SZAQH v Minister for Immigration
[2008] FMCA 128
•27 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 128 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Ukraine claiming fear of persecution for reason of his political opinion – where there had been earlier proceedings before the Refugee Review Tribunal – procedural fairness – merits review – credibility – the rules of procedural fairness do not require a decision maker to disclose or invite comment upon the decision maker’s thought processes – there is no rule of procedural fairness at common law that requires a Tribunal to advise an applicant of the need to provide documentary evidence to support a claim – there is no obligation on the Tribunal to invite the applicant to comment on a conclusion formed by the Tribunal arising from the applicant’s own evidence – there is no obligation on the Refugee Review Tribunal to prove an applicant wrong – an applicant must satisfy the Refugee Review Tribunal that he or she is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Convention – privative clause – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36(2), 65, 91R, 91S, 422B, 424A, 474 |
| SZAQH v Minister for Immigration [2004] FMCA 408 referred to. Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547 referred to. Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 referred to. Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) FCR 576 followed. Abebe v Commonwealth (1999) 162 ALR 1 followed. Re Minister for Immigration and Multicultural Affairs (2000) 168 ALR 407; [2000] HCA 1 followed. SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205 followed |
| Applicant: | SZAQH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1139 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 September 2007 |
| Date of Last Submission: | 28 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Wigney SC |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1139 of 2007
| SZAQH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of Ukraine, asks the court to set aside a decision of the Refugee Review Tribunal handed down on 13th March 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant also asks the court to remit his application to the Refugee Review Tribunal for determination according to law. In addition, he seeks a writ of prohibition against the first respondent, the Minister for Immigration and Citizenship, prohibiting the Minister from acting upon or giving effect to the Tribunal’s decision
The applicant has filed an amended application in which he sets out some 29 grounds of review.
Background
The applicant is a citizen of Ukraine who arrived in Australia on
16th May 2000. He applied for a Protection (Class XA) visa on
13th June 2000, claiming a fear of persecution on the ground of political opinion.
A delegate of the Minister, then called the Minister for Immigration and Multicultural Affairs, refused the application for a visa on 23rd June 2000. Then applicant then sought a review of that decision from the Refugee Review Tribunal.
Application for Review by the Refugee Review Tribunal
The Refugee Review Tribunal affirmed the delegate’s decision on
3rd April 2003, in a decision handed down on 24th April 2003. The applicant then sought judicial review of that decision and on 25th June 2004 Raphael FM declared the decision to be void and of no effect and referred the application back to the Tribunal for consideration according to law (SZAQH v Minister for Immigration[1]).
[1] [2004] FMCA 408
The Refugee Review Tribunal affirmed the delegate’s decision in a decision handed down on 18th May 2005. The applicant again sought judicial review of the Tribunal’s decision and on 17th February 2006 Driver FM made orders by consent issuing writs of certiorari and mandamus.
The Tribunal invited the applicant to attend a hearing on 6th October 2006. The applicant faxed a submission to the Tribunal on
19th September, expressing concerns about the quality of the interpreting at the previous two hearings and some errors that had been made by his previous migration agent.
On 20th September 2006 the applicant forwarded a statutory declaration to the Tribunal in which he set out his claims for refugee status on the basis of his political opinion. He also forwarded a submission on
4th October 2006, concerning complaints made to the Migration Agents Registration Authority about his former migration agent.
The applicant attended the hearing on 6th October 2006 and gave oral evidence with the aid of an interpreter in the Polish language. The hearing was then adjourned until 16th October.
On 13th October 2006 the applicant forwarded to the Tribunal a report from Professor William Bowring, described by the Tribunal as “a law professor and human rights expert with extensive knowledge of Ukraine and the region”.[2]
[2] See Court Book Volume 2 page 144
The applicant gave evidence on the second day of the hearing,
16th October 2006.
On 18th January 2007 the Tribunal wrote to the applicant. The letter was headed “Invitation to comment on information” and was clearly intended to comply with the requirements of s.424A of the Migration Act 1958. The letter told the applicant that the Tribunal had information that would, subject to any comments that he made, be the reason, or part of the reason, for deciding that he was not entitled to a protection visa. The letter set out details of information from his protection visa application and his business visa application and referred to the fact that he left Ukraine in May 2000, some 5 months after he claimed to have been told that he was wanted by the Ukrainian Secret Service.
The letter also said:
This information is relevant because your delay in leaving Ukraine suggests you were waiting for an opportunity to travel to a preferred destination rather than fleeing persecution. It may also suggest that you were employed by Hector, and performing tasks for them[3] - and not hiding from the Ukrainian authorities. All the above may cast doubt on the veracity of your refugee claims. [4]
[3] sic
[4] Court Book Volume 2 at page 96
The letter invited the applicant to comment on that information. The Tribunal also provided copies of a working draft of the applicant’s oral evidence given on the two hearing days the pervious October and some updated country information on the political situation and human rights practices in Ukraine.
