SZDGK v Minister for Immigration

[2006] FMCA 1092

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDGK & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1092

MIGRATION – Refugee – applicant’s claims regarding her involvement in the exposure of politicians does not amount to an imputed “political opinion” – no Convention nexus – findings of fact are for the Tribunal – application dismissed.

Migration Act 1958, ss.36(2), 422B, 424A, 424A(1), 424A(3)(a), 424A(3)(b)

SZARH v Minister for Immigration [2004] FMCA 615
Voitenko v Minister for Immigration & Multicultural Affairs [1999] FCA 428 Minister for Immigration & Multicultural Affairs v Y & Ors [1998] FCA 515
Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
VAF vMinister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24

Applicants: SZDGK & ANOR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1051 of 2004

Judgment of: Nicholls FM

Hearing date: 22 May 2006

Date of Last Submission: 18 May 2006

Delivered at: Sydney

Delivered on: 09 August 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. G. Kennett

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicants pay the first respondent’s costs set in the amount of $5000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1051 of 2004

SZDGK & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 8 April 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 March 2004, and handed down on 23 March 2004, to affirm the decision of a delegate of the respondent Minister made on 29 April 2003 to refuse protection visas to the applicants. The Tribunal is joined as the second respondent in these proceedings.

2. The applicants are husband and wife. They are citizens of Latvia who arrived in Australia on 25 October 2002. The applicants’ claims are set out in their application for a protection visa reproduced at Court Book (“CB”) 10 to CB 46 which was attached to a letter from the applicants’ then migration agent copied at CB 1 to CB 9. Their claims can further be found in numerous separate correspondence with the Minister’s Department (CB 51 to CB 101), in a letter enclosing the applicants’ review application to the Tribunal (CB 116), and in the Tribunal’s decision record of the hearings it conducted with the applicant husband on 3 July 2003, and subsequently with the applicant wife on 27 August 2003 (but by telephone), reproduced at CB 188.7 to CB 195.2.

3. Although the applicant husband claimed that he had been beaten on one occasion in Latvia, it was only the applicant wife who advanced claims to be a refugee in her own right. However, her claims were mainly articulated, before the Tribunal, by her husband as she was said to be suffering from a “psychological” condition, which made it difficult for her to attend a hearing in person. The applicants’ claimed that:

   1)As a consequence of the applicant wife’s investigations (since March 2001) into a paedophile scandal in Latvia, involving prominent members of Parliament, she suffered harassment and harm in Latvia from the authorities, specifically the police.

   2)At the end of 2001 she was summoned to attend the General Prosecutor’s Office, threatened, and forced to give evidence about a case involving her brother.

   3)In May 2002 the police raided her home, using her brother’s case as the reason, and found her files containing hundreds of pages of information, videos and tapes of interviews she conducted with four victims of paedophilia.

   4)She received threatening telephone calls in May 2001 and was threatened with physical violence. She thought she was under surveillance.

   5)In June 2002, after returning from Italy, both applicants were assaulted by unknown persons.

   6)The police came, searched their apartment and the applicant wife was told a summons would be issued because of her involvement in paedophilia (possession of pornographic material), after which they fled Latvia.

   7)(In a claim submitted on their behalf by their migration adviser) that the rights of ethnic minorities in Latvia are “violated”, and there is “aggressive nationalism”, “racism” and “anti-Semitism” and a process of “forcing” Russians out of Latvia. The applicants’ claim to be affected by this as the applicant wife was born in the Ukraine and was “an ethnic Belorussian Jew”. The applicant husband claimed to be stateless.

4. The Tribunal’s “Findings and Reasons” are set out in its decision record reproduced at CB 202.7 to CB 209. The Tribunal found:

   1)It did not accept that the applicant wife’s claims were Convention related (CB 203.2). The reasons were:

   a)While the applicant wife claimed that she suffered harm because of her political opinion, the evidence did not suggest that the applicant had any involvement, or interest in, any political party or movement, or that she had any political profile (CB 203.3).

   b)That notwithstanding that the applicant wife claimed that the persons she was in a position to expose were politicians, this did not impute a political opinion to her, but rather, any claimed harm occurred because of her investigation into criminal activities (CB 203.4).

   c)That there was no evidence to suggest that persons in Latvia who expose criminal activities by parliamentarians or politicians were harassed or harmed. That if there had been, it would have been known (and reported) by a number of relevant international agencies (CB 203.5).

   d)That based on independent country information available to it, the Tribunal noted that the “paedophilia scandal in Latvia” was investigated by the state, and parliamentarians were charged. The Tribunal found that this did not suggest that exposure of paedophilia in Latvia “amounts to political persecution” (CB 203.6).

