SZJXW v Minister for Immigration
[2007] FMCA 1252
•21 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJXW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1252 |
| MIGRATION – Tribunal does not require expert evidence to determine that an applicant is not of African, Asian, Caucasian or Chechen heritage – even if an error of fact, not jurisdictional error unless made without evidence or vitiated by error of law – adverse finding of credibility is finding of fact – “appraisal” not “information” within s.424A – allegation of bias must be clearly made and distinctly proven – adequate state protection – particular social group – must be associative qualities that unite members of the group and set them aside from society at large. |
| Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 474 |
| Diatlov v Minister for Immigration and Multicultural Affairs (1999) 167 ALR 313 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Abalos v Australian Postal Commission (1990) 171 CLR 167 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 |
| Applicant: | SZJXW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3899 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 2 May 2007 |
| Date of last submission: | 2 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2007 |
REPRESENTATION
| The Applicant’s litigation guardian appeared on her behalf |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Ms M. Mafessanti of Clayton Utz |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3899 of 2006
| SZJXW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 28 December 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 November 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application in Court, by leave, on 2 May 2007. The first respondent was granted leave to file and serve submissions in response to the amended application, which mostly took the form of submissions. The first respondent filed these submissions on 23 May 2007. Written submissions in response were filed and served by the applicant on 12 June 2007.
Background to the proceedings
The applicant’s parents are Ukrainian citizens and claim to be of Armenian ethnicity. They arrived in Australia in July 2000 and applied for protection visas on 10 August 2000 (CB 1). That application was refused by a delegate of the first respondent on 1 November 2000 and by the Tribunal on review on 26 March 2002 (CB 49).
The applicant daughter was born in Australia on 9 February 2006 (CB 83). On 23 March 2006 an application for a protection visa was lodged on the applicant’s behalf (CB 75). Her parents were initially included in the application as members of the family unit (CB 84). In this application (written in the first person), the applicant claimed that her father was persecuted in the Ukraine because of his ethnicity and political opinion, and her mother was persecuted “because she is a member of my father’s family and has similar political views” (CB 82). The applicant claimed that she would “be persecuted as a person of Caucasian ethnicity and because I am a member of political opponent’s family” (CB 82).
In a letter dated 3 April 2006 the applicant was advised by the Department that her parents, having already applied for a visa and been refused, could not be included in her protection visa application (CB 108). An application by the applicant’s parents for inclusion as members of the family unit was refused on behalf of the Minister (CB 110-118).
The applicant daughter’s application for a protection visa was refused by a delegate of the first respondent on 1 May 2006 (CB 119-131).
On 25 May 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 133). The applicant’s parents gave oral evidence before the Tribunal on 31 July 2006.
On 9 November 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 294-300) (highlighting added):
The applicant was born in Australia. She is not entitled to Australian Citizenship. Her parents travelled to Australia on passports of the Ukraine. The applicant’s parents state that they have denounced their Ukrainian citizenship.
The Federal Court has given consideration as to whether being stateless is sufficient in and of itself to found refugee status. A stateless applicant claiming refugee status must still establish a well-founded fear of persecution for a Convention reason (Diatlov v MIMIA (1999) 167 ALR 313).
The applicant’s parents produced a document they state is dated 2000 and executed after their arrival in Australia. They state it is a document denouncing (renouncing) their citizenship. According to Article 18 (cited above) the date of renunciation of citizenship (for a citizen of Ukraine who has left for permanent residence abroad) is the date of issuing of the relevant Decree of the President of Ukraine. The applicant’s parents have produced no evidence to suggest that the President of the Ukraine has issued the relevant decree. The applicant’s parents do not suggest that they have voluntarily acquired the citizenship of another state according to Article 19 (cited above). Whilst I accept they have completed a form in Australia, I am not satisfied the applicant’s parents have renounced their citizenship under Ukrainian law as there is no Decree issued by the President of Ukraine before me. As I am not satisfied the parents have renounced or lost citizenship in accordance with the laws of the Ukraine, the applicant has Ukrainian citizenship by operation of Ukrainian law.
