SZESF v Minister for Immigration
[2006] FMCA 2
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZESF v MINISTER FOR IMMIGRATION AND ANOR | [2006] FMCA 2 |
| MIGRATION – Refugee – findings based on the Tribunal’s thought processes do not need to be put to the applicant – findings facts and credibility are matters for the Tribunal – Tribunal’s findings supported by probative basis – impermissible merits review – notice of objection to competency upheld – application dismissed. |
| Migration Act 1958, ss.477(1A), 477, 474, 477(2), 424A(1), 424A(3), 424A(2), 424A(3)(a), 424A(3)(b), 476(1)(g), 476(4). Federal Magistrate Court Rules 2001, rr.13.10, 21.02(2)(a). |
| Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2 Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426 Chung v University of Sydney [2001] FMCA 94 Yo Han Chung v University of Sydney [2002] FCA 186 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109 Paul v Minister for Immigration and Multicultural Affairs[2001] FCA 1196 NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 1010 Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785 |
| Applicant: | SZESF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3363 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 November 2005 |
| Date of Last Submission: | 16 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. S. McNaughton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3363 of 2004
| SZESF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed on 17 November 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 January 2003 and handed down on 18 February 2003 which affirmed the decision of a delegate of the respondent Minister made on 19 September 2000 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
Following the filing of the applicant's application, the history of this case before the Court is:
1)26 November 2004: The first respondent filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to determine this application on the ground that the application related to a privative cause decision, and had not been filed within 28 days of the applicant being notified of the decision as required by s.477(1A) of the Migration Act 1958 (“the Act”).
2)30 November 2004: At the first Court date in this matter the applicant did not appear as he claimed to be sick and this directions date was adjourned to 7 December 2004.
3)2 December 2004: The first respondent filed and served a Notice of Motion seeking dismissal of the application pursuant to Rule 13.10 of the Federal Magistrate Court Rules 2001 (“the Rules”) on the basis that no reasonable cause of action was disclosed in relation to the proceeding, that the proceeding was frivolous or vexatious and the proceeding was an abuse of process of the Court. The Notice of Motion was supported by the affidavit of Angela Margaret Nanson, a solicitor in the employ of the respondent's solicitors, affirmed on 30 November 2004.
4)7 December 2004: Orders were made by consent, including the setting down of the Notice of Motion to be heard before me on
18 February 2005.5)7 December 2004: The first applicant filed an affidavit affirmed on 6 December 2004 going to the issue of his previous proceedings before the Court relating to the same Tribunal decision and the discontinuation of those proceedings.
6)7 February 2005: The first respondent filed an outline of submissions in relation to the Notice of Motion.
7)8 February 2005: The applicant filed an outline of submissions.
8)18 February 2005: When the matter of the Notice of Motion came on for hearing, the interpreter who had been booked to assist the applicant did not attend, and the matter could not proceed on that date and was adjourned until 20 May 2005 where it was to be heard with the Notice of Objection to Competency.
9)16 May 2005: The respondent filed further submissions.
10)20 May 2005: The applicant did not appear at the hearing on the basis that he was ill. The matter was adjourned until
24 November 2005. Both Notices were set down for hearing on that date.In relation to the respondent's Notice of Objection to Competency I refer to the case of Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2. This was a Full Federal Court decision made on 4 November 2004 which upheld the judgment of Nicholson J. who at first instance held that an appeal against a privative clause decision, lodged outside the time limit specified in s.477 of the Act is, in those circumstances, incompetent unless a ground of review can be made out. In determining whether the Tribunal made a jurisdictional error regard must be had to s.474 of the Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426. If the Tribunal’s decision in the case before me is a privative clause decision pursuant to s.474 then the time limit provided in s.477(1A) of the Act would apply. Also pursuant to s.477(2) of the Act the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is, of course, 28 days. The issue of whether the decision complained of is a privative clause decision or not requires an examination of the grounds of review.
On 24 November 2005 the applicant was unrepresented before me. He was assisted by an interpreter in the Russian language. Ms. McNaughton appeared for the respondents. Given:
1)That the resolution of the respondent’s Notice of Objection to Competency would in any event require an examination of the relevant material to see whether a ground of review can be made out (paragraph 3 above).
2)In relation to the Notice of Motion and in particular the Notice of Motion based on no reasonable cause of action, it has been held that in circumstances where an applicant is self represented, as in the case before me, the Court should independently consider whether an arguable case based on the material could be made out by the applicant (Chung v University of Sydney [2001] FMCA 94 at [14] upheld on appeal in Yo Han Chung v University of Sydney [2002] FCA 186).
3)That it was now over a year since the applicant had filed his application.