The applicant’s solicitor replied to the Tribunal’s letter by means of a letter dated 31 January 2007. In that letter, the solicitor provided lengthy comments about the matters raised in the Tribunal’s letter.[5] The solicitor made a further submission in a letter dated 23 February 2007.[6]
[5] A copy of the solicitor’s letter appears at pages 115 to 121 of the Court Book Volume 2.
[6] See Court Book Volume 2 at pages 122-123
The Tribunal handed down its decision on 13th March 2007. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa. A copy of the Tribunal Decision Record appears at pages 129 to 169 of Volume 2 of the Court Book.
The Tribunal’s Findings and Reasons are set out on pages 160 to 169 of the Court Book. The Tribunal accepted that the applicant has Ukrainian nationality and assessed his claims against that country.
In its Findings and Reasons, the Tribunal noted that the applicant had consistently asserted that his first migration agent had dissuaded him from setting out his refugee claims in full and from and from seeking corroborative evidence in support of his claims. The Tribunal said:
The current Tribunal took into account that the hearing before it was conducted in Polish, the applicant’s third language, albeit one in which he is proficient. It noted his evidence in detail, and, after taking the unusual step of providing the applicant with a draft of its hearing summary, has had regard to his suggested amendments.
The Tribunal considers that it would be unsafe to rely on inconsistencies between the protection visa application and the oral and documentary evidence presented to successive Tribunals to draw adverse conclusions in this case. The Tribunal gives the applicant the benefit of the doubt with respect to Mr Kyselov[7] having perhaps encouraged him to present an abbreviated and inaccurate account of his claims, and there having been interpretation mistakes at the hearing. That said, the Tribunal considers that the applicant has exaggerated these concerns and tried to use them for tactical effect to reduce the Tribunal’s capacity to test his claims.[8]
[7] The applicant’s former migration agent
[8] See Court Book Volume 2 at 161
The Tribunal expressed the view that the applicant’s stated political opinion was “no more than dissatisfaction with the country’s[9] turbulent past and its fragile political institutions and practices, reinforced by his disappointment that people such as Marchuk and Yuschenko have failed to deliver on their initial promises.”[10]
[9] i.e. Ukraine
[10] Court Book Volume 2 at 162
The Tribunal considered the applicant’s comments in reply to the section 424A letter sent to him on 18 January 2007 regarding his delay for five months in leaving Ukraine when he had been warned that there was an arrest warrant out for him, and took the view that the applicant’s oral and written explanation for the delay did not explain how his conduct could be reconciled with a genuine fear of persecution. The Tribunal set out its reasons and considered the applicant’s account of his activities from November/December 1999 to his departure from Ukraine in May 2000 to be “incomplete and unreliable”.[11]
[11] Court Book Volume 2 at 164
The Tribunal also considered country information about Ukraine’s politics and other matters and, whilst it considered that this information lent plausibility to the applicant’s claims, noted a number of “serious problems” with the applicant’s claims about his activities and experiences in the Ukraine, and set them out in the decision record.[12]
[12] At pages 164 to 166 of the Court Book Volume 2
The Tribunal also considered the applicant’s sur place claims arising from his political activities and profile in Australia, mainly occurring in 2004. However, the Tribunal considered those activities to be conduct that fell within the scope of s.91R(3) of the Migration Act.
The Tribunal accepted that the applicant was strongly critical of Ukraine’s current administrative and economic systems and that he participated in political actions in Ukraine during the 1999 presidential election campaigns. However, it did not accept that his views or “analyses” were, or would be perceived, as ideologies that warranted adverse attention from the Ukrainian authorities because they fell within the mainstream of Ukrainian political debate. Again , the Tribunal did not accept that the applicant had acquired any political profile or “sought to establish any alternative political grouping”.[13]
[13] Court Book Volume 2 at 168
The Tribunal rejected the applicant’s claims to have suffered harm at the hands of any of the Ukrainian authorities and found those claims to have been fabricated. The Tribunal went on to make these findings:
It therefore does not accept that the applicant left Ukraine for any reasons associated with his refugee claims, or that he is of adverse interest to the Ukrainian authorities. The Tribunal accepts that the applicant has undertaken political activities in Australia, around 2004, and that he ruffled some feathers along the way with his impolitic statements. However, the Tribunal is not satisfied that he undertook such conduct for any reason other than to strengthen his refugee claims, and it therefore disregards it as required by s.91R(3) of the Act.[14]
[14] Court Book at Volume 2 at 168
The Tribunal also considered the applicant’s future conduct if he were to return to Ukraine, and did not accept that he would engage in any future activities that would place him at risk of persecution.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Ukraine, and affirmed the decision not to grant the applicant a Protection (Class XA) visa.
Application for Judicial Review
The applicant filed an application and an affidavit in support on
5th April 2007. On 15th August 2007, when the application was listed for final hearing, the applicant sought leave to file in court an Amended Application, which was substantially different from the original application. I granted leave to file the document in court but adjourned the proceedings to 28th September 2007, as the respondents had not been given any prior notice of the Amended Application.
