Papachristopoulos, Georgios v Minister for Immigration & Multicultural Affairs

[1997] FCA 1600

1600 77

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FEDERAL COURT OF AUSTRALIA

IMMIGRATION - application for protection visa refused - whether applicant was denied natural justice.

Migration Act 1958 (Cth): ss 420,426,476

Guo Wei Rong v The Minister for Immigration and Ethnic Affairs (1 996) 135 ALR 42 1

Ram v The Minister for Immigration and Ethnic Afairs (1995) 130 ALR 3 14

Applicant A v The Minister for Immigration and Ethnic Affairs (1 947) 142 ALR 33 1

Morato v Minister for Immigration, Local Government and Ethnic Afairs (1992) 11 1 ALR

417

GEORGE PAPACHRISTOPOULOS v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

LOCKHART J

19 AUGUST 1997

SYDNEY

.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 176 of 1997

BETWEEN:

GEORGE PAPACHRISTOPOULOS

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

RESPONDENT

JUDGE(S):	LOCKHART J
DATE OF ORDER:	19 AUGUST 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

Note:

Settlement and entry of orders is dealt with in Order 36 of the Federal Court

Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 176 of 1997

BETWEEN:

GEORGE PAPACHRISTOPOULOS

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

RESPONDENT

JUDGE:	LOCKHART J
DATE:	19 AUGUST 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

I gave judgment earlier to-day in matter NG 1 17 of 1997. I turn now to the application for an

order of review in NG 176 of 1997, that is a decision of the Refugee Review Tribunal made on 6 March 1997 that the applicant is not a refugee and therefore not a person to whom Australia has protection obligations under the Refugees Convention and Protocol. The Tribunal affirmed the earlier decision of the delegate of the Minister. It is necessary to say something about the Tribunal's reasons for its decision; but I shall not of course refer to all of them, only what appear to me to be the particularly salient features of the findings of the Tribunal.

The Tribunal noted that the applicant is a citizen of Greece who arrived in Australia as a visitor in June 1990. On 25 November 1996 his application for a protection visa was lodged while he was in detention at the Villawood Detention Centre. The Tribunal noted that paragraph A(2) of Article 1 of the Refugees Convention as adopted by the Protocol was relevant. It provides that a refugee is a person who:

"Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is

unwilling to avail himself of the protection of that country. '"

The Tribunal noted that the applicant is outside the country of his nationality and is unwilling to avail himself of its protection. The question as the Tribunal posed it was whether this is because he has a well-founded fear of being persecuted for one of the reasons set out in paragraph A(2) of Article 1 of the Convention as adopted by the Protocol. It noted that that question must be decided upon the facts as they exist at the date when the determination is made and with regard to the reasonably foreseeable future; but noted also that the circumstances in which an applicant has left his country of nationality remain relevant and is ordinarily the starting point in ascertaining the applicant's present status; and it referred to relevant judgments of the High Court and this Court.

It noted that at the hearing the applicant was represented by a solicitor on 3 March 1997 and the hearing was conducted in English at the applicant's request. The applicant's case was that in the late 1980s he and his cousin had witnessed the assassination of a prominent person in Greece; the assassination was reported in the newspapers the following day and responsibility was claimed by the terrorist group known as November 17, which he says has since been seeking the applicant and his cousin and indeed has killed his cousin.

The Tribunal described November 17 from documents obtained by it as a radical leftist group, established in 1975, of obscure organization operating primarily in metropolitan Athens and possibly affiliated with other Greek terrorist organizations. It is believed, said the Tribunal, to have fewer than 25 members and none has ever been captured. It is known to be "anti- European union, anti-NATO and anti-American" but is not known to lead any political movement. Its targets have been senior United States and Greek officials; but since 1990 it has also targeted European community facilities and foreign firms with investments in Greece. Its methods include assassinations and bombings. According to the applicant's written statement of November 1996, which was before the Tribunal, the assassination occurred in September or October 1989 and the victim was a member of the Greek Parliament and an in-law of the Greek Prime Minister. Then the various events that occurred in which the applicant saw the assassination and what he did subsequently are described by the Tribunal, I need not refer to them.

The applicant had an interview with a departmental officer in January 1997 and confirmed his written statement of November 1996. The Tribunal noted that the applicant has said that the assassination had in fact occurred in June 1988 and that the victim was a CIA agent named Williarn Nordine. The subsequent life of the applicant is referred to briefly by the Tribunal, I need not refer to it.

The applicant said that the believed that November 17 was responsible for the assassination which he said he witnessed, and that he would be killed if he returned to Greece, the motive being that he saw the faces of the assassins. He said he had not reported the matter to the police because there was nothing they could do to protect him and in any event according to some newspapers some police officers and people in government were connected to November 17. He said that in his absence his father had been taken to the police station for questioning.

The Tribunal noted that the evidence raised a number of problems including issues of credibility. It concluded that the incident which the applicant claims was the basic cause of his problems did not in fact occur or did not involve the applicant if it had occurred. It gave reasons for that conclusion which I have read. It noted that it found the present story of the applicant highly implausible and gave reasons for that.

The Tribunal then dealt extensively with the applicant's credit and concluded that it could not accept his evidence. The discrepancies and incongruities left the Tribunal in a "positive state of disbelief' to use the language of Foster J in Guo Wei Rong v The Minister for Immigration

and Ethnic Aflairs (1 996) 135 ALR 42 1 at 458.