4)The applicant was clearly seeking a final hearing so that he could fully present his complaint.
I proposed to both parties that we proceed on the basis that the hearing on 24 November 2005 be a final hearing of the applicant’s case. Ms. McNaughton for the respondents agreed that this was “a suitable course”, and the applicant, after I explained the issue to him, was content to continue with a full and final hearing in relation to the Tribunal decision and his complaint about it.
I should also note that during the course of the hearing it emerged that a bundle of relevant documents (“Court Book”) had been prepared in relation to previous proceedings before the Federal Magistrates Court that had been brought by the applicant in relation to the same Tribunal decision of which he now complained before me. Further, I refer to the affidavit of Angela Margaret Nanson affirmed on 30 November 2004 from which it can be seen that the applicant previously filed an application to this Court, on 17 March 2003, complaining about the Tribunal decision concerning him that was handed down on
18 February 2003. That matter was set down for hearing on
17 November 2003. Following the failure of the applicant to attend at that hearing, Federal Magistrate Raphael made orders dismissing the application with costs (see “Annexure C” to the affidavit). While the Tribunal's decision record was before me now by way of annexure to the affidavit of Angela Margaret Nanson, and while there was nothing before me to show that any live issue before me would benefit from an examination of the material contained in that Court Book, nonetheless I made orders at the hearing that the respondent file and serve this Court Book within 48 hours, and gave the applicant two weeks from the time of filing and serving of this document to make any subsequent written submissions. The applicant indicated that having the opportunity to make written submissions subsequent to the hearing was his preferred course of action in any event. I note that the material was subsequently filed and served, and the applicant made subsequent written submissions which he filed on 12 December 2005. No further submissions have been filed by the respondent in reply.
I also note even further that it appears that the applicant sent a document headed “Applicant's Supplementary Submission” dated
18 February 2005 to the respondent. This document does not appear to have been filed in Court, but nonetheless was, fairly, provided to the Court by the respondent’s solicitors. For the sake of clarity therefore, I have before me for the applicant:
1.An application to this Court filed on 17 November 2004.
2.The applicant's affidavit of 6 December 2004.
3.The applicant's outline of submission filed 8 February 2005.
4.The applicant's supplementary submission dated 18 February 2005.
5.The applicant's further submissions filed after the hearing and dated 12 December 2005.
For the respondent I have:
1.The Notice of Objection to Competency filed 26 November 2004.
2.The Notice of Motion filed on 2 December 2004.
3.The Minister’s outline of submissions on the Notice of Motion filed on 7 February 2005.
4.Submissions on behalf of the respondent filed on the 16 May 2005.
5.“Relevant Documents” – (“Court Book”) filed in previous proceedings and re-filed on 25 November 2005.
The applicant is a Russian national who arrived in Australia in July 2000 and applied for a protection visa on 17 August 2000. This was refused on 19 September 2000 by a delegate of the first respondent and the applicant sought review by the Tribunal on 16 October 2000. The applicant appeared before the Tribunal and gave oral evidence on
8 November 2002. He was represented by a migration agent before the Tribunal who also made submissions on the applicant's behalf. The Tribunal's decision record is before me at “Annexure A” to the affidavit of 30 November 2004 of Angela Margaret Nanson (for ease of reference I will refer to the Tribunal decision record by way of the printed page number originally used by the Tribunal, rather than the page numbers of the affidavit). The applicant's claims before the Tribunal are set out in his application to the Department reproduced at Court Book (“CB”) 1 to CB 16 and particularly in a statutory declaration at CB 20 and CB 22, in his application to the Tribunal at CB 52 to CB 55 and particularly at CB 56. The applicant’s claims considered by the Tribunal are essentially those claims as reported by the Tribunal in its decision record as having been made (and re-made) at the hearing before it. These are at Decision Record (“DR”) 5.8 to DR 15. While the Tribunal made some preliminary reference to “the Departmental file”, it is clear that its “Findings and Reasons” are based on the evidence as given by the applicant at the hearing before the Tribunal. The applicant has not put before the Court any evidence to contradict the Tribunal’s account of what it said occurred at the hearing it conducted with the applicant and his advisor. The Tribunal also relied on background country information and this is referred to at DR 16 to DR 17.8. The Tribunal's “Findings and Reasons” for its decision are at DR 17.9 to DR 22.5. The applicant's claims as understood, and reproduced, by the Tribunal were that because of his opposition to the war in Chechnya and his active participation in demonstrations, that this brought him into conflict with members and supporters of a right-wing party, “Russian National Unity”. The applicant claimed that he had been targeted by these people, and that he and his family had been threatened and he had been attacked and hospitalised as a result of one attack. The applicant also claimed that the authorities, and in particular police and prosecutors, were unwilling to assist and protect him, and that they condoned the actions of the Russian National Unity against the applicant.The Tribunal's “Findings and Reasons” reveal the following (DR 17.9 to DR 22.5):
1)The Tribunal noted that in the case before it the applicant’s representative had submitted that what the applicant feared was not persecution by the Russian authorities, but by the so-called Russian patriots. However, the Tribunal found this was not the applicant's own evidence in that he had claimed that on one occasion in 2000 he had been arrested by two police officers and interrogated (DR 19.2) (Presumably giving rise to a fear of harm from the authorities).
