VEAF v Minister for Immigration
[2004] FMCA 334
•28 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VEAF & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 334 |
| MIGRATION – Application for protection visa – applicant a Kazan Tatar – whether Tribunal failed to consider applicant's involvement with a Tatar organisation – whether membership of organisation membership of a particular social group separate from Tatar community generally – whether applicant's claims should have been assessed in relation to individual assaults claimed – whether erroneous finding of fact on credit issue a jurisdictional error – whether Tribunal decision bona fide. |
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30
Dalpatadu v Minister for Immigration and Multicultural Affairs [2000] FCA 697
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 McAuliffe v Department of Social Security (1992) 28 ALD 609
Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121
Chan v Minister for Immigration and Ethnic affairs (1989] 169 CLR 379
NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32
| First Applicant: | APPLICANT VEAF OF 2002 |
| Second Applicant: | APPLICANT VEAG OF 2002 |
| Third Applicant: | APPLICANT VEAH OF 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 771 of 2002 |
| Delivered on: | 28 May 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 17 March 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant’s: | Ms Karapanagiotidis pro bono |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
(1)Each application is dismissed.
(2)The Applicants pay the Respondent’s costs fixed in the sum of $5,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 771 of 2003
| APPLICANT VEAF OF 2002 |
First Applicant
And
| APPLICANT VEAG OF 2002 |
Second Applicant
And
| APPLICANT VEAH OF 2002 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant has been refused a protection visa. The second and third applicant's are the first applicant’s wife and son and applied for visas as members of the first applicant’s family unit. For convenience, the first applicant is called "the applicant" in these reasons. The applicants seek relief by way of prerogative writ against a decision of the Refugee Review Tribunal which affirmed a decision of a delegate of the Respondent refusing the visa applications.
The applicants are Ukrainian citizens. The applicant arrived in Australia on 21 April 2001; his wife and son arrived on 3 May 2001. On 4 May 2001, all lodged applications for protection visas, claiming to fear persecution by reason of the Tatar ethnicity of the applicant.
On 16 November 2001, a delegate of the respondent refused to grant protection visas. On 14 December 2001, an application was made to the Refugee Review Tribunal for review of the delegate’s decision. On 7 May 2002, the Tribunal affirmed the delegate’s decision.
The applicant claimed that he suffered discrimination and physical mistreatment all his life due to his race. After his arrival in Lviv in 1994, he became a member of the Tatar Society "Tugan-il”. This was not a political group but a support group. He was elected as the person in charge of contact with other ethnic groups. The group was registered as a cultural and educational society of Kazan Tatars.
He said that on 10 November 1994, a group of UNA-UNSO paramilitaries attacked the office and ransacked the premises. He was attacked by the people on his way home, suffered serious injuries and was hospitalised. He made a request to the local police for protection but his request was not acted upon. He received threatening telephone calls.
He said he continued to work for the Tatar Society and became deputy chairman of the Tatar community.
He said that on 5 July 1995, he and his wife were attacked by nationalist thugs. The attackers beat them viciously and tried to rape his wife. Both were hospitalised; he until 9 August 1995 and his wife until 27 July 1995. On 28 July 1995, he and his wife lodged a written report to police and asked them to investigate. The police informed them that there was no case to investigate. The applicant said one of the policemen told them it was better to leave Ukraine as there were too many foreigners like them in the country.
The applicant said that he had been shot in the back on the evening of 12 February 1998 as he was entering his apartment building.
He said that after his marriage to his wife, it was difficult for them to find adequate accommodation due to his Tatar background. They were constantly abused, humiliated and persecuted. They had problems finding work.
He said that on 2 November 2000, he and his wife were attacked by three people, one who had previously attacked them. He was hospitalised until 10 November 2000 and his wife until 12 November 2000. On 15 November 2000, he made a report to the police. On
23 November 2000, the police replied that an investigation could not be mounted due to a lack of evidence.
The applicant said he was a partner in a computer business. There was pressure from racketeers. He claimed that he sold the business in March 2001 and was paid out on 18 April 2001 by some people that had accosted him. Both the applicant and his wife’s passports were taken and they were forced to hand over the money in return for the passports.