No specific Convention claims were made by or on behalf of the applicant, beyond those relating to her parents and her membership of her family.
The applicant child was born in Australia. For the purposes of s.36(2) she is a non-citizen. Her parents do not claim to be Australian citizens. She seeks to rely on her claims that she will suffer harm for her membership of her family if returned to the Ukraine. For the purposes of the Convention her claims are assessed against the Ukraine as the country against which her parents made Convention claims on her behalf.
The applicant’s father (father) claimed on behalf of his daughter, to this Tribunal, that he suffered ongoing harm in Ukraine because of his Armenian/Greek ethnicity and his imputed ethnicity of being a dark skinned person all his life in the Ukraine. He was attacked and harmed by the police because he is dark skinned and imputed to be ‘Chechen’ or Caucasian.
The applicant’s mother (mother) stated in her PVA that she was an ethnic Ukrainian.
In his application for a protection visa, before a differently constituted Tribunal N00/36155, the father stated that he was a Russian-speaking Ukrainian national of Armenian extraction. The father claimed that he faced persecution in Ukraine by reason of his ethnicity and his political opinion. Specifically he claimed that he and his family have been threatened and attacked by Ukrainian nationalists from the UNA-UNSO, that the Ukrainian Government is financially supporting the UNA-UNSO, that the Ukrainian militia (police) refused to act on his complaint that he had been attacked by people wearing the uniform of UNA-UNSO and that a Captain Gorbenko advised him to withdraw his complaint, otherwise he could be charged with defaming honest Ukrainian citizens.
I accept that the father is of Armenian and Greek ethnicity. I accept that the mother is of Ukrainian ethnicity. I do not accept the father is a witness of truth. I am satisfied that the father has created his claims, on behalf of his daughter, in order to obtain the visa sought.
Firstly, the father claimed that he is dark skinned and that his daughter is dark skinned. He did not make this claim to Tribunal N00/36155, a differently constituted Tribunal. The applicant, her father and her mother attended a Tribunal hearing before this Tribunal. They have also sent photographs to the Tribunal. After having seen the family at the Tribunal hearing, I accept that the father and his daughter both have dark hair and brown eyes. The father had light skin and brown eyes and his daughter had lighter skin and brown eyes. I accept that the father’s skin is more olive than his ethnic Russian wife. But I do not accept the father or the applicant have the appearance of a person of African or Asian or Caucasian or Chechen heritage.
Even giving the father the benefit of the doubt and accepting that some persons may perceive him to be of dark skin and being imputed to be a Chechen or a Causcasian or Tartar or other dark skinned person, his claim of suffering ongoing harm for many years because of his dark skin does not ring true.
The independent evidence (cited above) indicates that police abused Roma and harassed and abused dark‑skinned persons. Representatives of these groups claimed that police officials routinely ignored, and sometimes abetted, vigilante violence against them, especially in Crimea. The father did not live in Crimea. The IHF states that persons whose appearance differed from that of the majority population, particularly people of African, Asian and Caucasian origin, but also Tatars and Roma were regular targets of police abuse. Police had the right to stop them for identity checks, and, if their documents were suspicious, to detain them. Police officers demanded money from them and often ill-treated them until they paid. In addition to harassment by the police, Africans often fell victim to ultra-rightist racist aggression. Such cases were, as a rule, not investigated by the police. At the end of August 2000, a group of about 50 unidentified persons attacked a hostel for foreign students. They shouted racist slogans and beat Indian and Sri-Lankan students. Since the beginning of the war in Chechnya, the police and security services have targeted Chechens staying in Ukraine temporarily. They are regularly detained and their homes are searched.