On the day of the hearing the applicant filed in court two affidavits sworn by himself to which he had annexed a considerable amount of material.
The Amended Application contains some 29 grounds, which are summarised below:
(1)The Tribunal found that the applicant had not substantiated a particular claim with documentary evidence but did not warn the applicant that he should have provided this evidence, thereby committing jurisdictional error by denying the applicant procedural fairness.
(2)The Tribunal’s finding that the applicant’s delayed departure from Ukraine was inconsistent with the existence of a genuine fear of persecution contravened the principle concerning the assessment of delay in refugee law in Kopalapillai v Minister for Immigration and Multicultural Affairs[15] and Thuraisamy v Minister for Immigration and Multicultural Affairs[16].
[15] (1998) 88 FCR 547 at 557
[16] [1999] FCA 1632 at [10]
(3)The Tribunal fell into jurisdictional error by denying the applicant procedural fairness when it claimed that it would consider the applicant’s review application afresh but in fact relied on the evidence given by the applicant at the second Tribunal hearing.
(4)The Tribunal fell into jurisdictional error by denying the applicant procedural fairness when it claimed it would consider the applicant’s review application afresh but in fact relied on material provided by the applicant’s former migration agent which contained errors.
(5)The Tribunal fell into jurisdictional error by failing to omit some points of duplicated evidence or evidence where the interpretation had been contested by the applicant.
(6)The Tribunal fell into jurisdictional error by relying upon either:
(a)the tapes of the second Tribunal hearing; or
(b)the second Tribunal decision.
(7)The Tribunal fell into jurisdictional error by finding that the applicant’s claims of errors in interpreting were exaggerated.
(8)The Tribunal denied the applicant procedural fairness and thereby fell into jurisdictional error by failing to warn the applicant that he should provide documentary evidence to substantiate certain claims.
(9)The Tribunal failed to invite the applicant to comment on its finding that the fact that he did not flee the country at the very first opportunity and exhaust all means of staying outside Ukraine was inconsistent with his claimed fear of persecution in Ukraine. By failing to invite the applicant to comment the Tribunal denied the applicant procedural fairness and thereby fell into jurisdictional error.
(10)The Tribunal denied the applicant procedural fairness and thereby fell into jurisdictional error by failing to warn him that he had not provided any corroborative evidence to support his claim about being able to cross the Ukrainian-Russian border because passport checks were not carried out.
(11)The Tribunal’s finding that the applicant’s protection visa application had been handled confidentially by both the Department of Immigration and the Refugee Review Tribunal was made in a capricious manner without proper or reasonable basis and without reference to any documentary evidence. It was not open to the Tribunal to make a finding which led to an adverse finding as to his credit. The Tribunal failed to give the applicant the benefit of the doubt and thereby denied him procedural fairness.
(12)The Tribunal denied the applicant procedural fairness in making adverse findings about his credit by finding he had exaggerated his concerns about his former migration agent without giving him an opportunity to comment on those concerns.
(13)The Tribunal denied the applicant procedural fairness in making an adverse finding that he had exaggerated his concerns about his former migration agent by failing him to give him an opportunity to comment or to give reasons for the basis of his complaint about the migration agent.
(14)The Tribunal denied the applicant procedural fairness by making adverse findings about his credit without any proper, reasonable or evidentiary basis.
(15)The Tribunal denied the applicant procedural fairness in making adverse findings about his credit by claiming that he had exaggerated his concerns about his former migration agent.[17]
[17] Grounds 12, 13 and 15 are basically similar
(16)The Tribunal fell into jurisdictional error in rejecting a factual claim by acting on assumption and failing to understand the manner in which business is transacted in Ukraine. It also failed to invite the applicant to comment on that finding and accordingly fell into jurisdictional error by denying the applicant procedural fairness.
(17)The Tribunal denied the applicant procedural fairness and thereby fell into jurisdictional error by finding much of his oral evidence to be “digressive and convoluted” without taking into account his language difficulty and the amount of stress under which the applicant was living.
(18)The Tribunal fell into jurisdictional error by failing to understand the applicant’s political ideology and engaging in speculation to arrive at the conclusion that his political views were widely shared in Ukraine.
(19)The Tribunal fell into jurisdictional error by engaging in speculation in claiming that the Gongadze[18] case might be a poor parallel to his own on the basis that it involved internet journalism.
[18] Gongadze was a journalist who was murdered.
(20)The Tribunal fell into jurisdictional error by taking on the role of an expert in Ukrainian politics and engaged in speculation by claiming that the applicant’s views fell into the broad spectrum of oppositional opinions.
(21)The Tribunal denied the applicant procedural fairness by finding without any proper basis that it was troubled by a particular factual claim made by the applicant, namely that he had thrown himself into political life with no prior experience, and relying only upon the sale of antique motorcycles as a source of income.