   2)That even if it were to put aside the findings above and to provide the benefit of the doubt to the applicants and to accept that involvement in the paedophile scandal did have the consequence of imputing political opinion, it did not accept the applicant wife’s claims as being “plausible”. The Tribunal found that the paedophilia scandal, on information before it, had been properly investigated and legal proceedings had eventuated, and there was no suggestion that the investigations had not been properly dealt with by the Latvian authorities (CB 203.8).

   3)It was of the view that the applicants’ claims were “created” in order to “obtain the visa sought”. The reasons for this were:

   a)That it was not plausible that the applicant wife was able to access witnesses, and obtain information, in the context of an extensive investigation by a Parliamentary Commission and in light of “extensive media coverage”. The Tribunal found that it did not “ring true” that the applicant, who was still studying law and working for journalists, but without any experience, would have access to information not available to investigators. Further, it did not “ring true” that she did not report the police attacks at the first available opportunity. Further, that the evidence before it showed a Parliamentary Commission had provided a “final report” which supported claims of politicians’ involvement, and that “several people have been brought to a prison sentence”. It found that the evidence did not suggest any need for any ongoing investigation beyond what had been done by the Commission. Nor was there any evidence to suggest victims of the scandal were dissatisfied with the outcome (CB 204.1 to CB 204.7).

   b)That while Latvia is a parliamentary democracy, it does have an “inefficient” judiciary which did not always ensure fair administration of justice. But that nevertheless “when the paedophilia scandal broke, action was taken, a Commission of enquiry was set up and politicians resigned as a consequence” (CB 204.8).

   c)That it did not accept as plausible that a person such as the applicant who was in fear, and aware that a summons had been issued or would be issued on fabricated charges, would wait in hiding for 3 ½ months before leaving the country (CB 204.9 to CB 205.2).

   d)That it did “not ring true” that the police would harass and harm the applicant, fabricate a case against her, and commence a “criminal trial” against her, when the evidence before the Tribunal was that investigations had been and were conducted by the Latvian authorities in paedophile cases involving parliamentarians (CB 205.3 to CB 205.4).

   e)That it found no evidence to suggest that Latvian police persecuted or harmed people who exposed or attempted to expose “paedophile parliamentarians” (CB 205.4).

   f)That it rejected the applicants’ explanations as to why they did not expose the police treatment of them. It was further of the view that on the evidence before it there was “quite a reasonable willingness” on the part of the Latvian authorities to take action in relation to claimed assaults suffered by the applicants. Any lack of action by police was not officially “tolerated or uncontrolled” by the authorities. It further found that there were mechanisms for complaint against public officials in Latvia (CB 205.9).

   g)That independent reports available to the Tribunal, did not suggest that persons who lodge complaints against police behaviour do not have their complaints acted upon, or that persons who are assaulted or harmed do not have these complaints acted upon (CB 206.4).

   h)That the Tribunal placed no weight on documents provided by the applicants indicating that armed guards were provided to the applicant wife in March and May of 2002 as a result of her work regarding the paedophile scandal because the documents merely state that armed guards were provided, and no other information was given as to the reason (CB 206.5).

   i)That in relation to her brother's activities, the Tribunal was satisfied that the applicant wife’s treatment did not amount to persecution, and noted that she was not arrested or detained because of her brother's activities, and was able to leave Latvia and return on a number of occasions in 2002 (CB 206.7).

   In all the Tribunal was satisfied that the applicant wife did not suffer Convention related persecution in Latvia (CB 206.7).

   4)It did not accept the applicant’s claims concerning the rights of ethnic minorities in Latvia. The Tribunal referred to independent information available to it, which led it to the finding that there was no independent evidence to suggest that the Latvian state, or the police, or the legal system, discriminated against Russians, or non-citizens, or that there was any sustained, or systematic, human rights violations against ethnic Russians by the Latvian government, or that the Latvian people, or the Latvian police did not protect ethnic Russians. Further, that there was almost no distinction between “citizen and non-citizen” in terms of welfare, health and housing services (CB 207.5). Even further, the Tribunal found that the Latvian Constitution provided for freedom of religion and that in practice this is respected by the government (CB 207.7). Also that “relations” between the various religious communities “are generally amicable” (CB 207.8). The Tribunal found no independent evidence to suggest that the Latvian state, or police, or the legal system, discriminates against Russians or non-citizens (CB 208.2). These findings were relevant to the applicant wife’s claims that she may suffer harm on return to Latvia as a result of her Russian ethnicity and the circumstances of the applicant husband whom the Tribunal noted has claimed to be stateless.

   In all, the Tribunal was not satisfied on the evidence before it that the applicants had a well founded fear of persecution within the meaning of the Convention and therefore came to the conclusion that the applicants could not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (“the Act”) to enable a protection visa to be granted to them. 

