v v Minister for Immigration and Multicultural Affairs

[1998] FCA 1293

FEDERAL COURT OF AUSTRALIA

MIGRATION – application for judicial review of decision refusing grant of protection visa – whether decision of the Refugee Review Tribunal failed to consider all material questions of fact – whether fact in question was a “material fact” – whether obligation imposed by s 430 extends to findings of fact not critical to the conclusion reached by the Tribunal.

Migration Act 1958 (Cth) ss 430, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Collins v Repatriation Commission (1980) 48 FLR 198

V v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 127 of 1998

MOORE J
27 AUGUST 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 127  of   1998

BETWEEN:	V APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MOORE J
DATE OF ORDER:		27 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 127 of 1998

BETWEEN:	V APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	27 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act1958 (“the Act”) for the judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 28 January 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 9 May 1996 refusing to grant Mr V (“the applicant”) a protection visa. In considering the application for a protection visa it was necessary for the delegate to determine whether the applicant was a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to The Status of Refugees (“the Convention”): see s 36(2) of the Act. Ordinarily that involves a consideration of whether the applicant was a refugee as defined in the Convention.

It is unnecessary to give a detailed account of events leading to the applicant’s application for a protection visa as the point raised in this application for judicial review is a narrow one.  The applicant is a citizen of the Russian Federation.  He arrived in Australia on 22 May 1995.  The applicant had been engaged in business activities in the Russian Federation and was approached by a corrupt senior official with the local city council who asked him to participate in the laundering of money.  He was also approached by criminals seeking from him a large sum by way of protection money.  These events occurred shortly after a visit he undertook to Australia in 1994.  These two events were identified in these proceedings by counsel for the applicant as two of three significant factual matters apparent in the material provided to the Tribunal by the applicant.  The third related to events concerning a friend. 

In a section of its reasons headed “Claims and Evidence” the Tribunal said the following about the events concerning the friend:

Mr V said that at about this time [he was approached to launder money and the demand for protection money was made] he had met by chance a former Army colleague.  He said that when they began exchanging details of their lives since the Army he discovered that his colleague was also the victim of mafia and official interference.  Mr V said that he and his colleague decided to begin their own investigation into corruption in the region.  His friend obtained information about money laundering through contacts in the local tax office and banks.  These showed that a number of companies had laundered $US15 million to the ‘Unity’ Group.  His friend had also obtained photographs of the Governor at a dacha in the company of prostitutes.  Mr V said that he had also recorded some discussions with former Militia colleagues and that these had shown the depth of corruption and the inability of the police to do anything about it.  Mr V said that at this point his friend suddenly disappeared.  He spoke to neighbours who said that they had heard noises through the night.  Mr V said that in 1996, after he had come to Australia, he had re-established contact with his colleague through an address in the United Arab Emirates.  His colleague had told him that on the night in question he had been beaten up, stabbed and left for dead.  All the documents to do with their joint investigation had been stolen.  His colleague had panicked and fled the region.  Mr V said that although he had not known what had happened to his colleague, he too had realised that he had to leave.  He had a visa for Australia and used it.

Shortly after this passage the Tribunal noted:

The Tribunal asked Mr V what actual harm he feared if he were to return to Russia.  Mr V said that this was difficult to quantify.  An awful thing had happened to his colleague.  Would he be next?  He said that he feared for his life and for the lives of his family.  Nothing had changed in Russia since he had left.  The same people were still in charge.  The same links between the corrupt officials, the Mafia and the organs of the State existed.  There was no way he could go back and live in safety.