(22)The Tribunal fell into jurisdictional error by refusing a claim by the applicant without proper basis “and demonstrated a failure to completely comprehend the reality of life in Ukraine and the mentality of post totalitarian society” and acted on unstated assumptions regarding the nature of Ukrainian society.
(23)The Tribunal fell into jurisdictional error by making an illogical finding that the applicant’s claim that he immediately embarked upon certain protest action undermined and made unbelievable preceding events which he had claimed.
(24)The Tribunal denied the applicant procedural fairness by making a finding about the role of an acquaintance of the applicant without a proper basis.
(25)The Tribunal denied the applicant procedural fairness in making its finding regarding the failure of the SBU[19] to arrest him.
(26)The Tribunal fell into jurisdictional error in its misconstruction as to the prerequisite required to be found to be a refugee.
(27)The Tribunal fell into jurisdictional error by denying the applicant procedural fairness in not giving him an earlier opportunity or invitation to comment on the use of telephone tapping by the SBU.
(28)The Tribunal fell into jurisdictional error by denying the applicant procedural fairness in failing to test his evidence about the theft of his motorcycle and relied on the findings of previous Tribunals.
(29)The Tribunal fell into jurisdictional error by denying the applicant procedural fairness in failing him with an opportunity to comment in relation to his efforts to organize a protest about the murder of the journalist named Gongadze, and ignored his testimony.
[19] The Tribunal noted that the Ukrainian SBU was the equivalent of the KGB.
The applicant’s affidavit sworn 14th August 2007 containing some 143 paragraphs which is in fact a lengthy submission rather than an affidavit. I have considered the document as a submission.
Conclusions
In Ground 1, the applicant complains of a denial of procedural fairness leading to jurisdictional error in that the Tribunal did not warn him that he should provide documentary evidence in support of his claim. Section 422B of the Migration Act does not apply to this case. The applicant applied to the Tribunal for a review before the section came into force. Thus, common law procedural fairness applies.
The applicant claims that the Tribunal was obliged to warn him of the need to provide documentary evidence in support of one of his claims but did not do so. There is no rule of procedural fairness at common law that requires a Tribunal to advise an applicant that he or she needs to provide documentary evidence in support of a particular claim.
In any event, the Tribunal wrote to the applicant on two occasions, inviting him to submit documentary evidence in support of his claims. First, the Tribunal wrote to the applicant on 31 August 2006, advising him that the Federal Magistrates Court had remitted his case to the Tribunal for reconsideration. The letter said:
You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal. Any documents should be provided as soon as possible. Any documents not in English should be translated by a qualified translator. You should send both the documents and the translations.[20]
[20] Court Book Volume 2 page 4
On 4th September 2006, the Tribunal wrote to the applicant and invited him to attend a hearing. The letter also invited the applicant to:
Send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator.[21]
[21] Court Book Volume 2 page 7
Clearly, the Tribunal had asked the applicant, in general terms, to provide documentary evidence. As counsel for the Minister submitted, procedural fairness does not require a decision maker to disclose his or her thought processes or proposed conclusions (see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd[22]). The Tribunal was not obliged to warn the applicant that unless he provided some corroborative material it was unlikely to accept one aspect of his evidence. It was for the applicant to make out his case and present the material upon which he sought to rely (see Abebe v Commonwealth[23]
[22] (1994) 49 FCR 576 at 590-591
[23] (1999) 162 ALR 1 at [187]
I am satisfied that there was no denial of procedural fairness on the part of the Tribunal as claimed by the applicant. The applicant’s first ground fails.
In Ground 2, the applicant complains that the Tribunal’s finding that the applicant’s delay in departing from Ukraine was inconsistent with the existence of a genuine fear of persecution contravenes a principle concerning the assessment of delay in refugee cases set out in Kopalapillai v Minister for Immigration and Multicultural Affairs and Thuraisamy v Minister for Immigration and Multicultural Affairs. He has not explained how the Tribunal’s finding contravenes the principles set out in those cases and I am unable to discern any error.
The Tribunal considered the applicant’s claim to have been warned by a policemen friend in November 1999 that the SBU had an arrest warrant out for him but he did not depart Ukraine until May 2000, some 5 months later. The Tribunal stated that this fact cast doubt on the applicant’s claim to have had a genuine fear of persecution but considered in some detail the applicant’s oral and written explanations, which it summarised in its Findings and Reasons.[24]
[24] Court Book Volume 2 at 162-163
However, the Tribunal did not accept the applicant’s explanation. It gave its reasons why it did not accept this explanation, in some detail.[25]
[25] Court Book Volume 2 at 163
It is open to the Refugee Review Tribunal to have regard to an applicant’s delay in leaving the country in which he fears persecution in order to assess the genuineness of the claim. It was open to the Tribunal to consider this matter and no jurisdictional error is indicated. The applicant’s Ground 2 fails.
The applicant’s Ground 3 complains that the Tribunal denied the applicant procedural fairness by claiming that it had decided to consider the applicant’s application afresh but in fact relied on the applicant’s evidence given at the second Tribunal hearing. The applicant complained that this evidence was “infected with a multitude of serious interpreting errors”.