5. By way of amended application, filed in this Court on 1 February 2005, the applicants complain that the Tribunal did not accept that the applicant wife's claims were Convention related. They complain that this finding was based on the reasoning that the applicant’s attempts to expose criminal activity and the harm she suffered as result of such investigation was not for reasons of imputed political opinion. The applicants rely on SZARH v Minister for Immigration [2004] FMCA 615 (“SZARH”) and Voitenko v Minister for Immigration & Multicultural Affairs [1999] FCA 428 (“Voitenko”). This complaint is expanded in written submissions filed by the applicants on 12 May 2006. These confirm that the applicants rely on the two cases above as being variously similar, or identical, to the issues raised in the applicants’ case, and by implication the Court should therefore treat the applicants’ case in a similar fashion. The written submissions also make reference to Minister for Immigration & Multicultural Affairs v Y & Ors [1998] FCA 515 (“Y & Ors”) to which Wilcox J. referred in Voitenko. By way of written submissions the applicants also put forward an additional complaint that the Tribunal failed to comply with s.424A(1) of the Act.

6. At the hearing before me both the applicant wife and applicant husband appeared. The applicant wife indicated that she was satisfied for the applicant husband to speak on her behalf. He was assisted by an interpreter in the Russian language. Mr. Kennett appeared for the respondents.

7. The applicant husband sought leave to hand up his “oral submissions” (in written form) prepared as an addition to the submissions already filed in this Court. Leave was granted. He also sought to hand up copies of two letters from the Tribunal to other (unrelated) applicants before the Tribunal. The applicant husband stated that these were letters in other cases before the Tribunal that describe “how the Tribunal interprets and how it functions” pursuant to s.424A of the Act. The applicant husband pressed that the letters were relevant to his case in that the Tribunal failed to ask “certain questions, concerning certain information” and that “these questions were not asked”. Giving some leeway to an unrepresented applicant, I accepted the letters to the extent that they were examples of what the applicants would have hoped the Tribunal would have done in their case in relation to putting information before them in writing (pursuant to s.424A(1)) and giving them an opportunity to comment. This flowed from paragraph 13 of the applicants’ “oral submissions” and the extracts from the Tribunal’s decision record which the applicants say contain “information” for the purposes of s.424A of the Act. I note (as I indicated for the applicants’ benefit at the hearing before me) that in terms of whether the Tribunal has met its obligations under s.424A of the Act, it is not for this Court to look at what some other (or even this) Tribunal has done in any other cases. The issue is whether the Tribunal in this case, based on the circumstances before it, was obliged to provide information to the applicants pursuant to s.424A and whether it failed to do so, thus amounting to jurisdictional error in its decision. I will deal with this issue in further detail below.

8. The applicants’ first complaint is that the Tribunal's finding that there was no “Convention nexus” between the applicant wife’s claims and a ground in the Refugees Convention reveals jurisdictional error on the part of the Tribunal in the same way as found in a number of other cases which presented as “identical” to the applicant’s case. In essence, the applicants’ complaint is said to derive from the dichotomy of the harm that arose from “exposing” the “criminal activity of authorities” and the “political opinion” that was “imputed”, to the applicant wife in particular, and which created the necessary nexus between the Convention related ground.

9. The applicants refer to the Tribunal's decision record at CB 203.3:

   “I do not accept that the applicant’s claims are Convention related. Whilst the applicant claims she suffered harm because of her political opinion, the evidence does not suggest that the applicant had any involvement in or interest in any political party or political movement or that she had any political profile. Whilst she claims that the persons she was in a position to expose were politicians, this does not impute a political opinion to the applicant. Rather she was attempting to expose criminal activity and any harm occurred because of these investigations into crime.”

10. The applicants argued that there are clear parallels between SZARH and Voitenko (with reference to Y & Ors) and their case, and that the Court should accept that the Tribunal failed to consider, or to ask itself, whether the conduct complained of could amount to persecution by reason of actual, or implied political opinion, and thereby amount to persecution for the purposes of Article 1A(2) of the Convention.

11. In SZARH Federal Magistrate Raphael found that the Tribunal failed to consider, or to ask itself, whether the conduct complained of could amount to persecution by reason of actual or imputed political opinion and granted the application for review on the basis of such failure by the Tribunal. (At [23] and [25], in reaching this conclusion, His Honour also considered the Full Court’s Judgement in Voitenko). In understanding the applicants’ case before me, it is useful to quote from Federal Magistrate Raphael’s Judgment (with reference to Voitenko and Y & Ors) at [17]:

    “In Voitenko v MIMA (1999) FCA 428 the Full Bench of Wilcox, Hill and Whitlam JJ considered a case similar to the instant one. There an applicant had exposed corruption and had suffered as a result. The Tribunal had decided, quoting Ram, that the violence inflicted upon him was not part of a course of systematic conduct directed against him for any Convention reason. In his appeal Mr Voitenko argued that the action taken by him and his friend was designed to challenge systemic corruption; it was therefore political action and the persecution of the friend was persecution on account of the friend's political opinion and activities. He shared that political opinion and feared that if he returned to Russia he would be persecuted for it. In his decision Wilcox J referred at length to the decision of Davies J in MIEA v Y [1998] FCA 15 and noted at [17] -[18]:

    ‘The other relevant point about Y is that it contains no suggestion about a dichotomy between criminal activity and persecution on account of political opinion. The abduction and torture of Y and his friend, and the abduction and rape of Y's wife, were undoubtedly seriously criminal acts, but nobody suggested this prevented them from being categorised as persecution on account of political opinion.

