SZAIN v Minister for Immigration - [2004] FMCA 467

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIN v MINISTER FOR IMMIGRATION

[2004] FMCA 467

MIGRATION – Review of RRT decision – where applicant claimed to have a well-founded fear of persecution for Convention reason of political opinion – where applicant claims he was pressured by the military to serve in Chechen war – where Tribunal told applicant that it had concerns with some of applicant’s claims – where Tribunal found that the documents produced were not genuine – where this was not put directly to the applicant – whether the Tribunal obliged to notify applicant that the corroborative evidence produced by the applicant was considered not to be genuine – where the corroborative evidence related to a critical element of applicant’s claim.

Migration Act 1958 (Cth), s.424
Federal Magistrates Court Rules 200 , Pt 21 r 21.02(2)(a)

WAGO of 2002 v MIMIA [2002] FCAFC 437
WAIJ v MIMIA [2004] FCAFC 74
WACO v Minister for Immigration [2003] FCAFC 171
Re Minister for Immigration; Ex parte ApplicantS20/2002 (2003) 198 ALR 59
WAHP v Minister for Immigration [2004] FCAFC 87
WAGU v Minister for Immigration [2003] FCA 912
NARU v Minister for Immigration [2004] FCA 864

Applicant:

SZAIN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 511 of 2003

Delivered on:

2 August 2004

Delivered at:

Sydney

Hearing date:

21 July 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Julie Soars

Solicitors for the Applicant:

Henry Davis York

Counsel for the Respondent:

Tim Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Court declares that the decision of the Refugee Review Tribunal made on 18 February 2003 and handed down on 11 March 2003 is void and of no effect.
The application be referred back to the Tribunal to be heard and determined according to law.
The respondent to pay the applicant’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 511 of 2003

SZAIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant who is a Russian citizen arrived in Australia on 27 September 2000. On 4 October 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 1 December 2000 a delegate of the Minister refused to grant him a protection visa and on 12 December 2000 he applied for review of that decision. The applicant was assisted in his claim by a migration agent. He was invited to a hearing by the Tribunal which he attended on 12 February 2003. On 18 February 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 11 March 2003.
The applicant’s claim to have a well-founded fear of persecution for the convention reason of political opinion arises in the following circumstances. The applicant is a specialist in military caterpillar self-propelled ferries. During his national service, which he undertook in what was then East Germany, he was a member of the sole army squad specialising in this field. The squad included very few ethnic Russians as its other members were mainly from the Ukraine and Belarus. At the beginning of 2000 the Russian government decided to reactivate this equipment and use it in Chechnya. On 14 January 2000 the applicant, who was then a reservist, received his first call-up summons. He did not respond to it. After receiving a second summons on 21 January he went to the military commissariat to find out what it was all about. A captain explained that the army had decided to reactivate the special machinery and to transfer the associated specialists to Chechnya and the North Caucasus. He said that the Russian Army could call only on those specialists who had served in Germany. He told the applicant that his task would be to teach new soldiers to service the machinery for the war. The captain offered the applicant a highly paid voluntary contract. Because the applicant was a reservist he could not be compulsorily sent to Chechnya. The applicant claimed that through a mix of his religious views about killing in general and his political views about the war in Chechnya, which he considered to be disgraceful, he told the officer that he was not prepared to go.
At the beginning of February an unidentified person rang the applicant and suggested that he accept the offer of the military commissariat. When the applicant told him that he would not change his mind the caller said he would be forced to do so.
On 11 February the applicant received another summons. He rang the army officer and said he would not take part in the war. He told the officer that if the commissariat persisted he would write directly to President Putin. On 14 February the applicant’s mother received an anonymous telephone call telling her to convince the applicant to sign the contract or she would be responsible for his death or lengthy imprisonment. She had a heart attack and died the same day.
The applicant received a further summons on 21 February and had further communication with the officer. The applicant made threats to expose the pressure being placed upon him. The applicant was sent to see a Colonel who told him that he could by law be mobilised against his will. He was given a week to sign the contract. He received two more summonses for 13 and 14 March but did not respond.
On 16 March the applicant’s firm was inspected by the Economic Crimes Prevention Department who allegedly found some problems, which they were prepared to overlook if the applicant was dismissed. He left the firm. The applicant claimed that his attempts to find other jobs were unsuccessful because after offers were made they were withdrawn on pressure from persons “higher up”.
On 4 June he was beaten up by four people, one of whom he recognised as from the military commissariat. He made a complaint to the Police and asked for a criminal medical examination. This took place but the Doctor would not listen to his account of what occurred. He was given a certificate but when he asked the Police to initiate charges they declined to do so. He received a further call-up summons on 16 June 2000 and decided to leave the country but on 15 June he received a further call from the military commissariat telling him to report that morning and warning him that it was his last chance. He did not go. Instead on 25 June he left for Mallorca. The applicant claims that whilst in Spain he tried to claim asylum but because he was with an illegal immigrant the Police did not listen to him and he was required to leave the country. On 3 August 2000 he received a mobilisation order to come to Nazran City in the North Caucasus. This was not a call-up. It was an order to report for duty. He was given two weeks and warned that if he did not show up his case would be sent to the Prosecutor’s Office. He left for Moscow, obtained a visa to travel to Australia, which he received on 31 August, and left immediately.
At the hearing there was before the Tribunal the originals and translation of the following:
·The mobilisation order [translation CB 34]
·The call-up notices [CB 36 to translation of 1 CB 39]
·Imposition of administrative penalty for violating sanitary standards [CB 40] translation [CB 41]
·Medico legal examination report No 348 translation [CB 45].
During the course of the hearing before the Tribunal, the Tribunal raised a number of concerns with the applicant. At [CB 180] it refers to a concern as to why the authorities did not take legal action against the applicant because he did not respond to any of the ten call-up notices. The applicant explained that he had responded to two of the notices and had attended the military committee to protest the issue. The Tribunal queried how the applicant could obtain a passport after ignoring the ten notices. The applicant provided an explanation at [CB 181].
At [CB 182] the Tribunal raised concerns with the applicant as to why the authorities would have allowed him to have a passport but refused his wife one which he explained by reference to the fact that the case that had been initiated against him had not been initiated until after he received his passport but came up in a search in relation to his wife.
At [CB 182] there are explanations in regard to concerns that the Tribunal had about why no legal action was taken against him despite his not responding to ten call-up notices.
The Tribunal’s findings and reasons commenced at [CB 186] and in the first paragraph the Tribunal accepts that Russian authorities have a record of human rights abuses but found:
“The applicant’s own evidence contains anomalies and inconsistencies on key aspects of his case such that I am unable to be satisfied that he has a well founded fear of convention related persecution.”
At [CB 187] the Tribunal says:
“However there is the contradiction in regard to the capacity in which the military sought to mobilise him. He stated that prior to the receipt of the mobilisation order they wanted to draft him not as a reservist but on a voluntary contract basis. That is, he was not being called up, but requested to go back into the army. He states that an officer told him that this meant he would be highly paid. However, he also claims that he received ten call-up notices over several months of which he provided copies which would indicate that he was being drafted and that it was as a reservist.
I do not accept that the ten call-up notices he received are genuine. This finding is also based upon further anomalies in the applicant’s evidence.” [Emphasis added]
The Tribunal noted at [CB 188] from country information that draft evasion was widespread but that Russian authorities actively follow up on people they intend to draft. The Tribunal was also unable to accept that the authorities would have taken legal action against the applicant only after sending him eleven notices. The Tribunal could not accept that the applicant was able to depart for and return from Spain if he was the subject of ten call-up notices. At [CB 189] the Tribunal says:
