SZHAS v Minister for Immigration

[2006] FMCA 982

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHAS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 982

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed or constructively failed to exercise jurisdiction under the Migration Act 1958 – whether Tribunal failed to take into account relevant consideration – whether Tribunal misunderstood or misapplied the law – whether Tribunal failed in s.424A notice to ensure as far as reasonably practicable that the applicant understood why the information referred to was relevant to the review.

Migration Act 1958, s.424A

Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 773
Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 75 ALD 386
Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152 of 2003 (2004) 205 ALR 487
MZRAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1261
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
Osman v United Kingdom (1998) 29 EHRR 245
Paul v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1196
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 598
Sean Investments Pty Ltd v MacKellar (1981-82) 38 ALR 363
SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 11
SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252
SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 753
SZDKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1203
SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36
SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
W258 v Minister for Immigration & Multicultural Affairs [2001] FCA 598

Applicant: SZHAS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2408 of 2005

Judgment of: Barnes FM

Hearing date: 31 May 2006

Delivered at: Sydney

Delivered on: 25 August 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Ms R. Henderson

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2408 of 2005

SZHAS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 21 July 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The background to this application is that the applicant, who is a citizen of the Ukraine, arrived in Australia on 22 March 2000 as the holder of a subclass 421 Sports visa.  On 1 May 2000 the applicant applied for a protection visa.  In his protection visa application he claimed to fear being persecuted “for the reason of my nationality”.  He indicated in response to questions in the protection visa form that he belonged to the Russian ethnic group and that his religion was “Orthodox”.  He claimed that he had been beaten and attacked by members of Ukrainian para-military organisations, mistreated and victimised by Ukrainian ultra-nationalists and chauvinists and that he feared further mistreatment by members of the Ukrainian para-military organisation UNA-UNSO because he was Russian.  He claimed that the government allowed such organisations and encouraged them to attack Russians, that law enforcement authorities were corrupt and full of ultra-national extremists and that he could not hide his nationality because he had a very distinctive Russian surname.  The applicant’s migration agent provided documents in support of the application.

3. The application was refused and on 7 May 2001 the applicant sought review by the Refugee Review Tribunal.  The review application reiterated the applicant’s claimed fear of persecution on the basis of his nationality. 

4. On 30 August 2002 the applicant’s solicitor and migration agent provided information to the Tribunal enclosing a statutory declaration from the applicant sworn on 28 August 2002 and supporting documents including an untranslated copy of the applicant’s mother’s birth certificate (stating that a translation would be forwarded).  In the statutory declaration the applicant described his family.  He stated that his father had been born in Lviv (in the Ukraine) with parents of Russian background and that his paternal grandmother practised the Roman Catholic religion.  He stated that his mother had been born in Lviv, that her father was Russian while her mother, who was also born in Lviv, was Jewish and had practised the Jewish religion but had died in 1989.  He claimed:

   My mother was brought up as no religion, part because her own mother was Jewish.  It is my understanding that under Jewish law my mother is therefore Jewish.

5. The applicant, who was born in 1975, claimed that when he was young he never celebrated any religious festivals in his household and that after his parents separated in 1985 he went to live with his father’s mother who brought him up as a Catholic.  He claimed to have had very little contact with his mother since she left Lviv in 1986. 

6. He continued:

   I was always feeling an outsider.  On my mother’s side my mother was Jewish and on my father’s side they were Russian but we were living in the Ukraine.  I was often insulted at school and I felt that I was discriminated against.  At home we spoke Russian not Ukrainian and now I speak Ukrainian with a strong Russian accent.  … My first name, Danylo was named after my mother’s mother’s father who had the Jewish name Daniel.  In my early life I was regularly sworn at by fellow students who used the derogatory expression for Russians, Maskayl.  I also had people refer to me with the derogatory expression for Jews, Zhyd.  Also, being brought up Catholic by religion was unusual as most of the people in my area were Ukraine Orthodox.

   When I was at school there were only another two Jewish boys in my class.  I was friendly with them but I noticed that all three of us were the subject of insults from other boys in the school. 

7. The applicant provided details of a claimed 1998 attack on him by members of a Ukrainian nationalist organisation who heard him speaking Russian.  He also claimed that he had been assaulted on two other occasions.  The applicant also claimed to be homosexual and elaborated on these claims.  Given the grounds of review in these proceedings it is not necessary to set out this aspect of the applicant’s claims in detail.  However relevantly, the applicant claimed to have been upset by the ultra-nationalism and neo-fascism of many people in the Ukraine, that he felt threatened by regular nationalistic street demonstrations and that he was afraid he would be attacked:

   the way I had been attacked previously because of my Jewish and Russian background.  As soon as I opened my mouth I would be seen to be not Ukrainian and when they asked my name, the fact that my first name was Danylo indicated to people that I had Jewish ancestry. 

8. He claimed that he would experience the same problems anywhere in the Ukraine, but that in any event he would not be able to obtain the right to move to another place.  The applicant claimed to fear persecution because of his nationality, religion and also because of his sexual orientation. 

9. The Tribunal conducted a hearing on 6 September 2002.  In a post-hearing written submission of 9 October 2002 the applicant’s adviser made submissions as requested by the Tribunal with regard to the issues of the applicant’s Jewish ancestry and homosexual orientation on the basis that the Tribunal accepted that the applicant was born of Jewish ancestry and was of homosexual orientation. 

10. Under the heading “Jewish ancestry” the submission addressed country information in relation to the situation of Jews in the Ukraine, anti-Semitism and anti-Semitic violence, which was claimed to be widespread throughout the Ukraine, particularly in Lviv from whence the applicant came.  It was suggested that certain reports highlighted “the insensitivity of the response from the authorities and their failure to provide effective and meaningful protection to the Jewish community”. 

11. The submission enclosed a translated copy of the birth certificate of the applicant’s mother, which recorded her father’s nationality as Ukrainian and her mother’s nationality as Jewish (although the adviser’s letter stated that it recorded the nationality of applicant’s mother as Jewish).  Photographs of the applicant’s maternal grandfather’s home (said to be adjacent to the Jewish cemetery) were also provided.  The submission continued:

    As the Tribunal would be aware, under Jewish law the applicant is considered Jewish even though he may not be practising the faith.  This is certainly a fact which is well-known amongst the applicant’s Ukrainian compatriots and would have been a sufficient factor for the applicant to have been executed during the Holocaust.

12. The adviser referred to 2001 information about the poor human rights record of the Ukrainian government, police abuse and harassment of racial minorities, societal anti-Semitism and discrimination against religious, racial and ethnic minorities.  It was claimed that the applicant had had significant problems relating to his identity.  Reference was made to the applicant’s oral evidence to the effect that he was not Russian because of his Jewish ancestry and Catholic faith and that he did not fit into the Ukraine either because he was “a Catholic with a Jewish name”.  Also provided were documents and submissions in support of the applicant’s claims in relation to his homosexuality.  

13. On 21 March 2003 the Tribunal handed down a decision in which it affirmed the decision under review.  The Tribunal addressed the applicant’s claims about Jewishness as being about his “Jewish Christian name”. However that decision was set aside by Federal Magistrate Driver on 19 March 2004.  The matter was remitted to the Tribunal for redetermination according to law. 

14. The applicant’s adviser provided further documents to the Tribunal in support of the applicant’s case, including, under cover of a letter of

    
    

    17 January 2005, further information in relation to the current political situation, the situation of homosexuals and the situation of Jews in the Ukraine.  The applicant attended a hearing of the second Tribunal on 14 February 2005. 

15. On 1 April 2005 the Tribunal wrote to the applicant care of his adviser (as authorised recipient) under s.424A of the Migration Act 1958 (Cth) (the Act) inviting the applicant to comment by 26 April 2006 on information that it stated would, subject to any comments he may make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.

16. On 20 April 2005 the applicant’s adviser sought a 28 day extension of time to reply.  On 3 June 2005 the Tribunal advised that if a response was not received by 6 June 2005 the Tribunal would proceed to make its decision on the information before it.  On 1 July 2005 the Tribunal notified the applicant’s adviser that the decision would be handed down on 21 July 2005.  On 15 July 2005 the adviser provided a response to the letter of 1 April 2005, including country information about anti-Semitism in the Ukraine and a statutory declaration from the applicant dated 13 July 2005 “responding to the Tribunal’s comments”.  Further information was provided on 20 July 2005 in relation to the issues of homosexuality in the Ukraine and anti-Semitism. 

17. In his statutory declaration of 13 July 2005 the applicant claimed that he was named “Daniil”, not “Danylo” and that Daniil was a Jewish name indicating his Jewish background as distinct from the Russian names “Danil” or “Danilo”.  He claimed that “When I got my passport the government gave me the Ukrainian name Danylo, which is wrong but you can’t do anything about it.”

18. The applicant also claimed not to speak Ukrainian well, to have a strong accent and to have studied in a Russian class or using Russian language books.  He provided a report from an interpreter who confirmed that he was a Russian speaker and who expressed the opinion that in their conversation the applicant did not speak or understand Ukrainian.  He also claimed that it was hard to lead a homosexual life in the Ukraine, that he was not Ukrainian and that in the Ukraine “they don’t like Russians and Jews”. 

The Tribunal decision

1. On 21 July 2005 the Tribunal handed down the decision which is the subject of these proceedings.  It affirmed the decision of the delegate of the first respondent.  In its reasons for decision the Tribunal outlined the claims made by the applicant at various times, including the evidence given at the first and second Tribunal hearings.  It stated that the applicant had claimed to be of Jewish background, that his mother was “Russia/Russian Jewish” and that his first name was a Jewish name.  It also referred to independent country information. 

2. In the findings and reasons part of its decision the Tribunal accepted that the applicant was an ethnic Russian from the Ukraine but did not accept that he was an “ethnic Jew”.  The Tribunal did not accept that the applicant was a witness of truth and was satisfied that he had created his claims in order to obtain the visa sought.  It found that he had provided conflicting information to the Department and to the Tribunal and that he had not satisfactorily explained the inconsistencies. 

3. The Tribunal set out the variations in the applicant’s claims at various times.  First it observed that the details the applicant had provided in his application for a sports visa included an indication that he had no previous names.  He had provided a Kiev correspondence address.  In his protection visa application he had claimed he was an ethnic Russian of the Orthodox faith who had fled the Ukraine because he had been attacked and victimised by Ukrainian ultra-nationalists and that his uncle had been killed and the authorities took no action.  