    I reject the submission that an attitude of resistance to systemic corruption of, and criminality by, government cannot fall within the description "political opinion". Whether particular resistance amounts to an attitude having a political dimension or whether it is simply a product of other causes such as fear of detection is, of course, a question of fact for determination in the particular case.’”

1. His Honour also drew from Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670 (“Zheng”), importantly a case specifically referred to by the Tribunal in the decision before me (CB 203.4). At [18]-[19]  of SZARH:

   “[18] This finding that the exposure of systemic corruption could amount to an expression of imputed political opinion was accepted by Merkel J in Zheng v MIMIA [2000] FCA 670 where his Honour considered the authorities not only in Australia but also in Canada and the United States. At [31] his Honour approved of the decision in Grava v Immigration & Naturalization Service 205 F 3d 1177 (2000) where the Court said at 1181:

   “Refusal to accede to government corruption can constitute political opinion for the purposes of Refugee status. See Desir v Ilchert, 840 F 2d 723 - 729(9^th Cir 1988). Thus, official retaliation against those who expose and prosecute government corruption, may in appropriate circumstances amount to persecution on account of political opinion ...”

   [19] At [39] his Honour considered the claims made by Mr. Zheng and said:

   “The difficulty with the applicant's claims is that although he might have viewed his acts as "political" there was no material that suggested that the authorities had viewed, or might view, his acts in exposing Mr He as having any political aspects. In particular, the material and evidence provided by the applicant was bereft of any basis upon which the authorities might perceive his exposure of his superior's corruption as a political act in any of the senses described I the cases to which I have referred.”

   Raphael FM distinguished the case of Zheng from the situation before him at [20]:

   “Mr. Zheng worked in the loans department of a Chinese bank. The corruption which he alleged he had exposed was that of his superior officer who was deputy president of the bank. That case is factually much more limited than the one before me. Here, the corrupt activity was being carried out by high-ranking officials in the City Council.”

2. Mr. Kennett submitted that the case before me can be distinguished from the cases relied on by the applicants. He conceded that the Tribunal’s decision at CB 203 (the extract relied on by the applicants) when read “line by line” or in isolation, could give the impression that the Tribunal had “erected rigid dichotomies” and seen the lack of a political profile as an insurmountable barrier to persecution on grounds of political opinion. I agree with Mr. Kennett. In my view had the Tribunal’s decision ended with what appears at CB 203.3 then in my view the Tribunal would have fallen into the same kind of error as found and explained in the authorities above. But I also agree with Mr. Kennett’s further submission that the Tribunal’s findings at CB 203.3 must be “read as a whole” not “dissected with an eye attuned to the perception of error”. Mr. Kennett’s position was that there were a number of issues that led the Tribunal to the conclusion that the reason for the applicant wife’s persecution was not because some political opinion held by her, or imputed to her.

3. Mr. Kennett submitted that the Judgment of Merkel J. in Zheng was particularly relevant. It was submitted that the Court should refer to His Honour’s “particularly thorough and learned discussion” (beginning at [12]) of case law from a number of countries, leading to [32]-[33]:

   “[32] The case law to which I have referred demonstrates that exposure of corruption can, in a wide range of circumstances, lead to political persecution. Thus, exposure of corruption in circumstances where it so permeates government as to become part of its very fabric can quite easily lead to a fear that the exposure, of itself, may be imputed to be an act of opposition to the machinery, authority or governance of the state. Likewise, refusal to participate in a corrupt state system can also be seen as an expression or manifestation of political opinion as the refusal to participate may be imputed by the authorities to be a challenge to the machinery, authority or governance of the state. Also, as the recent Canadian decision in Klinko demonstrates, exposure of systemic corruption may be an expression of "political opinion" even if the state is against corruption but is unable to protect the applicant from persecution on this account. In such a case, however, it may be difficult to establish that the exposure of corruption is a manifestation of a political act such as defiance of, or opposition to, the machinery, authority or governance of the state.

   [33] It needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested. This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than as any form of opposition to, or defiance of, state authority or governance.”

4. Mr. Kennett sought to emphasise, of critical significance, what His Honour stated at [34]:

   “[34] A critical issue will always be whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240, 268 and 284. In each case the question of whether the nexus has been established is a question of fact for the RRT.”

