SZBYZ v Minister for Immigration

[2006] FMCA 380

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBYZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 380

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to consider whether applicant was a member of or would be persecuted by reason of his membership of a particular social group – whether denial of procedural fairness – whether no evidence, ignoring of relevant material or failure to take into account a relevant consideration.

Migration Act 1958 (Cth), s.424A

Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural & Indigenous Affairsv Sarrazola (Number 2) (2001) 107 FCR 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Multicultural Affairs v Khawar (1999) 168 ALR 190
Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [38] – [58]
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
M190 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1362
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
NAPU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 193
Minister for Immigration & Multicultural & Indigenous Affairs v S152/2003 [2004] HCA 18
SVTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 104
Minister for Immigration & Ethnic Affairs v Guo (1997) 1191 CLR 559
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
WAKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 32
SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545
Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 124
Minister for Immigration & Multicultural & Indigenous Affairs v W360/01A [2003] FCAFC 208
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
SZAQV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 158

Applicant: SZBYZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2531 of 2003

Judgment of: Barnes  FM

Hearing date: 7 February 2006

Date for Last Submissions: 1 March 2006

Delivered at: Sydney

Delivered on: 20 April 2006

REPRESENTATION

Counsel for the Applicant: Mr C. Bova

Solicitors for the Applicant: Doyle Wilson Solicitors

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 13 November 2003.

2. That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2531 of 2003

SZBYZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 November 2003 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, who is a citizen of the Russian Federation, arrived in Australia in September 2000.  He applied for a protection visa.  The application was refused and he sought review by the Tribunal.  He attended a Tribunal hearing. 

2. In his protection visa application the applicant claimed that he had been assaulted on 1 June 2000 and 19 July 2000 because of his mother’s “Caucasian nationality and as a result of his connections and communication with people of Caucasian nationality” such as former schoolmates and students with whom he had studied.  He attributed responsibility for the assaults (which he described as life threatening) to the Federal Bureau of Security.  He claimed that he was hospitalised after the second assault.  He provided a medical certificate and translation referring to outpatient treatment for head and other injuries between 5 May 2000 and 9 May 2000 (sic) and a medical report and translation relating to his hospitalisation from 20 July 2000 until

   
   

   7 August 2000.  The report stated that the applicant had considered himself unwell since June 2000 and had suffered a blow to the head, that his headaches had persisted and that he had been hospitalised for examination and treatment. 

3. The applicant claimed that after the second assault he was told that if he survived “they” would find him and kill him.  The applicant also claimed that his wife had written letters of complaint, including to the Governor of the local region.  According to the applicant, a statement by Mr Kondratenko, the Governor or head of the administrative region of Krasnodar, had been printed in the Southern Russia News.  A copy of the article was provided together with a translation.  The article stated that Mr Kondratenko had taken upon himself the task of purging the Kuban area of people of Caucasian origin.  It continued that named persons (including the applicant) who were part of the “Chechnyan Diaspora” had come to the Kuban and claimed it was their home and that they would never leave.  It stated that orders had been given that tough measures and legal action would be taken against these people. 

4. A delegate of the first respondent refused the application for a protection visa.  The applicant sought review by the Tribunal.  In his application for review the applicant stated that the information he had provided in his original application was inaccurate due to his insufficient knowledge of English and lack of an agent.  He submitted a signed document headed “statutory declaration” dated 3 December 2001 in which he claimed that he was born in Kuban (in Russia), that his father was Russian and his mother Chechen.  He claimed that he considered himself Russian, but that he started to have problems after military actions between Russia and Chechnya.  Initially his neighbours and work colleagues turned away from him, gossiped behind his back and swore at him.  After military actions commenced and soldiers began to die, he and his family started to receive direct threats.  He claimed that teenagers would regularly smash windows in his house, break trees and the fence and write insults, threats and slogans on the fence demanding that the family leave Kuban.  He claimed that his wife was forced to leave her job and that he had to change his job.  The applicant claimed the situation deteriorated when a friend with whom he had done army service and his cousin stayed at his place.

5. He suggested that the attitude towards Caucasians became unbearable.  He claimed that police had stopped him at “almost every corner” and demanded to see his papers and that he had been taken to the police station a few times under the excuse of checking his papers and establishing his identity.  He claimed he had been placed in a cell with criminals and persons under investigation and treated like an offender and warned that if he sought protection from the public prosecutor’s office things would become worse for him.  He claimed that the Federal Security Service (FSS) put him under surveillance and that a duty officer parked in his street around the clock.  According to the applicant, his home was ransacked on a few occasions, although nothing went missing. 

6. He claimed that on 1 June 2000 they (and this is apparently a reference to the Federal Security Service) and their agents bashed him so badly he almost died.  He recovered, but on 19 July 2000 he was allegedly assaulted a second time and hospitalised.  He claimed that soon after he was discharged from hospital, the Governor or head of the regional administration (Mr Kondratenko) had mentioned his name and surname as well as those of his friend and cousin in a public speech.  He believed that the FSS had provided Mr Kondratenko with their names.  Mr Kondratenko had called upon people to banish the “Chechen Diaspora” from the Kuban land.  The applicant claimed that they were branded a gang of cutthroats and that Mr Kondratenko promised to oppress all Caucasian aliens.  Consequently the applicant feared the security service had been given a free hand and a mandate to get rid of him. 

7. The applicant claimed that his wife wrote to President Putin seeking protection from the authorities.  She received no reply.  He claimed that, facing death, he was forced to flee his home and travel to Australia and that thereafter the authorities began to persecute his wife, intimidated her and had gangsters attack her.  On 29 April 2001 a group of unknown persons assaulted her and threatened that they would get him.  The applicant concluded that his only “fault” was his nationality. 

8. The applicant’s migration agent provided a written submission to the Tribunal commenting on matters raised in the delegate’s decision, in particular denying that the applicant had stated in a Departmental interview that his family were not viewed as Caucasians.  The submission claimed that the applicant believed the assaults upon him were as a result of his Chechen appearance and his association with Chechens.  It was claimed that there was a deep animosity towards Chechens in many parts of Russia. 

9. The applicant attended a Tribunal hearing on 17 April 2003.  A copy and translation of an article from the Moscow News of 13 to 19 November 2001 about the attitudes of the new Governor of Kuban and a copy of the edition of the Southern Russia News (No. 7 2000r) said to contain the statement by Mr Kondratenko referred to by the applicant were provided to the Tribunal. 

10. On 11 August 2003 the Tribunal wrote to the applicant requesting his comment on information relating to the magazine No. 7 2000r.  The information was that the overseas post had stated that the article (with photograph) at the top of page five of the copy of the magazine submitted to the Tribunal had not been included in the magazine at the time of publication; that with the exception of pages 5 to 6 and 31 to 32 all pages of the magazine had a “yellow” appearance; and that the printed text and images on pages 5 to 6 and 31 to 32 (the sheet containing the article in question) were of a higher quality than that of the surrounding pages. 