Counsel for the Minister has submitted that this claim relates to the Tribunal’s summary of the evidence given to the second Tribunal hearing.[26] The applicant, in his affidavit, refers to the interpreting errors that he claims in paragraphs 16 to 23. Despite his contention that there is a “multitude of serious interpreting errors”[27] it is clear that many of the alleged errors are relatively trivial, such as “November” for “December”.
[26] Court Book Volume 2 at 139 - 141
[27] Amended Application Ground 3
The applicant has not demonstrated that any of these claimed errors had any bearing on the Tribunal’s decision. I am of the view that the applicant is, in effect, complaining about factual findings made by the Tribunal. There is no jurisdictional error and the applicant’s Ground 3 fails.
In Ground 4, the applicant complains of a denial of procedural fairness in that the Tribunal claimed it had decided to consider the applicant’s application afresh but in fact relied on material “which was the subject of manifest errors by his former migration agent”. True it is that the Tribunal provided a summary of the applicant’s evidence to the second Tribunal, but this does not mean that the Tribunal relied on that summary to arrive at its decision.
In fact, the Tribunal made it clear in its Findings and Reasons that:
The Tribunal considers that it would be unsafe to rely on inconsistencies between the protection visa application and the oral and documentary evidence presented to successive Tribunals to draw adverse conclusions in this case. The Tribunal gives the applicant the benefit of the doubt with respect to Mr Kyselov having perhaps encouraged him to present an abbreviated and inaccurate account of his claims.[28]
[28] Court Book Volume 2 at 161
The applicant has not demonstrated any jurisdictional error and Ground 4 fails.
In Ground 5 the applicant complains that the Tribunal fell into jurisdictional by failing to omit some points which duplicated evidence given to the Tribunal and/or where the interpretation of which had been contested by the applicant.
As I indicted at [42] and [43] above, the interpreting errors referred to by the applicant are relatively trivial and had no bearing on the Tribunal’s decision. No jurisdictional error is made out and Ground 5 fails.
In Ground 6 the applicant claims that the Tribunal fell into jurisdictional error by relying upon either:
(a)the tapes of the second Tribunal hearing; and/or
(b)the second Tribunal decision.
The applicant complains that both the tapes and the decision “were contaminated with a multitude of serious interpreting errors so that the true and correct meaning of the applicant’s evidence was not conveyed to the second Tribunal.”[29]
[29] Amended Application Ground 6
I have already referred to the interpreting errors claimed by the applicant and consider that they are relatively trivial and had no bearing on the decision under review. In any event, the Tribunal made it clear that it would not rely on inconsistencies between the protection visa application and earlier Tribunal evidence in the paragraph quoted at [45] above.
No jurisdictional error has been shown and Ground 6 fails.
The applicant complains in Ground 7 that the Tribunal fell into jurisdictional error in finding that the interpretation errors were exaggerated by the applicant. This finding was open to the Tribunal. I note that the Tribunal stated that it did not rely on this finding in any way adverse to the applicant:
As noted above, the Tribunal does not rely on any inconsistencies between the accounts contained in the protection visa application and the applicant’s oral evidence over time, even though it considers the applicant’s claim that they have been irretrievably distorted by his migrations agent’s negligence and by interpretation errors to be exaggerated.[30]
[30] Court Book Volume 2 at 166
It is for this reason I am of the view that the Tribunal did not fall into jurisdictional error in this regard and the applicant’s Ground 7 must fail.
The applicant’s Ground 8 is again a complaint that the Tribunal failed to warn the applicant that he should provide documentary evidence to support one of his claims.
As I set out in [32] above, procedural fairness at common law does not require the Tribunal to warn an applicant that he or she needs to provide documentary evidence in order to support a particular claim. Also, as I set out in [33] – [35] above, the Tribunal had invited the applicant on two occasions, admittedly in general terms, to provide any documentary evidence upon which he sought to rely.
There is no jurisdictional error and Ground 8 fails.
In Ground 9 the applicant claims that the Tribunal fell into jurisdictional error by denying him procedural fairness, in that it failed to invite him to comment on why he did not flee the country at the first opportunity. There was no obligation on the Tribunal to invite the applicant to comment on the conclusions that it had drawn from his own evidence.
No jurisdictional error is shown and Ground 9 fails.
Ground 10 is again a complaint that the Tribunal failed to warn the applicant that he should provide documentary evidence to corroborate a particular claim. As I have indicated previously, there is procedural fairness obligation at common law requiring a Tribunal to do so.
It follows that the applicant has not demonstrated any jurisdictional error and Ground 10 must fail.