2)That the applicant accused the Russian authorities of at least condoning the attacks on him and the threats made against him by Russian National Unity (DR 19.4).
3)That there was nothing in the material available to the Tribunal to suggest that the Russian police or Russian authorities persecuted people in Moscow who were protesting against the war in Chechnya. The Tribunal also relied on independent evidence before it that Russians generally enjoyed freedom of assembly and association (DR 19.8 and DR 20.1).
4)In relation to Russian National Unity, the Tribunal found that it had been, as the applicant conceded, “deregistered” in Moscow and had lost its political influence. But the Tribunal accepted that notwithstanding that this, and other semi-fascist organisations, continued to exist in the city, it did not consider it credible that the authorities not only failed to protect him from some semi-fascist organisations, but condoned their actions (DR 20.4).
5)The Tribunal noted, as it put to the applicant at the hearing before it, that there was nothing in any of the material available to it which would suggest that members of Russian National Unity had attacked people protesting against the war. It noted circumstances where, given the involvement of human rights groups in the protests, such action would have been reported (DR 20.6).
6)The Tribunal also noted other reasons not to believe the applicant's claims, which arose from the accounts that the applicant gave the Tribunal of his actions at the various demonstrations and the harm that he claimed to have suffered as a consequence. The Tribunal had difficulty with the applicant's claim that he was singled out from among 2000 participants in a demonstration in February 2000, was then followed by two young men for about a kilometre and then attacked (DR 20.7). Further, the Tribunal had difficulty with the applicant's claim that he had gone to Pushkin Square (the place of the demonstration) for a couple of hours every day after 5 p.m. from 10 January until 20 May 2000, and that he had been noticed and singled out on these situations. The Tribunal also noted with the applicant that his explanation that he had subsequently given that he also went to the demonstration during the day involved an amendment to earlier evidence regarding his employment situation (DR 20.9).
7)The Tribunal considered that the applicant had copied photographs, which he claimed to be his own photographs taken at a demonstration in May 2000, from a poster available on the Internet and claimed it as his own work (DR 21.4). The Tribunal also noted the extract of hospital records which the applicant produced to support his claim that he had been beaten in the street by two strangers in February 2000. The Tribunal found that while it showed that the applicant had attended hospital, it did not otherwise corroborate the applicant's account of this incident (DR 21.5).
8)The Tribunal did not consider it credible, for all the reasons referred to above, that the applicant would have been attacked by members of Russian National Unity by reason of his participation in demonstrations or protests in Moscow against the war in Chechnya (DR 21.5).
9)The Tribunal also found that letters which the applicant produced purporting to be from the Regional Procurator's Office, or the Moscow Prosecutor’s Office, and the Ministry of Internal Affairs dealing with the alleged refusal to institute proceedings against those whom the applicant claimed attacked him, “likewise do not corroborate” the applicant's account regarding the proceedings he sought to have instituted (DR 21.7).
10)The Tribunal did not consider it credible that the applicant would have been arrested by police for participating in protests, or that the government authorities would have ransacked the Moscow Independent Public Library as he had claimed (DR 21.8).
11)Further, it did not consider it credible that in Moscow, where Russian National Unity was not registered, the applicant would have been advised by the authorities that he should heed the warnings and threats he claims to have received from them, or that the Russian authorities would have leaked information regarding his address to semi-fascist organisations (DR 21.8).
12)While the Tribunal accepted that the applicant had some involvement in the Moscow Independent Public Library (linked to anti-war activity), and in protests in Moscow against the war in Chechnya, it did not accept that his participation in such protests exposed him to arrest by the police, nor to attack or threat by Russian National Unity or other semi-fascist organisations, nor to the ransacking by the Russian authorities of the premises that he used for storage of his photographic negatives at the Moscow Independent Public Library. The Tribunal considered that the applicant had fabricated these claims for the purpose of providing a foundation for his application for a protection visa (DR 22.3).