The Tribunal then turned to the critical question whether there was a convention basis for the feared persecution, though it noted it was strictly unnecessary for it to do so because of its finding that it did not accept the applicant's evidence. The Tribunal referred to a number of authorities dealing with the question of a convention basis for a feared persecution. One issue considered by the Tribunal was the claim of the applicant that his well-founded fear of persecution was for reasons of political opinion, namely, that he had witnessed the assassination of a well-known Greek politician and that the group that assassinated that politician was a group that had a political agenda.

The Tribunal said that when paragraph A(2) of Article 1 of the Convention, as adopted by the Protocol, talks of a well-founded fear of persecution it must be for reasons of political opinion, that is for reasons of political opinion of the applicant and it said that the authorities to which it referred made that point clear. The reference to the authorities was to Ram v The Minister for Immigration and Ethnic Afairs (1995) 130 ALR 314 and to the judgment of the High Court in Applicant A v The Minister for Immigration and Ethnic Afairs which is now reported in (1 997) 142 ALR 33 1 .

The Tribunal said that, if it had accepted the applicant's evidence, there could be no doubt that he was targeted by November 17; but it said that targeting could only have been for the reason that the applicant had been a witness to the assassination. It said:

"It is, in light of the evidence that November 17 had 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 bystander 'S political opinion. "

The emphasis by the Tribunal on the bystander was a reference to the applicant.

I wondered, when I had read pages 7 and 8 of the Tribunal's reasons dealing with the matter to which I have just referred, 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.

I turn to examine the grounds of attack made by the applicant upon the decision of the Tribunal. The application for review is a document which contains a number of annexures as forming part of the application for review and also as part of the evidence in support of it. It is not entirely easy to place the reasons for the application in any clear or logical category; but I have done the best I can with the assistance of the applicant and with Mr Markus on behalf of the respondent.

Essentially, the attack is based on alleged denial of natural justice. Although one of the

points made by the applicant is that the Tribunal erred in applying the judgment of a Full Court of this Court in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 1 1 1 ALR 417, on the question of membership of a particular social group, in my view, that ground of review has not been established. I do not discern any error in the reasoning of the Tribunal in relation to that point.

It should be borne in mind that the grounds of review are those which are afforded by S 476(1) of the Migration Act 1958 ("the Act"). I must be careful to ensure that it is those grounds to which I look and no others. The relevant ground under s 476(1)(a), namely, that procedures that were required by the Act to be observed in connection with the making of the decision were not observed, involves reference back to s 420 which requires the Tribunal in reviewing a decision to act according to substantial justice and the merits of the case: s 420(20(b). In other words, the statutory injunction upon the Tribunal to so act necessitates that it act according to rules of fairness and justice and that failure to do so can constitute a ground of review under s 476(1)(a), namely, the non-observance of required procedures.

So, I turn to that question of whether the Tribunal failed to observe the rules of fair play or otherwise observe the requirement of natural justice towards the applicant.

One of the claims made by the applicant is that he sought to call some four witnesses who were available to be called; but he was not allowed by the Tribunal to do so.

I note that s 426 deals with requests by an applicant to the Tribunal to call witnesses and subs

(3) provides that if the Tribunal is notified by an applicant in writing that the applicant wishes

the Tribunal to obtain oral evidence from a person or persons named in the notice, it must have regard to the applicant's wishes; but is not required to obtain the evidence orally or otherwise from a person named in the notice. The relevant notice is on pages 80-81 of the document in the Tribunal's file in this matter and is exhibit AM-1 to the affidavit of Andras Markus of 12 May 1997. There is no request in that document for the Tribunal to examine four witnesses; and a perusal of the relevant transcript makes it plain that no request of that kind was made to the Tribunal. Reference was made to the calling of evidence from certain persons; but not in substance or in form of the kind of which the applicant appears to complain. On this point there could not be said to have been any denial of fair play to the

applicant.

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.

A further ground of denial of natural justice is said to be that the applicant was in a state of considerable emotional stress, and that his proceeding should have been adjourned or at least not dealt with at the time it was by the Tribunal. The Tribunal, it seems to me from reading the transcript of the proceeding, did not act unfairly in any action it took concerning adjournment applications by the applicant. It may well be that the applicant has been under some stress. In a matter of this kind it would be surprising if he were not as it must be a matter of considerable concern and importance to him. I fully understand that; but I see no denial of natural justice by the Tribunal.

The applicant then says that he had no opportunity to fairly present his case. I have read the transcript and the other material on the file of the Tribunal and it seems to me that he had a full opportunity to fairly present his case.

Finally, the applicant, as I understand it, says that the Tribunal erred in not believing the applicant's evidence. It is not for this Court to re-hear the factual material that was before the Tribunal. It is confined to the grounds of review set out in the provisions of the Act to which I have referred. What the Court must do is to see if the Tribunal in reaching the findings it did was fair or not. I have looked carefully at these matters and I can see for myself no basis for asserting that the rules for fair play were not followed by the Tribunal in dealing with the applicant's credit; nor do I discern error in any of the conclusions which it made with respect to his credit.

It follows that the application for review fails.	It is dismissed with costs.
I certifl that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lockhart

Associate: S /a &

Dated: 19 August 1997

Applicant appeared in person

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 August 1997
Date of Judgment:	19 August 1997