In Ground 11, the applicant complains that the Tribunal’s finding that it was satisfied that the applicant’s protection visa application had been handled confidentially was made in a capricious manner without proper or reasonable basis. The applicant claims that the finding was made without reference to any documentary evidence and states:
It was not open to the Tribunal to make such a finding which contributed to an adverse finding in relation to the applicant’s credit. In the circumstances, it failed to give the applicant the benefit of the doubt and accordingly there was a denial of procedural fairness.[31]
[31] Amended Application Ground 11
The finding complained about was open to the Tribunal on the evidence before it. The applicant’s claims are speculative. The applicant refers in paragraphs 52 to 54 of his affidavit to various pieces of evidence and is attempting to re-argue a factual claim. This is an attempt at merits review and is not open to a court conducting judicial review.
Consequently, the applicant has not shown any jurisdictional error in Ground 11, which must therefore fail.
Ground 12 of the Amended Application claims that the Tribunal denied the applicant procedural fairness when it stated that the applicant had exaggerated his concerns about his former migration agent without giving the applicant an opportunity to comment.
The finding was open to the Tribunal on the evidence before it. The rules of procedural fairness do not require a decision maker to disclose or invite the applicant to comment on the decision maker’s thought processes or the conclusions proposed to be made (see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd).
No jurisdictional error has been made out and this ground fails.
The applicant’s Ground 13 complains that the Tribunal denied the applicant procedural fairness in making an adverse finding that he had exaggerated his concerns about his former migration agent by failing to give the applicant an opportunity to comment or to give reasons for the basis of his complaint against the former agent.
This ground is very similar to Ground 12, which I have dismissed in [66] above. In addition, the Tribunal was under no obligation to ask the applicant to give reasons for the basis of his complaint against the agent. It is for an applicant to make out his or her case before the Tribunal and to present the material upon which he or she seeks to rely (see Abebe v Commonwealth). In any event, as I mentioned at [45] above, the Tribunal gave the applicant the benefit of the doubt with respect to the agent “having perhaps encouraged him to present an abbreviated and inaccurate account of his claims”.[32]
[32] Court Book Volume 2 at 161
I note that the Tribunal stated that:
The current adviser informed the Tribunal that the applicant now has a complaint filed against Mr Kyselov with MARA, but does not reveal the basis for the complaint, or whether it involves the replication of claims and/or inadequate account- and record- keeping.[33]
[33] Court Book Volume 2 at 133
No jurisdictional error is demonstrated and Ground 13 fails.
In Ground 14 of the Amended Application, the applicant claims that the Tribunal denied him procedural fairness in making adverse findings about his credit without any proper, reasonable or evidentiary basis for that finding.
It is well established that a finding on credibility is the function of the primary decision maker:
If the primary decision-maker has stated that he or she does not believe a particular witness, no details need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.[34]
[34] Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67]
The applicant’s claim amounts to no more than an attack on the merits of the Tribunal’s factual findings, which were open to the Tribunal on the material before it.
There is no jurisdictional error shown, and Ground 14 must fail.
Ground 15 of the Amended Application complains that the Tribunal denied the applicant procedural fairness in making adverse findings as to his credit by claiming that he had exaggerated his concerns regarding his former migration, and accordingly fell into jurisdictional error.
This ground is basically similar to Ground 12, although couched in slightly more general terms. I have previously dismissed Ground 12 at [66] above, and Ground 15 fails for the same reasons.
In Ground 16, the applicant claims that the Tribunal fell into jurisdictional error in rejecting his claim that he had led a quasi-itinerant life by drawing on cash and other funds without needing to make any official transaction. The applicant claims that:
The Tribunal simply acted upon its own unstated assumption regarding the nature of Ukrainian society and failed to understand the manner in which business is generally transacted in Ukraine.[35]
[35] Amended Application Ground 16
This is an attack on a factual finding made by the Tribunal and is an attempt at merits review of the Tribunal decision. The court conducting judicial review of an administrative decision does not make its own findings on the decision maker’s factual findings.
The applicant also claims in this Ground that the tribunal denied him procedural fairness by:
(a)failing to invite him to comment; and
(b)failing to invite him to provide documentary evidence in support of his claim.
I have previously dealt with the contention that the Tribunal fell into jurisdictional error by failing to invite the applicant to comment on a conclusion that it had formed arising from the applicant’s own evidence (at [59] above). There was no obligation on the Tribunal to invite the applicant to comment on a conclusion that it had formed arising from his own evidence.
I have previously dealt with these contentions at [33] to [35] above. There is no rule of procedural fairness at common law that requires a Tribunal to advise an applicant of the need to provide documentary evidence in support of a particular claim. The Tribunal had, in any event, invited the applicant in writing to provide documentary evidence in support of his case.
It follows that no jurisdictional error is demonstrated in Ground 16 and it must therefore fail.
The applicant’s Ground 17 claims that the Tribunal fell into jurisdictional error by finding that much of the applicant’s oral evidence was “digressive and convoluted” without taking into account the difficulty that the applicant in finding appropriate words in Polish and the significant amount of stress under which the applicant was living. The applicant claims that this led to a denial of procedural fairness.