“I also do not accept that the authorities would have denied his wife a passport because they were after him, but would have subsequently allowed him to leave the country unhindered. If, as he claims, criminal proceedings had been initiated against him, I do not accept his suggestion that they may have decided to let him go and so be rid of “one more loudmouth”. No do I accept that they have may simply have made an error in letting him go. Both are mere speculation based on no evidence.
Hence I do not accept the genuineness of the 10 call-up notices.”
The attack upon the Tribunal’s decision relates exclusively to the treatment of the documentary evidence. There was filed on 19 July 2004 an Amended Application. There are five grounds. Ground 1 is in the following form:
[1] “The Tribunal; made a jurisdictional error by denying to the Applicant natural justice and procedural fairness under the common law when the Tribunal:
(a)found that documents relied upon by the Applicant identified as items 1 and 2 of Schedule “A” were not genuine and/or that there was some doubt as to the genuineness of the documents identified as items 3 and 4 of Schedule “A” (collectively the “Documents” and each of them a “Document”); and/or
(b)failed to give the Applicant any warning or any reasonable warning of its proposed finding in relation to each of the Documents; and/or
(c)failed to put to the Applicant at the hearing before the Tribunal the allegation that each of the Documents was not genuine or that there was doubt as to the genuineness of any of the Documents and further failed to invite any submissions from the Applicant or to give the Applicant a reasonable opportunity to comment on or to give evidence in relation to the allegation and/or finding involved.”
Ground 2 is in similar form but applies to s.424 of the Migration Act 1958 (Cth). Grounds 3, 4 and 5 are in the following forms:
“[3] Further or alternatively, the Tribunal made a jurisdictional error by failing to take into account a relevant consideration, being the information contained in the article which is at RD:138, English translation at RD: 136, when it made its finding that the Applicant’s evidence contained anomalies and inconsistencies on key aspects of his case (at RD:186).
[4]Further or alternatively, the Tribunal made a jurisdictional error by determining that the Documents were not genuine or that there was doubt as to the genuineness of any of the Documents because these determinations were irrational, illogical and not based on findings or inferences of fact supported by logical grounds, alternatively, such findings were not supported by the evidence.
[5]Further or alternatively, the Tribunal made a jurisdictional error by failing to give reasons or adequate reasons for its findings that each of the Documents in items 1 and 2 of Schedule “A” were not genuine and that there was doubt as to the genuineness of the Documents in items 3 and 4 of Schedule “A”, alternatively it failed to take the Documents, which were a relevant consideration, into account in making its decision and by doing so made a jurisdictional error.”
The applicant’s solicitors filed an affidavit exhibiting a transcript of the hearing and also an affidavit by the applicant’s migration adviser, which, it is not disputed, established that the Tribunal at no time put squarely to the applicant that it doubted the genuineness of the ten call-up notices or had concerns about the other documents. At [CB 190] the Tribunal also states:
“Based on my findings, I also do not accept as genuine the mobilisation of 3 August 2000 ordering him to Nazran. Nor do I accept that a criminal prosecution was instituted against him.”
I am satisfied that the question of whether the applicant was being required to return to the army was a critical element in the case. Indeed, it represented the underlying basis of the whole of his claim. Thus evidence that might tend to corroborate that claim was critical to the Tribunal’s decision. The ten call-up notices and the mobilisation order of 3 August 2000 constituted directed corroboration of his story.
The obligations of a Tribunal with regard to such corroborative evidence has been considered by Full Benches of the Federal Court WAGO of 2002 v MIMIA [2002] FCAFC 437; WAIJ v MIMIA [2004] FCAFC 74 and in a particularly illuminating manner in WACO v Minister for Immigration [2003] FCAFC 171. In that case the Tribunal had indicated to the applicant that it had some doubts about his story and in particular his relationship with Ayatollah Shirazi during the course of the hearing. The applicant indicated that he could provide documentary material supporting these claims and subsequently provided additional information including the translation of a personal letter purporting to be from Ayatollah Shirazi and another letter [WACO 38]. In WACO, as in this case it was common ground that at no time did the Tribunal indicate to the appellant that there was any question of the authenticity of the letters or that they were not genuine so as to give the applicant the opportunity, should he wish, to comment on their authenticity or call evidence that the documents were in fact genuine. [WACO 40]. As the Full Bench said at [41]:
“A finding that documents are not genuine might, in a particular case, depend upon factors external to the documents. Direct evidence that a document is a forgery will not always be necessary: Minister for Immigration & Multicultural Affairs v Djalal (1998) 51 ALD 567. It would not involve an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an appellant's credit: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49].”
It is important to note what was actually said by their Honours in S20 because it has a direct bearing on the circumstances in which corroborative evidence can be ignored. At [49] they said:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.”
The findings in the instant case about the credibility of the applicant in relation to the call-up notices were findings based upon assumptions by the Tribunal of what might have happened in Russia in mid 2000. The Tribunal did have regard to some independent country information relating to draft evasion [CB 188] but appears at that stage to have returned to an assumption it made earlier that the applicant did not react to any of the call-up notices he had received when in fact the evidence was that he had been to see the commissariat on at least two occasions. It is difficult to see in the light of this how the evidence of the applicant could be so poisoned as to make ineffective any corroborative evidence that he might produce.
At [CB 42] the Full Bench in WACO said:
“The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparently falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment (Abebe v Commonwealth of Australia) (1999) 162 ALR 1 per Callinan J at 76). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant's relationship with Ayatollah Shirazi.”
At [53] and [54] the Full Bench said:
[53] “In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence.
[54] Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.”
It is important to note that in the instant case the Tribunal had the originals of all the documents. All the documents were in Russian and appear on their face to be official documents of some sort. They could be “not genuine” in a number of ways. They could have been completely reproduced entirely independently of the armed forces for the benefit of the applicant. This would be a blatant forgery. In the case of the call-up notices the applicant could have been provided with blank documents sealed and have written in his own name and details in the handwritten parts. That would have been a forgery. In the case of the call-up paper the applicant could have received a signed and sealed document into which he inserted by typing his own particulars of name and address. That would have been a forgery.