5. Mr. Kennett's submission was that the extract of the Tribunal's decision record complained of by the applicants, when looked at plainly in its context, reveals that the Tribunal did understand the question to be addressed and did answer that question. I accept this submission for the following reasons:

   1)The specific reference to Zheng’s case showed that the Tribunal was clearly aware of that case.

   2)The extract from that case quoted by the Tribunal (coming from paragraph [32]) clearly shows the Tribunal was aware that corruption can in “a wide range of circumstances” lead to “political persecution”.

   3)The Tribunal subsequently, in its decision record, from CB 203.3 and what follows, refers to:

   -    a lack of political profile

   -    a lack of evidence that those people who exposed criminal activity (in Latvia) are harassed

   -    the “state” investigation into the paedophile scandal and that “parliamentarians were charged”

   All of the above reasons cumulatively led the Tribunal to the view that exposure of paedophilia in Latvia did not amount to political persecution.

6. The principal relied on by the applicants, as drawn from the case of Y & Ors and in particular Voitenko and SZARH, is that the exposure of corruption could amount to an expression of an imputed political opinion. Further, a failure to understand this and to consider an applicant’s circumstances with reference to this question is an error on the part of the Tribunal such as to lead to the relief sought.

7. In Voitenko the Court found that:

   1)It rejected the submission that resistance to corruption and criminality by government officers cannot fall within the description of “political opinion”, with reference to Y & Ors at [33] per Hill J., at [18] per Wilcox J., and “most likely” per Whitlam J. at [38].

   2)As against this question, the Tribunal failed to properly address the applicant’s actual claim - (he had given evidence to the Tribunal that if he returned to Russia he would be persecuted because of his known opposition to corruption). I note Wilcox J. at [21]:

   “The Tribunal's findings and reasons appear in para 7 above. They occupy three paragraphs. The findings set out in the first paragraph are favourable to Mr V's claim, although they do not cover all aspects of it. The second paragraph makes the point that persecution implies an element of motivation for the infliction of harm. This statement is unexceptional but inconsequential; if Mr V's friend was treated in the way he suggested, it may readily be inferred those responsible for that treatment wished to do him harm because of his active opposition to corruption. The paragraph then proceeds: "...the Tribunal does not accept that there was any political motivation for the harm inflicted on Mr V. The acts committed against him were criminal acts, motivated by a desire to obtain money and directed against him because he was seen to have money". The last sentence is true but it misses the point. The acts committed against Mr V (attempted extortion and kidnapping) were certainly criminal acts and motivated by a desire to obtain money, but it was not Mr V's case that he fled Russia because of those acts. His case was that he fled Russia some four months after those acts, and only because of what happened to his friend. The fear he claimed was that, if he returned to Russia, he would be persecuted because of his known opposition to corruption. I emphasise again that I express no view as to whether or not this case should have been factually accepted, but it was the case Mr V put and he was entitled to have the Tribunal's findings about it.”

   I further note Whitlam J. at [38]:

   “The upshot is that I think that the flaws in the Tribunal's decision were raised in the court below, although not as clearly as they might have been. That being the case, as I have already indicated, in my opinion, the Tribunal either failed to deal with the question whether Mr V had an actual or imputed political profile on account of his "investigation" activities (which seems most likely) or, if it did deal with that question, failed to give any reasons for what must be taken to be its adverse conclusion on that preliminary question. Accordingly, Mr V's appeal should be allowed and his application for a protection visa referred to the Tribunal for further consideration.”

   3)In answering this relevant question, found that “the facts were for the Tribunal to determine” (at [20] per Wilcox J., [33] per Hill J. and [40] per Whitlam J.).

   4)In SZARH the Court noted that Merkel J. in Zheng “accepted” that the exposure of systemic corruption could amount to an expression of imputed political opinion (at [18]).

   5)In SZARH the Tribunal did not carry out the necessary assessment of whether an imputed political motive could be prescribed by this applicant because of his actions as seen at [22] and [23].

   6)In Zheng the question of whether the Convention nexus (between the applicant’s actions and the subsequent manifestation of perceived political opinion) has been established is a question of fact for the Tribunal (at [34]).

8. The authorities agree that an applicant’s actions to expose corruption in government could amount in the circumstances of each case to political opinion being ascribed to the applicant. The authorities also provide, in this regard, that the question that needs to be considered by the Tribunal is whether the causal nexus is established on what is before it, and this is a matter for the Tribunal.

9. In the case before me a reading of the Tribunal's decision record in my view reveals that the Tribunal did understand the relevant question to be addressed, which was whether the applicant wife's claims (that she worked to expose corruption relating to paedophilia among some politicians and that as a result she suffered harm and would on return to Latvia be persecuted) had a necessary connection one of the grounds enumerated in the Convention.