11. On 25 August 2003 the applicant’s migration agent wrote to the Tribunal stating that he was instructed that the applicant believed the magazine and article naming him were genuine, that he had been handed the magazine by his wife on 7 August 2000 (the day he was discharged from hospital which was also the date he was granted an Australian visa), that his wife had informed him the magazine had been received through the ordinary mail and that he had no reason to doubt its authenticity.  He also claimed that for the reasons given by him in evidence he believed his life would be in danger if he returned to the Russian Federation.  On 28 August 2003 further country information was provided to the Tribunal as “evidence of continuing problems” in the city of Krasnodar where the applicant had lived. 

12. On 18 September 2003 the Tribunal wrote to the applicant, apparently under s.424A of the Migration Act 1958 (Cth) (the Act), stating that it had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The information was the information referred to in the Tribunal’s letter of 11 August 2003, which was said to be relevant because it indicated that the article from the Southern Russia News that the applicant had produced to the Tribunal was fraudulent and also that the applicant, his friend and his cousin were not referred to in any article in the way he had indicated. There was therefore said to be nothing to support the applicant’s contention that his cousin and friend had stayed with him, nor the bases for the alleged attacks on him, the surveillance, searching of his house or attack on his wife. It was suggested that the applicant’s credibility was affected negatively.

13. Other information was also put to the applicant for comment in this letter, including the following: “In your application for a temporary residence dated 31 September 2000 (sic) which you signed you indicated that you were a member of the Russian delegation for participation in the Olympic Games”.  The letter stated that from evidence the applicant subsequently gave, he did not come to Australia as a member of the Russian team or to participate in the Olympic Games.  It was stated that this also negatively affected the applicant’s credibility. 

14. In addition, independent country information was put to the applicant indicating that counterfeit, forged, altered, modified or fake external passports were available in Russia and that there were reports of the use of false documentation involving Russian citizens including the use of false papers.  This information was said to be relevant because “as well as confirming” that the Russian magazine article and temporary residence visa application were “fraudulent documents”, it indicated that other documents provided by the applicant, such as (but not limited to) medical and hospital certificates, were also fraudulent.  It was stated that if those documents were fraudulent, no weight could be placed on them to support the applicant’s claims of being beaten and that his credibility would be viewed adversely.  The applicant was invited to comment on this information. 

15. By letter from the applicant’s migration agent dated 3 October 2003 the Tribunal was referred to the submissions in the letter of 25 August 2003 in response to the earlier allegation that the magazine was fraudulent.  As to the information that the applicant was granted a visa on the basis he was a member of the Russian delegation to the Olympic Games whereas this was not the case, it was stated that the applicant had instructed that he had obtained a visa through an agent and was not aware of details of the particular visa issued to him.  In relation to the independent country information it was stated that while the applicant agreed that many documents from Russia were false, it was denied that the documents he had submitted fell into this category. 

The tribunal decision

1. In its reasons for decision the Tribunal outlined the applicant’s claims, including those made at the Tribunal hearing, which it then summarised, as follows:

   The applicant’s claims relate to two assaults by local FSS operatives in Krasnodar (1 June 2000 and 19 July 2000).  These attacks were claimed to be motivated by his mother’s Caucasian nationality (half Chechen and half Ossetian), his Chechen appearance and his connections and communications with Chechens, in particular an old friend and cousin who stayed with him on their way to Moscow.  The assaults took place at a time when Russia was at war with Chechnya.  He also claimed that the local Governor made a public speech, excerpts of which were printed in the journal “Southern Russia News” where the Governor stated that measures were to be taken against the applicant and his two friends.  They were each named by the Governor.  The applicant also stated that he suffered from discrimination and was put under surveillance.  His home was ransacked.  Since leaving Russia his wife has been beaten and persecuted.

   The applicant stated that his passport “has gone missing”.  He stated that he was unable to leave Russia as his documents were submitted along with the Russian Olympic sportspeople and coaches at the time of the Sydney Olympics (although he was not associated with this group).  He stated that his wife brought the magazine with the article in it to him.  His wife also wrote letters to President Putin complaining about what had happened, but had not received a response.

2. The Tribunal found that the applicant was not a credible witness.  It found that the applicant’s claims were “fundamentally compromised by the use of a false document in particular”.  It had regard to the information put to the applicant in the letter of 18 September 2003 and his response. It accepted the evidence of the Document Examination Unit of the Department of Immigration that the relevant pages of the Southern Russia News No 7 2000r said to contain the article referring to the applicant, his cousin and friend, were of a different quality to the rest of the magazine and also to the evidence that the overseas post, after examining an original of the magazine, had advised that it did not contain the article in question.  The Tribunal found that this was compelling evidence that the article which referred to the applicant and his friends was substituted into the magazine and was not genuine.  As a result it found that the article was a fake.  Hence the basis of the applicant’s claims that he and his two friends were identified by the Governor in the magazine was not accepted by the Tribunal.

3. The Tribunal also had regard to the fact that in “an application for temporary residence visa dated 31 September 2000 (sic) which the applicant signed” he indicated that he was a member of the Russian delegation for participation in the Olympic Games and to his evidence that he obtained the visa through an agent and was not aware of the details of the visa issued to him.  However the Tribunal found that the application for the visa “was signed by the applicant who declared at the time of doing so that the information in the form was complete and correct in every detail.”  In those circumstances the Tribunal did not accept that the applicant was unaware of what he was signing.  This was said to reflect negatively on the applicant’s credibility, in that it demonstrated a willingness to give false information to obtain a particular outcome.  As such, the Tribunal was not ready to give the applicant the benefit of the doubt and to accept his claims. 

4. The Tribunal accepted independent information in relation to the availability of fake passports and documentation in Russia.  It did not accept the applicant’s contention that his documents were not false, as it had found that the magazine article had been “faked” and that the visa application was based on false information.  Based on its findings in relation to those documents and the independent country information it also found the applicant’s medical and hospital certificates to be false.  In light of this, and because it did not accept the applicant was a reliable and credible witness, the Tribunal did not accept that the applicant had suffered the injuries stated in the certificates and did not accept that he was beaten. 

1. The Tribunal did not accept that there was a speech by Mr Kondratenko made after the applicant’s release from hospital on

   
   

   7 August 2000 as claimed in the statutory declaration of 3 December 2001.  It did not accept that the applicant had failed to refer to such a speech in his protection visa application because he was having difficulty with English, did not have the help of a solicitor at that time, or because there was a lot happening and he might have overlooked it, as he had claimed at the hearing.  It found that this matter was of such importance that it was implausible that the applicant would have forgotten to raise it.  It found that the applicant had embroidered his story at a later point to include the reference to a speech.  It found that there was no speech which referred to the applicant and his two friends by name. 