The father did not claim to the Department or Tribunal N00/36155 that he was attacked, harassed and harmed for his dark skin and being perceived as a Chechen, Roma, Tatar or Caucasian or other dark skinned person. The father claimed that he was of Armenian ethnicity and he had been imputed to be an ethnic Russian. He told Tribunal N00/36155, he had been called a ‘damn Moscovite’ by 4 young men. When put to him, at hearing and by letter pursuant to s.424A, that he had not informed Tribunal N00/36155 or the Department that he was harmed in the Ukraine for his dark skin and being perceived as being of Chechen, Caucasian, Tatar or Roma ethnicity, he stated that his previous migration agents had claimed different things about him. He had told the agent that he was persecuted for being Caucasian and his political opinion. He never said that he was targeted as Russian, he does not look Russian and people would not perceive him as such.
I do not accept as plausible that the applicant father’s migration agent would without instructions omit a very important reason for his fear of harm. I am of the view that any applicant to whom the stated events had occurred would have pointed them out to Tribunal N00/36155 despite whatever his adviser might have written in his PVA. I do not accept that the father would not have informed the Department or Tribunal N00/36155 of this claim of harm for his dark skin especially as he claims such harassment continued over a lengthy part of his life. It does not ring true. I am of the view it is a late invention made to bolster his daughter’s claim.
Secondly the father claimed that he was often held up against a wall, checked by the authorities and he had to produce his ID. He told this Tribunal that on hundreds of occasions he was stopped on the street and was harassed because he was Armenian and perceived as Chechen or from the Caucuses. On numerous occasions over a long period they would put him up against a wall and spread his legs. The father did not inform the Department or Tribunal N00/36155 of this claim. Other than state that the omission was the fault of his migration agent he does not explain in his s.424A the reason for the omission. Whilst I accept that a migration agent prepared his documentation for the Department and the Tribunal, the applicant himself gave evidence to Tribunal N00/36155. His explanation does not ring true.
Thirdly, the father did not claim to have been targeted for his active social and political position in his fight against xenophobia and racism or his fight against racial prejudice either in his PVA or to Tribunal N00/36155. Rather in that application he stated that he suffered harm because he expressed his political view that the state was secretly financing the ultranationalists and that people had been deceived during the election campaign and they had elected a group of criminals. I am of the view that had the father been target for his fight against xenophobia and racism he would have made this known to the Department and Tribunal N00/36155.
Fourthly, the father claimed in his submission to this Tribunal that he was detained, abused, threatened if he complained his family would be harmed and he was left bleeding after he complained there was no protection available to him as an activist or Armenian. He claimed that he was beaten up, raped and seriously mistreated by police after lodging a complaint about his step-daughter. In that submission to the Tribunal the applicant states that “only the animal fear for my daughter's safety made me to tell this [severe police abuse] to the RRT”. He has not told his wife. When put by s.424A that he had not informed the Department or the previous Tribunal that he suffered serious harm at the hands of the police after complaining about an attack on his step-daughter, his response other than explaining that his migration agent was responsible, did not address the reason for the omission of his claim to Tribunal N00/36155.
The father, in his submission undated (received 12 July 2006), states that he is guilty of not telling the truth and he did not check the statement by his agent, he was too scared and too anxious. I am mindful that persons who have suffered serious harm, in the manner described by the father, can suffer psychological and/or physical problems and could have great fear and reluctance to discuss such a serious incident as rape. Whilst the father has produced a medical report No 1202/88 that details injuries received on 22 May 2000, the father has provided no medical evidence to suggest that he suffers or has suffered, since his arrival in Australia, any physical or psychological problems that would explain why he did not inform either the Department or Tribunal N00/36155 about such serious harm inflicted on him by the Ukrainian state. The applicant had the opportunity, at a hearing, to provide all information in relation to his claims for a protection visa to Tribunal N00/36155.
I do not accept that a claimant for protection would not, at the first available opportunity, explain all the reasons for their fear especially when he had the opportunity to give evidence personally to Tribunal N00/36155. It does not ring true. I am of the view that had the father been severely harmed by the police, in the manner claimed, he would have made it known to the previous Tribunal N00/36155.
Fifthly, the father claimed before Tribunal N00/36155 that he had been attacked and called a ‘Muscovite’ yet in his response to the Tribunal’s s.424A letter he stated that he was never targeted as a Russian he does not look Russian and people would not perceive him to be Russian. He states that it was his agent’s fault this was written. I reject this claim in view of his evidence given to the Tribunal N00/36155 that he had been called a Muscovite.