13)Consequently, the Tribunal found that if the applicant returned to his home in Moscow now, or in the reasonably foreseeable future, and accepted that he would continue to be involved in the Moscow Independent Public Library, and in protests against the war in Chechnya, for the reasons given above it did not accept that there would be a real chance that he would be arrested or harassed or threatened or attacked or otherwise persecuted by the Russian authorities or semi-fascist organisations, for reason of his political opinion (as it was expressed in his involvement in the public library or in protests) (DR 22.4).
The following complaints by the applicant about the Tribunal’s decision, can be discerned from the application of 17 November 2004, his affidavit affirmed on 6 December 2004, his outline of submissions filed on 8 February 2005, supplementary submissions dated
18 February 2005, and submissions filed subsequent to the hearing before me on 12 December 2005:1)That the Tribunal did not give the applicant an opportunity to comment on relevant and credible information being:
1.The Tribunal's findings that the Russian authorities had not failed to protect the applicant from persecution (page 20 of the decision).
2.The Tribunal's finding regarding the applicant's lack of credibility.
3.The Tribunal's finding that the applicant had not been subjected to persecution by members of the Russian National Unity.
2)A complaint about the finding that the applicant had not been a credible witness because of the following “set of information”:
· Photographs provided by the applicant in support of his claims had been taken at the one demonstration (not at many as “it was initially claimed”).
· Its finding that on 23 March 2000 at 5:00 p.m. it would have been dark (e.g. the applicant's photos taken at the event cannot be regarded as genuine).
· Its finding that the applicant would not have been arrested by the police or persecuted by OMON or FSB (authorities) for participating in protest against the war in Chechnya.
Later these examples were pressed by the applicant as leading to a failure pursuant to s.424A(1) to put credibility concerns to the applicant.
3)There was no evidence or material to justify making the decision which was in breach of s.476(4) of the Act.
4)There had been a breach of s.476(1)(g) as qualified by s.476(4) of the Act
5)That there was no evidence to ground the findings that the applicant had not been a credible witness. This was with particular reference to the examples set out in 2) above.
6)As raised at the hearing before me, and specifically in the submissions of 12 December 2005, the applicant complained that the “main basis” for the Tribunal's rejection of his claims was “credibility”. The applicant complained that if the Tribunal had indicated that the issue of his credibility would play a key role in the decision then he would have provided the Tribunal with convincing evidence to prove that the photos which he had taken, and which the Tribunal found to be fabrications, were genuine. His complaint specifically is that the Tribunal failed to comply with its obligations pursuant to s.424A(1) of the Act in that it did not provide the applicant with the opportunity to comment on, nor did it explain to the applicant the relevance of, the issue of his credibility. At the hearing before me the applicant complained that the Tribunal had asked questions about the taking of the photographs and that he was “pretty sure” that he had convinced the Tribunal that he had taken the photographs. The applicant confirmed that he saw the information that the Tribunal failed to give him pursuant to s.424A(1) as being “the credibility issue” and that further the Tribunal did not bring to his attention that this issue was important for the decision that it would be making, in circumstances where he felt “pretty sure that the Tribunal had no doubts about the truth about his credibility”. The applicant argued forcefully that the Tribunal's failure to draw this to his attention, either at the time of the hearing, or subsequently by way of letter, deprived him of the opportunity to put forward other material that related to his being a professional photographer and which would show that the photographs had not been fabricated. At the hearing before me the applicant sought to submit a portfolio of photos that he said would establish that he was a “professional photographer”. I did not understand from the applicant that the photos related to the events under consideration by the Tribunal necessarily, but in any event I could not see the relevance to the issues before me of any photos that the applicant now wished to submit. Firstly, the Tribunal made no finding one way or the other as to whether the applicant was a professional photographer, nor secondly could the Court now make any such judgement in relation to any photos submitted by the applicant. (I will deal further with this issue below).
The applicant's grounds as set out in 1, 2 and 5 above relate to the Tribunal's obligations to provide an opportunity to an applicant to make comments on relevant issues. While the applicant emphasised breaches of s.424A(1) of the Act, particularly at the hearing before me and in subsequent written submissions, he also appeared to argue breaches of common law principles of procedural fairness (especially in this regard in his earlier written material). Dealing first with its statutory obligations pursuant to s.424A of the Act, the Tribunal is required to put before an applicant, pursuant to s.424A(1), information on which it relies and which is adverse to the applicant's position subject to the exceptions set out in the s.424A(3). What constitutes “information” has been the subject of much consideration by the Courts, but clearly the Tribunal's adverse thought processes are not included within the meaning of the term “information”. The Tribunal's thought processes which were adverse to the applicant and its findings based on these thought processes are clearly not information that needed to be put to the applicant pursuant to s.424A(1). See VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109 at [53] per Sackville J.; Paul v Minister for Immigration and Multicultural Affairs[2001] FCA 1196 at [95] per Allsop J. and NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 1010 at [4] to [9] per Branson J.
