Papachristopoulos, Georgios v Minister for Immigration and Multicultural Affairs

[1997] FCA 1428

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - refusal by Refugee Review Tribunal to grant appellant a protection visa - whether Tribunal acted “according to substantial justice and the merits of the case” - whether appellant denied opportunity to call witnesses and documentary evidence. 

Migration Act 1958 (Cth), ss 34, 36, 476(1) (e)

Eshetu v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 300, cited
Guo Wei Rong v the Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421, cited

GEORGE PAPACHRISTOPOULOS v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 719 OF 1997

BURCHETT, WHITLAM & BRANSON JJ
SYDNEY
17  DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 719  of   1997

ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GEORGE PAPACHRISTOPOULOS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		BURCHETT, WHITLAM & BRANSON JJ
DATE OF ORDER:		17  DECEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with 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	NG 719 of 1997

BETWEEN:	GEORGE PAPACHRISTOPOULOS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

JUDGE(S):	BURCHETT, WHITLAM & BRANSON JJ
DATE:	17  DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

This is an appeal from a judgment of a judge of this Court (Lockhart J) dismissing an appeal from the Refugee Review Tribunal (“RRT”).

The notice of appeal contains nine separate grounds of appeal.    It is not necessary to identify separately such grounds as the appeal has only been sought to be supported on two broad bases.

The first such basis involved the contention that the RRT had not acted “according to substantial justice and the merits of the case” when reviewing a decision of a delegate of the Minister for Immigration and Ethnic Affairs to refuse to grant to the appellant a protection visa (see Eshetu v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 300). The second such basis involved the contention that the RRT and the trial judge had misconstrued the requirement of paragraph A(2) of Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as affected by the Protocol relating thereto done at New York on 31 January 1967 (see Migration Act 1958 (Cth) ss 36 and 476(1) (e)).

FACTUAL BACKGROUND

The appellant is a citizen of Greece who relevantly arrived in Australia in June 1990.  At this time he held a valid visa to enter and remain in Australia as a visitor.  Subsequently, he sought permanent resident status in Australia.  On 16 April 1992, two days after his arrest on certain drug offences, the appellant’s application for permanent residence in Australia was refused.  On 21 November 1996, the appellant was acquitted of the drug offences with which he had been earlier charged.  On the following day, he was transferred from custody to the Immigration Detention Centre at Villawood, NSW, where he has since been held.  On 25 November 1996, the appellant, by his solicitor, Mr Jones, lodged an application for a protection visa.  He claimed in his application that he fears persecution from a terrorist organisation in Greece from which the Greek government is unable to protect him.

In support of his application for a protection visa, the appellant attached an unsigned letter dated 11 November 1996 which commences as follows:

“George Papachristopoulos
 LMB 24
 Matraville  2036
 NSW

To whom it may concern

My name is George Papachristopoulos, born 04 07 62 in Greece.

In Sept Oct 1989 I witnessed November 17 (terrorist group) commit a murder

The following is a detailed account of events before and after the murder occurred:...”.

Thereafter the letter describes with particularity certain events said to have occurred between 8.30-9.30 am on a day in September or October 1989 in Kolanaki, Greece.  The letter asserts that at that time on that day, the appellant and his cousin observed three people get out of a black Mercedes Benz car and shoot in the chest a member of the Greek Parliament who was the son-in-law of the Prime Minister of Greece.  The letter further asserts that the three people observed the appellant and his cousin, shot unsuccessfully at them, and then engaged them in a high speed car chase until the appellant managed to evade them.  The letter goes on to give reasons for the appellant’s alleged belief that if he returns to Greece, he will be killed and his family put at risk.  One such reason is that his cousin was shot and killed in the streets of Kalamata, Greece in 1994.

It is accepted by the respondent that November 17 is a terrorist organisation based in Greece, primarily in the Athens metropolitan area.  It is said to be a “radical leftist group established in 1975” and that “the name of the group comes from the day in 1973 when the Greek military sent tanks and soldiers to squash a student uprising at Athens Polytechnic University”.  November 17 is apparently anti-US, anti-Turkish, anti-NATO and “committed to violent overthrow of the regime, ouster of US bases, removal of Turkish military presence from Cyprus, and severing of Greece’s ties to NATO and the EC”.   As at January 1996, no member of the group had ever been arrested despite twenty murders being attributed to it.

THE HEARING BEFORE THE REFUGEE REVIEW TRIBUNAL

At the commencement of the hearing before the RRT on 3 March 1997, the appellant provided to his legal representative, Mr Jones, and to the RRT, an eighteen page handwritten document signed by him.  This document is headed:

“From:   Georgios Papachristopolous.

My real history with Australia for a date one till today [sic].”

In this document the appellant makes the claim that on 14 June 1988 he and his cousin witnessed three persons from the November 17 organisation shoot dead the CIA agent, Mr William Nordeen, and that this event ruined the appellant’s life.  No claim is made in the document that in September or October 1989 he and his cousin witnessed the murder of the son-in-law of the Prime Minister of Greece.

It was accepted before this Court that November 17 has claimed responsibility for the murders of Mr Nordeen on 14 June 1988 and the son-in-law of the Prime Minister of Greece in September or October 1989.

