SZEPR v Minister for Immigration

[2005] FMCA 1608

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPR & ORS v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1608

MIGRATION – Refugee – claims of fear of persecution based on political opinion – discrepancies and inconsistencies in the applicants’ evidence – applicants’ opportunity to address the Tribunal’s concerns – state protection – no reviewable error – application dismissed.

Migration Act 1958, ss.423(1)(b), 422B, 424A, 424A(1), 424A(3)(b), 424A(2)

Minister for Immigration & Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingham (1999) 93 FCR 220
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138
SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221
SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931
WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: SZEPR & ORS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3162 of 2004

Judgment of: Nicholls FM

Hearing date: 1 November 2005

Date of Last Submission: 25 October 2005

Delivered at: Sydney

Delivered on: 7 November 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. T. Reilly

Solicitors for the Respondent: Phillips Fox

ORDERS

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

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3162 of 2004

SZEPR & ORS

Applicant

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 25 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 August 2004 and handed down on 28 September 2004, to affirm the decision of a delegate of the respondent Minister made on
   24 February 2004 to refuse a protection visa to the applicants. The Tribunal is joined as the second respondent to these proceedings.

2. The applicants are husband, wife and adult daughter who are citizens of Ukraine. They arrived in Australia on 16 January 2004 and lodged an application for protection visas with the first respondent's Department on 13 February 2004. The first named applicant, the husband, made specific claims under the Refugees Convention. His daughter also made claims, but they related essentially to him. The applicant wife did not make any separate claims. For the purposes of this Judgement I will refer to the first named applicant husband as “the applicant”. The applicant claimed that he was a member of the Communist Party and had worked for the Ukrainian KGB (Security Organisation). Following the collapse of the USSR as a political and state entity in 1991 the Communist Party was banned in the Ukraine (subsequently this was reversed) and the applicant’s “department” in the security organisation was disbanded. The applicant claimed that a National Socialist Party, the UNA-UNSO came into existence at about this time. Many of its members had been convicted, and served gaol time, as political prisoners and were aware that their details were recorded on KGB files. The applicant claimed to have been attacked on a number of occasions and threatened because members of this party feared he might reveal compromising information about them as some had been collaborators with the KGB. The applicant daughter also claimed to have been ambushed and threatened. The applicant claimed that he had been harassed from 1999 to 2004 and assaulted and stabbed in the street in January 2001.

3. The applicant's claims are set out in the application for a protection visa made to the first respondent's Department (Court Book (“CB”) 1 to CB 31) and in particular in an attached English translation of a statement reproduced at CB 31 to CB 38. The application to the Tribunal is at CB 82 to CB 85, and the claims in particular are in an attachment at CB 86. All three applicants before me now attended a hearing before the Tribunal on 25 May 2004, although only the applicant and the applicant daughter relevantly gave oral evidence to the Tribunal. The applicant's “Claims and Evidence” are set out in the Tribunal's decision record at CB 111.6 to CB 121.7. In particular, the Tribunal's account of what occurred at the hearing it conducted with the applicants is set out at CB 114 to CB 121.1.

4. The Tribunal’s “Findings and Reasons” are set out at CB 121.8 to CB 124.6. The Tribunal:

   1)Accepted that the applicant was a member of the Ukrainian Communist Party, and although he provided no evidence of membership of the KGB was prepared to give him the benefit of doubt and accepted his claims in this regard (CB 121.8).

   2)Was unable to accept that he was persecuted by members of UNA-UNSO to prevent him from providing compromising information about its leaders which would damage their electoral prospects (CB 121.9). The Tribunal's reasons for this were:

(a)That it had a major problem with his claims in that the applicant was unable to satisfy the Tribunal that:

(i)UNA-UNSO would have known that he was a former KGB member. In particular the Tribunal found it implausible that UNA-UNSO, which was a small minor opposition party could have access to political party documents such as to have identified the applicant with the profile that he claimed (CB 122.3).

