VEAF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1096
•11 AUGUST 2005
FEDERAL COURT OF AUSTRALIA
VEAF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1096
VEAF v Minister for Immigration [2004] FMCA 334 cited.
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 cited.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited.VEAF OF 2002, VEAG OF 2002 and VEAH OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
VID 742 OF 2004
SUNDBERG J
11 AUGUST 2005
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 742 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
VEAF OF 2002
FIRST APPELLANTVEAG OF 2002
SECOND APPELLANTVEAH OF 2002
THIRD APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
SUNDBERG J
DATE OF ORDER:
11 AUGUST 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The Refugee Review Tribunal be added as a respondent.
2. The appeal be dismissed.
3. The appellants pay the first respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 742 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
VEAF OF 2002
FIRST APPELLANTVEAG OF 2002
SECOND APPELLANTVEAH OF 2002
THIRD APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
SUNDBERG J
DATE:
11 AUGUST 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The appellants are a family from Ukraine. The first appellant is the husband, the second appellant is the wife and the third appellant is their son. The first appellant is ethnically a Tatar. The appellants’ applications for protection visas were refused by a delegate of the first respondent. That refusal was upheld by the Refugee Review Tribunal (“the Tribunal”). The decision of the Tribunal was upheld by the Federal Magistrates Court: VEAF v Minister for Immigration [2004] FMCA 334. The learned magistrate’s decision is now the subject of an appeal to this Court. (Pursuant to s 25(1A) of the Federal Court of Australia Act 1974 (Cth), Black CJ determined that the appellate jurisdiction of the Court should be exercised by a single judge rather than a Full Court.)
A succinct summary of the factual basis upon which the appellants sought protection visas can be found at [1]‑[12] of the learned magistrate’s decision. I will not repeat it.
The notice of appeal comprises ten grounds. Two were abandoned by counsel for the appellants. The remaining eight go to three issues. First, whether the magistrate erred in finding that the Tribunal ‑ in determining whether the appellants faced a real chance of persecution if they were to return to Ukraine ‑ had not failed to consider the first appellant’s membership of a Tatar cultural organisation in which he was an office‑holder separately from his Tatar ethnicity. Second, whether the magistrate erred in finding that the Tribunal had considered each of the assaults upon the first appellant that made up the factual basis referred to at [2]. Third, whether the magistrate erred in failing to find whether or not the Tribunal “had misapplied and misconstrued the definition of ‘persecution’” in s 91R of the Migration Act 1958 (Cth) (“the Act”).
FIRST APPELLANT’S MEMBERSHIP OF SOCIAL GROUP
The relevant grounds of appeal are as follows:
“1.His Honour erred in finding that the Refugee Review Tribunal (“the Tribunal”) did not err by failing to consider the first named Appellant’s (“the Appellant”) membership of the Tatar organisation separately from his Tatar ethnicity because the organisation was not a separate social group.
2.His Honour erred in concluding that the Tribunal did address and deal with the Appellant’s involvement with the Tatar organisation and did make an assessment of whether the Appellant was attacked on the occasions claimed for reasons of his membership of the organisation.
…
6.His Honour should have held that the Tribunal in assessing the Appellant’s claims was required to consider separately the Appellant’s membership of the Tatar organisation and his ethnicity and that this failure by the Tribunal constituted a failure to take into account a relevant consideration and/or the Tribunal otherwise exceeded its jurisdiction and/or constructively failed to exercise its jurisdiction by failing to consider an integer of the Appellant’s claims.
7.His Honour should have held that the Tribunal did not address and deal with the Appellant’s involvement with the Tatar organisation and did not make an assessment of whether the Appellant was attacked for reasons of his membership of the society and that this failure by the Tribunal constituted a failure to take into account a relevant consideration and/or the Tribunal otherwise exceeded its jurisdiction and/or constructively failed to exercise its jurisdiction by failing to consider an integer of the Appellant’s claims.”
Before dealing with these grounds of appeal, I should say something about the way in which the first appellant put his claim for protection. On its face, the first ground of appeal implies that the claim was plainly put on two distinct Convention bases: the first appellant’s Tatar ethnicity (“the first basis”) and his membership of a particular social group ‑ being the Tatar organisation (“the second basis”). Counsel for the appellants conceded that this was not so. Rather, it seems that the highest that it can be put in favour of the first appellant is that the first and second bases were conflated. However, the respondent submitted that, in fact, the claim was put solely on the first basis and that:
·at most, the first appellant’s membership of the Tatar organisation and the alleged consequences for him thereof were but an “aspect” of his claimed fear of persecution on the grounds of his Tatar ethnicity; and
·the material relied upon by the first appellant did not give rise to a discrete claim on the second basis.
Of course, in coming to its decision, the Tribunal cannot limit itself to the “case” that an applicant puts to it: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63. However, the way in which an applicant puts the case necessarily affects the way in which the Tribunal, by way of its reasons, addresses the issues that are raised - whether expressly, impliedly or obliquely - by that case. Further, one should always be mindful of what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 about the manner in which courts should approach the reasons of administrative decision-makers such as the Tribunal.
The findings of the magistrate that gave rise to the first and second grounds of appeal can be found at [19]-[26] of his decision. Again, I will not rehearse them. For the reasons that follow, the first and second grounds are not made out. It is not necessary to deal with sixth and seventh grounds as they are predicated on the first and second grounds being made out.