In view of the above findings, I am satisfied that the father is not a witness of truth.
I am of the view that the father has created these new claims in order to obtain the visa sought.
In relation to the medical report 1202/88 from Marioupol Department of Medical Forensic Expertise, the applicant accepts that there is widespread corruption in the Ukraine. That document indicates an injury occurred to the father on 22 May 2000 and that he was examined in the presence of the police. Even were I to accept that the applicant suffered an injury in May 2000 of the kind described in that report, in view of my finding that the father is not a witness of truth, I place no weight on this report as evidence that the Ukrainian police were responsible for a serious attack on the applicant on 22 May 2000 as claimed.
As for the summons issued for the father and the mother to attend the police station I place no weight on this summons as indicating that the police are seeking the father or the mother to harm them. Both summons state that both parents are requested to attend the police in order to be a “witness”. I place no weight on the summons that either of them are being sought to be arrested or detained by the Ukraine police.
As for the claim by the parents, by submission of 28 September 2006, that the Ukrainian Consulate in Australia would arrange for DIMA to refuse their application for a protection visa I reject this claim. I have no evidence before me to suggest that DIMA acts on the instructions of the Ukrainian Consulate. The applicant’s appeal is presently before the Tribunal in accordance with Australia’s Migration Laws.
As for the submission of 8 November 2006 by the applicant and her parents about Olga, the daughter who resides in the Ukraine, I reject their claims. I am not satisfied Olga was sexually assaulted because of her parent’s activities, as I am satisfied that the father is not a witness of truth who has created his claims in order to obtain the visa sought. I am satisfied it is a late invention to assist his claims.
As for his claim that his step-daughter was harassed in May 2000 as I do not accept the applicant is a witness of truth I do not accept that any harm that befell this lady was caused by the father’s ethnicity or political opinion. As for his brother I do not accept his treatment occasioned at the hands of the Soviet Army in relevant to the father’s claim in view of Ukraine having obtained independence from the Soviet Union in 1991.
There is no independent evidence before me to suggest that Ukrainian nationalists from the UNA-UNSO or the police attack and harm ethnic Armenians or ethnic Greeks or ethnic Armenian/Greeks or Chechens in the Ukraine. Independent evidence indicates that Ukraine had not experienced the inter-ethnic violence that had occurred in some of the other former Soviet republics. The maintenance of inter-ethnic calm had been attributed to a consistent government stance aimed at reassuring ethnic minorities concerning their legal status and cultural freedom. Several laws guaranteed protection of the rights of minorities in Ukraine and several sources indicated that these rights were generally respected in Ukraine.
Having regard to the independent evidence available to me regarding inter-ethnic relations in Ukraine in 2000 and in 2005 and my finding that the father is not a witness of truth, I do not accept that the father and his family were threatened and attacked by Ukrainian nationalists from the UNA-UNSO as he claimed before Tribunal N00/36155, or that the Ukrainian Government is financially supporting the UNA-UNSO, or that the Ukrainian militia (police) refused to act on the applicant’s complaint that he had been attacked by people wearing the uniform of UNA-UNSO. I am not satisfied that in December 1999 he had been a speaker at two workplace meetings, approached by UNA young men who warned him against speaking about the government’s involvement in ultra-nationalism and the dissemination of racial hatred and made ‘veiled threats’ or that in January 2000 he gave an interview to a television station or that he received abusive telephone calls or that in February 2000 he was attacked and had racist slogans screamed at him and had been called him a ‘damn moskal’ and hospitalised for two weeks. Nor I accept that he complained to police or that in April 2000 a Captain Gorbenko threatened to charge him with 'slander of decent Ukrainian citizens and hooliganism’. I also do not accept that in 1 May 2000 he addressed a meeting at a metal works or that his employer had told him that he had been threatened with violence if he did not sack him. I also do not accept that on 14 May 2000 he received another threatening telephone call, two days later his car had been fire-bombed. As I do not accept that the applicant is a witness of truth I also do not accept that he had obtained documents confirming UNA-UNSO’s involvement with the government. I am satisfied that the applicant has created these claims of harm from the police and UNA-UNSO in order to obtain the visa sought.