(ii)That it would be for the Ukrainian Government, which banned the Communist Party, to grant access to Communist Party registration cards, and the applicant presented no reason as to why the Ukrainian Government would provide such access to a Party opposed to it (CB 122.4).

(b)The Tribunal’s second problem with the applicant's claims were that even if it did accept that UNA-UNSO did somehow find out that he was formerly with the KGB, it was unable to be satisfied that they would have had any interest in persecuting him (CB 122.5). The Tribunal did not accept the applicant's claims that he had been harassed for the period from 1991, when he resigned from the KGB, until he left for Moscow in 1992 because of his former KGB membership and because he was a financial supporter of the Communist Party. The Tribunal took the view that he was not a political leader or politically prominent. It also rejected the applicant’s claim, made at the hearing before the Tribunal, that from the time of the 2000 Parliamentary Elections the UNA-UNSO targeted him, culminating in him being beaten and stabbed 18 times in January 2001. The Tribunal gave reasons for this and, in particular, rejected the applicant's claims in this regard because it did not accept that UNA-UNSO would have known that he was a former KGB member (CB 123.1).

(c)The Tribunal's third major problem with the applicant's claims was that UNA-UNSO is an opposition party, and it was unable to be satisfied that the government or law-enforcement or other authorities would have any reason to deny him the same level of protection as provided to the Ukrainian population generally. The Tribunal noted that the applicant did not contest the observations made by the Tribunal at the hearing, that UNA-UNSO was in opposition or that he had received no indication that the authorities would not provide him with normal protection. The Tribunal also noted that the applicant's account of the actions taken by police, after he was purportedly beaten and stabbed, and after his car was damaged, gave no indication of any intention to deny normal protection (CB 123.6).

3)The Tribunal noted discrepancies and internal contradictions in his evidence:

(a)It noted that in his written claims the applicant stated that he and his family started receiving telephone threats after he left the KGB in 1991 and that this was unbearable and he therefore went to work in Moscow. Yet at the hearing he claimed that initially he did not take the telephone threats seriously (CB 123.7).

(b)That while he was in Moscow from 1992 to 1999, his family stayed in Lviv (Lvov) in Ukraine. The Tribunal found it implausible, and did not accept that if he found threats to his family intolerable he would nevertheless leave them alone in Lviv while he went to Moscow and remained there for seven years (CB 123.8).

(c)The applicant claimed at the hearing before the Tribunal that he decided in 2002 to flee Ukraine because his family “started to be threatened”, yet he had earlier claimed that the threats began in 1991 (CB 123.8).

(d)He also claimed at the hearing before the Tribunal that another factor in his decision to flee Ukraine was that his car was damaged as part of the action against him, but there was no evidence to indicate that the damage was caused by the UNA-UNSO, and indeed the Tribunal noted that he stated that the police investigated and stated in their report that the damage was due to an attempted theft (CB 124.1).

(e)The applicant claimed that he finally decided to leave Ukraine in July 2003, but did not do so until January 2004 because he was advised that he could not apply for an Australian visa until his daughter turned 18. The Tribunal noted the contradiction between the evidence given by the applicant at the hearing before it, that the advice came, not from the Australian Embassy but from a travel agency, and the advice given by the applicant's adviser, subsequently, that the applicant daughter did have an earlier passport, which he described as being of the type specifically for people under 18, but that it expired in September 2003 and a new one had to be obtained (CB 124.3).

4)On all the above the Tribunal did not accept that the applicant and his family were ever threatened or harassed by, or on behalf of, the UNA-UNSO, or that he was attacked and stabbed by persons working for this party, or that his daughter was “warned by two strangers” at her university. Consequently the Tribunal found the applicant did not have a genuine fear of persecution in Ukraine and did not have a well founded fear of persecution there for reason of his actual or imputed political opinion, and was not a person to whom Australia had protection obligations under the Refugees Convention. As no specific Convention claims were made by or on behalf of the applicant wife or daughter, other than as already noted by the Tribunal, then their application was also rejected on the basis that it depended on the outcome of the applicant husband's application.