He said he came to Australia the first time in June 2000 to bring some sportsmen to Australia. He applied for a visitor's visa on that occasion. In approximately February 2001, he and his family applied for and were refused a tourist visa to Australia. On 6 April 2001, he was granted a visitor’s visa to New Zealand along with his wife and son and on 9 April 2001 he was granted another business short stay visa by the Australian post in Moscow.
Tribunal's findings
The Tribunal accepted that the applicant is a Kazan Tatar. The Tribunal noted that this was the applicant’s second trip to Australia and he had not applied for refugee status during his first trip, nor did he state that he sought protection elsewhere despite numerous trips outside the Ukraine often accompanied by his wife. The Tribunal concluded that the applicant had ample opportunities to apply for a protection visa in Australia and seek protection elsewhere at other times. This raised doubts about the genuineness of his fear of persecution. The Tribunal considered that the applicant had not provided an explanation for the reason he and his family could not continue their journey to New Zealand. The Tribunal said it was not satisfied that the application for a New Zealand visa was not made with the express purpose of providing a means by which they, who had been refused an Australian visa, could gain access to Australia.
The Tribunal discussed the evidence about assaults, medical history reports to police and the police reaction. The Tribunal concluded that the applicant had not made a convincing case that the attacks upon him were for reasons of his ethnicity. The Tribunal accepted that the applicant may have suffered some discrimination at different times during his life for reasons of his ethnicity but considered that such discrimination, even if taken cumulatively, was not of sufficient severity to amount to persecution.
Grounds of review
The jurisdictional errors alleged in the amended application and the applicant’s contentions of fact and law are encompassed under the following headings:
i)the Tribunal failed to address and deal with the applicants involvement with the Tatar organisation Tugan-il;
ii)the Tribunal failed to address whether the applicants faced a real chance of persecution because of the first applicant's membership of a particular social group, namely the Tugan-il;
iii)the Tribunal failed to assess the assault claims by the applicants and failed to make clear and direct findings;
iv)the Tribunal based its decision on an erroneous finding, namely that the applicant had failed to disclose the shooting incident in 1998 until the hearing and in submissions to the hearing;
v)the Tribunal did not give proper attention to and did not apply the appropriate tests in considering whether the applicants entertained a well founded fear of persecution.
Failure to deal with a real issue central to an applicant’s claim can amount to jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30 at [82] the High court said:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.[Citation omitted].
In Dalpatadu v Minister for Immigration and Multicultural Affairs [2000] FCA 697 at [14], the Full Court of the Federal Court (Kiefel, North and Mansfield JJ) considered authorities on what is a material question of fact and said:
For the purpose of this line of authority, a material question of fact has been seen as one which is:
* a substantial issue on which the case turns;
* a key element of the applicant's case;
* the foundation of the applicant's contention;
* a matter central to the application;
* a matter having obvious relevance to the question whether the applicant has a fear of persecution;
* a matter capable of supporting in a significant way the claim of the applicant.
These descriptions, as well as the circumstances in which breach of s 430(1)(c) has been found, demonstrate that the underlying requirement for materiality is that the particular question of fact is closely related to the claimed fear of persecution.
Some general principles apply. The reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, McAuliffe v Department of Social Security (1992) 28 ALD 609). Fact-finding is a matter for the Tribunal. Unsatisfactory or illogical reasoning does not involve jurisdictional error (Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121).
The first two grounds, that is, that the Tribunal failed to address and deal with the applicants involvement with the Tatar organisation Tugan-il, and that the Tribunal failed to address whether the applicants faced a real chance of persecution because of the first applicant's membership of a particular social group, namely the Tugan-il, can be dealt with together.
The submissions for the applicant refer to the various parts of the material before the Tribunal which showed the applicant’s involvement in the Tatar community and his membership of the society. The submission referred to the manner in which the delegate of the Minister dealt with this issue and sought to contrast it with the Tribunal's approach.