As I am satisfied the father is not a witness of truth I reject his claims that he suffered any harm for his dark skin in Ukraine, that he suffered any harm for his Armenian/Greek ethnicity or that he was attacked and harmed by the Ukrainian police.
I am satisfied the applicant’s father and mother did not leave the Ukraine fearing Convention related harm.
I am required to consider the situation if the applicant, a Ukrainian Greek/Armenian child born in Australia and her parents returns to the Ukraine.
I accept that Ukraine is not a perfect democracy but the presidential election in 1999 and again in 2004, while flawed, was considered to reflect the will of the electorate (US State Department, Country Reports on Human Rights Practices for 2000 & 2004). The independent evidence available to me indicates that the Ukrainian Government does not support ultranationalist movements like the UNA-UNSO. Additionally, Ukraine has not experienced the inter-ethnic violence that has occurred in some of the other former Soviet republics. The maintenance of inter-ethnic calm has been attributed to a consistent government stance aimed at reassuring ethnic minorities concerning their legal status and cultural freedom. Several laws guarantee protection of the rights of minorities in Ukraine and several sources indicate that these rights are generally respected in Ukraine. In the Donetsk Oblast there were in 2001 according to the Census 1.6% Greeks and 0.33% Armenians. Armenia and the Ukraine have entered into a free trade agreement. Armenian is able to be taught in the schools in the Ukraine and the government is returning churches to the Armenian community. Amongst the Members of Parliament are persons from the ethnic minorities of the Ukraine. Among parliament members there were ethnic Russians, Bulgarians, Crimean Tatars, Armenians, Hungarians, Georgians, and Jews. The Prime Minister at year’s end [2005], Yuriy Yekhanurov, is half ethnic Buryat. His cabinet included an ethnic Russian and an ethnic Hungarian.
I have no information before me to indicate that ethnic Armenians or Greeks or children of Ukrainian/Greek/Armenian parentage are targeted for their ethnicity or religion in Ukraine. Whilst the police and the judiciary suffer from inefficiency and corruption, all citizens are affected. I have no information before me that the Ukrainian police are unwilling or unable to protect ethnic Armenians or Russians or Greeks or Armenian/Greeks or Ukrainians married to Armenian/Greeks or children of mixed Armenian/Greek/Ukrainian ethnicity in the Ukraine. I am of the view that were the situation that a child of Ukrainian/Greek/Armenian ethnicity targeted for ethnicity in Ukraine it would be known to the independent sources such as Helsinki, US State Department, UK Home Office, Amnesty or DFAT.
The applicant also claims that as her parents did not return to Ukraine in time, they applied for protection visas and if they went back to Ukraine they will be questioned about their overstaying their visas and it would be clear that they made an application for Protection. If she had to apply for travel document to go to Ukraine she will have to give a detailed explanation as to why she is without a valid ID and would result in her persecutions. I have no information before me to suggest that children born to Ukrainian citizens whilst abroad would have to explain why they do not have a valid ID or would suffer persecution. I am of the view that the Ukrainian Embassy in Australia, established on 3 March 2003 in Canberra, would issue relevant travel documentation for a child born in Australia of parents who are citizens of the Ukraine in accordance with ‘The Law of Ukraine on Citizenship of Ukraine’.
I consider that the independent evidence indicates that the applicant and her family will receive the same degree of protection in respect of any threat they may face from ultranationalists or other persons as any other citizens in Ukraine and that the Ukrainian Government, which has adopted a consistent stance aimed at protecting the rights of minorities, will provide the applicant and her family with a level of protection sufficient to remove a real chance of their being persecuted if they return to Ukraine now or in the reasonably foreseeable future.