In so far as they might be said to rest on the second basis, the appellants’ claims for protection arose from a series of violent assaults upon the first appellant. He believes they were committed by the members of a group of extreme right-wing Ukranian nationalist thugs because they resented the activities of the Tatar organisation ‑ over and above their antipathy towards Ukrainian Tatars generally. The Ukrainian nationalist organisation “attacked” the offices of the Tatar organisation in 1994. Soon after this incident, the first appellant was seriously assaulted (and hospitalised) by a group including some of those who had taken part in the attack on the office. He believed this was a result of a complaint he had made to the police about the attack on the office. From this time, the first appellant began receiving threatening telephone calls warning him to cease his involvement in the Tatar organisation. He refused to do so. In 1995, the first and second appellants were seriously assaulted (and hospitalised). The first appellant attributed this to his refusal to cease his involvement in the Tatar organisation. Then, in 1998, the first appellant was shot in the back ‑ he believed by those who had been making the threatening telephone calls. Again, in 2000, the first and second appellants were seriously assaulted (and hospitalised) by three persons ‑ one of whom had taken part in the previous assaults. It is unclear which. Finally, in 2001, the first appellant was assaulted (but not hospitalised) and told that this was his ‘last warning’.
Much then turns upon the motivation behind the first assault described at [8]. The Tribunal noted discrepancies in the first appellant’s account of the complaint to the police that he said resulted in the first assault. The Tribunal then found that “[t]hese discrepancies [did] not lead to the conclusion that the [first appellant] was targeted because of his ethnicity for the” first assault. The expression is inelegant, but its effect is clear: the Tribunal did not believe the first appellant’s allegation that the first assault resulted from, specifically, his complaint to the police or, generally, his Tatar ethnicity ‑ even though it found “it plausible that at that time that the [Ukrainian nationalist organisation] might have attempted to intimidate an organisation such as the Tatar” organisation. That necessarily implies that the Tribunal also did not believe the first appellant’s allegation that the first assault resulted from his membership of the Tatar organisation. Therefore, it specifically addressed that allegation.
It is clear that the Tribunal did not believe that any of the subsequent assaults were at all linked to the Ukrainian nationalist organisation. It said it was:
“not satisfied that [the Ukrainian nationalist organisation] would pursue him for such a long time, knowing that he was not complying with their alleged instructions for him to leave the Ukraine, and not harm him even more seriously than he claims to have been.”
Therefore, any questions for determination by the Tribunal that might have been raised by the second basis became entirely moot. The Tribunal had effectively determined that the second basis had no foundation in fact.
ASSAULTS UPON FIRST APPELLANT
The relevant grounds of appeal are as follows:
“3.His Honour erred in concluding that the Tribunal did not err in failing to assess each assault claim made by the Appellants because the Appellants complaints were in respect of a pattern of behaviour rather than individual assaults.
…
8.His Honour should have held that the Tribunal was required to assess each of the assault claims made by the Appellants and that this failure by the Tribunal constituted a failure to take into account a relevant consideration and/or the Tribunal otherwise exceeded its jurisdiction and/or constructively failed to exercise its jurisdiction by failing to consider an integer of the Appellants claims.”
The relevant passage from the learned magistrate’s decision is as follows:
“29.The Tribunal has referred to each of the assaults and has made comments about each of them. Some of the applicant’s claims it accepted, some it rejected. The applicant’s case was not that any of the assaults on its own and its surrounding circumstances was sufficient to show persecution. The systematic conduct complained of was largely a series of assaults and violent conduct. The applicant was relying upon the pattern of behaviour which he described. It is not a case where a single assault as part of a course of conduct was relied upon. The Tribunal had to look at the whole pattern of behaviour which was alleged to see if there was the systematic conduct which might amount to persecution. At best, the submission in saying that the Tribunal did not give enough attention to each assault, is criticism of the Tribunal’s process of reasoning. That on its own does not constitute jurisdictional error.”
At the beginning of the passage quoted above, the learned magistrate found that the Tribunal had referred to, commented upon and come to a view on each of the five assaults. This finding is correct ‑ what followed it is neither here nor there. In any case, the Tribunal’s reasons make clear that its decision was not based on an erroneous assumption that a single assault could not amount to persecution for the purposes of the Convention. Rather, its decision was clearly based on a finding that none of the five assaults was motivated by the first appellant’s Tatar ethnicity. Accordingly, the third ground of appeal is not made out. The eighth ground is predicated upon the third ground being made out. I need not deal with it.
PERSECUTION
The relevant grounds of appeal are as follows:
“5.His Honour erred in failing to make a finding in respect of whether the Tribunal had misconstrued and misapplied the definition of “persecution” as provided for in s.91R of the Migration Act and in failing to make a determination in respect of all of the grounds argued by the Appellants in support of why relief should be granted.
…
10.His Honour should have made findings in respect of all the claims raised by the Appellants and in particular, should have found that the Tribunal erred in it’s interpretation of “persecution” pursuant to s.91R of the Migration Act and that the Tribunal thereby exceeded its jurisdiction and/or constructively failed to exercise it’s jurisdiction by applying the wrong test.”
These grounds fasten upon the passage from the Tribunal’s decision quoted at [10]. However, the Tribunal’s decision clearly did not turn upon any factual issue as to what might be capable of constituting persecution for the purposes of the Convention. As indicated at [10], the passage there quoted reflects the Tribunal’s belief that none of the subsequent assaults were at all linked to the Ukrainian nationalist organisation.
CONCLUSION
The appeal must be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.
Associate:
Dated: 11 August 2005
Counsel for the Appellants: N Karapanagiotidis (Pro bono) Counsel for the First Respondent: C Horan Solicitor for the First Respondent: Clayton Utz Date of Hearing: 26 May 2005 Date of Judgment: 11 August 2005
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