2. The Tribunal continued that, as a result of its findings about the applicant’s credibility, it was unable to accept that he was put under surveillance and that his house was ransacked or that his wife was beaten. 

3. The Tribunal referred to the applicant’s claims that:

   because of his antecedents (Caucasian, Chechen and Ossetian) on his mother’s side, his Chechen appearance, his connections and communications with Chechens and his assisting two Chechen men led to his ostracism and harassment and that he faced harm in the future because of a perception by the Russian community that he is a Chechen or Chechen sympathiser. 

4. The Tribunal rejected the claim that the applicant assisted two Chechens as “contrived”, finding it to be an integral part of the applicant’s claims concerning the Governor and the magazine which had been rejected on the basis of his lack of credibility.  It also found that the claims of past harassment and ostracism were unsupported and due to its finding that the applicant was not credible, rejected them.  It found that the applicant did not experience past persecution owing to a Convention reason.  The Tribunal concluded:  “I also find, on the evidence before me and my finding that his claims as to past persecution are unfounded, that the applicant does not face a real chance of persecution should he return to Russia now or in the foreseeable future.”  Therefore it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

5. The applicant sought review by application filed in this Court.  He relies on an amended application filed in Court on 7 February 2006.  

Particular social group grounds

1. The first ground relied on by the applicant is that the Tribunal committed jurisdictional error by failing to consider whether the applicant was (1) a member of a particular social group;  and/or (2) would be persecuted by reason of his membership of a particular social group.  The particulars in relation to the first part of this ground are that the Tribunal did not consider whether “Russian citizens with Chechen ancestry” and/or “Russian citizens with Chechen appearance” comprised a particular social group within the meaning of Article 1A(2) of the Convention.  The particulars to the second aspect of this ground are that the Tribunal did not ask itself whether the applicant had a well-founded fear by reason of his membership of the social groups “Russian citizens with Chechen ancestry” and/or “Russian citizens with Chechen appearance”. 

2. The second ground relied on by the applicant is expressed as an alternative to ground 1.  It is that if the Tribunal did consider whether the applicant was a member of a particular social group, it committed a jurisdictional error by reaching a conclusion on the question of whether the applicant’s fear of persecution was for reason of his “membership of a particular social group” without first identifying the relevant social group, if any, of which the applicant was a member.  The particulars to this ground are that the Tribunal did not identify the particular social group of which the applicant was a member within the meaning of Article 1A(2) of the Refugees Convention. 

3. It was contended for the applicant that the Tribunal failed to consider the applicant’s claims to be a member of a particular social group in the manner specified by the High Court in Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389. In Dranichnikov Gummow and Callinan JJ stated, at [26], in relation to consideration of an applicant’s claim to be a member of a particular social group:

   At the outset it should be pointed out that the task of the Tribunal involves a number of steps.  First the Tribunal needs to consider whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention.  That determination in part at least involves a question of law.  If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class.  There then follows the questions whether the applicant has a fear, whether the fear is well founded and if it is, whether it is for a Convention reason. 

4. It was argued that for the Tribunal to properly exercise its jurisdiction it was important that it determine these questions in that particular order.  Reference was made to what Merkel J (with whom Heerey and Sundberg JJ agreed) stated in Minister for Immigration & Multicultural & Indigenous Affairsv Sarrazola (Number 2) (2001) 107 FCR 184 at 194:

   It is only after the relevant particular social group, if any, has been identified that a decision-maker can sensibly give consideration to the question whether the applicant has a well-founded fear of persecution for reason of his or her membership of that particular social group.  As was pointed out by Dawson J in Applicant A at [240]: 

   “The words ‘for reason of’ require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution.  It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution”.

5. It was submitted that in this instance, while the Tribunal had considered the claims of the applicant by reason of nationality and/or race, it had failed to consider the applicant’s claim based on membership of a particular social group.  It was acknowledged by counsel for the applicant that in his protection visa application the applicant had claimed that he had experienced two life-threatening assaults due to his mother’s Caucasian “nationality” and as a result of his connections and his communication with people of Caucasian nationality.  However his nationality was Russian.  He held a Russian passport.  He did not in fact claim to fear persecution by reason of his Russian nationality.  It was contended that although the word “nationality” was used by the applicant, the applicant’s concerns were as to his appearance and his mother’s background. 

6. Counsel for the applicant pointed to the fact that in the “statutory declaration” of the applicant dated 3 December 2001, in addition to referring to his “nationality”, the applicant also referred to threats he received after hostilities between Russia and Chechnya commenced.  He stated that the attitude towards Caucasians became unbearable and complained that the police had stopped him at every corner.  Further, in the letter from the applicant’s solicitors to the Tribunal dated 31 March 2003, reference was made to the applicant’s Chechen ancestry, to his denial that he had stated to the Departmental delegate that his family was not viewed as Caucasian and to his belief the assaults upon him were as a result of people believing he had “Chechen appearance” and because he associated with Chechens. 

7. It was said to be apparent that the applicant was contending that he had suffered some mistreatment based on his appearance and hence was raising the issue of his Chechen appearance or ancestry and a claim that he feared persecution on that basis.

8. It was submitted that implicit within such concerns was a claim that the applicant was a member of a particular social group within the Russian community.  This was said to be consistent with his subsequent claims that because of his “nationality” he was abused in the transport system and at work, that the attitude towards Caucasians became unbearable (and in that context that he was stopped at almost every corner by the police and asked to show his papers).  His claim that his only fault was his “nationality” had to be understood in this context. 

9. Hence it was contended that a claim put in terms of a particular social group of Russian citizens with Chechen ancestry or Russian citizens with Chechen appearance was raised squarely on the evidence before the Tribunal in the sense considered in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 at [55] – [63] so that the Tribunal had a statutory duty to consider it.

10. Counsel for the applicant submitted that at no point did the Tribunal set out any particular social group to which the applicant claimed to belong (see Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1) and nor did it consider whether the applicant would be persecuted because of membership of a particular social group. It was suggested that such an investigation would have required the Tribunal to consider independent country information in relation to the persecution of Russian citizens of Chechen appearance or background in Russia. The fact that there was no reference to such an issue in the Tribunal reasons was said to be a strong indication that the Tribunal did not consider this particular part of the applicant’s claim. It was also suggested that, had the Tribunal asked itself whether the applicant was a member of either such social group, there was little doubt that it would have answered in the affirmative. It would then have had to consider whether the applicant feared persecution by reason of his membership of such a social group as well as by reason of his race and/or nationality.

11. It was conceded that the Tribunal summarised the applicant’s claims based on his antecedents and Chechen appearance, connections, communications and assistance to two Chechen men, but contended that it did not go far enough.  It dealt with the claims in terms of “race” and “nationality” but there was no finding of fact by the Tribunal as to whether or not the applicant was a member of a social group as discussed in Dranichnikov and Sarrazola.  Nor, it was said, did the Tribunal consider whether the applicant had a fear of persecution, let alone a well-founded fear of persecution, on this basis.  It simply made a finding that certain events in the past had not occurred and on this basis found that the applicant did not face a real chance of persecution should he return to Russia.  