4. The Tribunal referred to the fact that before the previously constituted Tribunal the applicant had claimed to have been attacked because of his Jewish ancestry (mother’s religion) and his Russian background, that he was a Roman Catholic with a first name (Danil) that was Jewish and a Russian last name.  The Tribunal noted that he had claimed not to speak perfect Ukrainian, to have been failed in his studies because of his ethnicity, that no-one would give him a job because of his Jewish and/or Russian ethnicity, to have been beaten up in 1998, that his uncle had been killed in a demonstration in 1999 and that as a Russian Catholic with a Jewish background and as a homosexual it would be difficult for him to live in the Ukraine. 

5. The Tribunal recorded that the claims that the applicant first made to the second Tribunal were that his father was Russian/Polish, his mother was Russian/Russian Jewish and that he had stopped using his real name “Danil” (which he said was a Jewish name) in 1993.  He had also claimed that he had been attacked since April 1992 for his ethnicity, and that he did not read or write Ukrainian and could not learn it.  He had been able to learn English.  He claimed that he had left the Ukraine as he was humiliated because of his Jewish background and Russian ethnicity, being afraid of being abused and called a “jid” and that he could not have a normal life because of his gayness and Jewish/Russian background. 

6. However by information provided on 15 July 2005, the applicant had claimed to the second Tribunal that his real name was “Daniil”, that the Ukrainian government had given him the name Danylo when he got his passport, that he could not speak Ukrainian well, that he had studied law in the Ukraine (but in the Russian language) and that in the Ukrainian sports team of which he had been a member from 1991 to 1995 all the coaches had spoken Russian. 

7. The Tribunal then referred to independent country information in relation to the situation of Jews in the Ukraine, finding that information from two named sources did “not suggest that ethnic Jews suffer serious harm in the Ukraine and do not suggest that where there are incidents of harm that state protection is not forthcoming.”  The Tribunal accepted that “because attacks on Jews are not systematic or centrally co-ordinated it does not mean that individual Jews do not face persecution from individual anti-Semitic groups”.  However the Tribunal found that the government had recently attempted to address such actions “albeit slowly” and that the number of articles about acts of anti-Semitism in 2005 provided by the applicant did “not suggest that state protection was not available to the Jewish minority or that the Ukrainian government was complicit in such acts.”

8. The Tribunal also addressed independent country information in relation to the situation of Russians in the Ukraine.  It found no information to suggest that there was any systematic discrimination against ethnic Russians in the Ukraine and expressed the view that “were the situation now that ethnic Russians suffer Convention-related harm or discrimination in the Ukraine it would be known to independent sources such as the US State Department, UK Home Office, Amnesty International, Helsinki Reports, etc..”. 

9. The Tribunal restated that it did not accept that the applicant was a witness of truth and that it was satisfied for a number of reasons that he had created his claims to obtain the visa sought. First it referred to the fact that in his protection visa application the applicant had claimed to be an ethnic Russian and Orthodox whereas in evidence to both Tribunals he had stated that he was a Russian Catholic and an ethnic but not a religious Jew. It was not satisfied that a person who sought protection and based his claim on his ethnicity (Jewish and Russian) and his religion (Catholic) would make such an error in the document seeking protection. It did not accept as plausible his explanation that his previous adviser was responsible for such a fundamental misrepresentation of his profile. It observed that the evidence did not suggest that the applicant had made any complaint to the Migration Agents Registration Board about this alleged misrepresentation, noting that he had been represented by the second registered migration agent since May 2002. It also noted that the applicant had not responded to information about his lack of complaint to the Migration Agents Registration Board put by the Tribunal in the s.424A letter of 1 April 2005.

10. The Tribunal also had regard to the applicant’s claim that in 1993 he changed his name from Daniil, a Jewish name, to Danylo.  It stated:

    Putting aside the inconsistency of how this change of name occurred as [the applicant] stated to the Tribunal he applied for a passport using the name Danylo yet in his statutory declaration of 13 July 2005 he stated the government gave him the name of Danylo, the applicant has not explained why he indicated in his application for a sports visa that he had not been known by any other names.  This information was put to him in a 424A letter.  He provided no explanation for this inconsistency.

1. The Tribunal also took into account that when asked at the Tribunal hearing how anyone would know his name was Daniil, a Jewish name, the applicant had responded that once he spoke people would know.  The Tribunal found that while information the applicant provided had attested to him being an ethnic Russian speaker, it did not assert that he distinctively spoke Russian in a manner that identified him as being Jewish.  It had found no independent evidence to suggest that ethnic Russian Jews spoke Russian or Ukrainian differently to ethnic Russian so that they were distinguishable by their speech.  It was of the view that were this the situation it would be known to cited independent sources. 

2. The Tribunal also had regard to the fact that while the applicant made claims in his protection visa application in relation to his fears of ultra-nationalist groups such as UNA-UNSO because of his Russian ethnicity and the harm occasioned to him and his uncle, he did not mention attacks by UNA-UNSO at the second Tribunal hearing. Further, in his application for review the applicant had not claimed to fear persecution for his Jewish Russian ethnicity. He first made such claim in submissions to the previously constituted Tribunal. The Tribunal was of the view that a person who fled his country of origin would, at the first available opportunity, explain the reason for such flight. It also noted that the applicant had not responded to the information in the s.424A letter that he had made no claim of attack by UNA-UNSO to the second Tribunal.

3. The Tribunal considered the documents submitted to the Department in connection with the protection visa application about the claimed death of the applicant’s uncle.  It found no evidence to indicate that the person referred to in those documents was related to the applicant.  Further, it found that even if the applicant had an uncle who died by a knife wound, there was no evidence before the Tribunal that the uncle was an ethnic Russian Jew or to suggest that the authorities refused to investigate the deaths of ethnic Russian Jews or the deaths of ethnic Russians at the hands of ultra-nationalist groups.  It placed no weight on these documents to support the applicant’s claims that he was harassed or harmed in the Ukraine because of his claimed ethnicity “Jewish Russian” or because of attacks on him by ultra-nationalist groups or to support the claim that ethnic Russians or Jews suffered Convention-related harm in the Ukraine. 

4. The Tribunal also had regard to discrepancies in the applicant’s claims about which sporting team he had represented, about where he had trained and as to whether or not he was a member of a Ukrainian national team.

5. The Tribunal took into account the fact that in his protection visa application the applicant had claimed that he was unable to relocate from Lviv to another part of the Ukraine because of the “propiska” or residency registration system, but in his sports visa application he had provided an address for correspondence in Kiev. The Tribunal observed that the applicant had provided no comment in relation to this inconsistency when it was brought to his attention by the s.424A letter and had not responded to the view expressed in that letter that he was able to relocate to Kiev.

6. The Tribunal did not accept that the applicant had suffered discrimination in employment. It found no independent evidence to suggest that persons of Russian or Jewish ethnicity suffered discrimination in employment in the Ukraine. As to his claims of discrimination in education, the Tribunal observed that it had put to the applicant in the s.424A letter that he was a member of a national sports team, which indicated that he was held in esteem by the society in which he lived. The Tribunal placed no weight on a supporting statement about the applicant not being on a national team because this was inconsistent with the applicant’s evidence he was a member of a national team from 1991 to 1995. It found that the applicant’s claims about his attendance at a sports academy, his selection in a national team and his study of law part-time did not suggest that he had suffered discrimination in education.

7. As to the applicant’s claims of being Roman Catholic, the Tribunal noted that he had claimed to be ethnic Russian and Orthodox in his protection visa application, but that at the first Tribunal hearing he had stated that he was Catholic.  The Tribunal stated that it had no information to confirm the ethnicity or religion of the applicant’s father and that the applicant had made no claims of harm for his religion (Roman Catholic) whilst residing in the Ukraine.

8. The Tribunal concluded that “therefore” on the evidence before it it was satisfied that the applicant was not a witness of truth and had “created his claims in order to obtain the visa sought” and continued:

   It follows I am not satisfied the applicant is an ethnic Jew.  I am also not satisfied he suffered discrimination in education or that he was unable to obtain employment because of his ethnicity, Jewish Russian.  As I am not satisfied the applicant is a witness of truth, I am also not satisfied he was verbally harassed or physically attacked or harmed whilst living in the Ukraine.

9. The Tribunal then addressed the applicant’s claims that he was a homosexual and that since being in Australia he had affirmed his sexuality.  It noted that he did not claim to have suffered any harm because of his sexuality.  The Tribunal was satisfied on the evidence before it that the applicant left the Ukraine as a representative of a national sporting team to attend a competition in Australia and that he did not flee fearing persecution for a Convention reason. 

10. The Tribunal considered the situation if the applicant returned to the Ukraine stating that it “must consider” whether the protection of the Ukraine would be available to the applicant, “an ethnic Russian homosexual sportsman of the Catholic faith”.  The Tribunal referred to independent country information about the situation in the Ukraine, including information provided by the applicant.  It stated that it had found no independent evidence to suggest that Russian Ukrainians or Catholics or homosexuals or sportsmen suffered Convention-related harm in western Ukraine.  It found that the independent evidence did not suggest that the applicant was unable to live in the Ukraine as a homosexual or homosexual Catholic ethnic Russian.  Further, while it found that independent evidence suggested that attitudes in western Ukraine were very different to those in cities such as Kiev, it noted that the applicant had provided a Kiev address in his sports visa application and had not responded to the suggestion that he was able to live in Kiev.  In view of this lack of response and the applicant’s ability to relocate to Australia, the Tribunal was of the view that if the applicant wished to live in Kiev he would be able to do so. 

11. The Tribunal reiterated that it was satisfied the applicant had created his claims in order to obtain the visa sought and that it was satisfied that the applicant “an ethnic homosexual Russian sportsman of the Catholic faith” was able to return to the Ukraine.  The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

12. The applicant sought review of the Tribunal decision by application filed in this Court on 29 August 2005.  He relies on an amended application filed in Court on 31 May 2006. 