10. At first glance, and if taken as standing alone or if indeed this was all that it turned its mind to, the Tribunal’s statement at CB 203.3, in particular, could be seen as an expression that the resistance to, or exposure of, corruption cannot fall within the description of political opinion, or the imputing of political opinion, in the relevant circumstances to the applicant. Such a view would, of course, be contrary to what is set out in relevant authorities. But as Mr. Kennett correctly submits the Tribunal's decision record needs to be read as a whole. That the Tribunal was tuned to the proper approach to answering the relevant question can be seen in the next part of its decision record at CB 203.4 where the Tribunal makes a specific reference to Zheng and in particular to the relevant extract at [32].

11. The Tribunal plainly then considered the applicant’s relevant circumstances, namely the claim to be involved in exposing criminal activity by parliamentarians, and searched for evidence to support the claim that such activity leads to harassment or harm. With reference to a number of relevant and likely sources, the Tribunal found no such evidence. Further, the investigation of the paedophile scandal by the Latvian state and the legislature's passage of measures to protect children all led the Tribunal to the view that “exposure of paedophilia” did not amount to political persecution.

12. When read as a whole, the Tribunal clearly did not seek to assert that the activity of exposing the corruption of politicians could never lead to a political opinion being imputed to the applicant. Rather, the Tribunal set out the relevant legal principle with reference to Federal Court authority. In context, the statement that the applicant’s claims regarding the exposure of corrupt politicians did not impute a political opinion to her, can only be read properly as a reference to such activity (as claimed by the applicant, and in the applicant’s particular circumstances, and the circumstances that existed relevantly in Latvia) not amounting to imputing a political opinion to her. I cannot see that the Tribunal's approach was in conflict with relevant authorities in this regard. The authorities proscribe an approach which says that such activity can never amount to imputed political opinion. The Tribunal did not say this. The authorities require a consideration of the applicant’s circumstances. This is what the Tribunal did.

13. In Zheng Merkel J. set out (at [34]) that the question of whether the relevant nexus with a Convention ground has been established is a question of fact for the Tribunal. On what is before me the Tribunal understood the question that had to be addressed. It made a finding of fact that, in the applicants’ circumstances, no causal connection was established with the exposure of criminal activities and the Convention ground of political opinion. This was a finding (one way or the other) for the Tribunal to make. It was a finding that was open to it on what was before it. No error can be discerned in the Tribunal's approach in this regard.

14. In further written submissions filed (without leave) on 31 May 2006 the applicant husband seeks to stress the position he put forward at the hearing before me: that SZARH and Voitenko support their case and that “our matter and the matters of Voitenko and SZARH are identical”. I accept the applicants’ submission to the extent that they say that all three cases involved some claim of exposing corrupt behaviour by relevant authorities, but I do not accept the submission that the approach of the Tribunal in those two cases was “identical” to the approach of the Tribunal in the case before the Court now. In Voitenko the Court was faced with a situation where the approach of the Tribunal was seen to be that the perception of such actions of exposing corruption could never be seen to come within the term “political opinion”. This was the Tribunal's error. As the Court said in Voitenko, as extracted by the applicants in their further written submissions, the Tribunal is required to consider whether such resistance to exposure of corruption has a political dimension. As the Court said in Voitenko this is a question of fact for determination by the Tribunal in each particular case. The Tribunal in the case before me did determine this question of fact. While it is understandable that they do not agree with the outcome of this determination, such disagreement does not reveal jurisdictional error on the part of the Tribunal.

15. Similarly, in SZARH the Court was faced with a situation where the Tribunal failed to make a determination as to whether “there is a causal connect nexus between the … perceived political opinion and the alleged well founded fear of persecution” (as seen from the extract quoted by the applicants at paragraph 8 of the further written submissions). It was this failure that led the Court in that case to find error on the part of the Tribunal. I can see no such error in the case before me.

16. The submissions also seek to distinguish the applicant’s case from that of the Zheng (referred to in the submissions as “V161 of 2000”). The applicants contend that the Tribunal in that case was “entitled” to reach the view that the applicants actions in that case “had not been for reasons of his imputed political opinion”, because the purpose of that applicant’s conduct was not to “broadcast it to the community generally” (paragraph 9 of the further written submissions).

17. What I ask the applicants to understand (and if they received assistance in the drafting of the submissions and in the preparation of the case generally, those who may have assisted them) is that the authorities clearly establish the need for a Tribunal to address the relevant question (as to a well founded fear of persecution) with an understanding that the exposure of corruption amongst politicians may result in an imputation of political opinion such as to bring the applicant’s situation within the relevant Convention ground. The assertion that the Tribunal in Zheng was “entitled” to reach the conclusion that it did is not an argument that can assist the applicants before me in answering the question of whether there is a Convention nexus that can be established. In these circumstances the Tribunal is addressing its mind to a question of fact leading to a finding of fact that is for the Tribunal alone to make. The Tribunal in the case before me addressed the question that needed to be resolved. It made a finding of fact based on the circumstances before it, seeking to distinguish these circumstances and the subsequent finding from what another Tribunal did, does not assist the applicants in showing jurisdictional error on the part of the Tribunal in their case. This ground does not succeed.