These passages appear towards the end of the Tribunal’s exposition of the claims and evidence.  Its reasons also contain a section headed “Findings and Reasons”.  Given the nature of the legal issue raised in these proceedings it is desirable that this section of the Tribunal’s reasons be set out in full.  The Tribunal said:

FINDINGS AND REASONS

The Tribunal accepts that Mr V was the subject of an approach from a corrupt official and that as a result of his refusal to cooperate his business suffered.  The Tribunal also accepts that he had employed a former KGB officer to ensure that his business was protected and that following the officer’s departure he was approached by a Mafia group which offered protection against a large monthly fee.  Both claims are consistent with the published evidence, cited above, which indicated that as much as 40 to 50 per cent of the Russian economy is controlled by the Mafia and that the Mafia had links with corrupt Russian officials.  The evidence indicated that while corrupt officials remain in power this situation is unlikely to change despite Government announcements of measures to combat corruption and organised crime.  The Tribunal accepts that Mr V was the victim of crime.  It finds that the crime was perpetrated against him, as similar crimes have been against many others, because of the desire of the perpetrators to extract money, because of a perception that he had money.

Mr V has claimed that he is being persecuted for reasons of his political opinion because the payment of protection money was against his political principles.  However, as set out in Ram v MIEA (1995) 57 FCR 565 at 568 (per Burchett J, O’Loughlin and RD Nicholson JJ agreeing) “Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.” Thus what is at issue is the motivation of those who inflict harm, not the victim. In this case, the Tribunal does not accept that there was any political motivation for the harm inflicted on Mr V. The acts committed against him were criminal acts, motivated by a desire to obtain money and directed against him because he was seen to have money. The acts were not part of a course of systematic conduct directed against him for any Convention reason. While the Tribunal accepts that Mr V fears returning to Russia, and sympathises with his predicament, it does not find that there is a real chance that he faces persecution for a Convention related reason should he return to Russia.

No specific Convention claims were made by or on behalf of Mrs Galina Kondratenko or Master Konstantin Kondratenko.  Therefore there is no basis on which the Tribunal can be satisfied that they are refugees within the meaning of the Refugees Convention.

(emphasis added)

It can be seen that no reference is made in this passage to the circumstances of the friend which the Tribunal had earlier discussed.  The failure of the Tribunal to refer to this matter is central to the challenge the applicant makes to the Tribunal’s decision in these proceedings.  The ground pursued can be conveniently identified by setting out the way the ground was described in the amended application filed on 18 August 1998:

2.Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to produce a written statement, in accordance with s. 430, setting out its reasons, findings on material questions of fact and referring to the evidence or other material on which its findings were based.

Particulars

Central to the applicant’s case was that he and a former Army colleague had conducted enquiries into corruption, that his friend had been beaten and left for dead, and that the documents and photographs they had collected had been stolen.  As a result, the applicant had fled Russia and feared that the same thing could happen to him if he returned to Russia (RRT reasons P.7.4-8.4).  The Tribunal erred by failing to make any findings about what happened to the colleague or whether corrupt elements in Russia might target the applicant because of his opposition to and attempt to expose corruption.

…

The applicant abandoned a ground that turned on the consideration by the Tribunal of whether possible harm flowing from opposition to corruption could constitute persecution for reasons of political opinion.  This issue has recently been considered by Davies J in Minister for Immigration and Multicultural Affairs v Y (unreported, 15 May 1998). Thus the only ground advanced concerned the operation of s 430 which relevantly provides:

430 (1)  Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)sets out the decision of the Tribunal on the review; and

(b)sets out the reasons for the decision; and

(c)sets out the findings on any material questions of fact; and

(d)refers to the evidence or any other material on which the findings of fact were based.

(2)    …

(Emphasis added)

The grounds upon which this Court may review a decision of the Tribunal are identified in and limited by s 476 of the Act. However it was common ground that a failure to comply with the statutory obligation imposed by s 430 can constitute a failure to observe a procedure that was required by the Act to be observed in connection with the making of a decision: see s 476(1)(a). This issue was recently considered by Hill J in Mohamed Dahir Mohamed v Minister for Immigration and Multicultural Affairs (unreported, 11 May 1998) where His Honour concluded that a failure to comply with s 430 was a reviewable error.

The starting point in considering the submissions of counsel for the applicant is to ascertain what was decided by the Tribunal and its reasons.  It is now settled that the reasons of an administrative body such as the Tribunal should not be read narrowly or with a view to discerning error.  It is sufficient to refer to the summary of the relevant principles by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291. His Honour said:

1.        The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

2.        This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others.  This is not to condone double standards between the reasons and decisions of legally qualified persons and others.  It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow.  It must be taken to have been contemplated by the lawmaker.