“The Jewish claim”

1. The only ground in the amended application is that the Tribunal failed or constructively failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (the Act). However the particulars to this ground each raise a distinct issue. The first particular is as follows:

   When finding that it did not accept that the applicant was ethnically Jewish, the Tribunal failed to have regard to the conclusive evidence (including a birth certificate) that the applicant’s mother was Jewish and that therefore the applicant must also be Jewish.  In so failing, the Tribunal failed to take into account a relevant consideration, or failed to have regard to the evidence before it and therefore, failed to exercise its jurisdiction under the Act.  In the alternative, the Tribunal failed to understand the true nature of the case before it and hence failed to carry out its task under the Act, as required. 

   Further the Tribunal’s mishandling of the Jewish claim was not rendered of no consequence by its separate findings in relation to effective state protection for ethnic Jews.  The Tribunal misunderstood the applicable law or misapplied the law to the facts in relation to the question of effective state protection for ethnic Jews. 

2. The solicitor for the applicant indicated that this ground related to the rejection by the Tribunal of the asserted fact that the applicant was ethnically Jewish.  It was conceded that for the applicant to succeed in relation to this claim it was also necessary to impugn the Tribunal’s findings on effective state protection for ethnic Jews. 

3. It was acknowledged that the Tribunal accepted that the claim in relation to the applicant’s Jewishness was an ethnicity issue and that the Tribunal had not mistakenly considered Jewishness simply as a question of religion.  On this basis it was said to be clear that its findings of fact in relation to religion did not deal with the applicant’s claims in relation to Jewishness. 

4. It was submitted for the applicant that it was clear that his claim in relation to whether or not he was Jewish was linked to the fact that his mother was Jewish, as indicated by the birth certificate which described her mother as Jewish.  It was contended that this claim was clearly put for the applicant in his migration agent’s submission of

   
   

   9 October 2002 in which reference was made to the translation of the mother’s birth certificate.  It was noted her nationality was recorded as Jewish.  The submission stated: “As the Tribunal would be aware, under Jewish law the applicant is considered Jewish even though he may not be practising the faith.”

5. It was said that the Tribunal not only had before it the applicant’s claims in this respect but also his mother’s birth certificate, which was not rejected and which (it was submitted) established that she, and hence the applicant, were Jewish.  In the face of such material the Tribunal made a finding that it did not accept that the applicant was an ethnic Jew.  It was contended that in so doing the Tribunal failed to have regard to the applicant’s mother’s birth certificate and thus failed to have regard to conclusive evidence and/or failed to deal with the applicant’s claims as put and/or failed to take into account a relevant consideration, being Jewish law in relation to when a person was Jewish by descent.  It was submitted that in so doing the Tribunal failed to exercise its jurisdiction under the Act. 

6. In support of these propositions reference was made to a number of authorities, in particular the decision of Mansfield J in Applicant A99 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 773 in which his Honour found that a Tribunal which failed to have regard to a letter in relation to an aspect of the applicant’s claims had asked itself the wrong question and, in the alternative, had ignored material relevant to the making of the decision which it was bound to take into account in a manner which indicated that the Tribunal had failed to address the issue to which the evidence was directed (also see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263).

7. It was contended that in this case the evidence relevant to the applicant’s claim to be Jewish was the birth certificate.  However when dealing with the applicant’s claims in relation to Jewishness the Tribunal had failed to refer at all to the birth certificate or to the submissions of the applicant’s migration agent to the effect that under Jewish law the applicant was Jewish.  It was contended that had the Tribunal had regard to such evidence the only finding of fact that could have flown from it was that the applicant was Jewish.  The way in which the Tribunal dealt with the claim was said to be clear evidence of the fact that it had overlooked and failed to deal with that part of the claim. 

8. It was conceded that the Tribunal was not obliged to refer to every item of evidence before it, but contended that in this instance the Tribunal had fallen into error in the manner considered by Allsop J in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259. This was said to be more than a failure to refer to a mere item of evidence. Rather it was a failure to refer to evidence which illustrated that the Tribunal in fact overlooked part of the applicant’s claim. As pointed out in Applicant A99 and in WAEE at [46] – [47] an inference that the Tribunal had failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. It was contended that the birth certificate would have been dispositive in the sense considered in WAEE at [47]:

   Where, however, there is an issue raised by the evidence advanced on behalf of the applicant and contentions made by the applicant and that issue if resolved one way would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

9. It was further contended for the applicant that the Tribunal’s findings in relation to effective state protection did not provide a separate independent basis for this aspect of its decision.  The Tribunal’s findings in relation to state protection and Jewish ethnicity were said to be as follows:

   I accept that because attacks on Jews are not systematic or centrally co-ordinated it does not mean that individual Jews do not face persecution from individual anti-Semitic groups.  But I note that the government in recent years has attempted to redress such actions, albeit slowly.  The applicant has produced a number of articles about acts of anti-Semitism in 2005.  These articles do not suggest that state protection is not available to the Jewish minority or that the Ukrainian government is complicit in such acts. 

10. It was contended that part of the applicant’s claim was that there was state inaction in not providing protection in the face of complaints made about attacks on Jews.  Reference was made to claims the applicant was said to have made in relation to the stabbing of his uncle and the alleged police refusal to act in response about corruption within state security forces and about involvement by state actors in the persecution of Jews, although the applicant’s submissions did not identify when the applicant was said to have made such claims.

11. It was submitted that the Tribunal’s consideration of state protection was not a proper analysis of the question of effective state protection.  Reliance was placed on what was stated by Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152 of 2003 (2004) 205 ALR 487 at 494 – 495:

    26.    No country can guarantee that its citizens will at all times, and in all the circumstances, be safe from violence.  Day by day, Australian courts deal with criminal cases involving violent attacks on person or property.  Some of them may occur for reasons of racial or religious intolerance.  The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some of the people.  Their response was unlawful.  The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system …

    27. … … The country information … gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Courts of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245.

12. It was contended that the Tribunal should have asked itself whether there was an appropriate criminal law and the provision of a reasonably effective and impartial police force and justice system and a state meeting the international standards of protection.  It was contended that in Osman the High Court was illustrating what such international standards were and what one might accept under such international standards for there to be effective state protection.

13. In Osman the European Court of Human Rights had suggested at (at [115]) that a state’s obligations to take appropriate steps to safeguard the lives of those within its jurisdiction not only involved the putting in place of effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery, but in certain cases may also extend to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.  The court observed that such an obligation “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities”, must have regard to priorities and resources but also that:

    Another relevant consideration is the need to ensure that police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of the action to investigate crime and bring offenders to justice, … (at [116])

14. It was contended that the approach adopted in Respondents S152 required the Tribunal when considering effective state protection to look at the legislative structure, the police, the judiciary and other law enforcement machinery and the existence of operational protection measures.  It was submitted that the Tribunal had not engaged in such analysis at all, that in failing to ask itself the questions outlined in Respondents S152 it had failed to apply the proper law and that one could not be satisfied that the Tribunal had turned its mind to the correct test.  

15. The Tribunal’s statements in the s.424A letter of 1 April 2005 were said to be illustrative of what the Tribunal thought this issue involved. The Tribunal had referred to independent evidence suggesting there was criticism from human rights groups that the Ukrainian government “should do more” about acts of anti-Semitism.  However the Tribunal stated in that letter that it had found no independent evidence “to suggest that the Ukrainian government is complicit in these attacks, or is ineffectual or these attacks are encouraged by the State or the State is powerless to prevent it”.  It was suggested that this was not the test adopted in Respondents S152 but that this statement illustrated what the Tribunal thought it was required to ask itself in relation to effective state protection. 

16. Counsel for the respondent contended first that it was relevant that the claim made by the applicant was that he was perceived as a Jew and ill-treated for that reason, in particular because his forename was a Jewish name and that this had caused him to attract adverse attention. 

17. It was acknowledged that in the submission from the applicant’s migration agent of 9 October 2002 it was stated that the applicant’s mother’s nationality was recorded as Jewish on her birth certificate and that the migration agent advised that under Jewish law the applicant was considered Jewish even though he may not be practising the faith, that this was a fact well-known among the applicant’s Ukrainian compatriots and would have been a sufficient factor for him to have been executed during the Holocaust.  However it was said to be clear from the claims made by the applicant, including in the statutory declaration sworn on 28 August 2002, that he was not claiming that his status as a Jew under Jewish law was a matter well-known amongst his compatriots, but rather that he was perceived as Jewish.  Thus, in his statutory declaration of 28 August 2002 he described his background, including the fact that his mother’s mother was Jewish and had practised the Jewish religion but had died in 1989 and stated that his mother had been brought up as “no religion” partly because her own mother was Jewish.  The applicant stated his understanding that under Jewish law his mother was therefore Jewish. 

1. It was submitted that the applicant did not claim that he was Jewish because his mother was Jewish.  Rather he described the treatment he received in relation to being perceived as Jewish in his childhood.  In particular he described himself as being an outsider and that “on my mother’s side my mother was Jewish and on my father’s side they were Russian but we were living in the Ukraine”.  He referred to insults at school and a feeling that he was discriminated against and stated in relation to his first name (which at that stage he described as “Danylo”) that he was named after his mother’s mother’s father who had the Jewish name “Daniel”.  He claimed that he was sworn at by fellow students who used a derogatory expression for Russians and he was also referred to with a derogatory expression for Jews.  He stated that at school there were only “another two Jewish boys” in the class and that all three of them were the subject of insults from the other boys.  After describing leaving the Ukraine and his homosexuality, he continued that he felt threatened by ultra-nationalistic and neo-fascist demonstrations in Lviv being “afraid that I would be attacked the way I had been attacked previously because of my Jewish and Russian background.  As soon as I opened my mouth I would be seen to be not Ukrainian and when they asked my name, the fact that my first name was Danylo indicated to people that I had Jewish ancestry”. 

2. Counsel for the respondent submitted that there was nothing in this account to suggest that there was any substance in an assertion that the applicant’s status as a Jew under Jewish law was a matter well-known amongst his compatriots and more importantly there was nothing in the document to suggest that people insulted the applicant and used derogatory words towards him because they were aware that his mother’s status made him a Jew or were otherwise aware of the application of Jewish law.  Rather the applicant was said to have claimed quite clearly that he had a distinctively Jewish first name which caused people to attribute to him a Jewish identity and to behave in an insulting manner towards him.  He had claimed that on two occasions in his adult life he was called a Jew in an insulting fashion.  He claimed that he had been involved in altercations, first in April 1992 when he was called a Jew, had a fight and broke his hand and secondly in May 1999 when he was called names and suffered bruising. 

