SZEXE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1745

FEDERAL COURT OF AUSTRALIA

SZEXE v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1745

SZEXE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1591 OF 2005

MADGWICK J

17 NOVEMBER 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1591 of 2005

BETWEEN:

SZEXE
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

17 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed with costs assessed in the sum of $2,800.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1591 of 2005

BETWEEN:

SZEXE
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	17 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. I regret that I cannot assist the appellant in his appeal from the decision of the Federal Magistrates Court on 31 August 2005, by which it held there was no jurisdictional error on the part of the Refugee Review Tribunal (‘the Tribunal’) in making the decision handed down on 19 December 2000.  The Tribunal had affirmed the adverse decision by the delegate of the respondent Minister to refuse him a protection visa.

2. The appellant’s claim was that as a culturally Russian Ukrainian living in Western Ukraine he had been the victim of a particular private campaign of discrimination amounting to persecution by Russian-haters.  He said that he had had material from people styling themselves as ‘Free Ukraine’.  He claimed to have been attacked in December of 1998 when he was kidnapped, beaten unconscious, and awoke bound to a tree in a forest in the middle of winter.  When he managed to get out of his predicament and recovered from a spell in hospital, he went to the local police station where he was accused of being a member of a criminal gang and was kept in detention for some period as a suspected criminal.  

3. The Tribunal rejected his claims for three reasons.  The first was that the Tribunal Member comprehensively disbelieved him.  The second was that the Tribunal found that there were regions of Ukraine where Russian-speaking, and presumably predominantly Russified acculturation was the norm, and where presumably the influence of chauvinist, culturally Ukrainian elements would not be so great, to which the appellant might reasonably relocate.  The third reason was that according to the United States sources on which the Tribunal Member relied, the Ukrainian Government was in fact very sensitive to, and protective of, Russian speakers and the reality would be that if the appellant were returned to the Ukraine he would receive the same protection from ultra-nationalist thugs as any other citizen and at a level sufficient to protect him from possible persecution.

4. The unrepresented appellant complains in a layman’s way of a number of things.  The most significant is firstly, that the Tribunal Member was naїve to the point of impropriety in relying on official USA assessments of conditions in the Ukraine rather than on the material from Russian newspapers upon which the appellant had relied.

5. It was true that the Tribunal Member gave no reasons for his own uncritical reliance on the United States’ materials, and evinced no understanding of what might well have been the possibility that these assessments were influenced by the United States’ interests in promoting a certain view of Ukraine both in and outside the United States.  However, if that were naïve, mere naivety does not amount to illogicality of a kind that would mean that the Tribunal had constructively failed to exercise its jurisdiction.

6. The other complaint of the appellant is that the Tribunal relied very heavily on its subjective adverse assessment of his credibility.  He makes the point that the difficulty about this is that if he had struck a more charitable Member of the Tribunal and managed to make a good subjective impression on that Member, his refugee status might perhaps be assured.  However, whether he was personally attractive or wholly truthful or not, the real situation as to whether he would not be justified in fearing persecution if he returned to Ukraine would remain the same, whatever the impression he might create.

7. It is beyond question that in proper cases a Tribunal Member, like a judge, can refer to the demeanour of the witness and find this decisive on credibility issues.  It is, however, almost universally recognised now among judges that such a course should be one of last and not first resort, because it is fraught with risk.  In the first place, the fact-finder who relies on demeanour cannot be assumed to be more astute in his or her assessment of demeanour than any other human being, and every human being with the faintest degree of self-awareness would acknowledge often having been taken in by demeanour, or having completely wrongly assessed a person at first exposure.  In the second place, modern psychology confirms this with empirical studies.  In the third place, there is much to be said for the appellant’s point, when one is trying to get to the bottom and find the truth of an objective situation. 

8. I accept that there are limits to the extent to which demeanour may be relied upon.  If it is not adequately explained why the demeanour has so concerned the fact-finder, and what it was about the demeanour that the fact-finder relied on, the inference may be available that there has really been a judgment of the case according to whim, rather than to law and processes envisioned by the Parliament of reasonable and reasonably logical consideration of the matter, having regard to materials that can rationally be regarded as having some probative value.  This is particularly so, as has often been emphasised, in refugee cases.  A genuine refugee will often be fearful.  He or she may have come from a country and culture where official corruption and oppression are much more common than in this country, and is in any event engaged in a desperate struggle concerning his or her fate.  Accordingly, confusion, unconscious and even quite conscious exaggeration over some matters, may be indicative of nothing but the refugee’s level of distress and the Tribunal ought always at least to start out with an effort to empathise with the claimant.

9. In the present case, the Tribunal explains that there were inconsistencies concerning the aftermath of the attack on the appellant, rationally and logically these might have caused the Tribunal Member to reject, as he did, the whole account of the attack.  Logically and rationally, these might also have caused the Tribunal to view with some scepticism the other claims made by the appellant.  The only other explanation the Tribunal Member gave about matters of demeanour and credibility was that the appellant was ‘evasive’ when pressed for further details of the organisation ‘Free Ukraine’ and that his evidence with regard to that organisation was confused and contradictory.

10. The development of the argument for the Tribunal’s conclusions is at least suggestive that, although it may not have been entirely warranted, there was a degree of subjective reaction by the Tribunal Member to the appellant’s performance assuming it to have been reasonably thought to be unsatisfactory.  I am prepared to assume, though I do not decide,

    
    
    

    that overall the approach of the Tribunal Member was sufficiently qualitatively unsatisfactory as to not amount to a lawful exercise of the jurisdiction to assess the appellant’s story.

11. However, as indicated earlier, the Tribunal Member did not rest his decision on the rejection of the appellant’s story alone.  The Tribunal Member positively found that the appellant could reasonably internally relocate if he truly feared persecution in his home town and that, in any event, the Ukrainian authorities were and would be supportive of Russian-speakers.

12. However much some other assessor might have taken a different view as to those matters, particularly the second, I can discern no error of a kind which could amount to jurisdictional error.  It follows that even if the Tribunal abused its advantages in hearing the appellant, the result would not have been different had any such error not occurred.  There was, therefore, no question of a jurisdictional error that might, in an overall sense, mean that there had not been a review of the appellant’s case and a lawful rejection of it. 

13. For these reasons I think the decision of the learned Federal Magistrate, who apparently did not share my concerns, should be upheld.

14. The appeal is dismissed with costs assessed in the sum of $2,800.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            2 December 2005

Solicitor for the Appellant:	The appellant appeared in person.
Counsel for the Respondent:	Ms L Clegg
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	17 November 2005
Date of Judgment:	17 November 2005