1. The applicants filed an amended application in this Court on 21 January 2005, which largely recounts the applicant’s claims before the Tribunal and reproduces the grounds in the originating application:

   “1.The RRT failed to recognise that my family and I have no protection from the UKRANIAN Authorities because of my political views, which are opposed to the politics of the Government.

   2.Despite strong evidence the RRT refused to recognize the hostility of the Ukrainian police and that I will be in danger from the Ukrainian authorities.

   3.I would like to ask to have my case returned to the RRT for reconsideration.”

2. At the hearing before me the applicants all appeared and were unrepresented. I note in this regard that the applicant did access the Court’s Legal Advice Scheme and on 15 December 2004 consulted a lawyer on the panel of that scheme and advice was given to the applicant on that date. The applicants before me were assisted by an interpreter in the Russian language (although the applicant daughter addressed the Court in English). Mr. Reilly appeared for the respondents. Before me the applicant stated:

   1)That he wanted to submit his son’s death certificate to the Court. As referred to in the amended application, and as explained by the applicants, their son was killed in the Ukraine on 19 January 2005. I explained to the applicants that while the Court could well understand the terrible situation that a parent faces at the loss of a child, on what the applicants had said to me, I could not see that this issue was relevant to the issue before the Court which was whether or not the Tribunal decision was affected by jurisdictional error. Clearly the applicant's son's death post-dated the Tribunal’s decision, and with respect to the applicants, is not relevant to the issue of revealing jurisdictional error on the part of the Tribunal.

   2)The applicants complained that the “Tribunal did not believe him and gave him no better benefit of the doubt”. The applicants complained that the Tribunal, as shown at CB 122 in its decision record, doubted that he was a member of the KGB and that UNA-UNSO knew that he had been a KGB member, even though he had submitted to the Tribunal, and had explained to the Tribunal, all the relevant issues relating to this party and the relevant circumstances of his claims. In one sense the applicant’s complaints can be seen as a complaint that the Tribunal did not believe him and that it should have believed him given what he had said. On what he has presented, this really rises no higher than a complaint which seeks impermissible merits review (Minister for Immigration & Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259). At best it perhaps be seen as a complaint that the Tribunal's findings in relation to the applicant’s membership of the KGB and the situation relating to UNA-UNSO were attendant with such doubt as to require the Tribunal to ask itself the “what if I am wrong?” question in relation to all of the applicant’s claims. The Tribunal's role in assessing whether an applicant has a well founded fear of being persecuted for a Convention reason involves questions of degree. The Tribunal is entitled to weigh the material before it and make findings before it considers whether or not an applicant’s fear of persecution is well founded (Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 to 575). In these circumstances if a finding is not made with sufficient confidence the Tribunal may then need to consider the possibility that the finding is incorrect when determining the ultimate question of whether the applicant has a well founded fear (Wu Shang Liang, Abebe v Commonwealth (1999) 197 CLR 510 and Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingham (1999) 93 FCR 220). It is also quite clear that if the Tribunal has no real doubt that its findings are correct then it is not bound to consider whether its findings might be wrong (Abebe v Commonwealth (1999) 197 CLR 510). While the applicant complains that he should have been given the benefit of the doubt, or more than the benefit of the doubt, he provided no basis for this other than to state that he had provided information that he was a member of the KGB and that UNA-UNSO were very powerful in the western Ukraine. On the material before me I cannot see that the Tribunal's ultimate findings in relation to the past and the future were attendant with such doubt as to have necessitated its asking the “what if I'm wrong?” question to the extent now suggested by the applicant. But in any event in relation to the issue of the applicant’s membership of the KGB the Tribunal accepted that although he had provided no evidence of his membership it was prepared to give him the benefit of the doubt and accept this claim. If the applicant’s complaint is that once having given him the benefit of the doubt in relation to his having been a KGB member, it should have then given him the benefit of the doubt in relation to the other aspects of his claim, then there is nothing in the material before me to support this assertion. What the Tribunal did not accept was, amongst other things, that UNA-UNSO would have known that he was a former KGB member. But that even if it did somehow find out that he was formerly with the KGB (again the Tribunal considered an alternative possibility) the Tribunal was unable to be satisfied that they would have had any interest in persecuting him. The Tribunal clearly took into account the applicant’s claims, indeed at CB 122.4 it makes specific reference to the applicant’s claims in relation to the popularity of UNA UNSO. I cannot see that the Tribunal's findings in this regard were attendant with doubt such as could necessitate its asking the “what if I am wrong?” question or that there was error in where it chose to draw the line in giving the benefit of the doubt.