3. Further, it was said to be relevant that during the second Tribunal hearing the applicant said that he had stopped using his Jewish forename in 1993, but that people would know he was Jewish when he spoke. The Tribunal raised this claim with the applicant in its s.424A letter, pointing out that it had found no independent evidence to suggest that a young person of an ethnic Jewish background who was born in the Ukraine would speak either Russian or Ukrainian differently to the general population.

4. It was contended for the respondent that although the applicant’s claim changed over time, it was always a claim that he had a well-founded fear of being persecuted because he was perceived to be Jewish, not because of the contents of his mother’s birth certificate or because his mother was Jewish and therefore he must also be Jewish. 

5. On this basis it was submitted that the applicant had failed to demonstrate that his mother’s birth certificate amounted to a relevant consideration, being a matter that the decision-maker was bound to take into account within the principles considered in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 per Mason J (and see Deane J in Sean Investments Pty Ltd v MacKellar (1981-82) 38 ALR 363 at 374 – 375) having regard to the subject matter, scope and purpose of the Migration Act 1958. 

6. It was said that the applicant’s complaint that the Tribunal failed to have regard to the evidence or to understand the true nature of the applicant’s case had no merit because that item of evidence had no relevance to the claim he made before the Tribunal, which was that he was ill-treated because of his name and the way he spoke.  It was said that the birth certificate did not support any of the claims that the applicant made about mistreatment because of his Judaism and did not explain why he gave totally different explanations for those claims.  It was also contended that the Tribunal’s conclusion that the applicant was not an ethnic Jew was one that was open to it on the material before it, in that it rejected this aspect of his claims because it did not consider him to be a witness of truth. 

7. In these circumstances counsel for the respondent submitted that the Tribunal did not have to refer to the birth certificate in its reasons for decision, as it was well established that the Tribunal did not have to refer to every item of evidence in its reason for decision (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J).

8. In relation to the Tribunal’s consideration of state protection the respondent contended that Respondents S152/2003 was authority for the proposition that the Tribunal was not required to make the analysis of state protection contended for by the applicant in circumstances where, as was said to be the case in the present instance, it had made a finding of fact that the applicant did not suffer persecution.  In this instance the Tribunal had found:

   I am not satisfied the applicant is an ethnic Jew.  I am also not satisfied he suffered discrimination in education or that he was unable to obtain employment because of his ethnicity, Jewish/Russian.  As I am not satisfied the applicant is a witness of truth, I am also not satisfied he was verbally harassed or physically attacked or harmed whilst living in the Ukraine. 

9. It was pointed out for the respondent that no page references had been supplied for the “clear claims” said to have been made by the applicant relating to state inaction in the face of actual complaints, and also in relation to the claimed involvement directly and by way of corruption and complicity of some state actors as persecutors.  It was submitted that the significance of the passages from S152/2003 and Osman set out in the applicant’s submissions was unclear in the circumstances of this case and that the passages from Respondents S152/2003 and Osman v United Kingdom relied on by the applicant were not authority for the proposition that the Tribunal must conduct an “analysis of the state apparatus” as the applicant had claimed.  

10. Further, it was submitted that, even if it had been necessary for the Tribunal to deal with the availability of state protection for persons perceived to be Jewish in the Ukraine, the independent information to which it referred (including material from the United Kingdom Home Office indicating that the Ukraine had a “notable record of state protection of the rights of the country’s substantial Jewish minority”) provided sufficient basis to support the conclusion that state protection was available and that as the Tribunal had observed, this information, including articles produced by the applicant, did not suggest that state protection was not available to the Jewish minority or that the Ukrainian government was complicit in such acts. 

Reasoning

1. The applicant’s mother’s birth certificate was first provided to the Tribunal (without comment) with the adviser’s submission of

   
   

   30 August 2002.  The effect of the applicant’s mother’s Jewishness on the applicant’s ethnicity was raised expressly in the adviser’s letter of 9 October 2002 in response to a request by the first Tribunal for submissions in relation to the applicant’s Jewish ancestry and homosexual orientation.  The adviser enclosed a translation of the applicant’s mother’s birth certificate, noted that her nationality was recorded as Jewish and stated that:

   As the Tribunal would be aware under Jewish law the applicant is considered Jewish even though he may not be practising the faith.

2. Also provided were photographs of the home of the applicant’s maternal grandfather which was said to be adjacent to a Jewish cemetery.  The letter enclosed information about the situation of Jews in the Ukraine and drew the Tribunal’s attention to Tribunal decisions concerning Jews and material referred to in those decisions, including consideration of anti-Semitism and whether there was an absence of adequate state protection for Jews in Ukraine. 

3. In response to the Tribunal’s s.424A letter and a considerable amount of independent country information in relation to anti-Semitism and the situation of Jews in Ukraine, the applicant’s adviser submitted other country information said to relate to the current problems for Jews including recent articles on anti-Semitic incidents and anti-Semitism in Ukraine.

4. While it is the case that in his statutory declaration of 13 July 2005 the applicant addressed the relevance of his first name, he also stated that his Jewish name indicated his Jewish background.  It is clear that, contrary to the contentions for the respondent, the applicant’s claims were not limited to a claim that he was perceived as a Jew and mistreated for that reason and included a claim that he was not only of Jewish ancestry or background but also that he was an ethnic Jew.  In other words the claim was not so narrow as to be limited to fears arising from a perception of his Jewishness based on his voice and name, but included a claim that he was in fact Jewish and that in the Ukraine Jewish people were discovered and persecuted.

5. While the claim that the applicant was Jewish because his mother was Jewish was expressed by the applicant’s adviser, it was nonetheless a claim put for the applicant.  This claim was not limited to a claim that his Ukrainian compatriots would be aware of his Jewishness as a matter of Jewish law.  The alleged absence of claims that the applicant was insulted because people were aware that his mother’s status made him a Jew may have been a factual matter for the Tribunal to consider in determining whether the applicant had a well-founded fear of persecution on the basis of Jewish ethnicity (although note that the applicant referred to “another two Jewish boys in his class” at school), but it does not mean that he did not make a claim on the basis of his Jewish ethnicity as the son of a Jewish woman.  Similarly, whether or not there was any substance in the assertion that the applicant’s status as a Jew under Jewish law was well known amongst his compatriots or that he was insulted for that reason was a matter for the Tribunal. 

6. The applicant’s claims were not limited to a claim that he had a distinctively Jewish first name which caused people to attribute to him a Jewish identity and to behave in an insulting manner towards him.  Rather, one basis for his claims was that he was in fact ethnically Jewish (as well as of Jewish background or ancestry or his mother’s side).  The birth certificate was evidence which went directly to this aspect of the applicant’s claims.

7. It is not disputed that the Tribunal failed to refer to the birth certificate or to the applicant’s claim that he was Jewish (not merely perceived as Jewish) because of his mother’s ethnicity because of her Jewish mother. No mention was made of the birth certificate in the s.424A letter. In its reasons for decision the Tribunal acknowledged that the applicant claimed to be an ethnic Jew – but related this to his claim at the hearing that his name identified him to everyone as a person of Jewish ethnicity. In its description of his claims and evidence the Tribunal referred to the submissions of 30 August 2002 and 9 October 2002 but made no reference to the birth certificate or to the claim that because of his mother’s ethnicity (as evidenced by the birth certificate) the applicant was of Jewish ethnicity. Nor did the Tribunal refer to the information about the situation of Jews in Ukraine provided with the letter of 9 October 2002 (or the submissions in that letter about anti-Semitism in Ukraine) although it did refer to later information provided by the adviser.

8. In the finding and reasons part of its decision, in rejecting the applicant’s claim to be an ethnic Jew the Tribunal did not refer to his mother’s birth certificate.  The Tribunal did not embark on a reasoning process in relation to rejection of the applicant’s claim about his actual Jewishness based on his mother’s Jewishness (as distinct from his claim that he would be perceived as Jewish). 

9. While the Tribunal is not bound to refer to every item of evidence (Durairajasingham at 423 per McHugh J), I am satisfied in this instance that, as in Applicant A99 of 2003 (at [18] – [33]), the Tribunal failed to recognise the significance of the birth certificate and the claim that the applicant was ethnically Jewish by descent. This was not simply a failure to refer to evidence, a mere oversight or an error of fact.

10. The Tribunal made no reference to the birth certificate or to the adviser’s claims in relation to this basis for the applicant’s claim to be Jewish (although it accurately recorded the issue it was required to address and did refer to the applicant’s claim about his Jewish background and ancestry (mother’s religion)).  The inference that the Tribunal failed to consider the issue can be drawn from the Tribunal’s failure to deal with it expressly in its findings and reasons.  This issue was not ‘subsumed’ in findings of greater generality about Jewish ethnicity.  The failure to consider the material put before the Tribunal on the applicant’s mother’s ethnicity (the birth certificate) and the consequential impact on the applicant’s claimed ethnicity amounted to a failure to consider an issue going directly to the criteria for the grant of a protection visa.  (See WAEE at [49]). The Tribunal made a jurisdictional error as contended for by the applicant.

11. However, as conceded for the applicant, in order to succeed on this ground the applicant must also impugn the Tribunal’s findings on effective state protection for ethnic Jews. 

12. First, contrary to the submissions for the respondent, it cannot be said that the Tribunal was not required to make any analysis of state protection in this instance because it had made a finding of fact that the applicant did not suffer persecution.  It is the case that in Respondents S152/2003 the Tribunal had found that the respondent had not suffered past acts of persecution for a Convention reason but it also found that there was only a remote chance that he would suffer such acts in the future (see McHugh J at [34] and Gleeson CJ, Hayne and Heydon JJ at [25] and [29]).  However in this case while the Tribunal rejected the applicant’s claims about past discrimination, inability to obtain employment and past verbal harassment or physical harm, it did so on the basis that he was not a witness of truth but also on the basis that he was not an ethnic Jew and in the context of its failure to consider one of the bases for his claim to be an ethnic Jew.  Having rejected his claim about Jewish ethnicity it then rejected his claims about discrimination in education or employment because of his “Jewish Russian” ethnicity.  It considered his claims about both past and future persecution on the basis that the applicant was “an ethnic Russian homosexual sportsman of the Catholic faith”. 