When asked by Mrs Buss, the member constituting the RRT, why he had not earlier put in writing the additional information contained in the eighteen page document, the appellant replied:

“Because I was scared for them - for Immigration, what it has done for many, many years.”

When asked about the discrepancy in the two documents as to the person whom he saw murdered by the November 17 group, the appellant accepted that “the other explanation was made up because [he was]  afraid to give the right name.”

The transcript of the hearing before the RRT records that at the conclusion of the hearing, the following exchange occurred:

“MRS BUSS:             Okay.  Well, is there anything else that I need to know about the facts of this case?”

MR JONES:               I understand that Mr Papachristopoulos is still waiting for some materials from the Greek police that his father was having difficulty obtaining.

MRS BUSS:               About your cousin, Mr Papachristopoulos?

MR PAPACHRISTOPOULOS:        Yes, about my cousin, yes.

MRS BUSS:               Right, I don’t need to have that, I can accept what you said.  And I have the documents you submitted last time, Mr Jones, from the book of McGills and the most recent book on refugee law, about this distinction about political opinion.”

The decision and reasons for decision of the RRT were published on 6 March 1997:  ie. only three days after the hearing of 3 March 1997.   On the issue of the incident concerning November 17,  the RRT said:

“The evidence raises a number of problems, including issues of credibility.  On reviewing the evidence given to the Tribunal and his earlier evidence, I conclude that the incident which he claims is the basic cause of his problems did not occur or did not involve the Applicant.”

After referring to a number of inconsistencies in statements made by the appellant concerning the incident, the reasons for decision of the RRT state:

“The evidence relevant to the Applicant’s cousin and his father may or may not be true, in that his cousin may have been killed and his father may have been called in for questioning by the police.  But there is nothing in that evidence to explain either event (other than the Applicant’s assumptions) and nothing that necessarily points to any connection with the alleged assassination or its consequences, nor supports the truth of the Applicant’s allegations.

In conclusion, I cannot accept the Applicant’s evidence, the discrepancies and incongruities in which leave me in a ‘positive state of disbelief’.”

The final words in the above passage are taken from the reasons for judgment of Foster J in Guo Wei Rong v the Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 458.

Notwithstanding the rejection of the appellant’s evidence concerning the alleged incident involving November 17, the RRT went on to consider whether, if the appellant’s evidence as to the incident had been accepted, it would have been sufficient to ground a finding that the appellant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol within the meaning of s 36 of the Migration Act (1958) (Cth).   The RRT concluded on this issue:

“Had I accepted the Applicant’s evidence, there could be no doubt that he was targeted by November 17. But that targeting could only have been for the reason that the Applicant had been a witness to the assassination.  It is, in light of the evidence that November 17 has no political wing and that it appears not to systematically eliminate “civilian” witnesses to its crimes, going too far to attribute any act or threat of retribution to a motive based on an unknown by-stander’s political opinion.

The Applicant is not a refugee and is not, therefore, a person to whom Australia has protection obligations under the Refugees Convention and Protocol.”

REASONS OF THE PRIMARY JUDGE

The appellant was not legally represented before Lockhart J.  His Honour thus did not have the benefit of the careful submissions addressed to us on the appellant’s behalf by his counsel, Mr King.

On the issue of whether the RRT had failed to observe the requirements of natural justice towards the appellant, his Honour rejected a complaint that the appellant had been denied the opportunity to call evidence from four witnesses on the basis that no request was made to the RRT for such witnesses to be examined.  His Honour further rejected the complaints, not pressed before this Court, that the hearing before the RRT should have been adjourned because the appellant was stressed at the time that the hearing was conducted and that the appellant was not given a fair opportunity to present his case.  As to the complaint that the appellant should have been given the opportunity to present further documentary evidence which his father was seeking to obtain from police sources in Greece, his Honour said:

“The applicant says that he sought to tender certain additional documentary material which he was not allowed to do.  The problem with that submission is that on 6 February 1997 the solicitor who was representing the applicant before the Tribunal confirmed that the applicant no longer sought a postponement of the hearing on the grounds of his awaiting further documentation which he may seek to place before the Tribunal:  so that complaint must also fail.”

On the issue of whether the RRT had misdirected itself on the question of the proper construction of the Refugees Convention and Protocol, his Honour observed:

“I wondered, when I had read pages 7 and 8 of the Tribunal’s reasons ... whether the Tribunal had erred and misdirected itself:  but I have come to the conclusion that it did not and that it applied the cases to which I have referred correctly.  In any event the Tribunal’s primary reason for its conclusion was that it did not accept the applicant as a witness of truth.”

CONCLUSIONS ON APPEAL

It was contended by the appellant that the RRT did not act “according to substantial justice and the merits of the case” when reviewing the decision of the delegate of the Minister.