   3)Both the applicant and the applicant daughter before me complained that the applicants had provided a medical certificate to the Tribunal at the hearing that the Tribunal conducted with them and claimed that the certificate was important because it showed the harm that was done to the applicant. The applicant claimed there was no reference to the certificate in the Tribunal's decision record, nor was it contained in the bundle of documents prepared by the first respondent as the Court Book in this matter. As I explained to the applicants the Court could only proceed on the evidence that is presented before it. In relation to what they allege may or may not have occurred at the hearing with the Tribunal, the applicants have provided no evidence whatsoever to contradict the Tribunal's account of what it says occurred at the hearing that it conducted with the applicants, and as set out at CB 114 to CB 121.9 (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241). Nor did the applicants indicate that they were in a position to provide any evidence to support the assertion now made.

   4)The applicant made reference to s.423(1)(b) of the Migration Act 1958 (“the Act”) which provides that an applicant for review may provide to the Tribunal written arguments relating to the issues arising in relation to the decision under review. The applicant argued that if the Tribunal was not going to agree with his arguments, then he could have been given the chance, which he saw flowing from s.423(1)(b), to comment on this in written form, and that he was not given that chance or opportunity. The Tribunal decision before me now was made in August 2004. The applicants’ application and the Tribunal's decision clearly postdates the introduction of s.422B into the Act. While the Tribunal is required, pursuant to s.424A(1) of the Act, and subject to the exceptions set out in that section, to provide to the applicant certain information on which it relies in making its decision, there is no obligation on the Tribunal to provide to the applicant for comment its adverse views of the material on which the applicant himself has provided to the Tribunal (Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109). Further, s.423(1)(b) does not impose a mandatory obligation on the Tribunal to provide the opportunity in the manner now claimed by the applicant. The Tribunal’s account of the hearing it conducted with the applicants reveals that some of its concerns were discussed at the hearing. It was always open to the applicant to have made written submissions up until the time that the Tribunal’s decision was handed down (25 May 2004 to 28 September 2004), even in circumstances where there was no obligation on the Tribunal to specifically seek further comment on its thought processes. In fact, further written submissions were made by the applicants’ adviser.