Further, in relation to each of the matters particularly raised by the applicant (and as set out at 8 part 1) above):
1)The applicant complains that the Tribunal found that the Russian authorities had not failed to protect the applicant from persecution. The Tribunal's finding in this regard was that while it accepted that the applicant had been involved in protests and involved in the Moscow Independent Public Library it did not, on the material before it, accept that such participation exposed him to either arrest by the police, or threat or attack by Russian National Unity, or by any government authorities. The Tribunal made a clear finding that the applicant had fabricated these claims for the purpose of providing a foundation for his application for a protection visa. The Tribunal's finding in relation to the Russian authorities (DR 20.1) was based on its finding in relation to the applicant's credibility which is, as are other findings of fact, a matter for the Tribunal: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 per McHugh J. The Tribunal's finding that the applicant’s claims that the Russian authorities failed to protect him and condoned the threats against him were not credible, was also based on independent country information before the Tribunal. This is referred to by the Tribunal at DR 16 and DR 17, and clearly falls within the exception set out in s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92) from the requirement in s.424A(1) to put such information on which the Tribunal subsequently based its credibility findings to the applicant in the manner set out in s.424A(2): SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. Further on what was before it, it was open to the Tribunal to make the findings that it did.
2)To the extent that any common law principles of procedural fairness may be said to apply to this case, the issues (paragraph 9 part 1) above) which the applicant says were not put to him, were, according to the Tribunal's account of what occurred at the hearing with the applicant, comprehensively discussed with the applicant (DR 7 and specifically on independent country information as it related to the position of the Russian authorities – DR 13.4). I note that the applicant has brought forward no evidence to contradict the Tribunal's account of what occurred at the hearing with the Tribunal (NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]). The Tribunal clearly records that it put independent information available to it to the applicant going to the issue of freedom of assembly and association, the situation relating to the Russian National Unity and in particular that there was nothing in the material available to the Tribunal which would suggest that people in Moscow protesting against the war had been attacked or threatened by members of Russian National Unity. This aspect of the complaint does not succeed.
3)The second “set of matters” complained of by the applicant relate to the Tribunal's finding that the applicant had not been a credible witness because:
1.Photographs provided by the applicant in support of his claims and been taken at one demonstration, and not at “many” as it was initially claimed.
2.The finding by the Tribunal that on 23 March 2000 at 5 p.m. it would have been dark in Moscow, and hence that the applicant's photos taken at the demonstration could not be regarded as genuine.
3.The Tribunal’s finding that the applicant would not have been arrested by the police or persecuted by Russian authorities for participating in protest against the war in Chechnya.
In his supplementary submission of 18 February 2005 the applicant explains that the Tribunal's finding that his claims were not credible resulted from the above mentioned particulars and therefore this should have been given to the applicant for comment. Other than for the photographs, it is clear that the matters described by the applicant in his supplementary submission as “particulars” are as he describes in his application “findings”, and therefore in the statutory context of s.424A(1) are not information, or particulars, that are required to be put to the applicant pursuant to s.424A(1). To the extent that the complaint is that the credibility concerns should have been put to him, then I have dealt with this issue at paragraph 10 above.
4)In relation specifically to the photographs, these were provided to the Tribunal by the applicant for the purposes of the review before it, and clearly to the extent that the Tribunal relied on these photographs, in that they were part of the material which may be seen as information from which it drew adverse inferences, they fall within the exception provided for in s.424A(3)(b) (see further 5) below) from the requirement to put this information to the applicant, pursuant to s.424A(1) in the manner provided in s.424A(2). Again in the context of any common law procedural fairness principles that may be said to apply, it is clear that in relation to all of these issues, that the photographs, the circumstances of the taking of the photographs, the issue of the time the photographs were taken, how he had been identified as taking the photographs by two young men who subsequently attacked him, and even the issues relating to his claimed arrest by the police, were all discussed with the applicant at the hearing conducted by Tribunal (see generally DR 10 and DR 11). In the absence of any evidence to the contrary, the applicant was put on notice at the hearing as to the matters the Tribunal was focussing on. For example, in relation to the two young “attackers”, the Tribunal at DR 10.7 asked the applicant that if he had been singled out for taking photos, why these two would have singled him out of a crowd of 2000 (which included television reporters which was evident from the photos he had produced). It is clear that other than for the photographs the applicant has attempted to characterise the Tribunal's findings as information, and is really complaining that he did not get an opportunity to comment on the Tribunal's adverse use of the information as put by the applicant in the context of independent information available to it.