13. However the Tribunal did in fact address the question of state protection insofar as necessary in the circumstances of this case, not only for ethnic Russian homosexual sportsmen of the Catholic faith, but also more generally in relation to ethnic Jews and ethnic Russians.

14. The applicant contended that the Tribunal findings in relation to state protection for Jews in Ukraine were as follows:

    I accept that because attacks on Jews are not systematic or centrally coordinated it does not mean that individual Jews do not face persecution from individual anti-Semitic groups.  But I note that the government in recent years has attempted to redress such actions, albeit slowly.  The applicant has produced a number of articles about acts of anti-Semitism in 2005.  These articles do not suggest that state protection is not available to the Jewish minority or that the Ukrainian government is complicit in such acts.

15. However it is necessary to have regard to the claims made by the applicant and to the whole of the Tribunal reasons for decision in considering its findings on state protection and whether it erred in the manner contended.  First it is not clear what material is relied upon by the applicant as “clear claims” relating to state inaction in the face of actual complaints, and also in relation to the involvement directly and by way of corruption and complicity of some state actions as persecution.  Insofar as this is intended to be a reference to the claims about the applicant’s uncle being killed by a para-military organisation and letters rejecting complaints about official failure to bring an action and claimed delay in proceedings, there is no evidence that the applicant’s claims to the first Tribunal about his uncle’s death at the hands of a paramilitary organisation (in relation to which there was said to be states inaction) were related to his claims about Jewishness.  Indeed the applicant stated in his declaration of 28 August 2002 that his mother’s only brother was killed in a motorcycle accident. 

16. In any event the Tribunal found no evidence to indicate that the person referred to in those documents was related to the applicant or to support his claims that the applicant was attacked because of his claimed ethnicity or to support his claim that ethnic Russians or Jews suffered Convention-related harm in the Ukraine. 

17. It appears that the applicant’s claims in this respect relate to his provision of country information said to highlight the “insensitivity” of the authorities’ response to anti-Semitic violence and a general claim that they failed to provide effective and meaningful protection to the Jewish community. 

18. In the findings and reasons part of its decision the Tribunal set out the applicant’s claims and then referred to the position of Jews and Russians in Ukraine as described in country information by way of background.  In so doing it made what the legal representative for the applicant accepts were findings in relation into state protection for Jews in Ukraine.  It is important however to have regard to all that was said by the Tribunal in this respect, as reading the Tribunal decision fairly and as a whole (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), it is clear that its relevant findings were not confined to the paragraph set out above.

19. First the Tribunal included in its reasons for decision extracts from a number of items of independent country information relating to the Ukraine generally, the position of Russians and homosexuals, freedom of movement, anti-Semitic actions, Jewish communities in the Ukraine, the attitude of the government and the current position of Jewish communities and Jews in Ukraine as well as the establishment of the office of Ombudsman to promote and protect the rights of the individual in Ukraine. 

20. In particular, the Tribunal referred to the number of Jews in Ukraine, found that they have “considerable political and economic influence” (referring to Jewish politicians, tycoons and influential community leaders) and that they constitute the third largest Jewish community in Europe and the fifth largest in the world.  It described where Jews lived in Ukraine, their language and average age.  It observed that since the collapse of the Soviet Union there were about 75 Jewish schools in 45 cities, found that Jewish religious life had undergone a revival and that Jewish communities in many cities and towns had been reconstituted. 

21. In that context the Tribunal considered claimed anti-Semitism and state protection.  Before making the finding referred to by the applicant it stated:

    There have been incidents of anti-Semitism in the Ukraine and that there have been acts of vandalism and acts of anti-Semitism of graves and synagogues.  According to … an article by Professor Zvi Gitelman (cited above) emigration from Ukraine is not being driven by anti-Semitism but by family ties and economic considerations.  At the end of the twentieth century in the Ukraine, Jewish institutions have been re-created and Jewish communal life has been revived.  Information from the UK Home Office states the Ukraine has a notable record of state protection for the rights of the country’s substantial Jewish minority, and anti-Semitic acts of vandalism are generally investigated with diligence.  There is no state-sponsored anti-Semitism in Ukraine today’.  [26] (p5) (UK Home Office 2004).  Information from sources, World Jewish Congress … and US State Department Report on Religious Freedoms, 2004, Ukraine, do not suggest that ethnic Jews suffer serious harm in the Ukraine and do not suggest that where there are incidents of harm that state protection is not forthcoming.  According to the World Jewish Congress the Jewish population is in decline, largely due to emigration and to the aging process.  

1. In other words, the Tribunal did not accept that the country information established state inaction, involvement or complicity in anti-Semitism in the manner contended for generally by the applicant.  It is apparent that the Tribunal accepted that, as set out in more detail in the cited country information extracted earlier in the decision,“Ukraine has a notable record of state protection” for the rights of Jews, that “anti-Semitic acts of vandalism are generally investigated with diligence”, that “there is no state-sponsored anti-Semitism in Ukraine today” and that information from the World Jewish Congress as well as the US State Department did not suggest ethnic Jews suffered serious harm “or that where there are incidents of harm that state protection is not forthcoming”. 

2. Thus the Tribunal made findings about the absence of state-sponsored anti-Semitism as well as the state’s “notable record” of state protection for the rights of Jews – consistent with the country information cited in the decision which, for example, elaborated on the response to anti-Semitic actions by the government, law enforcement authorities and in legal actions.  In this context the subsequent reference to the state’s reaction to persecution by individual anti-Semitic groups is only part of the Tribunal consideration of state protection.  Critically that consideration involved rejection of the proposition that the evidence provided by the applicant suggested that state protection was not available or that the government was complicit in the acts of individual anti-Semitic groups. 

3. Finally the Tribunal specifically addressed (albeit in the context of considering the availability of state protection for ethnic Russian homosexual sportsmen of the Catholic faith) more general aspects of state protection consistent with these findings, such as the independence of the judiciary, the absence of evidence suggesting that minorities (including Jews) suffer discrimination or harm in the legal system for a Convention-related reason and other relevant developments in the Ukraine in relation to matters such as human rights organisations, attempts to eradicate corruption in law enforcement agencies and the absence of information suggesting crime and corruption was targeting “any” specific sector of Ukrainian society for a Convention-related reason. 

4. The fact that the Tribunal raised an issue about one aspect of state protection in its s.424A letter does not illustrate or demonstrate what the Tribunal thought the issue of state protection involved in such a way as to establish error. While some of the Tribunal’s reasoning in relation to the effectiveness of state protection for the Jewish minority was expressed in the negative – such as reference to an absence of information to suggest state protection was not available, it is notable that the Tribunal referred not only to the UK Home Office’s conclusion about the Ukraine’s notable record of state protection for the rights of the Jewish minority, but also to the absence of information in the material it referred to and also in the articles provided by the applicant to suggest state protection was not available or that the government was complicit in anti-Semitic acts. It also dealt with the issue of corruption in the police and judiciary. The Tribunal understood and addressed both state and non-state action in finding that there was adequate state protection. It adequately addressed those factors relevant to whether the protection the state offered was sufficient by international standards (See Osman and SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36). As in Respondents S152/2003 the material before the Tribunal (including that put before it by the applicant) gave it “no cause to conclude there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards such as those considered by the International Court of Human Rights in Osman…” (Gleeson CJ, Hayne and Heydon JJ at [27]).  This was not a case in which there was evidence before the Tribunal (including the evidence from the applicant) to support a conclusion that the Ukraine did not provide its citizens (including its ethnically Jewish citizens) with the level of state protection required by such international standards (ibid, at [28]). 

5. The Tribunal dealt with the issues raised by country information provided by the applicant in relation to state inaction, corruption in state security forces and involvement of state actors in the persecution of Jews.  Consistent with Respondents S152/2003 the Tribunal made a finding that there was no state-sponsored anti-Semitism in the Ukraine (and indeed the applicant’s claims were not to this effect).  The Tribunal found no evidence of complicity of the government in anti-Semitic actions.  It addressed the issue of corruption as described above. 

6. No particular evidence before the Tribunal has been identified by the legal representative for the applicant as indicating that there was any failure to meet the standards of protection required by international standards.  It is clear from the Tribunal decision as a whole (see MZRAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1261 at [20] per Heerey J) that the Tribunal understood and sufficiently addressed the standard and availability of state protection in relation to Jews in Ukraine. In such circumstances it cannot be inferred from the decision that the Tribunal applied the wrong test misunderstood the law or misapplied the law to the facts. (See Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [32] – [34]). Also see SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 11 at [25] – [28]). It is relevant to note that as suggested in MZRAJ v Minister for Immigration & Multicultural & Indigenous Affairs at [26] per Heerey J, Respondents S152/2003 does not establish that in considering effective protection in the context of a claimed fear of persecution by non-state agents there will be jurisdictional error unless the Tribunal identifies the content of “international standards” of protection and assesses the law enforcement machinery of the state against such standards (and also see SZBBE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 753 at [16] per Raphael FM.)

7. The Tribunal was addressing state protection in relation to claims about unsystematic acts that were not centrally co-ordinated.  In those circumstances its findings about the government’s record of state protection must (as in S152/2003) be understood as a finding that the evidence before it did not justify a conclusion that the government would not or could not provide ethnic Jews “with the level of protection they were entitled to expect according to international standards” (S152/2003) at [29]).  In such circumstances (as in S152/2003) it was not necessary for the Tribunal to address further what international standards might require or how they would be ascertained. 

8. Read as a whole the Tribunal reasons reveal that it adequately addressed the issue of the willingness and ability of the state to provide effective protection to ethnic Jews on the basis of the claims made by the applicant and all the material before it.  Hence while the Tribunal failed to deal with one basis of the applicant’s claim to be ethnically Jewish it nonetheless dealt with state protection for ethnic Jews.  The solicitor for the applicant conceded that if no error is established in such consideration of state protection the applicant could not succeed on this ground. 

The section 424A notice

1. The next particular relied on the amended application is as follows:

   The notice issued under s.424A failed to ensure, as far as it is reasonably practicable, that the applicant understood why the information referred to is relevant to the review.  The notice under s.424A was a lengthy disjointed notice containing many items of information, but the notice failed to disclosed or otherwise illuminate how each of or all of the items of such information was relevant to the review.  In other cases, the ultimate relevance of the information to the Tribunal’s consideration of the case was not a relevance outlined in the s.424A notice and therefore the notice fails to satisfy the strict requirements of s.424A in respect of that information.

