of the delegate.
The applicant claimed to fear persecution in Russia by reason of his Chechen nationality. He claimed to fear that if he returned to Russia he would be persecuted by the Russian law enforcement authorities and also that activists from the Chechen community would force him to join the Chechen rebels.
On 6 March 2003 the Tribunal invited the applicant to a hearing scheduled at 9:00am on 11 April 2003. The material before the court indicates that that letter was sent to the applicant personally and also to his migration agent. On 10 March 2003, the Tribunal sent further letters to the applicant and to his migration agent indicating that the starting time for the hearing on 11 April 2003 had been changed to 1:30pm.
On 28 March 2003, the applicant's migration agent wrote to the Tribunal (the letter being received on 31 March) advising that the applicant had contacted the migration agent and advised that he would not attend the hearing and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. A completed response to a hearing invitation form indicates that the applicant did not wish to come to a hearing.
In accordance with section 426A of the Migration Act 1958, the Tribunal made its decision without taking further steps to allow or enable the applicant to appear before it. In its reasons for decision the Tribunal found that the applicant had provided unsubstantiated details in support of his claims. It outlined a number of difficulties it had because of the absence of detail and because certain issues which were raised with the applicant by the Department were not addressed, or not addressed satisfactorily, in the response that the applicant had provided to the Department. It found that the authenticity of the applicant’s claims was put in question by the adverse information provided to him by the Department and his response to it. The Tribunal stated that without being able to ask the applicant about his past claims, its ability to satisfy itself of their authenticity and relevance was limited.
The Tribunal was of the view that the applicant had omitted very relevant information from his claims and that this had a great impact on the credibility of his claims. The Tribunal had regard to evidence that the applicant had held several Russian passports and that he had travelled widely, including to the United States of America where he spend some time living and yet he had returned each time to Russia. This information, which had not been included in the protection visa application, had an impact on his claims of long-term unemployment in Russia, harassment and discrimination. The Tribunal was unable to find on the information before it that the applicant was credible. On the evidence available to the Tribunal (with the applicant holding several Russian passports, travelling widely and yet returning each time to Russia) it made a positive determination that the applicant did not have a subjective fear of persecution in Russia.
It went on to state that because of the finding that the applicant was not credible and the absence of substantiation of the general written claims, despite independent evidence in relation to harassment of and discrimination against Chechens by Russians, the Tribunal was unable to be satisfied that the applicant had suffered past persecution. Nor was it satisfied on the evidence before it that he faced a real chance of persecution should he return to Russia now or in the foreseeable future.
The application filed on 6 June 2003 seeking review of the Tribunal decision is unparticularised. It asks the Court to consider whether issues of lawfulness in the applicant’s case have been observed and whether his statements were assessed in accordance with law and questions the methods used in the assessment of his case. In an affidavit sworn on 6 June 2003 the applicant repeats his claims to be a refugee.
In written submissions the applicant takes issue with the merits of the Tribunal decision. Merits review is not available in this court.
The applicant also claimed that the Tribunal did not have the ability to make findings of fact as he was absent and that he had a reasonable explanation for having been absent from the Tribunal hearing. However, the applicant was not merely absent. Through his migration agent and in the response to the invitation to attend a hearing he stated that he did not wish to attend a hearing and that he consented to the Tribunal proceeding to make a decision without a hearing. In such circumstances the Tribunal has power under s.426A of the Migration Act 1958 to make a decision on a review. This enables it to determine on the evidence before it whether it is satisfied that the applicant meets the criteria for the visa.
The applicant submitted that the Tribunal should have considered whether it was wrong in its factual findings. However, the Tribunal was under no obligation to do so in circumstances where it had made a clear, positive finding on the evidence before it in relation to the applicant's lack of genuine fear: Minister for Immigration and Multicultural and Indigenous Affairsv Rajalingham (1999) 93 FCR 220.
When given the opportunity today to add to his written submissions, the applicant informed the court that he had nothing to add. There is nothing in the material before me to establish that the Tribunal's decision or that its procedures involved any jurisdictional error. As no jurisdictional error is established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The respondent seeks that the applicant, having been unsuccessful, meet the costs of these proceedings. Bearing in mind the nature of this and other similar matters I consider that the sum of $4,000 is appropriate. I have regard to the applicant's submissions that the costs should be reduced because has only recently had the opportunity to obtain work. He asks that payment be broken down into a number of instalments. The timing and manner in which the costs are sought to be recovered is a matter properly left to the respondent in this instance.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 11 June 2004