In relation to the applicant and her father’s situation as a member of an ethnic minority in Ukraine and the applicant being half Ukrainian and half Greek/Armenian, the independent evidence before me suggests that the rights of ethnic minorities are generally respected in Ukraine and that Russian-speakers, Ukrainians who speak Russian, Armenians and Greeks form a sizeable minority in the eastern part of Ukraine, from which the applicant comes. Furthermore the independent evidence does not suggest that ethnic Armenians or Greeks or Greek/Armenians or Greek/Armenian/Ukrainians or Russians suffer harm in the Ukraine for their ethnicity. The independent evidence indicates that Armenian is now being taught in a school in Ukraine and that Armenian churches are being restored and returned to the Armenian congregations. There is a free trade agreement between Armenia and the Ukraine.
I do not accept that there is a real chance that applicant and her parents will be persecuted by reason of the father’s political opinion or the family’s ethnicity if the applicant and her parents return to Ukraine now or in the reasonably foreseeable future. I do not accept that there is a real chance that the applicant will be persecuted by reason of her ethnicity or any other Convention related reason if she returns to Ukraine now or in the reasonably foreseeable future.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In her application, the applicant set out two grounds as follows:
(1)RRT made an error in law by stating that applicant does not have an appearance of Caucasian person without testimony from an expert.
(2)RRT wrongly applied test of “well-founded fear”.
The applicant filed an amended application in Court, by leave, on 2 May 2007, which mostly took the form of submissions and will be treated as such.
Findings of the Court as to the grounds in the application
Ground one alleges that the Tribunal should not have found that the applicant father did not appear to be Caucasian without expert evidence.
That finding of fact was properly open to the Tribunal as the applicant’s father claimed persecution because of his “dark skin”. The applicant daughter, with her father and mother, appeared before the Tribunal (CB 295.3). The Tribunal was therefore properly placed to make an assessment of whether the applicants had “dark skin”. The Tribunal found at CB 295.3:
The applicant, her father and her mother attended a Tribunal hearing before this Tribunal. They have also sent photographs to the Tribunal. After having seen the family at the Tribunal hearing, I accept that the father and his daughter both have dark hair and brown eyes. The father had light skin and brown eyes and his daughter had lighter skin and brown eyes. I accept that the father’s skin is more olive than his ethnic Russian wife. But I do not accept the father or the applicant have the appearance of a person of African or Asian or Caucasian or Chechen heritage.
That finding was open on the evidence and is not subject to review. The Tribunal then proceeded to give the applicant father the benefit of the doubt by stating:
Even giving the father the benefit of the doubt and accepting that some persons may perceive him to be of dark skin and being imputed to be a Chechen or a Caucasian or Tartar or other dark skinned person, his claim of suffering ongoing harm for many years because of his dark skin does not ring true. (CB 295.4)
The Court accepts the submission for the first respondent that the Tribunal in effect asked itself “what if I am wrong” in respect of the applicant’s ethnicity based on her and her father’s appearance, and therefore it was not incumbent on the Tribunal to make further enquiries or obtain expert evidence as to the applicant’s appearance: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 66-67, and that even if the Tribunal was incorrect in its finding about the father’s appearance, such an error does not necessarily demonstrate jurisdictional error unless it is made without evidence or is vitiated by error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341. The judgment was made on the basis of the applicant’s and her father’s appearance. This ground is rejected.
Ground 2 is not particularised and does not show any reviewable error. It is rejected.
The applicant raised further grounds in her written submissions:
(a)Failure to properly consider the medical certificate evidence regarding her father’s injuries in May 2000;
(b)Failure to consider the issue of state protection properly;
(c)Bias;
(d)Particular social group;
(e)Breach of s.424A.
The medical report
The Court finds that the Tribunal considered the medical report and reached a conclusion properly open to it that it is not “evidence that the Ukrainian Police were responsible for a serious attack on the applicant on 22 May 2000 as claimed” (CB 297.5). The Tribunal rejected the claim as it found that the applicant father was “not a witness of truth”. Those findings of credit were properly open to the Tribunal. No error occurred. This ground is rejected.