The submission for the applicant referred to this statement by the Tribunal in its reasons:
The Tribunal finds it plausible that at that time the UNA might have attempted to intimidate an organisation such as the Tatar society but does not accept that the applicant was attacked for reasons of his ethnicity.
It was submitted that what should have followed was an assessment of whether the applicant was attacked on the occasions claimed for reasons of his membership of the Tatar society; being a society which the Tribunal accepted would have been subject to intimidatory tactics by the UNA.
After the extract set out above, the Tribunal went on to say:
The applicant has not made a convincing case that the other attacks upon him were for reasons of ethnicity. Claiming, as he does, that he was shot at in 1998 and that he was pursued, according to him from 1994 to 2001 and would still be pursued, the Tribunal, (even if it were to accept that a nationalist group wanted to harm the applicant to the point that they would shoot at him) is not satisfied that they would pursue him for such a long time, knowing that he was not complying with the alleged instructions for him to leave the Ukraine, and not harm him even more seriously than he claims to have been. It is also implausible to the Tribunal that if, as the applicant claims, the same people were attacking him more than once and were responsible for telephone threats, the police would do nothing about it. It is to be noted that the police seem to have taken the trouble of writing to the applicant in response to his complaints, even if not to his satisfaction. This does not to appear to be the kind of highhanded behaviour on the part of the authorities which the applicant would ascribe to them.
In its reasons, the Tribunal set out independent country information about discrimination against the Tatar minority in the Ukraine. The Tribunal described each of the attacks on the applicant and his wife and considered them in the context of the claim of persecution. The Tribunal did consider the applicant’s involvement with the Tatar organisation. The Tribunal accepted that the applicant was a member of the organisation and prominent in it. It accepted that he was a Tatar and of Tatar appearance. What it did not accept was that the attacks upon him were because he was a Tatar or because he was a member of the Tatar organisation. The criticism is that the Tribunal did not make an assessment of whether the applicant was attacked on the occasions claimed for reasons of his membership of the society. But the Tribunal did turn its mind to that question. It said that it did not accept that the applicant was attacked for reasons of his ethnicity. It considered the question. At best, the criticism is that the Tribunal did not give the question sufficient attention by analysing the evidence in more detail. That is a matter of opinion. The important thing is that it considered the question.
The second submission is that the Tribunal failed to consider whether the applicant faced persecution because of his membership of a particular social group, namely, the Tugan-il. This depends upon there being evidence that the Tugan-il was a separate social group to the Tatar community in the Ukraine, or the particular part of the Ukraine where the applicant was living. The evidence does not show that it was. In support of this application, the applicant provided a detailed statement of 12 June 2001; his "Testimonial Statement". The Tribunal refers to the statement in its reasons. In the statement, the applicant says:
After my arrival in Lviv, in 1994, I visited Tatar society "Tugan-il". I became a member and later was elected leader of the intercultural group. The activity of the members of the society (mine in particular) was directed towards active Tatars identity, cultural heritage and social activities.
Elsewhere he refers to "our Tatar society". A statement from the Chairman of Tugan-il dated 27 April 2001 commences "TUGAN-IL is a national community organisation of the Tatar people". The evidence shows that the society is not a separate social group but part of the social group of Tatar people in the Ukraine or the social group of Tatar people in the city of Lviv. The Tribunal did not err by failing to consider the applicant's membership of the organisation separately from his Tatar ethnicity. The society is not a separate social group.
The third ground of jurisdictional error alleged is that the Tribunal failed to assess the assault claims by the applicants and failed to make clear and direct findings. The submission is that each assault is central to the applicant’s claim of persecution and that the Tribunal should have considered each assault to see whether it was made because of the applicant’s race, ethnicity or member of a social group. It was submitted that a single incident can be sufficient for persecution. Reference was made to what was said by McHugh J. in Chan v Minister for Immigration and Ethnic affairs (1989) 169 CLR 379, where McHugh J. said at 430
Nor is it a necessary element of "persecution" that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is "being persecuted" for the purposes of the Convention.