5)In a declaration attached to his application to the first respondent’s Department, the applicant made reference to photos relating to anti-war meetings which he claimed to have participated in against the Chechen war. The applicant enclosed such photos with his declaration (CB 20.9), and further enclosed posters which he claimed to have written and printed in association with another person (CB 21.1). In this declaration he further makes reference to having taken photos in a demonstration (“a manifestation”) against the war in Chechnya in February 2000. It is not clear whether he enclosed any additional photos, or whether they refer to the photos that he had claimed to have enclosed earlier.
6)An examination of the Tribunal's decision record reveals at DR 5.2 a short reference to “information” put before the Tribunal pursuant to s.418 of the Act, and to independent country information available to the “Departmental delegate”. The Tribunal’s record however also reveals an extensive reporting of the oral evidence given by the applicant at a hearing before the Tribunal on 8 November 2002. This is set out at DR 5.7 to DR 15.10. Again it should be noted that this account of what occurred at the hearing remains unchallenged before me by any other evidence.
- The Tribunal makes the reference (at DR 5.8) to the applicant working in Russia as a photojournalist, and as a photographer.
- Other references to photos are at DR 6.3 where the Tribunal reports that the applicant produced at the hearing photographs confirming his attendance at a meeting against the war in Chechnya, and the Tribunal reports on the applicant's claim that he had become a voluntary photojournalist of the Moscow Public Library and had taken photographs of meetings.
- Further, that he had also printed posters and produced a flyer issued by the Committee of Anti-War Activities advertising a demonstration on 9 March 2000 in Pushkin Square, and further made reference to other posters that he had written.
- The Tribunal also reported that the applicant had stated that on 19 February 2000 he attended a “manifestation” and had taken “a lot” of the photographs.
- Further at DR 8.5 the Tribunal specifically recorded that at the hearing before it the applicant produced 5 photographs of a demonstration, which:
“He initially said was a different demonstration from that depicted in the photographs he had previously produced to the Department with his original application. He eventually conceded however that they were pictures of the same demonstration (as could be deduced from the presence of the same participants, dressed in the same way and carrying the same posters or placards). The applicant said that this particular demonstration had taken place in May 2000.”
- Further at DR 10.6 the Tribunal reported that it noted with the applicant that he had been saying that he had been identified because he had been taking pictures, but as the pictures he had produced showed, there had been television news reporters present at these demonstrations and the Tribunal put to the applicant that there was a question as to why he would have been singled out from a crowd of 2000 in these circumstances and gave the applicant the opportunity to comment.
- The Tribunal dealt with the applicant's claim that he had printed a poster advertising a demonstration on 19 March 2000 with the applicant and that this report of the discussion with the applicant at the hearing is at DR 11.1 to DR 11.4. The Tribunal clearly put to the applicant that the poster that he referred to was one of a number of posters produced by the committee of anti-war activities for this demonstration and that copies of this could be found on the Internet.
- The applicant again gave an explanation, but said that he could not understand how the posters had ended up on the Internet. Further, the Tribunal reports that it noted with the applicant that the photographs of the demonstration in Pushkin Square on 19 March 2000 clearly showed certain features which contradicted some of the applicant's claims of the conditions relevant on that date at the demonstration (DR 11.7).
- Further at DR 14.6 that the Tribunal reported in its discussion with the applicant's representative concerning the poster that the applicant said he had produced and again the references to the applicant as a professional photographer.
7)The use that the Tribunal made of the issue of the photographs needs to be seen in the context that it was only one of a number of factors that led the Tribunal to its adverse finding as to the applicant's credibility. In terms of the photographs relied on by the applicant at DR 21.2, it is clear that the Tribunal noted “the only photographs the applicant produced of his participation in anti-war demonstrations were all taken at the one demonstration in May 2000”. It is clear given the relevant date that these are the photographs reported by the Tribunal as having been produced by the applicant at the hearing before the Tribunal (see DR 8.6) as it refers to the five photographs as being taken on the applicant's own evidence at a demonstration in May 2000. In terms therefore of the adverse credibility finding, clearly the thought process of the Tribunal as I have said above are not information for the purposes of s.424A(1). But the photographs on which this adverse credibility finding was partially based, and on which the Tribunal relied were clearly photographs that were provided to the Tribunal by the applicant himself, and clearly fall within the exemptions set out in s.424A(3)(b) from the requirement to put such information to the applicant pursuant to s.424A(1). In terms of any relevant common law principles of procedural fairness the Tribunal's account of what occurred at the hearing with the applicant shows that the applicant produced the photographs at the hearing, that there was discussion with the Tribunal as to which demonstration the photographs related to, and a concession by the applicant that they were pictures of the same demonstration, which was at variance to what he had said earlier to the Tribunal. The Tribunal's other references to the photographs, additionally at the hearing that it conducted with the applicant, would have put the applicant on notice that at least to some extent the issue of the photographs was relevant to the Tribunal's consideration. The points raised by the Tribunal variously with the applicant in relation to the photographs (and posters) were sufficient on any objective examination to have alerted the applicant to the Tribunal's doubts about some of the claims that involved the photographs or posters. In all these circumstances, I cannot see that the applicant would not have been on notice as to the use that the Tribunal subsequently made of these photographs and to the possibility that it may have drawn the adverse conclusions that it ultimately did in relation to the photographs. In any event the applicant's complaint now as it relates to s.424A(1) in this regard is not made out.