2. Section 424A of the Migration Act 1958 is as follows:

   (1)  Subject to subsection (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

   (c)  invite the applicant to comment on it.

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies–by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application; or

   (c)  that is non‑disclosable information.

3. In support of this ground it was submitted that the Tribunal letter of

   
   

   1 April 2005 (which, it was not disputed, was a notice under s.424A of the Migration Act 1958) failed to comply with s.424A in a number of respects and hence was an invalid notice (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162).

4. It is relevant to set out those parts of the 1 April 2005 letter with which the applicant takes issue:

   The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

   The information is as follows:

   In your application for a visa to Australia you provided information that you were a representative of the Ukrainian Shooters and that on 13 December 1998 you competed in a shooting competition in the air pistol division in Brno, Czech Republic, as a representative of the Ukraine.  In that application you ticked you were not known by any other surname or first name.  You also indicated in that form that you received no help completing the form.  You provided an address in Kiev for your correspondence.

   In your protection visa application (PVA) you claimed that you attended the Kharkiv Law Academy Ukraine but you also claim that you are unable to speak, read or write Ukrainian.  Since 1991 Ukrainian is the official language of Ukraine.

   You claimed in your protection visa application you left Ukraine because of fear of UNA-UNSO.  You did not make this claim at the hearing of the Tribunal held on 14 February 2005 where you claimed you left Ukraine because of the attacks made on you because of your Russian and Jewish ethnicity.

   You originally claimed in your PVA that you were Russian Orthodox, but now claim to be Roman Catholic and an ethnic Jew.  You have been represented since 27 May 2002 by your current migration agent.  You claim that your previous migration adviser was responsible for this incorrect information but you did not lodge any complaints to the Migration Agents Registration Board for such breaches by the named agent.

   The propiska system of the Soviet era has been replaced by a registration system. 

   As for your  claims that as a homosexual you would suffer harm in the Ukraine…[extracts from country information in relation to various aspects of the applicant’s claims and in relation to anti-Semitism in the Ukraine]

   This information is relevant because:

   You claim at your hearing of this Tribunal that your name is Danil and this name identifies you to everyone as a person of Jewish ethnicity. Danil is a name of Persian origin. ( Danylo is a traditional historical Ukrainian name, associated with King Danylo whose statue has recently been built in Lviv.

   You do not suggest that you wore any identifiers of Jewish ethnicity such as traditional dress.  You have provided no documents to indicate that your name was Danil pre-1993.  You ticked on your visa application you had no other names.  When asked by the Tribunal how people would know you were of Jewish ethnicity you stated that they would know when you spoke.  You were about 25 years of age when you left the Ukraine.  The Tribunal has found no independent evidence to suggest that young persons of ethnic Russian and/or ethnic Jewish backgrounds who were born in the Ukraine speak Russian or Ukrainian differently to the general population.

   Since independence Ukrainian is the official language.  You were 16 years of age when Ukraine became independent.  You claim you were a member of the national shooters team in your visa application or the luge team in your PVA, both national Ukrainian sports teams.  You attended the Lviv Sport University from 1993 to 1997 and then the Kharkiv Law Academy, by way of correspondence, yet you claim you do not speak Ukrainian.

   The lack of lodging a complaint with the Migration Agents Registration Board, about the claimed conduct of your former migration agent for providing incorrect information without your instructions, coupled with the lack of evidence of the name Danil being an identifier of Jewish ethnicity, your lack of wearing traditional Jewish clothing, the lack of evidence of your having any other name other than a traditional Ukrainian name of Danylo leads the Tribunal to conclude that you are not part Jewish.  Your ability to be appointed to a national Ukrainian team, either shooters or luge indicates you are able to speak Ukrainian and that you have created a different profile of yourself, from the profile in your visa application and your PVA, in order to obtain the visa sought.

   Furthermore, the independent evidence sent to you herein does not indicate that ethnic Russians or Jews or homosexuals or Russian Jewish homosexuals from the Ukraine suffer harassment or discrimination or harm for their ethnicity in the Ukraine.

   Ukraine decriminalised homosexual acts over a decade ago.  The evidence cited above suggests to the Tribunal that the situation for practising homosexuals has improved in the past few years.  While homosexuality is considered “a rather shameful and undesirable personal behaviour or style”, such that the “average Ukrainian gay or lesbian person tries to withhold this aspect of his or her life” it “is quite usual for an Ukrainian person not to publicise his or her private life in any case,” no matter what his or her sexual orientation might be.  Active homophobia is not widespread in the society; typically people view gay men and lesbians – when they come to know them personally – in a quite tolerant way.

   The evidence suggests there is greater acceptance of gays in Kiev.  You were able to relocate to Kiev if you felt it was necessary.  You have an address in Kiev, as indicated in your visa application.  You have been a member of a sports team of the Ukraine.  This indicates you were held in esteem by the society in which you lived.

   The Tribunal accepts that there are active skinheads in Ukraine and other parts of Europe who target minorities such as Jews.  See: report on Global Anti-Semitism US State Dept (herein)

   Whilst the evidence suggests there is criticism from human rights groups that the Ukraine government should do more about these acts the Tribunal has found no independent evidence to suggest that the Ukrainian government is complicit in these attacks or is ineffectual or these attacks are encouraged by the State or the State is powerless to prevent it.

   The Jewish population of Ukraine is in decline, largely due to emigration and to the aging process.  Articles provided do not indicate Jews suffer harassment or harm amounting to persecution for either their ethnicity or religion.  Anti-Semitic incidents continue to occur but, according to local Jewish organisations, have declined in number of recent years.  According to the World Jewish Congress the situation with anti-Semitism in Ukraine is rather positive.  The evidence does not suggest the Ukrainian police are complicit in attacks or that the police fail to investigate the attacks or that these attacks are systematic.

   You are invited to comment on this information.  Your comments are to be in writing and in English.  They are to be received at the Tribunal by Tuesday, 26 April 2005.

5. It was said to be clear from the Tribunal reasons for decision that the reason the applicant ultimately failed was because of the Tribunal’s findings in relation to credibility. In a number of places the Tribunal stated that it did not accept that the applicant was a witness of truth. It was pointed out that the letter of 1 April 2005 consisted of 5½ pages of information, a page and a half of an explanation of relevance, an invitation to respond and then over a hundred pages of annexures consisting of extracts from items of country information. It was suggested that the relevance given to some items of information in the notice differed from the relevance given to that information in the decision in a number of respects and that the Tribunal had not ensured, so far as was reasonably practicable, that the applicant understood why the information was relevant to the review as required under s.424A(1)(b). Reference was made to what Hayne J stated in SAAP at [208] reinforcing that the Migration Act 1958 prescribes steps that the Tribunal must take in conducting its review “directed to informing the applicant for review, among other things, the relevance to the review of the information that is conveyed” and to his Honour’s conclusion that the language of the Migration Act 1958 and its scope and objects pointed inexorably to the conclusion that a want of compliance with s.424A rendered a decision invalid.

6. On the basis that the statutory procedures in s.424A are mandatory and do not require a demonstration of practical injustice, it was contended that if the Tribunal ultimately decided that a piece of information which had not been put to the applicant under s.424A may in fact be part of the reason for the decision, then it should issue a further s.424A notice to notify the applicant of that relevance and invite him to respond. Further, it was contended that if, as here, the relevance of information was in relation to the applicant’s credibility, then the Tribunal should say so in the s.424A letter.

7. The solicitor for the applicant produced a table which referred to particular items of information, the relevance said to be given to such information in the s.424A notice and the relevance given in the Tribunal decision.

8. The first item of information in issue is described as the fact that the applicant had claimed that his first name was originally “Daniil” (sic), that “Danil” was a Persian name and that there was a lack of information that it was a Jewish name. The relevance said to have been given by the Tribunal in the s.424A letter to these items of information was that along with other information it led the Tribunal to conclude that the applicant was not “part Jewish”.

9. However it was suggested that in the Tribunal reasons for decision the Tribunal did not treat this information as relevant only to the question of whether or not the applicant was Jewish, but also found it relevant to its finding that the applicant was not a witness of truth generally, in that the inconsistencies in this information went to whether the applicant was regarded as a witness of truth.  The finding of fact in that regard was said to have fed into and affected the Tribunal’s consideration of the whole of the applicant’s case.  In particular, the Tribunal referred to the fact that the applicant had not explained why he indicated in his application for a sports visa that he had not been known by any other name.  It was contended that the Tribunal used that fact not simply to reject the claim that the applicant was Jewish because it rejected the claim that the applicant’s name was Jewish, but rather to attack the applicant on credibility generally. 

1. The second item of information in issue is the statement by the Tribunal that in his protection visa application the applicant had claimed to be Russian Orthodox but at the hearing he had claimed to be a Russian Catholic and that when asked about this the applicant had told the Tribunal that his agent put Orthodox on the protection visa application form and that it was a mistake. In the s.424A letter the Tribunal had indicated that the relevance of this information was that initially the applicant had claimed he was Russian Orthodox and now claimed to be Roman Catholic and an ethnic Jew and that he had not complained to the Migration Agent’s Registration Board (about his agent’s conduct) despite having the assistance of another migration agent. This lack of a complaint about the claimed conduct of the former migration agent, along with other matters, was said to lead the Tribunal to conclude that the applicant was not part Jewish.

2. However it was said for the applicant that in the Tribunal reasons for decision the Tribunal found that such inconsistencies went to whether the applicant was a witness of truth generally. It rejected the applicant’s explanation for the inconsistency and found it implausible that such a fundamental aspect of his profile would be misrepresented by his migration agent. It referred to the absence of any complaint to the appropriate authorities about the alleged misrepresentation and also to the lack of a response to the information about the absence of complaint put to the applicant in the s.424A letter.

3. It was contended that it was important that the Tribunal’s credibility finding dealt not only with the applicant’s claim on the basis of Jewishness but also dealt with his claim in relation to being Russian and homosexual (although the Tribunal did not in fact reject his claims to be Russian and homosexual but rather his claims of past harm). The actual relevance of this information was said to go well beyond what was referred to in the s.424A letter in relation to the applicant’s Jewishness. It was suggested that it was incumbent on the Tribunal to put the proper relevance of information to the applicant and submitted that if it changed its mind later about the relevance of information it ought to have provided a fresh s.424A letter. It was suggested that if the applicant had received a s.424A notice addressing his credibility generally he may have been able to present evidence in reply directed to the question of his credibility.