12. It was also contended that the fact that past harm had not occurred was not conclusive, as it was not the only reason why an applicant for a protection visa may have a subjective fear of persecution for a Convention reason and that a subjective fear could arise solely by reason of the applicant’s membership of a particular social group.  Hence in considering what might happen in the future, the Tribunal had to assess what social class or group the applicant claimed he fell into in the manner discussed in Dranichnikov and then consider the applicant’s subjective fear in that context before going on to look at whether or not his fear was well founded. 

13. In the alternative it was suggested that the failure to consider this aspect of the applicant’s claims could be categorised as a failure to have regard to relevant considerations, being a failure to address all the integers of the applicant’s claim in the sense discussed by Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]:

    The requirement to review the decision under s.414 of the Act requires the Tribunal to consider the claims of the applicant.  To make a decision without having considered all the claims is to fail to complete the exercise of the jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact-finding.  The nature and extent of the task of the Tribunal revealed by the terms of the Act … make it clear that the Tribunal’s statutorily task is to examine and deal with the claims for asylum made by the applicant.

14. In relation to ground 2 it was contended for the applicant that, consistent with what Branson J had found at first instance in Minister for Immigration & Multicultural Affairs v Khawar (1999) 168 ALR 190 at 197, if the Tribunal did consider and reach a conclusion on the applicant’s claims by reference to a particular social group, the fact that it did not identify which social group the applicant belonged to amounted to jurisdictional error. It was contended that the reasons of Branson J in this respect were undisturbed by the Full Court in Minister for Immigration & Multicultural Affairs v Khawar (2000) 101 FCR 501 and the High Court in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1.

15. Counsel for the first respondent conceded that the Tribunal did not at any point identify which of the Convention grounds it was considering, but contended that it did in fact consider a social group claim.  Insofar as the Tribunal referred to the applicant’s “nationality” it was simply quoting what the applicant himself had put to the Department or Tribunal.  The respondent accepted that it was clear that it was not “nationality” that was the basis of the applicant’s claim, because the applicant’s nationality was Russian and he did not claim that he feared persecution because of being a Russian national. 

16. It was submitted for the respondent that the Tribunal recorded the basis of the applicant’s stated fear of harm as being because of his mother’s Caucasian nationality and his appearance as a Caucasian (meaning a person from the Caucusus region which includes Chechnya) and that --reading the Tribunal decision fairly and as a whole the Tribunal was well aware that this was the basis of the applicant’s claim.  In particular, in its findings and reasons the Tribunal was said to have considered the applicant’s claims that he had been assaulted in attacks motivated by his mother’s Caucasian nationality, his Chechen appearance and his connections and communications with Chechens.  It referred to his claims that his antecedents as Caucasian, Chechen and Ossetian on his mother’s side, his Chechen appearance, his connections and communications with Chechens and his assisting two Chechen men had led to his ostracism and harassment and to his fear that he faced harm in the future because of the perception of the Russian community that he was a Chechen or a Chechen sympathiser. 

17. It was contended that in categorising the applicant’s claims in this manner the Tribunal correctly identified the basis of the social group claim, albeit it did not identify it as a social group claim.  It was submitted that the Tribunal did not misstate the basis of the applicant’s claimed fear of harm or fail to address it.  Rather, the difficulty for the applicant was said to be that the Tribunal did not accept that any of the persecution he claimed to have experienced had in fact occurred.  It was contended that the basis for the Tribunal’s decision was not rejection of the claim that there was a Convention nexus, but rather rejection of the claim that any persecution had occurred.

18. The respondent’s response to ground 2 was in the same terms as the response to ground 1.  It was submitted that as the Tribunal had rejected the applicant’s claims as to past persecution in their entirety, it found that the applicant did not face a real chance of persecution should he return to Russia now or in the foreseeable future and thus that he did not have a well-founded fear of persecution “for Convention purposes”.  Hence it was contended that the Tribunal did not need to address the Convention nexus of the claimed persecution.  

19. It is necessary to determine whether the Tribunal addressed the case raised on the material advanced by or on behalf of the applicant in written and oral submissions and in the material he provided to the Tribunal.  (See NAPU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 193 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 at [58] – [61]). As Moore J stated in NAPU at [34] this is to ensure that the Court “does not assess whether the Tribunal fell into jurisdictional error by reference to a case that was never raised:  see generally Minister for Immigration & Multicultural & Indigenous Affairs v S152/2003 [2004] HCA 18”.

20. The applicant’s claims are summarised above.  Relevantly, while he described one basis for his fears as his “nationality”, in particular his mother’s “Caucasian nationality”, in his protection visa application (which he completed without the assistance of a migration agent) he also explained that he was born and raised in Russia and was a Russian citizen.  It is not disputed that his nationality was not the basis for the applicant’s claims.  Nor is it disputed that the basis of his claimed fear of harm was his mother’s Caucasian nationality (which was also described as his Chechen ancestry), his Chechen appearance and his connections and communications with and assistance to Chechens and hence the possibility that he would be persecuted as a perceived Chechen or a sympathiser.  In the document described as a “statutory declaration” dated 3 December 2001, the applicant commenced by explaining in relation to the aspect of his claims in issue:  “I was born into an intermarriage family (my father was Russian and my mother was Chechen) in Kuban where my parents had settled after yet another exile period to Chukotka”.  He continued that “Until the early 1990’s (when the USSR collapsed), I practically have no big problems related to my nationality”.  He stated that “everything changed” after the Chechen Republic proclaimed independence and worsened when military actions between Russia and Chechnya commenced.  Relevantly he stated “The attitude towards Caucasians has become unbearable” and set out claims of being stopped by police and detained (as well as his claims about FSS surveillance and assaults).  After describing alleged intimidation and attacks on his wife he concluded that “my only ‘fault’ is my nationality”. 

21. As clarified in the written submission of his adviser of 31 March 2003, the applicant denied stating to a Departmental delegate that his family was not viewed as Caucasians and explained that his mother was half Chechen and half Ossetian.  There is no record of the applicant’s interview with the delegate before the Court, but in any event it is clear that it was claimed and reiterated to the Tribunal that the applicant strongly believed the assaults were a result of his Chechen appearance and his association with Chechens.  Moreover it was asserted “There is a deep animosity towards Chechens in many parts of Russia and members of the bureaucracy still view with suspicion citizens who complain”. 