The principal complaint of this appellant with respect to the conduct of the hearing before the RRT was put in his written submissions as follows:

“Whilst the matter adjourned on 3 March 1997 on the basis that the only live question was whether the facts alleged gave rise to a Convention reason for granting refugee status, between that time and the date of the Judgment issues of credibility were resurrected and assumed prominence in the Tribunal’s reasoning and ultimately proved determinative... .   The apparent conflict in the evidence regarding the several incidents was not the subject of examination by the Tribunal.  As a matter of fairness and justice the Tribunal, having reviewed is [sic] reasons and assigned an alternative basis for its decision, should have re-listed the matter to test the questions of credit by reference to the material or at the hearing on 3 March should have adjourned the matter so as to have permitted the Appellant to obtain the documentary material which it was assumed was available, and further no assurance should have been given as indicated at AB 243.”

The reference to “AB 243” is a reference to the statement made by the Tribunal, which is set out above, that the Tribunal did not need the materials from Greece concerning the appellant’s cousin that the appellant’s father was having difficulty obtaining.

Dr Bell, counsel for the respondent, challenged the contention that the hearing before the RRT “adjourned on 3 March 1997 on the basis that the only live question was whether the facts alleged gave rise to a Convention reason for granting refugee status”.   Perusal of the transcript of the RRT hearing of 3 March 1997 provides support for Dr Bell’s challenge.  The Tribunal did confront the appellant with the inconsistency between the two versions of the killing by November 17 which the appellant claims to have witnessed, and questioned him carefully as to details of the incident and the basis upon which he alleges that his life would be in danger if he returned to Greece.  When it turned to consider the issue of whether the appellant’s claims were sufficient to bring him within the Refugees Convention and Protocol, the RRT said:

“Well, maybe I will approach it in another way.  If we work through the convention and see how it might fit in with that it will be then clear to you what my problem is in terms of the refugee convention.  For the sake of the argument we will just assume that I accept everything you have told me,  okay?”

The above passage, in our view, can not fairly be understood as an assurance by the RRT that it did in fact accept everything that the appellant had told it.  The passage does no more than indicate that the RRT proposed to give consideration to the terms of the Refugees Convention and Protocol on the assumption that it accepted the appellant’s evidence - no doubt, for the purpose of testing whether the appellant’s case seen at its highest, could result in his achieving the determination that he sought.

Subsequently, the exchange set out above between Mrs Buss, Mr Jones and the appellant concerning “some materials from the Greek police” occurred.  Mr King urged us to construe that exchange as constituting an assurance by Mrs Buss that she would reach a decision on the basis that she accepted all that the appellant had said during the course of the hearing.  We do not consider that the exchange can be so construed.  What was conveyed by Mrs Buss in the exchange was that she was prepared to accept what the appellant had said concerning his cousin’s death.  It was his cousin’s death which, on the appellant’s story, would have brought his cousin to the attention of the police.

That Mrs Buss’s comment should be understood in this more limited way finds support in exchanges between Mrs Buss and Mr Jones at a pre-hearing conference held on 31 January 1997.  On that occasion, Mrs Buss asked Mr Jones about the nature of the information from Greece that the appellant was waiting for.  Mr Jones’ reply is recorded as follows:

“Right, well the most important thing is that he was not the only person who witnessed the assassination, there was also his cousin and his cousin was later, himself, murdered.  Now, this is fairly strong evidence of the factual basis of his fears and he is, I understand it, trying to obtain police reports in relation to the murder of his cousin as well as, I think, some newspaper reports and other things of that nature, but most importantly, a police report about the murdered cousin.”

Later in the pre-hearing conference the following exchange occurred:

“MRS BUSS:             Right, well the only thing then is - the only thing that is material, as far as I can see, to his claim is the document that he expecting [sic] from Greece.

MR JONES:               Yes, actually, yes I would agree with you that to the best of my knowledge the material that is really going to be relevant is the material relating to the murder of his cousin and whatever else he might be finding about the actual assassination that he witnessed.  He told me there are newspaper reports and the like.”

The Tribunal, in assessing the credibility of the appellant’s evidence concerning his witnessing of a murder committed by November 17, accepted that the appellant’s cousin may have been killed, presumably in the way asserted by the appellant.  However, as the RRT pointed out in its reasons for decision, the acceptance of that part of the appellant’s evidence is insufficient to establish the veracity of the appellant’s other evidence.  There was, in our view, ample material before the RRT to justify the Tribunal’s conclusion that the appellant’s evidence concerning his having come to the adverse attention of November 17 could not be believed.

The complaint that the appellant was denied the opportunity to call witnesses was only faintly, if at all, put to this Court.  In our view, Lockhart J rightly rejected this complaint on the ground that no application was pressed before the RRT for such witnesses to be called.

We reject the contention that the RRT did not act “according to substantial justice and the merits of the case” when  reviewing the decision of the delegate of the Minister.

Having regard to our conclusion that the Tribunal’s rejection of the appellant’s evidence as to his having witnessed a murder committed by members of the organisation November 17 is not open to challenge on the ground that the RRT failed to act “according to substantial justice and the merits of the case”, it is not necessary for this Court to give consideration to the question of the proper construction of Article 1 of the Refugees Convention and Protocol.

The appeal will be dismissed with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            

Counsel for the Applicant:	Mr P. King
Counsel for the Respondent:	Dr A. Bell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 November 1997
Date of Judgment:	17 December 1997