4. The third item relied on in support of this ground is that the s.424A letter stated that that in the protection visa application the applicant had claimed that he left the Ukraine because of the fear of an organisation known as UNA-UNSO but that he did not make such a claim at the Tribunal hearing (in which he claimed that he left the Ukraine because of attacks made due to his Russian and Jewish ethnicity). It was submitted that no relevance was given to this information in the s.424A letter.

5. While the solicitor for the applicant observed that these two claims were not necessarily inconsistent with each other (as the Tribunal’s decision made it clear that the claim in relation to UNA-UNSO related to a Ukrainian nationalist organisation which hated Russians and Jews), it was contended that the s.424A letter did not explain why this change in the applicant’s claims was relevant in any way. Moreover ultimately the relevance the Tribunal gave this material was said to be in support of its finding that it did not accept the applicant as a witness of truth. The Tribunal was of the view that a person who fled his country of origin would at the first available opportunity explain the reason for flight and noted that when put to him in the s.424A letter that he made no claim of attack by UNA-UNSO to the second Tribunal (although he had made the claim in his protection visa application) the applicant had not responded.

6. The next issue under this ground relates to country information regarding the “propiska” system of registration (a system the applicant referred to as restricting one’s ability to move internally within the Ukraine and which he suggested meant that he could not relocate).  It was noted that the Tribunal had referred in the letter of 1 April 2005 to the fact that the propiska system of the Soviet era had been replaced by a registration system.  It had not explained the relevance of such information.  However in its reasons for decision the Tribunal had used this information to reject the applicant’s claims in making findings on internal relocation generally and also on credibility because of an inconsistency perceived between that information and the fact that the applicant had written on his sports visa application an address for correspondence in Kiev. 

7. It was acknowledged that it was conceivable that such country information may fall outside of s.424A because of the s.424A(3)(c) exception and that it was not clear why the Tribunal had included this information in the s.424A notice (because it did not explain its relevance) but submitted for the applicant that, given that such information was included, it should be inferred that the Tribunal regarded it as information falling within s.424A and on that basis submitted that it should have complied with its obligations under s.424A and explained the relevance of such information.

8. The solicitor for the applicant also contended that while the Tribunal perceived an inconsistency between the s.421 visa application form and the applicant’s claims that the propiska system of residence prevented him from internally relocating, it had failed to put to the applicant under s.424A the inconsistency that while he claimed (in his sports visa application) to have had a former address in Kiev he also told the Tribunal that he was not able to relocate internally. It was submitted that such inconsistency should have been put to him consistent with the principles in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (see Allsop J at [221] and [225]). It was also suggested that the information that the applicant had lived in Kiev was seen by the Tribunal as inconsistent with the country information that the propiska system had been abolished and the Tribunal’s view that the applicant was not prevented by that from relocating. This inconsistency was said to be information that was part of the reasons for the decision that should also have been put to the applicant in the s.424A letter.

9. After counsel for the respondent pointed out that the s.424A letter did refer to the applicant’s Kiev address for correspondence in his sports visa application, it was nonetheless contended for the applicant that there was a failure to explain the relevance of such information. In particular, while the s.424A letter referred to the applicant being able to relocate to Kiev if he felt it was necessary, the ultimate relevance of the information was said to be that it was treated as an inconsistency which led to a conclusion on credibility.

10. Counsel for the respondent contended first that the applicant’s criticism of the s.424A notice as being “lengthy and disjointed” did not, without more, identify jurisdictional error. In relation to the contention that the notice did not “strictly comply” with s.424A(1)(b) in ensuring as far as reasonably practicable that the applicant understood why the information was relevant to the review, it was contended that the applicant’s submissions were based on an unstated assumption that s.424A(1)(b) required the Tribunal to set out in a s.424A notice the terms of each finding that it proposed to make about a particular item of information. It was contended that this was not what s.424A(1)(b) stated and that the Tribunal could validly form the opinion that information was “relevant to the review” without deciding in advance whether the information would have a bearing on its finding regarding a particular claim or on the credibility of an applicant or on some other matter.

11. In particular, it was contended that insofar as s.424A was a statutory provision of natural justice, natural justice had never required that the relevance of material be explained, rather, as stated in Kioa v West (1985) 159 CLR 550, information which was credible and relevant to the issue the decision-maker had to decide had to be brought to the knowledge of the applicant for comment. It was also said that it had never been a requirement of natural justice that the decision-maker had to foreshadow possible findings as that was part of the decision-maker’s thought processes. (See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576). It was contended that the Tribunal’s conclusions could not be said to be adverse conclusions not obviously open on the known material.

12. Counsel for the respondent drew the attention of the Court to the manner in which the Tribunal referred to particular items of information in the s.424A letter. The letter commenced with the general statement that the Tribunal had information that would, subject to any comments the applicant made, be the reason or part of the reason for deciding that he was not entitled to a protection visa, then listed a considerable amount of information, consisting partly of references to inconsistencies and variations in the applicant’s claims and partly of extracts from and references to country information in relation to the situation in the Ukraine. At the end of this material the letter continued that this information was relevant for a number of reasons as set out.

13. In relation to the specific claim about a failure to give notice of an inconsistency about to the applicant’s address in Kiev or to explain the relevance of such matter, it was submitted that the Tribunal had stated in the s.424A letter that the applicant had provided an address in Kiev for his correspondence when he sought a sports visa, had referred to the fact that the propiska system had been replaced by a registration system, had set out information about freedom of movement and had then stated that the applicant had been able to relocate to Kiev if he felt it necessary and had an address in Kiev as indicated in his visa application. It was contended that this was sufficient to bring to the applicant’s attention the fact that relocation was regarded by the Tribunal as a genuine possibility for him. In particular it had brought to his attention the fact that he had given a Kiev address in the past and that this suggested that he could relocate there now. It was also noted that while the Tribunal took into account two lengthy and detailed responses to the s.424A letter from the applicant and his migration agent, these responses did not attempt to reply to this issue.

14. In relation to the other matters raised by the applicant it was contended that it was not the intention of the legislature that a Tribunal prejudge the matter and give its concluded finding in a s.424A letter. If it did so that would be a matter of grave concern because it would indicate or suggest that it may have become biased by actually reaching a final view about the facts before it. In that context it was suggested that it was perfectly proper for the Tribunal to point out reasons which occurred to it as to why particular pieces of information might become part of the eventual decision that it would make and which were certainly relevant to the review. It was contended that relevance to the review was the benchmark in s.424A(1).

15. It was submitted that the Court should not accept the submission that if a piece of information which seemed to the Tribunal to be relevant to the review when it wrote a s.424A letter was later used to support some other issue in the decision there arose a fresh obligation under s.424A to give notice to an applicant. It was contended that “relevance to the review” did not encompass such a double obligation and that such a requirement imposed an obligation on the Tribunal to express some foreshadowed final conclusion in a manner that was not consistent with the requirements of the legislation.

16. As to the issue of the applicant’s names, counsel for the respondent pointed out first that while the solicitor for the applicant had submitted that the applicant had previously claimed his name was “Daniil” (with two “i”s), in fact this claim was not made before the s.424A notice but only in the statutory declaration of 13 July 2005 provided in response to the s.424A notice. As this was information provided by the applicant to the Tribunal there was no obligation on the Tribunal to put this further inconsistency to him about how his name marked him out as Jewish.

17. In relation to the issue of the applicant’s religion, it was contended that the s.424A notice adequately addressed that issue in stating “You originally claimed in your PVA that you were Russian Orthodox, but now claim to be Roman Catholic and an ethnic Jew”.

18. More generally it was said that phrases (as occurred throughout the s.424A letter) such as “but you also claim” or “you did not make this claim” or “you originally claimed, but now claim” satisfied the requirement that the applicant have inconsistencies and variations in the claims that he had made drawn to his attention. In this way the Tribunal put the applicant on notice that he had contradicted himself and that it wanted an explanation as to why this had occurred.

19. It was also suggested that s.424A was not meant to offer people an opportunity to call evidence as to their credit and that there was no obligation on the Tribunal to advise the applicant that such inconsistencies were relevant to its assessment of the applicant’s credibility, which was a matter for the Tribunal to assess and was not a question for evidence.

20. In relation to the applicant’s initial claim that he left the Ukraine because of a fear of UNA-UNSO and the fact that this claim was not made at the Tribunal hearing, it was contended that, contrary to the submission of the applicant that the applicant never abandoned any of his claims, it was in fact apparent on a fair reading of the Tribunal decision and the material before the Court that the claim about leaving the Ukraine because of the fear of UNA-UNSO was one that faded away as the matter developed.  In any event it was suggested that in stating that the applicant had made this claim in his protection visa application but had not made this claim at the Tribunal hearing (but rather made a different claim as to why he left the Ukraine) the Tribunal had sufficiently compared and contrasted these issues in a manner sufficient to bring to the applicant’s attention the fact that these were inconsistent claims or claims that were difficult to reconcile and that he ought to say something about them. 

21. It was suggested that what was said by Allsop J in SZEEU at [221] dealt with the issue of whether or not something was a part of the reason and that while his Honour gave indications of the type of circumstances in which a s.424A notice must be given, this did not address the issue of what must be contained in a s.424A notice. It was submitted that while there did not seem to be any useful jurisprudence on the extent of the obligations arising under a s.424A (notice in particular as to what such obligations require a decision-maker to explain) the explanation in this case was sufficient to satisfy the requirements of the Migration Act 1958. 

Reasoning

1. The Tribunal’s obligation under s.424A(1)(a) is to give the applicant “particulars” of information it considers would be the reason or part of the reason for affirming the decision under review. As Allsop J pointed out in Paul v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1196 at [94] – [104] the word “would” is used in s.424A(1)(a) not “could”. As McHugh J stated in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at [58] s.424A is “enlivened” at the point when the Tribunal has information and has determined that the information would be the reason or part of the reason for affirming the decision under review (also see SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252 at [48]). It is necessary not only that the Tribunal give particulars of such information to an applicant, but also that it ensure, as far as is reasonably practicable, that the applicant understands why such information is relevant to the review (s.424A(1)(b)).