The applicant is, in this ground, making a criticism of the Tribunal’s reasoning. The Tribunal noted that the applicant had previously given evidence in Russian[36] and Ukrainian[37] and that the applicant’s evidence to the Tribunal was given in his third language, Polish. That was one of the reasons why the Tribunal took the step of sending the applicant a working draft of the summary set out referred to at page 145 of the Court Book Volume 2.
[36] Court Book Volume 2 at 134
[37] Court Book Volume 2 at 139
The Tribunal made these comments:
The hearing was conducted through the medium of Polish interpreters, a different one attending each session due to interpreter availability. The applicant’s adviser was present at the hearing. The applicant said he could understand Polish perfectly, and preferred a Polish interpreter, as he did not trust and felt stressed using Ukrainian or Russian interpreters…The applicant appeared fluent in Polish, and there were only a few occasions when he and the interpreter needed to clarify particular terms. He expressed satisfaction with the standard of interpretation.[38]
[38] Court Book Volume 2 page 145
As to the applicant’s complaint that the Tribunal found much of his evidence to be digressive and convoluted, the Tribunal had this to say:
The Tribunal hearing lasted more than 51/2 hours. Much of the applicant’s evidence was digressive and convoluted. The Tribunal reminded the applicant on several occasions of the importance of addressing the question put to him, lest he create the impression of avoiding the issue.[39]
[39] ibid
My reading of the Tribunal decision shows an effort by the Tribunal Member to apply the rules of procedural fairness and take into account the fact that the applicant was giving evidence in his third language. It appears to me to be open to the Tribunal to find an applicant’s evidence to be “digressive and convoluted” after a hearing lasting well over five hours.
The applicant has not made out his claims in this ground, and Ground 17 fails.
In Ground 18 of the Amended Application the applicant complains that the Tribunal fell into jurisdictional error by failing to understand the political ideology of the applicant. He also claims that the Tribunal engaged in speculation in order to arrive at the conclusion that the applicant’s political views were widely shared in Ukraine.
This ground is no more than a challenge to the Tribunal’s factual findings and is an attempt to engage in merits review. Merits review is not available on judicial review and Ground 18 must therefore fail.
In Ground 19 the applicant complains that the Tribunal fell into jurisdictional error by engaging in speculation in claiming that the Gongadze case may be a poor parallel to the applicant’s case on the basis that it involved “internet journalism”.
Similarly, this is no more than a merits review claim. This is not a case of jurisdictional error. Ground 19 fails.
The applicant’s Ground 20 complains that the Tribunal fell into jurisdictional error “by taking on the role of an expert in Ukrainian politics and engaging in speculation”…
Ground 20 is no more than attempt at merits review and does not disclose any jurisdictional error. It therefore fails.
Ground 21 complains that the Tribunal denied the applicant procedural fairness when it found, without any proper basis, that it was troubled by the applicant’s claim to have thrown himself into political life, with no prior experience and relying upon the sale of antique motorcycles as a source of income.
All that the applicant is doing in this ground is challenging the Tribunal’s finding about the credibility of a part of his evidence. This is purely a matter for the Tribunal. It is for the tribunal to decide whether or not it accepts the applicant’s evidence on a particular matter (see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham).
There is no denial of procedural fairness in Ground 21 and no jurisdictional error. Ground 21 fails.
In Ground 22 of his Amended Application, the applicant claims that the tribunal fell into jurisdictional error in finding that it was inconceivable that a friend of the applicant would “put his life on the line” by acting in a certain way. The applicant claims that this finding was made without proper basis and demonstrates a failure to comprehend the reality of line in Ukraine and the mentality of post totalitarian society. The applicant accuses the Tribunal of acting upon “unstated assumptions regarding the nature of Ukrainian society”.
This claim by the applicant is an attack on a factual finding by the Tribunal. It is an attempt at merits review.
Ground 22 does not demonstrate any jurisdictional error and must therefore fail.
Ground 23 of the Amended Application claims that the Tribunal fell into jurisdictional error by making an illogical finding about one of the applicant’s claims.
Even if illogicality were a basis for finding judicial error, the applicant has not shown how this finding by the Tribunal is in any way illogical. The applicant is cavilling at a factual finding made by the Tribunal when, in my view, there was evidence that made this finding open to the Tribunal.
The applicant has not shown a jurisdictional error and Ground 23 fails.
In Ground 24 of his Amended Application, the applicant accuses the Tribunal of a denial of procedural fairness in making its finding about the role of the applicant’s acquaintance and claims that no proper basis exists for that finding.
At paragraphs 131 and 132 of his submissions, the applicant sets out evidence and arguments as to why the Tribunal finding is wrong. However, he is merely attempting to reargue his case on the facts and persuade the court to conduct merits review.
There is no jurisdictional error shown and Ground 24 fails.
Ground 25 of the Amended Application complains that the Tribunal denied the applicant procedural fairness in making its finding about the failure of the SBU to arrest him over a period of 5 months.