Document fraud is a known and difficult problem in refugee cases. The Tribunal has information concerning document fraud in relation to certain countries. It frequently cites this information when making a decision upon the validity of certain documents. The Tribunal has not cited any independent country information concerning document fraud in the Russian Federation. It would be expected to have put it to the applicant. It did not do so.
The respondent seeks to rely on the Full Court decision in WAHP v Minister for Immigration [2004] FCAFC 87 where by a majority the court dismissed an appeal from a Federal Magistrate declining to review a decision of the Tribunal where the claims being put by the Afghani applicant were supported by a letter from his mother. The letter contained advice that the commander of the Jamiate-i-Islami who he had previously supported had turned against him. The Tribunal had indicated clearly to the applicant that it had problems with those statements in the letter and the majority stated at [56]:
“In our opinion, in those circumstances, the Tribunal can be seen to have raised with the appellant the critical issues which were contained in the Letter and to have given him an opportunity to respond. That is, as the respondent submits, the Tribunal raised with the appellant its difficulty in accepting the claims made in the Letter.”
Although Mr Reilly urged me in considering this matter to adopt the reasoning of the Full Bench found at [59] that:
“In our view, what sort of fabrication the Tribunal meant was not to the point. The question for the Tribunal was to assess whether the events recited in the Letter occurred.”
I do not see that as relevant to the case with which I must struggle.
In WAHP the correctness of WACO was accepted and the two cases distinguished. The court made a particular point about the fact that the information in the letter relied upon was not information with which the applicant was directly concerned. It involved a situation that had occurred after he left. In the instant case the documents are contemporaneous with the claims made by the applicant. Furthermore, they are not assertions by some third party of something, they are, on their face, direct evidence of the applicant’s assertions that he was called up and then required to attend at a base very near the Chechnya border. In my view this makes the obligation on the Tribunal to raise with the applicant its doubts about the genuineness of the documents particularly necessary. It seems to me that what the Tribunal has done here is put the cart before the horse. See WAGU v Minister for Immigration [2003] FCA 912 at [34] and [36]. I think this case has much more in common with the decision in NARU v Minister for Immigration [2004] FCA 864 particular at [20-21] and [31].
I am of the view that the Tribunal in this case did fall into jurisdictional error by not providing the applicant with procedural fairness in giving him an opportunity to disabuse the Tribunal of its view that the ten call-up notices and the mobilisation order were not genuine. I have not dealt in these reasons with the two other documents that were impugned. On their face they are genuine and it might be said that the Tribunal’s decision about them could be the subject of the same criticism. However, it could also be said that the Tribunal was not so much disputing the genuineness of the documents but their relationship to the applicant’s claim that he had been persecuted. The applicant may well have been beaten up, but the fact that he was beaten up does not prove that he was beaten up by the army as he claimed. The applicant’s business may well have suffered a large fine for breach of the public health standards. But again, that is not proof of persecution. There are other explanations which the Tribunal was entitled to adopt. This is not the case with the military papers and it is for this reason that I would allow the application for review and order that the matter be returned to the Tribunal to be heard and determined according to law.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 2 August 2004