22. Importantly, in addition to the magazine allegedly containing the statement by Mr Kondratenko, the applicant submitted to the Tribunal an article from the Moscow News dated 13 to 19 November 2001 entitled “The Successor and Continuer.  The new Governor of Kuban justifies Old Man Kondrat’s faith in him” about xenophobic statements and actions of the successor to Mr Kondratenko and use of the slogan “Kuban for the Kubans”.  The Tribunal reasons for decision record that this article was produced in the Tribunal hearing, that the applicant stated that the new Governor was worse than the old one and “As far as I know, Caucasians are being displaced, Kurds also”.  The applicant’s solicitor is recorded as submitting at the hearing that the “anti-Chechen sentiment” in Russia had been seen with the “Moscow Theatre incident” and that Russia was characterised by lawlessness.  A further news report was submitted about bomb blasts in the city in Russia where the applicant lived, which stated that Russian officials had blamed some attacks on Chechen rebels.  This information was said to provide evidence of continuing problems in that city. 

1. The Tribunal did acknowledge that two of the bases for the applicant’s claim to fear persecution were his antecedents and his Chechen appearance.  It summarised these claims.  However the reference to the claimed factual basis for an application does not of itself demonstrate that the Tribunal has not fallen into error.  The Tribunal must not only describe, but must also address, all the integers of the applicant’s claims.  In essence the question is (as in NAPU at [35] per Moore J): “Whether on the facts found by the Tribunal (or not negated by its findings) it should have considered whether the applicant was a member of a particular social group and, if so, whether he feared persecution because of his membership of that group and whether that fear was well-founded.” 

2. The Tribunal rejected the applicant’s claims as to past persecution.  However the applicant raised claims based not only on past harm, but also claims about future fears based on his Chechen appearance and ancestry and the fear that he would be perceived as a Chechen or Chechen sympathiser that were not negated by the Tribunal findings that he had not suffered the past harm claimed.  The Tribunal made no specific finding about the article about Mr Kondratenko’s successor.  In the findings and reasons part of its decision, it did not consider the claims of the applicant and his adviser that the attitude towards Caucasians had become unbearable, that there was deep animosity towards Chechens in many parts of Russia or his claim at the hearing that Caucasians were being displaced from his home area under the new Governor.  While it is not necessary for a Tribunal to address every item of evidence put before it, in this instance it failed to address these aspects of his claims.  It merely addressed the claims about past harm.  It rejected the applicant’s claim to have experienced past harm.  That led it to conclude that the applicant had not been subject to past persecution and on that basis that he did not face a real chance of persecution should he return to Russia now or in the foreseeable future.  However, as was stated by Moore J in SVTB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 104 at [19]: “The fact that particular claimed events have not occurred in the past does not logically lead to the conclusion that there is no real chance of something occurring in the future, although it may be an indication of such a conclusion”.  (Also see Minister for Immigration & Ethnic Affairs v Guo (1997) 1191 CLR 559 at 574 – 575 and Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at [74] per Gummow and Hayne JJ.)

3. In this case, while the question of whether past harm had occurred was clearly relevant, the Tribunal findings do not provide a sufficient answer to all the claims made by the applicant.  The claims made and material before the Tribunal raised a broader case than the case dealt with by the Tribunal – in particular as to the possibility of future harm to the applicant as a person of Chechen ancestry or appearance based on his claims about discrimination against Chechens, the attitude of the new Governor and the displacement of Chechens.  In this way the applicant impliedly identified a claim of fear of persecution by reason of membership of a particular social group.  He made claims and provided information, including country information, which would have enabled the Tribunal to consider not only the “subjective” perceptions of the Russian community but also to consider “cultural, social, religious and legal norms” from an objective third-party perspective as discussed in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at [34] – [35]. The Tribunal’s finding about the future (while correctly posed in terms of the real chance test) did not address those aspects of the applicant’s claims not linked to and dependent upon his claims about past persecution. The Tribunal made no finding that the applicant had no subjective fear of persecution (on any ground). I am not persuaded that the Tribunal’s reference to “the evidence before me” in considering the future adequately addressed such claims. 

4. As the claims and evidence of the applicant clearly raised a claim (which may be seen as a claim that he was a member of a particular social group and as such feared persecution) on a basis not dependent on the existence of past harm, the Tribunal had to consider the claims of the applicant in this respect, in particular whether the applicant had a well-founded fear of persecution in Russia by reason of his membership of a particular social group in the manner specified in Dranichnikov (also see NAPU per Moore J at [35] and [45] and Branson J at [48] – [50]). The applicant had provided some, albeit limited, evidence relevant to whether there was such a group identifiable by a common characteristic or attribute (other than the shared fear of persecution) the possession of which distinguished the group from society at large (Applicant S v Minister for Immigration & Multicultural Affairs at [36] per Gleeson CJ, Gummow and Kirby JJ), such that the Tribunal first had to determine whether a group such as Russian citizens of Chechen ancestry or Russian citizens of Chechen appearance was capable of constituting “a particular social group” for the purposes of the Refugees Convention, consistent with the principles in Applicant S (see in particular Gleeson CJ, Gummow and Kirby JJ at [36] summarising the necessary steps and emphasising the importance of identifying accurately the particular social group alleged and see WAKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 32 at [21] – [22]). In failing to consider this aspect of the applicant’s claims the Tribunal fell into error constituting jurisdictional error.

5. In the alternative, this error may be characterised as a jurisdictional error consisting of a failure to address an aspect of the applicant’s claims in the sense considered in Htun.  This was not a mere failure to “attend to evidence” but rather a failure “to address and deal with how the claim was put to it, at least in part.” (Htun per Allsop J at [42])

6. It has not been suggested that there is any independent basis for upholding the validity of the Tribunal decision not affected by jurisdictional error.  The application should be remitted to the Tribunal for reconsideration.  For the sake of completeness I have, however, considered the other grounds relied on by the applicant. 

Procedural fairness

1. The third ground in the amended application (excluding ground 3(ii) which was formally abandoned on 15 February 2006) is that the Tribunal committed jurisdictional error by denying the applicant procedural fairness in putting to him for comment an application for a temporary residence visa purportedly dated “31 September 2000” which indicated that he was a “member of the Russian delegation” for “participation in the Olympic Games”.  The particulars of this ground are that the only application for a temporary residence visa which related to the applicant was dated 31 July 2000.  However the Tribunal put to the applicant for comment a document which did not exist, being a purported application for a temporary residence visa dated

   
   

   31 September 2000.  This document was said to be central to the Tribunal’s finding that the applicant was not a credible witness.  It was contended that the credibility of the applicant was negatively assessed on the basis of a mistake of fact by the Tribunal member and that the circumstances constituted a denial of procedural fairness.

2. It is not disputed that in the Tribunal letter sent to the applicant dated 18 September 2003 reference was made to an application for a temporary residence visa dated 31 September 2000, whereas the only application by the applicant for a temporary residence visa was an application for a Cultural/Social (Temporary) (Class TE) Subclass 421 (Sport) visa dated 31 July 2000. 