8)The applicant's complaints relating to alleged breaches of ss.476(4) and s.476(1)(g) of the Act, and the assertion that the Tribunal based its decision in part on facts which did not exist, all refer to sections of the Migration Act that were in the former version of Part 8 of the Act, which have since been repealed and replaced by the current Part 8 which became operational on
2 October 2001. While the application to the Tribunal predates the date of that amendment, the application of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 provides that the Migration Act as amended by the Schedule applies in respect of judicial review of a decision under the Migration Act if the decision was made on or after the commencement of that Schedule, as is the case of the Tribunal’s decision before me now. The Tribunal's decision was made in 2003 clearly well after the commencement of the Schedule, with the effect that the Act as amended applies to the review of this Tribunal decision.
9)To the extent that the applicant also complains that the Tribunal’s findings were based on evidence that did not exist, presumably to ground an argument that there was no probative basis for the Tribunal's findings, then:
1.In relation to the photographs and whether they were taken at one or more demonstrations it may well be that the applicant did not state at the hearing with the Tribunal that the photos were taken at various events, but the Tribunal's unchallenged (by any evidence to the contrary before me) account of what occurred at the hearing before the Tribunal was that at the hearing before the Tribunal the applicant produced five photographs of the demonstration which he was reported to have initially said was a different demonstration from that depicted in the photographs that he had previously produced to the Department with his original application. However, he eventually conceded that they were pictures of the same demonstration. The use that the Tribunal made of this issue in its “Findings and Reasons” was that it was one of many elements in forming a view as to the credibility of the applicant’s claims. The reference is at DR 21.2 where the Tribunal states that the only photographs the applicant produced of the participation were all taken at the one demonstration in May 2000 although he initially attempted to claim at the hearing before me that they had been taken at more than one demonstration. There is no evidence before me to support the applicant's claim now that he did not state that the photos were taken at various events. On the only relevant evidence before me which is that contained in the Tribunal's decision record, it was open to the Tribunal to rely, in part, to the extent that it did, on this issue in grounding its adverse credibility finding.
2.The applicant also complains that the Tribunal did not provide any evidence that on 23 March it would be dark in Moscow. The observation by the Tribunal as to whether it would have been dark in Moscow at the time was clearly discussed with the applicant, as set out at DR 11.6. The applicant had put forward that he had attended a demonstration at around 5 p.m. in March 2000. The Tribunal noted that at that time of year it would have still been cold, that there would have been snow on the ground, and that it would be getting dark at 5 p.m. The applicant's response is reported by the Tribunal as being that “it had been cool but not cold and that the snow had been melted”. The Tribunal reported that it noted with the applicant that the photographs of the demonstration clearly showed snow still on the ground. The discussion with the Tribunal continued on this point, and ultimately the applicant is reported as agreeing that it had been minus 1 or 0 degrees. But he repeated that the snow had been melting. The applicant now claims that in fact in Moscow at that time it would have been dark after 6 p.m. But clearly there is nothing in the material before me to show that he put this to the Tribunal. The Tribunal clearly noted with him its observation in relation to what would have been the situation, and the applicant's response was not to dispute this observation by the Tribunal, but to have responded to the Tribunal by saying that he had also attended demonstrations during the day as well (DR 21.1). The Tribunal's reference in its “Findings and Reasons” to the issue of whether it would be dark in Moscow at 5 p.m. is found at DR 20.9 and DR 21.1. Again, this was only one element of a number of other factors which were in themselves additional reasons for not believing the applicant's claims. In amongst all of this the Tribunal noted that when it in turn noted with the applicant during the course of the relevant discussion at the hearing that at 5 p.m. in Moscow in January it would have been dark (after the applicant had earlier said that he had gone to Pushkin Square for a couple of hours every day after 5 p.m.) the applicant gave the explanation that his working hours had been flexible and that he had been able to go to Pushkin Square during the day as well. The applicant volunteered further that the mass picket which he claimed to have taken part in on 23 March 2000 had been at 5 p.m. on a Thursday evening and at the time when it would still have been getting dark at that hour and when it was still cold. In relation therefore to 5 p.m. in January in Moscow and whether it would be dark, the applicant is reported as having said that on the relevant date it was getting dark at that hour, but the reliance that the Tribunal placed on this, (to the extent that it was one of many other issues and factors referred to by the Tribunal), importantly was not that it was getting dark at 5 p.m. in Moscow, but that raising this issue led to the applicant amending his earlier evidence as to his employment status, and the hours in which he worked. He subsequently stated, after having first said that he had being unemployed, that he had gone to Pushkin Square after 5 p.m. When it was put to him that it would have been dark at that time, he then further amended and said that his working hours were flexible so that he had been able to go there during the day. It was the changes in the applicant's evidence that he gave to the Tribunal at the hearing which were the critical elements in the Tribunal saying that there were other reasons to not believe the applicant's claims. In this regard therefore there was clearly no need for the Tribunal to have provided evidence to the applicant that it was getting dark at 5 p.m. I note in any event that the applicant appears to have conceded to the Tribunal that on one relevant date 23 March 2000 it would have been getting dark at 5 p.m., when he attended the demonstration. In all this complaint also does not succeed.