The applicant attempts to explain in paragraphs 133 to 136 of his submission why he believes the SBU did not arrest him over that time. What he is doing is challenging the factual basis of the Tribunal’s finding on one of its findings. Counsel for the Minister submits that the applicant’s submissions on this point “amount to nothing more than an attempt to have the Court conduct merits review”.
It is no part of the Court’s function on judicial review to “second guess the Tribunal on matters of fact or judgment” (SZHCJ v Minister for Immigration and Multicultural Affairs[40]).
[40] [2007] FCA 205 at [3]
There is no jurisdictional error in Ground 25 and it therefore fails.
The applicant claims in Ground 26 that the Tribunal fell into jurisdictional error in its misconstruction as to the prerequisite required to be found a refugee, in finding that “the SBU or other agencies – if they had the slightest interest in apprehending the applicant – had plenty of opportunity to track him down during this period, particularly if, as the applicant now claims, they make extensive use of telephone tapping”[41].
[41] Court Book Volume 2 at 166
In his submission at 138, the applicant attempts to justify his claim of a misconstruction amounting to an error of law by stating:
An individual need not have every telephone call monitored to be found a refugee.
He goes on to complain, irrelevantly, in paragraph 139 of his submission that he was never invited or given the opportunity to comment on telephone tapping.
The applicant has not demonstrated any misconstruction of the definition of a refugee. The Tribunal correctly sets out the definition of a refugee as defined in the Refugees Convention as qualified by ss 91R and 91S of the Migration Act at pages 130 to 132 in Court Book Volume 2.
The applicant has not shown any jurisdictional error in Ground 26. That Ground fails.
Ground 27 of the applicant’s Amended Application claims that the Tribunal fell into jurisdictional error in not giving the applicant an earlier opportunity or invitation to comment on the use of telephone tapping by the SBU. He claims that this amounts to a denial of procedural fairness.
As counsel for the Minister pointed out, it was the applicant himself who raised the issue of telephone tapping by the SBU. Procedural fairness does not require the Tribunal to invite the applicant to comment on his own evidence.
Ground 27 does not show any jurisdictional error and therefore fails.
In Ground 28 of the Amended Application, the applicant claims that the Tribunal fell into jurisdictional error in failing to test the applicant’s evidence in connection with the theft of his motor cycles and merely relying on the findings of previous Tribunal Members. This, he claims, is a denial of procedural fairness.
There is no obligation on a Tribunal to test an applicant’s evidence. The Tribunal considered the applicant’s evidence[42] about the theft of the motorcycles and noted his belief that the SBU was responsible. The Tribunal accepted that the motorcycles were stolen but did not accept that there was any political motive for the theft.[43]
[42] Court Book Volume 2 at 153
[43] Court Book Volume 2 at 166
Whether this finding was right or wrong, it was a finding open to the Tribunal on the evidence. The fact that the previous Tribunal Members came to that same conclusion, as the applicant pointed out at paragraph 141 of his submission, does not go any way towards showing a denial of procedural fairness. It certainly does not establish that the Tribunal in the decision under review failed to make its own conclusions on the evidence.
The applicant also remarks that the Tribunal made its finding “in the absence of documentary evidence” but thus does not establish any jurisdictional evidence. The Tribunal does not need to have documentary evidence in order not to accept a claim made by an applicant. There is no obligation on the Refugee Review Tribunal to prove an applicant wrong. It is up to the applicant for a visa to satisfy the Tribunal that he or she qualifies for that visa (Migration Act 1958 (Cth) s. 65). An applicant for a protection visa must satisfy the Tribunal that he or she is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (Migration Act 1958 (Cth) s.36 (2)).
The applicant’s final ground, Ground 29, claims that the Tribunal fell into jurisdictional error in failing to provide the applicant with an opportunity to comment in relation to his attempts prior to 2004 to organise a protest after the murder of the journalist Gongadze and ignored the applicant’s testimony on this point. The applicant claims that he was thereby denied procedural fairness.
I have previously held that there is no denial of procedural fairness in a tribunal not asking the applicant to comment upon the applicant’s own evidence. I have read paragraphs 142 and 143 of his written submissions and I am not satisfied that the Tribunal ignored his evidence or failed to give him a proper opportunity to comment.
Ground 29 has no merit and certainly does not establish any denial of procedural fairness. There is no jurisdictional error and Ground 29 must therefore fail.
The applicant was not legally represented during the hearing, although he had previously had the benefit of legal representation. His Amended Application and written submissions appear to be his own work rather than the work of his former solicitor. I have read the Tribunal decision with an eye to identifying any arguable jurisdictional error not referred to by the applicant, but I am unable to discern any.
I am satisfied that there is no jurisdictional error in the Tribunal’s decision. Accordingly, I find that the decision of the Refugee Review Tribunal is a privative clause decision (Migration Act, s.474). A privative clause decision is final and conclusive and not subject to orders in the nature of certiorari, mandamus or prohibition (Migration Act, s..474(1).
It follows that the application will be dismissed. I will address the question of costs.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 27 February 2008
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