Assessment of the applicant father’s credit
The Court accepts the submission for the first respondent, that the fact that the applicant father had not previously made various claims in his own applications provided a proper basis for the Tribunal’s adverse findings as to credibility as those matters were logically probative of the issue of credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The adverse findings as to credibility are findings of fact that are not subject to review. This ground is rejected.
The Court accepts the further submission for the first respondent that the Tribunal was not required by s.424A to put its appraisals of the medical certificate evidence to the applicant for comment, as such appraisals were not “information for the purposes of s.424A”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 24. The Court accepts that the common law natural justice hearing rule did not apply to the hearing by reason of s.422B. This ground is rejected.
Alleged failure to consider state protection
The decision shows clearly that the Tribunal considered the issue of state protection (CB 298.1 – 299.4). The Court accepts the submission for the first respondent that the Tribunal adopted the correct approach to the question of state protection, as it found that the “inefficiency and corruption of the Ukrainian Police did not lead to discriminatory policing and did not indicate that the police were unable or unwilling to protect ethnic minorities”. They were findings of fact properly open to the Tribunal on the material before it and are not subject to review. This ground is rejected.
Because of the age of the applicant, her father was appointed as her litigation guardian by order of the Court on 1 February 2007. The litigation guardian was invited by the Court to make submissions in support of his daughter’s application. The applicant claims that it was “procedurally unfair for the Presiding Member to make an adverse credibility finding and only upon the subjective opinion of the Presiding Member”.
In W148/00A v MIMA (2001) 185 ALR 703; [2001] FCA 679 Tamberlin and RD Nicholson JJ. said relevantly:
[64] The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ):
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the Court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
There is nothing to show that the Tribunal acted on evidence that was inconsistent with facts incontrovertially established by the evidence, or which was glaringly improbable. The claim about the credibility finding is rejected.
Allegation of bias
The applicant alleges bias. No particulars are provided and no evidence has been presented to comply with the requirement that that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at 22, citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established. This complaint is rejected.
Membership of a particular social group
The applicant’s litigation guardian submitted that the Tribunal did not consider whether the applicant would be afforded adequate state protection by reason of her membership of a particular social group, namely the family of a political activist or the family of an Armenian political activist. The Court accepts the following submission for the first respondent:
There was no evidence of circumstances that demonstrated the ‘associative qualities’ that operated to unite the Applicant, as a daughter of an alleged political activist or Armenian political activist, with other persons and set them aside as a cognisable particular social group from a society at large. There was no evidence that there was a casual nexus between the Applicant’s fears and her membership of that particular social group: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240-1, 249, 263-4 and 285-6; Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 at [36], [65] and [69]”
The Court accepts the following statement from the Tribunal’s decision in CN060697794:
The meaning of the expression “for reasons of...membership of a particular social group” was considered by the High Court in Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 and also Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 206 ALR 242. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
…First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”…
Whether a supposed group is a “particular social group” in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reasons of the person’s membership of the particular social group.
The Court accepts the submission by the first respondent (Supplementary submissions para [2.3]) that
In any case, the Tribunal considered whether the Applicant’s father was a political activist and found that the Applicant’s father had “created these new claims”: CB 296-7. It found that he was not a witness of truth and rejected his claims to have been a political activist in the past. This general finding affected any unarticulated claim to a fear of persecution for reason of membership of a particular social group. Having made the adverse credibility finding in respect to all of the father’s claims and evidence, the Tribunal was not required to give reasons why it accepted or rejected individual pieces of evidence and every contention, including unarticulated contention, made by the Applicant’s father: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68], [73]-[74] and [91]; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [47]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79].
The Court rejects the claim that the Tribunal did not consider whether the applicant would (not) be afforded adequate state protection by reason of her membership of a particular social group.
Alleged breach of s.424A
The applicant alleges that the Tribunal had an obligation under s.424A to notify her of “the information it had about the father’s appearance”. That information was a conclusion or subjective reason of the Tribunal and was therefore not “information” covered by s.424A(1). As stated in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]:
Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
This complaint is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 1 August 2007
0
25
1