3.        Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law.

4.        Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision which is impugned.  It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense.

The approach adopted by the Tribunal and manifest in the section headed “Findings and Reasons” was to accept that the applicant had sought to deal with and expose corruption in the way he had contended.  The Tribunal did so as part of a process of ascertaining whether the applicant held a well founded fear of persecution for reasons of his political opinion if he was to return to his country of nationality, which was the basis of the applicant’s claim under the Refugee Convention.  What constitutes persecution has been considered now on many occasions but it is sufficient, for present purposes, to refer to the observations of Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388:

When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns.  Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason.

The scope of the obligation imposed by s 430 of the Act and its legislative predecessor, s 166E, has been considered recently on a number of occasions by this Court: see Woldie v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 16 July 1998), Paramanathan v Minister for Immigration and Multicultural Affairs (Davies J, unreported, 15 May 1998), Sundararaj v Minister for Immigration and Multicultural Affairs (Lindgren J, unreported, 13 May 1998), Israelian v Minister for Immigration and Multicultural Affairs (R D Nicholson J, unreported, 1 May 1998), Nadesan v Minister for Immigration and Multicultural Affairs (O’Connor J, unreported, 12 March 1998) and Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402.

There are also numerous decisions of this Court dealing with a similar obligation imposed by s 43(2B) of the Administrative Appeals Tribunal Act1975: see Total Marine Services Pty Ltd v Kiely (Sackville J, unreported, 4 March 1998), Australian Trade Commission v Underwood Exports Pty Ltd (Mansfield J, unreported, 17 October 1997), Telstra Corporation v Roycroft (1997) 77 FCR 358, Seguin Moreau, Australia v Chief Executive Officer of Customs (1997) 77 FCR 410, Nabru Nominees Pty Ltd as Trustee of the Urban Family Trust No 2 Trust v The Commissioner of Taxation (1997) 37 ATR 97, Fox v Repatriation Commission (1997) 45 ALD 317, Comcare v Parker (Finn J, unreported, 2 August 1996) and Australian Postal Corporation v Wallace (1996) 41 ALD 455.

Section 43(2B) imposes an obligation in language that is slightly different to the language used in s 430. The obligation s 43(2B) imposes is that the reasons of the Administrative Appeals Tribunal (“AAT”) shall include “its findings on material questions of fact”. The obligation imposed by s 430 is that the Tribunal set out “findings on any material questions of fact”. Counsel for the applicant submitted, and I accept, that the obligation imposed by s 430 is the same notwithstanding the difference in language used. He referred to Collins v Repatriation Commission (1980) 48 FLR 198 in which the Court considered the obligation of the Repatriation Review Tribunal to set out in its reasons “any findings of fact in relation to the prescribed matter”: see s 170VK of the Repatriation Act 1920. Fisher J said at 212-213:

As to the second submission based on the fact that the Tribunal was required to state “any” and not “all” findings of fact, I do not see its obligation as different, to any significant extent, from that of the Administrative Appeals Tribunal.  Indeed it would be surprising if it was different, in the light of the fact that the President of the Tribunal had a discretion to refer the application to the latter Tribunal.  However, the use of the word “any” does not entitle the Tribunal to include a statement of only some of the facts found, but requires a statement of all facts to be given.  “Any” in this instance means “all, if any”.  I refer to Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 335 per Williams J (at 346).

Thus the principles that govern the obligation imposed by s 430 of the Act are the same as those concerning s 43(2B) of the Administrative Appeals Tribunal Act1975.  They have been conveniently summarized by Sackville J in Total Marine Services Pty Ltd v Kiely (supra) at 8:

The general approach to the construction of s 43(2B) is reasonably well settled, although the application of the subsection is not always easy: see generally H. Katzen, “Inadequacy of Reasons as a Ground of Appeal” (1993) 1 Aust J of Admin L 33.  The relevant principles include the following:

·A substantial failure by the AAT to state reasons for its decision constitutes an error of law: Dornan v Riordan (1990) 24 FCR 564 (FCA/FC), at 573; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 34 (FCA/FC) at 95-96, per Sackville J.