3. It was submitted for the applicant that it is well established that if a Tribunal intended to use a document against an individual such that it affected his or her rights, interests and legitimate expectations, it must give notice of its intention to rely on such document (see WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [38] – [58]; WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at 635; WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 at [54] and WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [36] – [39]). In this context it was contended that as a matter of procedural fairness it was necessary for the invitation to comment to refer to a document that existed and that the Tribunal did not fulfil its duty to give notice to the applicant in its letter of 18 September 2003 by referring to a document that did not exist.

4. The fact that there turned out to be a document of similar description dated 31 July 2000 was said not to prevent there being a denial of natural justice.  Reliance was placed on what McHugh J stated in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122:

   Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 when it said that “Not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial”. Nevertheless, once a breach of natural justice is proved, a Court should refuse relief only when it is confident that the breach could not have affected the outcome because “[I]t is no easy task for a Court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome” (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). [emphasis added]

   Also see Gleeson CJ at 89, Gaudron and Gummow JJ at 101, Hayne J at 143 to 144, Kirby J at 132 to 136 and Callinan J at 156 to 157.

5. It was submitted that an adverse credibility finding had been made against the applicant based on an application which, on its face, was said to have come into existence at a time when the applicant was already in Australia.  Hence it was said that the Court could not be confident that the breach could not have affected the outcome. 

6. Counsel for the first respondent contended that while it was ‘unfortunate’ that the Tribunal letter of 18 September 2003 referred to a visa application of 31 September 2000 when the correct date was 31 July 2000, the date of the application for the temporary residence visa was not of any significance, either to the Tribunal or to the applicant in his response. Counsel for the respondent pointed out that the applicant’s solicitor must in any event have had a copy of the actual visa application as he gave a copy of the applicant’s temporary residence visa application signed on 31 July 2000 to the Tribunal (having apparently been obtained from the Department of Immigration), although this is not determinative of the issue now raised by the applicant. However in the letter of 18 September 2003 the relevant information about the temporary residence visa application was said to be that in a visa application which was signed by the applicant it had been claimed that the applicant was a member of the Russian delegation for the Olympic Games in Sydney and that this claim was untrue. In other words it was this “information” that was the reason or part of the reason for deciding that the applicant was not entitled to a protection visa. I accept that, as the respondent contended, the relevance of this information to the Tribunal decision (the negative impact on the applicant’s credibility) was properly conveyed to the applicant. Indeed, there is no suggestion by the applicant that there was any failure by the Tribunal to comply with s.424A of the Act.

7. Further, as submitted for the respondent, the response in the applicant’s solicitor’s letter of 3 October 2003 was coherent and responsive.  It addressed what was relevant about the temporary residence application, which was described as the fact that the applicant was granted a visa on the basis that he was a member of the Russian delegation to the Olympic Games when this was not the case.  In comment on this information it was stated that the applicant had instructed his solicitors that he obtained a visa through an agent and was not aware of details of the particular visa issued to him.  The fact that the applicant had signed his visa application was not disputed in this response.  It is not clear whether the reference to 31 September 2000 was a mere typographical error or a misunderstanding by the Tribunal of the applicant’s evidence.  In any event as Selway J stated in SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545 at [22] – [23]:

   The question … is whether the error by the Tribunal in understanding the evidence of the applicant involved a jurisdictional error. The applicant argues that it involved a failure to afford the applicant a fair hearing. This submission confuses the jurisdictional requirement to afford a fair hearing with the clear jurisdiction of the Tribunal to make factual findings, even factual findings which are erroneous: see Waterford v Commonwealth (1987) 163 CLR 54 at 77-78. The Tribunal does not make a jurisdictional error merely because it misunderstands the evidence given by a particular person, including the applicant.

   On the other hand, the Tribunal will make a jurisdictional error if it fails to understand and address the claim that the applicant has put to it: see Dranichnikov v MIMA (2003) 197 ALR 389 at 394; SGGB v MIMIA (2003) 199 ALR 364 at 368 [emphasis added]

8. In this instance it has not been established that the Tribunal failed to understand and address the applicant’s claim or otherwise fell into jurisdictional error in the manner considered in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 at [53]. Moreover there is nothing in the Tribunal reasons for decision to support the contention that the Tribunal’s adverse credibility finding was based on the application having come into existence at a time when the applicant was already in Australia. Whether the erroneous reference to 31 September 2000 (instead of 31 July 2000) in the letter of 18 September 2003 meant that the Tribunal denied the applicant procedural fairness has to be determined in all the circumstances including what occurred in the Tribunal hearing. It has not been established that the letter of 18 September 2003 was the only occasion on which the question of the applicant’s earlier visa application was raised with him. The Tribunal reasons for decision record that in the hearing (which occurred before the letter of 18 September 2003 was sent) the question of the applicant’s travel to Australia was discussed. The Tribunal recorded that the applicant stated that he had submitted his passport and money to a friend working in a tourist agency, that the Olympics were about to start (in Sydney) and that he thought his documents were submitted with the Russian Olympic sportsmen and coaches. Importantly, the Tribunal recorded that the applicant’s solicitor indicated that the visa was signed (applied for) on 31 July 2000 and that the applicant stated that it was valid for three months from 7 August 2000. This material is not supportive of the applicant’s contention that there was any misunderstanding on the part of the applicant or the Tribunal in relation to the date of the temporary residence visa application (in particular as to whether it was before or after the applicant’s arrival in Australia) or as to any other aspect of this document. There is no other evidence before the Court as to the conduct of the Tribunal hearing.

9. In these circumstances, on the material before the Court it has not been established that the factual error in the letter of 18 September 2003 (as to a date which did not in fact exist) was such as to amount to a denial of procedural fairness by the Tribunal constituting a jurisdictional error.  

Magazine article issue

1. The fourth ground relied upon by the applicant is that in making a finding that the applicant knew the magazine article which referred to the applicant and his friends “was substituted into the magazine and is not genuine” the Tribunal made a jurisdictional error because there was no evidence to support that finding; and/or the Tribunal ignored relevant material in making that finding; and/or the Tribunal failed to take into account a relevant consideration. 

2. The particulars to this ground are that by letter dated 25 August 2003 the applicant stated that he believed the magazine and article naming him were genuine; that he was handed the magazine by his wife on

   
   

   7 August 2000, the day on which he was discharged from hospital; that his wife informed him that the magazine had been received through the ordinary mail and that he therefore had no reason to doubt its authenticity. 

3. It was contended for the applicant that the foundation for the Tribunal’s credibility finding was its rejection of the magazine article as fake and that it used this finding to implicate the applicant in that finding.  The Tribunal found that the lack of genuineness of the magazine article negatively affected the credibility of the applicant and it was submitted that because of what the Tribunal found in relation to the magazine (as well as the fact that the applicant had signed the application for temporary residence visa) it rejected the medical evidence and everything else that the applicant put to it as not credible. 