18. Further, I note that the Tribunal also went on to consider the situation opposite to its initial finding of fact, when it set out its analysis of the converse situation, at CB 203.7. The Tribunal also considered the situation as if the applicant’s claimed circumstances could have amounted to an imputed political opinion. In my view, the Tribunal’s subsequent addressing of the issue from this perspective and its willingness to concede the need to consider the opposite scenario to its initial finding, is further support for the respondent’s submission (that I have accepted) that the Tribunal understood that actions of exposing corrupt behaviour by politicians could result in an imputed political opinion and that this should be considered.

19. The applicant’s second complaint is that the Tribunal failed to comply with s.424A(1) of the Act. The applicants submitted quite clearly that their complaint is not that the Tribunal should have provided them with country information on which it relied (this was in reference to the respondent’s submissions and the understanding set out there of what the applicants were complaining). In any event, on what is before the Court such information, to the extent that it was relied on by the Tribunal, would come within the exemption provided in s.424A(3)(a) from the requirements set out in s.424A(1) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).

20. The applicant’s complain in this regard is that the Tribunal relied on certain other “information” which was addressed by the Tribunal with reference to the “issue of credibility”. Paragraph 13 of the applicants’ “oral” submissions set out five instances of what is described as information which was said to have been used to justify the Tribunal's findings in relation to the implausibility of the claims and as relevant to “the issue of credibility”. At paragraph 14 the applicant husband provides a further clarification of exactly what “information” is being referred to. Clearly, what is described as information is the Tribunal's “analysis”, “view”, or “opinion”. In essence therefore, the applicant’s complaint was that the information “that the Tribunal did not provide to them” for comment pursuant to s.424A(1) is the Tribunal's analysis or the view that it took as set out in the extracts from its decision record, which is reproduced at paragraph 13. The applicants’ complain that the finding by the Tribunal, that is, its conclusion relating to the credibility of the applicant’s claims was “clearly influenced by this information”. The Tribunal's thought processes, what the Tribunal makes of what applicants have put before it, does not constitute information for the purposes of s.424A(1). There is Federal Court authority to support this proposition and as Mr. Kennett submitted this is set out in VAF vMinister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”) at 476 to 477. In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) Allsop J., in considering this issue, relevantly said at [204]:

    “The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision.”

    At [206]:

    “Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c).”

1. Further, the applicants have not made any complaint that there was any failure by the Tribunal, at general law, in relation to a failure of the principles of procedural fairness in this regard. In any event, this Tribunal's decision and indeed the application to the Tribunal (15 May 2003) postdate the introduction of s.422B into the Act (which became operational in July 2002). The view to be taken of the effect of s.422B has been the subject of various Federal Court considerations. The matter has most recently been considered by the Full Court in Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61. It is clear that in this case no argument based on procedural fairness would be available to the applicants as s.424A exhaustively states the Tribunal's obligation to give information to the applicants. In all therefore, this ground of complaint does not succeed.

2. During the course of the hearing before me Mr. Kennett fairly made a reference to the Tribunal's consideration (as beginning at CB 204.9 and continuing to CB 205.2) of the applicant’s travel into and out of Latvia. While the Tribunal’s adverse views as referred to above were based on information provided by the applicants to the Tribunal for the purposes of review, and to the extent therefore that such information was a part of the only reason for the Tribunal's decision, the Tribunal's apparent adverse view as set out at CB 204.9 to CB 205.2, while itself could not be said to be information for the purposes of s.424A(1), may have been based on information which can be said to be a part of the Tribunal's decision, which may not have been put before the Tribunal for the purposes of the review. In particular, in assessing the applicant’s claims on the basis of her involvement in the exposure of a paedophile scandal and whether this could have the consequence of imputing a political opinion to the applicant, the Tribunal found that it did not accept her claims as being plausible (CB 203.8). The Tribunal took the view that the applicants created their claims in order to obtain the protection visas which they sought. The Tribunal gave a number of reasons for this, one of which is set out at CB 204.9. The Tribunal stated that it did not accept as plausible that a person who was in fear, and knew that a summons relating to a fabricated charge had been issued or was about to be issued, would then wait in hiding for 3 ½ months before leaving. The Tribunal said that the explanation that they were not aware of the issue of their Australian visa and that they could easily be found in nearby countries if they were to travel there, did “not ring true”. The Tribunal noted that the applicant and her husband had travelled in and out of Latvia, to Italy and Turkey for example, for some years previously and further noted that the applicants had left Latvia legally through Riga airport.