   5)The applicant also complained that he was not given certain information pursuant to s.424A of the act (I will deal with other aspects of this below). But at the hearing before me the applicant explained that this complaint was one based on not having received information about how to present arguments and information at the hearing before the Tribunal. He complained that he had to do everything himself and that nobody explained to him what he could submit, and that during the hearing “I was just heard…like I spoke and that was it and then I got a refusal”. He claimed that when he came to the hearing he did everything by himself: “I didn't have a lawyer”. In this regard I note that the applicant was represented by a migration agent before the Tribunal (CB 83), and was sent information by way of letter of 23 March 2004 (CB 87 to CB 88) about the way the Tribunal was to conduct the consideration of the application. In any event a complaint that he did not know how to present his claims before the Tribunal does not go to the issue of any failure by the Tribunal pursuant to s.424A(1). In any event, I note that the applicant attended the hearing before Tribunal, and from the Tribunal's account (the only account before me in any evidentiary context) was given every opportunity to provide arguments and evidence in support of his claims. The applicant made written submissions to the Tribunal and indeed his adviser made a subsequent written submission to the Tribunal following the hearing. To the extent that the applicant’s complaint may have been a complaint that he did not have a lawyer to assist him before the Court now, then of course such a claim is not relevant to s.424A of the Act as clearly that section is concerned with the conduct of the review by the Tribunal, not any subsequent judicial review by the Court. I note this because the applicant also complained that the references to cases in the respondents written submissions were not sent to him, that he did not know what had happened in those cases, and that he did not have a lawyer. In this regard I note that the applicant did access the Court's Legal Advice Scheme and was referred to a lawyer on the panel of the Scheme. In any event, it was always open to the applicant, or applicants, to have engaged legal representation, and he provided no reason for any failure to do so. Ultimately however, this does not establish error on the part of the Tribunal.

   6)The applicant also made statements to the Court regarding the situation in Ukraine since his arrival in Australia and that recent presidential elections in the Ukraine have meant that the position of UNA-UNSO is much stronger now than it had been. Again, I need to remind the applicants that events that have occurred since the making of the Tribunal decision, on their own, are not capable of showing error in the Tribunal’s decision and its consideration of the circumstances of the applicant's case as presented to the Tribunal. 

1. In relation to the applicants’ complaints in the amended application:

   1)The applicants claim that the Tribunal failed to recognise that the applicant and his family had no protection from the Ukrainian authorities because of his political views which were opposed to the “politics of the government”. There is nothing before me to show that the applicant made any such claim that he opposed the policies of the Ukraine Government, or that he was denied protection because of this. The applicant's claims centred around his membership of the KGB and the Communist Party and the threats and harm that he claimed to have received over a number of years from the UNA-UNSO, which was an opposition party. To the extent that the issue of state protection was relevant to the claims of the applicant as put to the Tribunal, the Tribunal dealt with these issues, and clearly found at CB 123.5 that the applicant did not contest the Tribunal's observations at the hearing that UNA-UNSO was an opposition party, or that he had received no indication that the authorities would not provide him with “normal protection”. It further noted that the applicant's account of the actions taken by the police after he was purportedly beaten and stabbed and after his car was damaged give no indication of any intention to deny him normal protection (CB 123.6).

   2)The applicants also complain that there was “strong evidence” before the Tribunal to recognise the hostility of the Ukrainian police and that the applicant and his family would be in danger from the Ukrainian authorities. The applicants before me did not point to this “strong evidence” which the applicant claimed was before the Tribunal. Nor is it evident that there was any such material before the Tribunal.

   3)To a large part the applicants’ claims in the application to the Court seek merits review. Of course the Court cannot engage in such review (Wu Shan Liang at 272). To the extent that the application refers to events in Ukraine, since the Tribunal's decision, and I note in particular the applicant's claims that his son has been killed, as deeply sad as it is for any parent to lose a child, such matters, as I have already stated, with respect to the applicants, are irrelevant, as they were not, and as Mr. Reilly submits, could not, have been before the Tribunal. The relevant date for assessing the applicants’ claims is the date of the Tribunal's decision: Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343. It is quite clear that the applicants were unsuccessful before the Tribunal because of the view that the Tribunal took of the facts that it found in the circumstances presented to it. The Tribunal rejected the applicants’ claims of past harm for reasons that were clearly set out and to which I have already referred above.

2. One issue that I raised with Mr. Reilly at the hearing before me was whether there is a potential issue of substance presented by the application as to whether the Tribunal complied with its obligations under s.424A of the Act in light of the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and the dicta of the majority in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and in light of the lines of authority considered in decisions such as NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, that claims made by a protection visa applicant in his or her primary visa application do not come within s.424A(3)(b) of the Act, and therefore any information relied on by the Tribunal provided by the applicant in his application for a protection visa must be put to the applicant pursuant to s.424A(1) in the manner set out in s.424A(2).