4. While the Tribunal’s express finding was that the article was a ‘fake’ and that consequently it did not accept the basis of the applicant’s claims that he and his two friends were identified by the Governor in the magazine, it was contended that it also impliedly found that the applicant knew the magazine was not genuine and that this was the reason why he was found not to be a credible witness.  The applicant had asserted his belief and understanding that the magazine was genuine and the absence of any doubt on his part as to its authenticity.  It was submitted that at no time did the applicant say that he knew (as distinct from believed) that the magazine and article were genuine.  On this basis there was said to be no evidence to support the Tribunal finding that the applicant knew the magazine article was fake. 

5. Reliance was placed on what was said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 359 to 360 and Minister for Immigration & Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 in relation to a ‘no evidence’ ground. It was contended that if the applicant could establish affirmatively that a critical finding was based on facts that could be shown not to exist the decision would qualify for review. This was said to be such a case.

6. In the alternative it was contended that the Tribunal had ignored relevant material in a manner that led to jurisdictional error in the sense considered in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. It was contended that in implicitly making a finding that the applicant was in some way linked to the production of the magazine, the Tribunal ignored the relevant material before it consisting of the migration agent’s response of 25 August 2003 (confirmed in the subsequent response of 3 October 2003) in relation to the understanding of the applicant. In oral submissions it was clarified that the submission was that the letters did not express knowledge on the part of the applicant that the magazine was genuine. Rather paragraph 1 of the letter of 25 August 2003 stated that the applicant instructed his lawyers that “he believes that the magazine and article naming him are genuine.” 

1. It was submitted that the relevant consideration that the Tribunal failed to take into account was the fact that the applicant had asserted that he had nothing at all to do with the creation of the magazine and that it was only his understanding that it was genuine and that this was why he had put it before the Tribunal.  (See VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74).

2. Reliance was placed on the decision of Finkelstein J in M190 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1362. In that case the Tribunal discovered that there were two identical protection visa application forms before it, submitted by two different applicants two months apart. It formed the view that the applicant in question had either copied his story from the other applicant’s application or from some other source which both applicants used to complete their applications. It found that the many similarities between the applicant’s application and the other application, together with the absence of a convincing explanation as to how this occurred, contributed to its conclusion that the applicant had not given an accurate account of his circumstances. However, Finkelstein J pointed out that there were facts to which the Tribunal did not have regard, which may have provided such a “convincing explanation”.  His Honour found that on the evidence available to the Tribunal, such as evidence about the dates of the applications and the possibility that one of the applicant’s flatmates may have been the other applicant, other possible explanations should have been considered.  It was held (at [13]) that if an important fact is, without reason, overlooked by the Tribunal, it has failed to take a relevant consideration into account. 

3. It was further submitted that the credibility finding made by the Tribunal was based on a finding of fact that the applicant knew the magazine article which referred to him and his friends was substituted into the magazine was not genuine and that once it was shown there was no evidence for this finding or that the Tribunal failed to take into account relevant material the credibility finding must fall away as there would be no evidence to support it and/or it would be unreasonable (see WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [67] per Nicholson J).

4. It was contended for the respondent that there was evidence to support the Tribunal finding that the magazine article was fake, consisting of information from the Document Examination Unit of the Department of Immigration and evidence from the overseas post in relation to the contents of the original of the magazine.  It was said to be at least open to the Tribunal to infer from this evidence that the article was fake and that while it might also be inferred that the Tribunal drew an inference that the applicant was involved in the production of the fake document (although the Tribunal did not say this expressly) it could not be said that there was no evidence for such conclusion. 

5. It was pointed out that the applicant himself submitted the magazine in support of his case and plainly was not stating that the magazine was anything other than genuine. His reference to it in his original protection visa was said to carry the inference that he believed that it was genuine and indeed he so stated in his response to the request for further information. That response was reiterated in the response to the s.424A letter. It was contended that if the article was later found to be fraudulent, it was an available inference that the applicant had some hand in it, albeit that the Tribunal did not go so far as to find that the applicant knew the article was fake, rather finding that it reflected poorly on the applicant’s credit to have submitted a document which was found to be fake.

6. First, the Tribunal did not make an express finding that the applicant ‘knew’ that the article was substituted into the magazine and was not genuine.  It found first that the article was ‘fake’.  This finding was open to it on the material before it, in particular the evidence from the Document Examination Unit and the overseas post.  It put this information to the applicant for comment.  While the applicant asserted that he ‘believed’ the magazine and article were genuine for reasons which impliedly denied any knowledge of or involvement in concoction of the fake article, in finding that the lack of genuineness of the article negatively affected the credibility of the applicant the Tribunal must be said to have at least rejected the applicant’s claim that he had no knowledge of the lack of genuineness of the article.  However, the fact that the applicant claimed to believe the article was genuine does not mean that there was no evidence to support either the Tribunal’s express finding or the inference that it drew in finding that the lack of genuineness of the article negatively affected the applicant’s credibility. 

7. As the Full Court of the Federal Court stated in WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 at [11] – [12]:

   Counsel referred to the principle that an administrative decision maker makes a jurisdictional error if he or she bases a decision upon a finding of fact which lack any supporting evidence.

   There is no doubt about the existence of that principle.  However, it is difficult to apply it to a rejection of evidence. After reviewing the relevant case law up to that date, in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150, Wilcox J said that all of the cases of which he was aware, in which “no evidence” was treated as a separate ground of invalidity, “were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact”.  We are unaware of any later case that departs from that pattern.”  (Also see NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 124 at [29] – [33] per Nicholson and Edmonds JJ).

8. There was evidence before the Tribunal not disputed by the applicant, that the article was not genuine.  The applicant had submitted the magazine and article in support of his case without any qualification.  The Tribunal’s account of the material before it and of what occurred in the Tribunal hearing does not support the applicant’s claim.  First, there is discussion of an apparent lack of clarity in the applicant’s accounts of how and when he was ‘named’ by Mr Kondratenko referred to by the Tribunal.  In his “statutory declaration” of 3 December 2001 the applicant referred to a public speech by Mr Kondratenko made after he was discharged from hospital (that is after 7 August 2000).  However he provided a copy of the July 2000 magazine article to the Department and also to the Tribunal.  His solicitor’s submission of 31 March 2003 referred to the applicant’s name being mentioned in the magazine article.  In its reasons for decision the Tribunal recorded that during the Tribunal hearing the applicant stated that Kondtratenko’s speech (naming him) was after 7 August 2000 although he could not be sure.  The Tribunal stated that it asked the applicant about the failure to mention a ‘speech’ in his protection visa application and that he responded that he did not have the help of a solicitor and had so much happening to him “so he might have missed out”. 