3.The applicant's third specific complaint in his application is that there is evidence to contradict the Tribunal's assertions as to the freedom to demonstrate and express anti-war views (that it said was apparent in the independent evidence before it). He claims now that people in Russia have been arrested and persecuted by police and the authorities for expressing their political views. The material before me shows the applicant was given every opportunity by the Tribunal to put forward evidence in support of his claims. He was assisted by a migration agent before the Tribunal. The applicant's representative was given the opportunity to make submissions on the applicant behalf. The Tribunal's account of the hearing (DR 15.6) shows that the applicant at the conclusion of the hearing was asked if there was anything further that he wished to add. The applicant had been clearly put on notice by the Tribunal that independent evidence available to it was such that if people were participating in these anti-war protests and had been persecuted by the police, or the authorities, then it would have been expected that the human rights organisations that were active and involved in these protests would have reported any such attempts. Clearly, in this regard the Tribunal's findings as to the applicant’s claims on freedom of expression through demonstration were open to it on the material before it. The applicant's complaint that there was no evidence to support the Tribunal's various findings does not succeed. Beyond this the applicant's complaints appear to seek merits review of the Tribunal's decision. Of course, the Court cannot engage in such review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
On the material before me none of the grounds, or complaints, put forward by the applicant show jurisdictional error on the part of the Tribunal. Nor are any such grounds discernable on the material put before me. The applicant was given the opportunity to attend a hearing before the Tribunal. He attended and gave evidence, as did his representative. He was clearly on notice as to the Tribunal's concerns relating to the credibility of his claims. While the Tribunal accepted that the applicant had some level of participation in anti-war demonstrations in Moscow, it did not accept, on all the evidence before it based on what the applicant had said and put before the Tribunal at the hearing, and on independent country information available to it, that the applicant had been subject to acts of harm from either the right-wing fascist organisation (Russian National Unity) and its members, or from the police and authorities, or that the police and authorities in Moscow condoned any such action on the part of this fascist organisation. The Tribunal's findings on what was before it were clearly open to it, and it gave reasons for its decision. I cannot see that any ground of review can be made out. On this basis the application is dismissed.
To avoid any doubt, I note the comments of Lindgren J. in SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785 at [1]:
“I respectfully adopt what was said by Hely J in SZBDN v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 656 at [17]:
‘Section 477(1A) [of the Migration Act 1958 (Cth) (‘the Act’)] is, in the light of s 477(2), a matter which goes to the jurisdiction of the Federal Magistrates Court. However, given the decision in Plaintiff S157/2002 [Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476], I am unable to perceive what practical benefit is achieved by the filing of a Notice of Objection to Competency if the substantial merits of the appeal have to be determined in order to determine the objection as to competency.’
The taking of the objection as to competency seems to have served only the undesirable purpose of generating futile disputation over the question whether the upholding of the objection and consequential dismissal of the proceeding in a particular case is a final or interlocutory decision for the purpose of appeal to this Court.”
Bearing in mind what their Honours have said and also taking into account that the applicant has had the benefit of a final hearing into the substantive issues of his case, this application is dismissed on the basis that I cannot see jurisdictional error in the Tribunal's decision and not on any upholding of the respondent’s Notice of Objection to Competency. In these circumstances it is also not necessary to consider the issues arising from the respondent’s Notice of Motion.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 31 January 2006
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