3. It is clear that the Tribunal's decision record makes reference to discrepancies and internal contradictions in the applicant’s evidence. With reference to what I have set out above at paragraph 4.3 of this Judgment where I referred to inconsistencies noted by the Tribunal:

   ·Paragraph 4.3 (d) above, as to the damage to the applicant’s car as being another factor for the reason for fleeing Ukraine. This claim was clearly made at the hearing before the Tribunal and the discrepancy found by the Tribunal was that there was no other evidence to indicate that the damage caused to the applicant's car was caused by the UNA-UNSO.

   ·Paragraph 4.3 (e) above, that the applicant decided to leave the Ukraine in July 2003 but did not do so until January 2004 because he was advised he could not apply for an Australian visa. While this issue was first raised in the application to the first respondent's Department (CB 34.8), it is clear that the discrepancy that the Tribunal, found was between what the applicant himself stated at the hearing before the Tribunal and his advisers subsequent written account also given to the Tribunal for the purposes of the application to it.

   In both these instances, to the extent that it can be said that the Tribunal relied on any information, it was clearly information provided by the applicant, and in one instance his adviser on his behalf, for the purposes of the application for review to the Tribunal and therefore would fall within the exception in s.424A(3)(b) from the requirement to put any such information to the applicant pursuant to section 424A(1).

4. Mr. Reilly submitted that in relation to all the inconsistencies, Lindgren J. in SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138, followed by Dowsett J., in SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 said that where a Tribunal’s finding is a mere identification of a contradiction between written claims and later claims made to the Tribunal and where there is no reliance upon the truth of those claims, then this is not “information” for the purposes of s.424A(1). In SZEKY Lindgren J. said at [19] to [24]:

   “[19] The second aspect concerns the claim made in the appellant’s statutory declaration that in October 1989, the appellant applied to be transferred from the criminal team to the traffic team, and worked as a traffic police officer from then on, although still a member of the PSB. The Tribunal member stated that the appellant gave evidence that in fact he did not seek to be transferred, and was transferred because another officer from the traffic team had paid a large sum of money to be transferred out of it. The Tribunal member concluded, therefore, that a central claim which the appellant had made, namely, that he applied for transfer because he could not ‘tolerate corruptive and autocratic system’, was simply not true.

   [20] The question is whether, by reason of its reliance on the inconsistency, there was ‘information’ which constituted the reason or part of the reason for the Tribunal's affirming the decision under review, for the purposes of s 424A.

   [21] In WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276, a Full Court of this Court stated that:

   ‘A conclusion by the Tribunal that there was an inconsistency between two pieces of information was not itself "information" for the purposes of s 424(1).’

   The Full Court thought that the word, ‘information’, in s 424A(1) was used in the same sense as it is used in s 424(1).

   [22] With respect, I do not think those views are plainly wrong.

   [23] The present case is not one in which the Tribunal relied upon the information stated in the visa application in the sense of accepting it. Far from accepting that, as the appellant there alleged, he requested a transfer to escape an environment repugnant to his conscience, the Tribunal member either accepted the evidence given by the appellant on the hearing or, at least, noted the inconsistency between the two accounts without preferring one or the other.

   [24] The information contained in the statutory declaration which accompanied the visa application was not the reason or part of the reason for the Tribunal’s affirmation of the Delegate’s decision.”