It was submitted that the Tribunal's treatment of the medical evidence was unsatisfactory and that it purported to roll up its findings in relation to all of the assaults and it did not make individual findings. It was submitted that in dealing with the matters in that way it was not sufficient and led the Tribunal to reviewable errors.
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 allegedly 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.
The third ground of jurisdictional error alleged is that the Tribunal based its decision on an erroneous finding, namely that the applicant had failed to disclose the shooting incident in 1998 until the hearing and in the submissions to the hearing. This is incorrect. The incident was referred to in an interview the applicant had with a departmental officer at an earlier stage.
The Tribunal made an adverse finding as to the applicant’s credit based on the erroneous finding that the shooting incident had not been disclosed earlier. That is a mistake in the fact finding exercise. It is not a jurisdictional error.
The fourth ground of jurisdictional error alleged is that the Tribunal did not give proper attention to, and did not apply the appropriate tests in considering whether the applicant entertained a well founded fear of persecution. It was submitted that the Tribunal did not address the applicant’s claim by asking whether he had a well founded fear of persecution for a Convention reason, and instead set about its task in order to find evidence to simply reject the applicants claim. It was submitted it was looking to inconsistencies rather than looking for evidence, if any, it found credible. It is a submission is that the Tribunal did not approach its task bona fide.
In NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32, French, Lincoln and Finkelstein J. said at the [49-50]:
49. The trial judge, it was said, erred in failing to find that the Tribunal had acted with a lack of bona fides. In the appellants' submissions the unreasonableness of the Tribunal's findings referred to in ground 1 indicated a lack of intellectual honesty in approaching the issues before the Tribunal. The Tribunal's decision, it was said, bore the hallmarks of at least a finding against the appellants on one point of their claims with subsequent findings predicated upon that initial finding. That is to say, having concluded against the appellants on one point the Tribunal had proceeded to make findings consistent with the initial finding.
50. It may be said that the making of findings which are logically dependent upon a critical initial finding is hardly of itself indicative of want of good faith. The content of the ground of want of good faith as a ground of review deriving from the judgment of Dixon J in Re Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 has been considered recently in a number of decisions in this Court - see especially the decision of the Full Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361. See also the discussion by French J in Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16. On any view of the content of want of good faith or bad faith, and whether want of good faith is a concept that is wider than bad faith in this context, no lack of bona fides on the part of the Tribunal has been disclosed. As French J said in WAFV of 2002:
"Neither unreasonableness nor irrationality nor error of law or fact nor failure of procedural fairness is sufficient of itself to establish want of good faith. But a substantial departure from minimal standards of decision-making may be such as to indicate that a decision-maker has failed to adopt a conscientious approach to the task before it. It may be indicative of dishonesty or malice or actual bias or recklessness or capriciousness in the exercise of the power. The concept of `good faith' is evaluative. The threshold for finding its absence is high. It may in practice vary according to the nature and subject matter of the power being exercised as well as according to the circumstances of the particular case. In this sense it may be analogous to the variable standard imposed by the requirements of procedural fairness."
Early in its findings and reasons, the Tribunal noted that this was the applicant’s second trip to Australia and that he did not apply for refugee status during his first trip, nor had he sought protection elsewhere despite his numerous trips outside of the Ukraine, often accompanied by his wife. It said that it concluded from the matters set out that the applicant had ample opportunities to apply for a protection visa in Australia and seek protection elsewhere at other times. The fact that he did not do this raises doubts about the genuineness of his fear of persecution. The Tribunal also referred to the manner in which the applicant and his family had last arrived in Australia, that is, by obtaining a New Zealand visa when they had been refused an Australian visa. In this way and others, the Tribunal has given adequate reason for its findings of fact which led to the rejection of the applicants claim. There is no lack of bonafides. No jurisdictional error is shown. The application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 28th May 2004
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