3. Mr. Kennett conceded that the applicant’s travel histories were part of the information that the applicants had included in their primary visa application, and that had that been the sole source for that information, and as that information played a part in “being used against them”, then he would concede that in light of SZEEU, (and as it relates to the Full Court decision in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24) the applicant’s complaint would be “a good point” at least as it related to this issue. However, Mr. Kennett also submitted that this information had also been put to the Tribunal during the course of the hearing it conducted, and therefore can be said to be information provided for the purposes of the application before the Tribunal and fell within the exception contained in s.424A(3)(b) from the requirements set out in s.424A(1). What is clear is that the Tribunal did conduct a hearing. The applicant husband physically attended the hearing before the Tribunal. A copy of the applicant husband's passport, that is, the relevant pages of the passport, were provided and are reproduced at CB 131 to CB 143. To the extent therefore (even in some small part) that the applicant’s travel movements were part of the Tribunal's consideration, and part of the information on which it relied to make its decision, then clearly the applicant husband's travel movements, that is, that he had travelled in and out of Latvia on a number of occasions from about 2000, and that he left Latvia legally, can be seen to be derived from the passport which he gave to the Tribunal at the hearing that it conducted with him and as such can be said to be information provided for the purposes of the application for review and falls within the exception set out in s.424A(3)(b). The applicant wife however did not physically attend the hearing before the Tribunal. The Tribunal therefore could not have derived this information as it related to the applicant wife from her passport in circumstances where it could be said that this passport was provided to the Tribunal for the purposes of review. Mr. Kennett's submission was that in relation to the applicant wife's travel movements that information can be derived from what the applicants themselves said to the Tribunal, that is, by the applicant husband when he appeared before the Tribunal and by the applicant wife when she gave evidence to the Tribunal at a further hearing conducted with the Tribunal by telephone. The Tribunal's account of the hearing that was attended by the applicant husband is set out at CB 190.6 to CB 193.3. The Tribunal's account of the hearing with the applicant wife is at CB 193.4 to CB 195.2. The applicants have not put any evidence before the Court to contradict the Tribunal's account of what occurred at the hearing. Relevantly contained in this account is the following:

   1)The applicant husband stated that both he and his wife had “returned to Latvia from Italy in 2002.” (CB 190.7)

   2)In a discussion about both his and his wife's travel movements, that the applicant husband put to the Tribunal (specifically in the context of the issue of waiting for three months to obtain a visa for Australia) the explanation for why they did not see protection in another European country. This is clearly given by the husband on behalf of himself and his wife.

   3)That he dealt with all documents (including travel documents) and visas, and on any plain reading of the Tribunal's report, it is clear that the applicant husband asserts at the hearing with the Tribunal that he had made all arrangements for their departure from Latvia and that they had left together.

   4)The applicant wife specifically put to the Tribunal in response to the issue of the ease with which she was able to leave Latvia, that she had travelled on many occasions before leaving for the final time, that both she and her husband had moved to a new address following the issuing of the summons that related to the fabricated charges and that she and her husband had not expected to stay for three or four months. She further explained that when she left Latvia the authorities probably took the view that it was better to get rid of her and not have any problems with her.

   I accept Mr. Kennett's submissions that the Tribunal did have before it, in the form of the applicant husband's passport, precise details about the travel in and out of Latvia and in view of what both applicants separately put to the Tribunal during the course of the respective hearings, that this information could also be seen to have been put as it applied to the applicant wife. Further, the Tribunal's comments at CB 205.2 in particular, when read in conjunction with what the applicants themselves put to the Tribunal at the hearings before it, can be seen to have been derived from such information as was put to the Tribunal either through the applicant husband's passport or during the course of the respective hearings. Importantly, the Tribunal does not indicate at CB 204.9 to CB 205.2 that it relied in any way on any information in this regard put by the applicants in their protection visa application. Even further, what I find persuasive in support of Mr. Kennett's argument is that this part of the Tribunal's record flows consistently with what is contained in those relevant parts of its report of what the applicants told the Tribunal at their respective hearings such that it can be said that the Tribunal formed its views derived from information put by the applicants themselves at the hearings and as such any such information falls within the exception contained in s.424A(3)(b). While this issue was not raised by the applicants, I cannot see that even if it had been it would have assisted the applicants’ case.

4. In all therefore, I cannot see that the grounds of complaint raised by the applicants can be made out, nor can I see any other basis for showing jurisdictional error on the part of the Tribunal. The Tribunal understood the relevant question that it needed to address. It could not, on the evidence before it, find that the applicants’ claims were Convention related. But even if such a Convention nexus could be found, the Tribunal did not accept that the claims were plausible in any event. Both finding were open to the Tribunal on the material before it and the Tribunal gave reasons for them. I accept Mr. Kennett's submissions that the Tribunal's decision can be seen to be based in the two alternatives set out above and that either of those would be sufficient on its own to support the ultimate decision made by the Tribunal. In any event, I cannot see jurisdictional error in either of the bases of the Tribunal's decision. On this basis the application is dismissed. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 09 August 2006