·The duty must be sensibly interpreted and applied, with a view to achieving good and effective administration.  It is not necessary that reasons address every issue raised in the proceedings; it is enough that they deal with the substantial issues upon which the decision turns: Dornan, at 567-568; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 (FCA/Wilcox J), at 481. As Burchett J said in Dodds v Comcar Australia (1993) 31 ALD 690, at 691:

“Section 43 is not to be construed in a pedantic spirit, but sensibly.  If the Tribunal’s reasons expose the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include ‘findings on material questions of fact’”.

See also the judgment of Mansfield J in Australian Trade Commission v Underwood Exports Pty Ltd, (supra) at 14-15.

The Tribunal did not address, at least at any length, the issue of whether there was a basis for concluding that the applicant had a well founded fear of persecution if he was to return to his country of nationality.  However the highlighted sentence in the passage quoted earlier in these reasons deals obliquely with that point.  It is relatively clear that the Tribunal’s reasoning proceeded on an acceptance that the applicant had been exposed to threats of harm before leaving and would be exposed to threats of harm and possible harm if he was to return.  Against that accepted state of affairs, the Tribunal addressed the question of whether the reason why the applicant would be exposed to that threat of harm and possible harm was for a reason identified in the Convention.  That is, whether the threat of harm or possible harm to the applicant was for reasons of his political opinion.  It concluded that it was not.  Approached this way, it may have been unnecessary for the Tribunal to consider the evidence concerning the experience of the applicant’s friend.  That evidence related to harm inflicted on another from which it could be inferred that the applicant was at risk of similar harm.  If harm to the applicant was accepted by the Tribunal in the way just discussed, it may have been unnecessary to make any express findings about the circumstances of the friend and from those findings determine what inferences might be drawn about the position of the applicant if he was to return to his country of nationality. 

The issue raised by the applicant in these proceedings is whether it was necessary for the Tribunal to have made findings concerning the circumstances of the applicant’s friend.  That, in turn, depended on whether findings on that question constituted “material questions of fact”: as to what are material facts though in different statutory context see Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628. I accept the circumstances of the friend were a material factual issue raised by the applicant. However they were not, in my opinion, material facts if the approach adopted by the Tribunal rendered them immaterial. That is, immaterial in the sense that the ultimate conclusion reached by the Tribunal did not depend on what finding it made in relation to the circumstances of the friend. The critical question, in my opinion, is whether the obligation imposed by s 430 to set out findings on any material questions of fact imposed an obligation to set out findings on questions of fact that were not critical to the conclusion reached by the Tribunal even though, if the reasoning of the Tribunal had differed from that adopted, they might have been or would have been material.

In Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 481 Wilcox J referred to “substantial issues upon which the decision turned”. The Tribunal must deal with factual issues of that character in its reasons. These observations were approved by the Full Court in Dornan v Riordan (1990) 24 FCR 564 at 567-568 which, in the context of the Act, were also approved in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414 per Sackville J (Davies and Beazley JJ agreeing). In my opinion, the approach adopted by the Tribunal rendered it unnecessary for it to consider the circumstances of the friend. They did not involve or concern factual issues upon which its decision turned. Accordingly the friend’s circumstances did not raise material questions of fact of the type to which s 430(1)(c) is directed. The failure of the Tribunal to make findings about the circumstances of the friend did not constitute a failure to give effect to the obligation imposed by s 430. The applicant has failed to demonstrate reviewable error and the application should be dismissed.

I order the application be dismissed with costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:  Dated:             27 August 1998

Counsel for the Applicant:	Mr Craig Colborne
Solicitor for the Applicant:	Kessels & Associates
Counsel for the Respondent:	Ms Rhonda Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 August 1998
Date of Judgment:	27 August 1998