2. No authority was cited on the nature or extent of the Tribunal’s obligation under s.424A(1)(b). It is clear that, as Allsop J stated in Paul at [103], the obligations under paragraphs 424A(1)(a) and 424A(1)(b) are “necessarily intertwined”. As his Honour stated at [105]:

   …s.424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it.  The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind.  A consideration of these matters is obviously affected by the chosen approach of the Tribunal.  Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review.  This very much depends upon what the Tribunal takes to be relevant …

3. At the same time, in assessing whether the Tribunal met its obligation under s.424A(1)(b) of ensuring that the applicant understood the reason why the information was relevant, it is appropriate to have regard to the relationship of the information to the overall context of the claims made by the applicant. (See W258 v Minister for Immigration & Multicultural Affairs [2001] FCA 598). In SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 598, in circumstances where it was submitted that a s.424A letter did not sufficiently identify the relevance of particular information, von Doussa J had regard not only to the information and the relevance attributed to it in a s.424A letter but also to whether the response from the applicant’s adviser indicated that those advising the applicant were under any misapprehension as to the relevance the Tribunal attached to the information.

4. There is authority to suggest that where a Tribunal makes an adverse finding as to credit based on information (including inconsistencies in statements made by the applicant to the Department and to the Tribunal), then particulars of such inconsistencies should be put to the applicant together with an explanation of their relevance to the review (see Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 75 ALD 386, SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 and SZDKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1203) whether or not such an obligation would arise under common law principles of procedural fairness .

5. In this case however it is not necessary to determine all of the issues raised about the scope of s.424A because no failure to comply is established in the manner contended for by the applicant.

6. The first item of information in issue relates to the applicant’s name. While the applicant’s submissions refer to the applicant claiming his name was Daniil, this claim was not in fact made at the time of the s.424A letter. It was information subsequently provided by him and was not subject to the s.424A obligation. However it is clear that this is intended to be a reference to that part of the s.424A letter which stated that the applicant claimed at the hearing “that your name is Danil and this name identifies you to everyone as a person of Jewish ethnicity”, but that he had previously claimed in his sports visa application that he had no other names.

1. However the Tribunal put to the applicant the information that in his sports visa application he had indicated that he was not known by any other surname or first name (and also that he had received no help completing the form).  It explained the relevance of this information in several paragraphs which also address other areas of concern to the Tribunal about the claims made to it about Jewish ethnicity.  The Tribunal stated:

   This information is relevant because:

   You claim at your hearing of this Tribunal that your name is Danil and this name identifies you to everyone as a person of Jewish ethnicity.  Danil is a name of Persian origin.  ( Danylo is a traditional historical Ukrainian name, associated with King Danylo whose statue has recently been built in Lviv.

   You do not suggest that you wore any identifiers of Jewish ethnicity such as traditional dress.  You have provided no documents to indicate that your name was Danil pre-1993.  You ticked on your visa application you had no other names.  When asked by the Tribunal how people would know you were of Jewish ethnicity you stated that they would know when you spoke.  You were about 25 years of age when you left the Ukraine.  The Tribunal has found no independent evidence to suggest that young persons of ethnic Russian and/or ethnic Jewish backgrounds who were born in the Ukraine speak Russian or Ukrainian differently to the general population.

   Since independence Ukrainian is the official language.  You were 16 years of age when Ukraine became independent.  You claim you were a member of the national shooters team in your visa application or the luge team in your PVA, both national Ukrainian sports teams.  You attended the Lviv Sports university from 1993 to 1997 and then the Kharkiv Law Academy, by way of correspondence, yet you claim you do not speak Ukrainian.

   The lack of lodging a complaint with the Migration Agents Registration Board, about the claimed conduct of your former migration agent for providing incorrect information without your instructions, coupled with the lack of evidence of the name Danil being an identifier of Jewish ethnicity, your lack of wearing traditional Jewish clothing, the lack of evidence of your having any other name other than a traditional Ukrainian name of Danylo leads the Tribunal to conclude that you are not part Jewish.  Your ability to be appointed to a national Ukrainian team, either shooters or luge indicates you are able to speak Ukrainian and that you have created a different profile of yourself, from the profile in your visa application and your PVA, in order to obtain the visa sought.

   Furthermore, the independent evidence sent to you herein does not indicate that ethnic Russians or Jews or homosexuals or Russian Jewish homosexuals from the Ukraine suffer harassment or discrimination or harm for their ethnicity in the Ukraine. 

2. It is clear that the Tribunal informed the applicant not only of its concern based on independent information that the name Danil did not identify him as Jewish (a matter not in fact requiring a s.424A notice as this was information given to the Tribunal by the applicant) but also that in the context of other concerns it had about his claim of Jewish ethnicity it had regard to the fact that (contrary to his claim that his name was Danil pre 1993) the applicant had ticked on his sports visa application that he had no other names.

3. In explaining the relevance of this information it set out a number of other concerns about the applicant’s claims to be of Jewish ethnicity.  It did not, contrary to the applicant’s submission, simply state the relevance of this information to be that it led it to conclude the applicant was not part Jewish.  First, it contrasted the applicant’s claims at the hearing with a number of factors – the lack of evidence that Danil was a Jewish name and the absence of traditional dress, the absence of documents to indicate the applicant’s name was Danil pre-1993, that he had ticked on his visa application that he had no other names and that he claimed that people would know he was of Jewish ethnicity when he spoke yet there was no independent evidence to suggest a person of ethnic Russian and/or ethnic Jewish backgrounds born in the Ukraine would speak Russian or Ukrainian differently to the general public.  Having brought these inconsistencies and issues about the applicant’s claims to his attention the Tribunal indicated that a number of factors, including the lack of evidence about the applicant having a name other than a traditional Ukrainian name of Danylo, led it to conclude the applicant was not Jewish. 

4. However immediately thereafter the Tribunal put to the applicant that his involvement in a national Ukrainian team indicated that he was able to speak Ukrainian.  It then put to the applicant that he had created a different profile of himself “from the profile in your visa application and your PVA, in order to obtain the visa sought”. This clearly informed the applicant of the relevance of the information in his sports visa application and the subsequent contrary claims, including his claims about his name – not only that a number of factors led it to conclude that the applicant was not Jewish but also that those original claims had been replaced by a “profile” created by the applicant to obtain the protection visa. While there is no express reference to credibility, the issue of “credibility” was clearly raised in this way in the s.424A letter.

5. In its reasons for decision the Tribunal referred to the absence of an explanation for the fact that the applicant indicated he had not been known by any other name in his sports visa application, but later claimed that he had changed his name in 1993. It took this into account in a manner consistent with the relevance identified in the s.424A letter – finding “I do not accept the applicant is a witness of truth.  I am satisfied he has created his claims in order to obtain the visa sought”. No failure to comply with s.424A(1)(b) is established in relation to this information.

6. Similarly, information about the inconsistency between the applicant’s claim in his protection visa application to be Orthodox and his claim at the hearing to be Catholic was put to him in compliance with both s.424A(1)(a) and s.424A(1)(b). The information was set out at the start of the s.424A letter – the fact of an inconsistency was sufficiently identified by the statement “you originally claimed in your PVA that you were Russian Orthodox, but now claim to be Roman Catholic and an ethnic Jew”.  In explaining the relevance of this information, reference was made to the lack of any complaint by the applicant about the claimed conduct of his former migration agent.  In other words the Tribunal made it clear that the relevance of this information was not simply in relation to the applicant’s claim to be Russian Catholic rather than Orthodox (which it in fact accepted) but also that he did not complain about his adviser providing incorrect information in his protection visa application without his instructions.  The fact that the applicant made inconsistent claims was drawn to his attention by the statements “you originally claimed” and “but now claim”.  The Tribunal put the applicant on notice of these contradictions and the need for an explanation.  Moreover it did not simply say the relevance of this material led the Tribunal to conclude the applicant was not part Jewish.  As set out above, it related this information to the conclusion that the applicant had created a profile that differed from the profile in his sports visa application and protection visa application (in which he claimed to be Orthodox not Catholic) in order to obtain the visa sought.  This sufficiently explained the relevance of the conflicting information about religion. 

7. The next aspect of the s.424A letter referred to by the applicant is the alleged failure to explain the relevance of the absence of a claim at the hearing that the applicant left the Ukraine because of fear of UNA-UNSO, as he had claimed in the protection visa application.

8. However it is apparent that the Tribunal put to the applicant his failure to repeat the claim made in the protection visa application and contrasted it with his subsequent claim that he left the Ukraine because of attacks because of his Russian and Jewish ethnicity. Thus the absence of a claim in the protection visa application to have fled the Ukraine because of Jewish Russian ethnicity (not simply Russian ethnicity) was brought to the applicant’s attention. In explaining the relevance of this (and other) information, it indicated the relevance of variation between the claims made in the protection visa application and later claims to the conclusion that the applicant had created a profile which differed from that in the protection visa application. Both the inconsistency and the need for an explanation were brought to the applicant’s attention in a manner which pointed to the conclusion that the applicant (having created a profile) was not a witness of truth. It was in fact relied on as part of the reason for the finding the applicant had created his claims. No failure to comply with s.424A(1)(b) is established.

9. Finally the applicant contended that the Tribunal erred in failing to explain the relevance of country information about the propiska situation. It was under no obligation to do so. While it chose to put such information to the applicant, it was information in s.424A(3)(a) and hence no obligation under s.424A(1) arose.

10. Associated with this information was the claim that the Tribunal breached s.424A in failing to put to the applicant the inconsistency between the sports visa application reference to an address in Kiev and his claim he could not relocate because of the propiska system (and also that country information about the propiska system was inconsistent with his claim he lived in Kiev).

11. However, first the applicant did not claim he lived in Kiev – but rather that he had an address for correspondence there. Secondly the Tribunal did put the fact of the Kiev correspondence address to the applicant in the s.424A letter (as well as the fact the propiska system had been replaced by a registration system). It explained the relevance of the Kiev address as suggesting that the applicant could relocate there if he felt it was necessary as considered in its reasons for decision. Further, the difference between the claims in the sports visa application and thereafter was put to the applicant sufficiently in the Tribunal’s suggestion that the applicant had created a different profile in order to obtain the visa sought. No failure to comply with s.424A is established.

12. Hence, in light of the findings in relation to the first ground of review, the application must be dismissed.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  25 August 2006