5. In SZERV Dowsett J. at [11] said:

   “Whether or not this intuitive reaction is correct, it seems to me that the argument in this case must fail for two reasons. Firstly, in SZEKY v The Minister 2005 FCA 1138 at [21] to [24], Lindgren J held that where a decision is based upon inconsistency between an earlier statement and a later statement, it is that inconsistency, and not the statements, upon which the decision is based. That view seems to me, with respect, to be correct. Secondly, in the present case, the Tribunal requested the applicant to interpret his original visa application statement. He identified his signature at the bottom of the relevant page and agreed that the statement contained his claim, and explained his reasons for fearing return to China. His attendance at the Tribunal hearing and his responses to questioning were for the purpose of the application to the Tribunal. All of that information, therefore, became information provided by him to the Tribunal for the purpose of the application. I am told that this view was taken by Madgwick J in SZFKL v The Minister (2005) FCA 931, but that Jacobson J took a different view in NAZY v The Minister (2005) FCA 744. I find myself in respectful disagreement with the view taken by Jacobson J…”

   In SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931, Madgwick J. at [7] stated:

   “Counsel for the Minister felt it appropriate to consider the correctness of the Federal Magistrate’s decision in the light of the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. As Counsel points out, in this case the Tribunal’s finding relied on inconsistencies between the written claims submitted with the visa application and the appellant’s evidence at the Tribunal hearing. However, these inconsistencies were brought to the appellant’s attention during the Tribunal hearing and he confirmed to the Tribunal member that he was satisfied of the accuracy of the information in his visa application and the supporting statement. Thus, all relevant information relied on by the Tribunal, as distinct from its reasoning processes, which did not involve reference to other factual material of substance, appears to be information that the appellant gave to the Tribunal for the purpose of the application to the Tribunal. That is to say, s 424A of the Act would not apply because any possible information falls within the purview of subs (3)(b) as being information ‘that the applicant gave for the purpose of the application’.”

6. In its decision record as set out at CB 123.7, the Tribunal states:

   “He states in his written claims that he and his family started receiving telephone threats after he left the KGB in 1991 and that this was unbearable so he went to work in Moscow. Yet at the hearing he claimed that initially he did not take the phone threats seriously. He further claims that while he was in Moscow, from 1992 to 1999, his family stayed in Lviv. I find implausible and do not accept that if he found the threats to his family intolerable, he would nevertheless leave them alone in Lviv while he went to Moscow and remained there, moreover, for seven years. Furthermore, at the hearing he claimed that he decided in 2002 to flee Ukraine because family started to be threatened. Yet, as stated, he had earlier claimed the threats began in 1991.”

   I accept Mr. Reilly’s submission that in the case before me, in the sense set out by Lindgren J., and Dowsett J., that the Tribunal was identifying a contradiction between various claims made to the Tribunal and in particular the written claim that his family started receiving telephone threats after he left the KGB and that this was why he left for Moscow, with the later claim at the hearing that he did not take the threats seriously. There is no reliance upon the truth of the claims. As with SZEKY this was not a case where the Tribunal relied upon the information stated in the visa application in the sense of accepting it. It was the inconsistency in the claims and their internal contradictions that the Tribunal was noting, rather than any reliance on the information supplied by the applicant in making its decision.

7. Mr. Reilly further distinguished the situation before me with the situation before the Court in NAZY. In that case the Tribunal relied upon the applicant’s claim that he had not been charged with anything and then used that essentially as a finding against him. He submitted in the case before me all that has been identified are contradictions which lead the Tribunal not to believe anything.

8. Further, the Tribunal states the applicant made claims in his “written claims” which were then compared with later claims. To that extent the Tribunal noted that in his “written claims” he stated that he and his family started receiving telephone threats after he left the KGB in 1991. This is set out in his application for a protection visa (CB 32.9) – as is the reference to his family staying in Lvov while he was in Moscow between 1992 to 1999. However, an examination of the Tribunal's account of what occurred at the hearing it conducted with the applicants reveals that the applicant specifically restated these claims at the hearing before the Tribunal. I take the view that s.424A(3)(b) would apply to exempt such information on which the Tribunal based its findings of inconsistencies. While in the case before me there is a clear reference in the Tribunal's account of the hearing that the applicant said that the information he put in his claims in his protection visa application was correct (it also reports that he goes on to say, but not complete and wanted to add further points), nonetheless in relation to the issues on which the Tribunal found inconsistency, the applicant has restated specifically these claims at the hearing before the Tribunal. In relation to:

   a)The claim that he started receiving telephone threats after he left the KGB in 1991, this is clearly and specifically restated in the Tribunal's account of what the applicant said at the hearing before it (CB 114.8), where the applicant is reported as saying:

   “He said that after he resigned from the KGB, he and his family received not only telephone threats, as he stated in his PVA; UNA-UNSO people came to his office. He thinks they were persecuting him because of his KGB membership and because he was still a financial supporter of the CPU. Two men came to his office; they did not identify themselves. They said they would not harm his business but told him to leave the Ukraine” [Relevant in particular to the noted discrepancies/inconsistencies set out in paragraph 4.3(a) and (c) above in this Judgment].

   b)He also stated that (CB 115.1) he worked in Moscow from 1992 to 1999 and that his family had clearly stayed in Lvov because he stated that he returned to the Ukraine in 1999 because he did not want to be separated from his wife. [Relevant in particular to the noted discrepancies/ inconsistencies set out in paragraph 4.3(b) above in this Judgment].

   In relation therefore to the bases on which the Tribunal noted inconsistencies, these were clearly restated to the Tribunal at the hearing before it.

9. Even further, in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 Stone and Finn JJ., at [33] provided the following guidance regarding the interpretation of s.424A of the Act:

   “It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal’s reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision…”

   Mr. Reilly further submitted that the contradictions identified at the “bottom of CB 123” are merely serving to bolster a conclusion that the Tribunal has already arrived at and its noting of the discrepancies and internal contradictions was not to be regarded as “sufficiently integral but rather of relatively minor importance”.

10. The Tribunal appears to have relied on four separate bases for rejecting the applicant's claims. The first was that it was unable to be satisfied that UNA-UNSO would have known he was a former KGB member. It is important to note that the applicant's claims centred around the harm that he feared from this small opposition party because of his claimed membership in the Communist Party and his former employment as a KGB official. The second basis was that even if the Tribunal accepted that this opposition party did somehow find out that he was formerly with the KGB it was unable to be satisfied that they would have had any interest in persecuting him. The third basis was that the UNA-UNSO is an opposition party and the Tribunal, in the absence of anything else put before it, was unable to be satisfied that the government, or law enforcement, or other authorities would have any reason to deny him the same level of protection as provided to the Ukrainian population generally. All of these claims stand independently to the discrepancies and internal contradictions that the Tribunal said that it found in the applicant’s evidence. Indeed the use of the word “further” by the Tribunal at CB 123.7 in introducing the issue of discrepancies and internal contradictions emphasises that the Tribunal made this notation as an addition to the reasons for rejecting the applicant's claims that it had already set out. Clearly, the integral parts of the Tribunal’s reasoning relates to the central claim by the applicant that he was a member of the KGB and Communist Party and that the UNA-UNSO party wanted to harm him because of what they feared he may divulge about members of this party. This was clearly rejected by the Tribunal as being the basis for showing a well founded fear of persecution for a Convention reason. Further, the Tribunal found there was nothing before it to show that “normal protection” would not be available to the applicants from the Ukrainian Government or authorities. These findings were bolstered by the inconsistencies and discrepancies the Tribunal said it found in the applicant’s various accounts of his claims, but were not dependant on it.

11. The Tribunal dealt with the applicant's claims as put by the applicant. To the extent that the Tribunal relied on some country information, and this is reproduced at CB 128 to CB 147, this information clearly falls within the exemption provided for in s.424A(3)(a) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264) from the requirement contained in s.424A(1). Further, as Mr. Reilly submits, the choice of assessment of country information is of course a factual matter for the Tribunal alone: NAHI vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. The Tribunal made findings which were open to it for the reasons that it provides. There is no jurisdictional error in the Tribunal’s decision and it is a privative clause decision within the meaning of s.474 of the Act. This application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date: 7 November 2005