9. The Tribunal also recorded the applicant’s suggestion as to how the authorities would have obtained his name and those of his cousin and friend which were included in the article.  It also referred to a discussion at the hearing about the fact that the applicant did not have his original passport to compare with the name used in the magazine article. 

10. Relevantly to the claim of no evidence and unreasonableness, the Tribunal recorded the applicant’s claim that his passport had “gone missing”, found, as discussed, that the article was “fake” and that the applicant’s claims were “fundamentally compromised” by the use of a fake document in particular.  It referred in its findings and reasons to the applicant’s claim that the local Governor had made a public speech, excerpts of which were printed in the Southern Russia News, stating measures were to be taken against the applicant and his two friends.  However it rejected the claim that there was such a speech which referred to the applicant and friends by name as “embroidered”, finding it implausible that the applicant would have forgotten to raise such an important claim in his protection visa application. 

11. In these circumstances it has not been established that there was no evidence from which the Tribunal could infer that the applicant had some knowledge of the lack of genuineness of the magazine article such that his credibility was adversely affected or that the decision was irrational or illogical in a manner constituting or pointing to a jurisdictional error (see Minister for Immigration & Multicultural & Indigenous Affairs v W360/01A [2003] FCAFC 208 at [46] per French and Hill JJ and NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264 per Allsop J at [131] – [137]). The Tribunal’s findings in this respect were open to it on the material before it and no error is demonstrated (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64] – [69] per Tamberlin and RD Nicholson JJ). In particular, the fact that the applicant asserted his belief in the genuineness of the article does not establish that there was ‘no evidence’ for the Tribunal findings.

12. Insofar as it is submitted that the Tribunal failed to have regard to a relevant consideration (in that it ignored the applicant’s explanation), the Tribunal set out the applicant’s response in relation to the information about the magazine article.  It referred to this response in the findings and reasons part of its decision, in particular that the applicant had responded that he had no reason to doubt the authenticity of the magazine.  It considered the response of the applicant but preferred what it regarded as “compelling evidence” of the Document Examination Unit and the overseas post in finding that the article had been faked.  It has not been established that the Tribunal failed to take into account a relevant consideration or ignored relevant material in the sense considered in Yusuf.  While the applicant takes issue with the fact that his explanation was not accepted by the Tribunal, that was a factual matter for the Tribunal.  The explanation was considered, but rejected, or at least not regarded as sufficient to overcome the Tribunal’s difficulty with the applicant’s credit.  This did not constitute a failure to have regard to a relevant consideration. 

Signature of visa application issue

1. The final ground relied on by the applicant is that the Tribunal made a jurisdictional error in finding that the applicant had signed an application for a temporary residence visa dated 31 September 2000, or at all, because there was no evidence to support that finding; and/or the Tribunal ignored relevant material in making that finding; and/or the Tribunal failed to take into account a relevant consideration.  The applicant relied on the particulars to ground 3 set out above and also the particular that the only application for a temporary residence visa which related to the applicant was dated 31 July 2000 and that the applicant was an in-patient in Krasnodar Hospital from 20 July 2000 to 7 August 2000 according to the medical report submitted by the applicant to the Department of Immigration. 

2. The Tribunal stated as follows:

   The application for the visa was signed by the applicant who declared at the time of doing so that the information in the form was complete and correct in every detail.  In these circumstances, I do not accept that the applicant was unaware of what he was signing and that he had a responsibility to ensure that everything in the application was correct.

3. It was contended that there was no evidence before the Tribunal that the applicant signed an application for a temporary residence visa dated 31 September 2000 or at all.  Rather it was submitted that the Tribunal had assumed this to be so and found that it reflected negatively on the applicant’s credibility in demonstrating a willingness to give false information to obtain a particular outcome.  In the alternative it was contended that the Tribunal ignored relevant material in finding that the applicant signed the application for a temporary residence visa, in that it ignored the medical certificate provided by the applicant to the Department which clearly stated the applicant was in hospital from

   
   

   20 July 2000 to 7 August 2000.  It was contended that therefore the applicant could not have signed the application.  It was submitted that at the time the Tribunal made this finding it was not entitled to disregard the hospital notes as fraudulent because such disregard was based on the finding that the Tribunal made as to the applicant’s credibility.  It was suggested that the Tribunal’s credibility finding could be challenged on grounds of no evidence, ignoring relevant material or failure to take into account relevant considerations and must therefore fall away as there would be no evidence to support it and/or it would be unreasonable to do so (see WAIJ at [61] – [67] per Nicholson J).

4. In essence counsel for the applicant contended that there was no evidence the applicant had in fact signed the application and the Tribunal proceeded on an unwarranted assumption that he had done so and that this affected his credibility negatively and impacted on the Tribunal’s attitude to the rest of the evidence that he had put before it. 

5. Counsel for the respondent contended that the reference to the date of the temporary residence visa application as 31 September 2000 was merely a typographical error and not a critical fact because the date was not of any significance. In the response to the s.424A letter the applicant had not disputed that the signature was his signature so it was submitted that it could not be said that there was no evidence for a finding that the applicant had signed his temporary visa application.

6. A mere factual error on the part of the Tribunal is not an error of law, let alone a jurisdictional error.  As the Full Court of the Federal Court stated in NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263 at [53]:

   It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:

   “Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.”

   Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 per McHugh J

7. In this case I am not persuaded that the Tribunal “so misunderstood the question it had to decide” that its reference to a visa application dated 31 September 2000 instead of 31 July 2000 constituted a jurisdictional error.  The finding as to the date was not a “critical step” in its ultimate conclusion (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and SZAQV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 158 at [19]).

8. Importantly, in the s.424A letter of 18 September 2003 the Tribunal put to the applicant that in his application for a temporary residence visa “which you signed” he indicated he was a member of the Russian delegation for participation in the Olympic Games. The applicant did not take issue with the information that he had signed the application in his response to the s.424A letter. Had this been disputed, he had the opportunity to raise this with the Tribunal. In the absence of such a response (and in the absence of any evidence that during the Tribunal hearing he denied signing the visa application form) it cannot be said that there was no evidence to support the finding that the applicant signed his application for a temporary residence visa. It has not been established that the Tribunal made an unwarranted assumption as contended.

9. Further, the fact that the applicant claimed he was in hospital on the date the visa application was signed does not of itself mean that he could not have signed the application.  No such argument was put to the Tribunal by the applicant.  The Tribunal’s account of what occurred in the Tribunal hearing does not support this contention.  The transcript of the hearing is not before the Court.  In all the circumstances it has not been established that there was no evidence to support the finding in issue or that the Tribunal ignored relevant material or failed to take into account a relevant consideration as contended. 

10. However, as set out above in relation to grounds 1 and 2, the Tribunal did fall into jurisdictional error.  It has not been suggested that there is any independent basis for the decision not affected by jurisdictional error.  The application should be remitted for reconsideration according to law. 

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  20 April 2006