Vichlenkova v Min for Immig

[2000] HCATrans 408

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S189 of 1999

B e t w e e n -

DIANA VICHLENKOVA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 SEPTEMBER 2000, AT 11.26 AM

Copyright in the High Court of Australia

MS D. VICHLENKOVA appeared in person.

MR G.T. JOHNSON:   If the Court pleases, I appear for the respondent.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Ms Vichlenkova, go ahead and tell us what you would like.

MS VICHLENKOVA:   Your Honours, I am an applicant for protection visa, as you know, and the Tribunal decided to refuse my application.  I do not agree that I am not a refugee and I will appeal against that decision if my case returns to the Refugee Review Tribunal.  But please pay attention that here, at this stage, I apply for a judicial review in this Court, not because I try to appeal against that finding that I am not a refugee, but because I am not satisfied with the way it was made out.

I absolutely agree with and do not want to dispute the entitlement of the Minister of Immigration, of the Tribunal, to decide whether a person is a refugee or not.  This entitlement is given to him by the Migration Act, but the Migration Act also gives some requirements on how this entitlement is to be used to make a lawful decision.  It is not possible not to break the law using the entitlement given to you by the law and ignoring rules and requirements of the same law – how to use this entitlement.

The Migration Act requires – there is a quotation from section 424A, that:

the Tribunal must:

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

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

interview, and:

(c) invite the applicant to comment on it.

And, again, I declare that the “fiance” question which was used by the Tribunal in its decision was neither put before the applicant in order to obtain comments upon the information, nor was it mentioned at the hearing in the Tribunal at all.

The decision of the Federal Court shows how important this information was for the decision making of the Tribunal.  This was the only point why the appeal to the Federal Court was dismissed.  Even if this breach of the procedures required by the Migration Act was the only one error in the process making by the RRT, the Refugee Review Tribunal, it by itself is an efficient ground for review of the decision and sending it back to the Tribunal. 

This element is a critical one in the basing of the Tribunal’s decision.  Why?  Because calling this fact “implausible”, the RRT accused the applicant of fabricating some elements.  She doubts the credibility of the applicant.  Then, as a result of this the RRT member closes his mind to the applicant’s arguments and evidences which show the conventional reason of the persecution which are:  attacks when the ethnic reason was pointed; anti‑Chechen slogans; notes when the applicant was attacked; the dismissal of the applicant when the Chechen reason was pointed out to her, and others.

All other arguments, except this fiance question, used by the RRT in the decision are wide open to criticism as it was shown by Justice Madgwick.  So, this is a very holey net of arguments which is being held by only one strand which, in its term, was left safe only because a paragraph of the Migration Act was not followed.  The required procedures were not observed.  The question was not raised and there was no opportunity given to the applicant to comment on it.

If I had been asked to give comments, this fact that the so-called fiance did not know about my Chechen ancestry and the so-called strangers did, this fact would not have been called “defying human comprehension”.  As well as you cannot call “defying human comprehension” the sample life situations like:  a husband does not know about his wife’s lover, and absolutely strange people do; or a mother does not know that her son is a drug addict and, unknown to him, a person passing by may easily determine this by his appearance.

If I am granted the special leave to appeal I will raise the question “What is plausible and implausible; what is possible and impossible?”, because it affects the assessment of credibility which is very important for most migration cases.  And the interpretation of this question by the Court would help just not my case but many other migration cases.  In my case, this question is about the implausibility of the fact where the so‑called fiance did not know about the reasons of the persecutions.  I repeat:  the reasons, not the persecutions themselves.  As the Handbook for Determination of Refugees says, even the applicant himself cannot be aware of the reasons for persecutions.  Why some things are being discussed of which existence, no one ever stated.

For some reasons the discussion in the Federal Court was about the impossibility that the so-called husband could not be not aware of such facts as attacks and ransacking of our flat.  Why there are talks about impossibility of fact of which existence I have never said?  I am being told that he must have known.  I say, “Yes, that’s right.”  Moreover, I myself declared in the Department of Immigration that he did know about those events but they were explained to him as of non-ethnic reasons.  And you will understand, your Honours, why we did not mention our Chechen ethnicity, the reason for the persecutions, considering the state of the war with Chechnya.

And then, I cannot see why that person is called by everyone as “husband”.  He was not my husband at that time.  I have never even called him “fiance”.  And when he became my husband for one day only he was told about the Chechen ethnicity of the family.  Except the breach of the procedure which is required to be observed by the Migration Act – and then there is a Full Federal Court quotation:

the Tribunal also did not refer accurately to what was said by the Applicant.

As a result, the Tribunal considered some applicants’ claims and facts as inconsistencies which, as it was told later by the Full Federal Court, in fact did not happen, did not take place.  And on the basis of these alleged inconsistencies and the implausible fiance question which would not be called implausible if the procedures were observed, on this basis the Tribunal made a mistaken assessment of the applicant’s credibility and the wrong credibility assessment led to the actual bias which affects the whole decision of the Tribunal.

I understand that a finding of actual bias should be based on evidences.  I refer to the following:  Why the Tribunal mentions the passport which does not show the Chechen ethnicity, but keeps silent about the mother’s birth certificate which shows the Chechen ethnicity?  Why does he forget the fact that the applicant leaves the country, flees, and leaves the university just one year before obtaining a diploma?  Why the persecutions of the applicant are being observed separately from the family?  Because looking at the applicant as a member of the family would make it more difficult for the Tribunal to grant the decision, though it is not possible to look at the events which happened to me separately from the persecutions of the whole family.

Then evidently, because of the actual bias attitude, the Tribunal member did not take into account many materials he had as evidences:  the applicant’s claims that she and her family have been persecuted on the grounds of her and her family’s Chechen ancestry; medical certificates confirming the seriousness of the persecution; the applicant’s mother’s birth certificate with Chechen nationality; materials that Chechen women with Russian names are terrorists; materials about the existence of certain databases which can give to you much more information than you can read in passport.  Neither of them were taken into account by the Tribunal.

The existence of some certain materials and information being used by the RRT to support their decision does not rule out the possibility of an existence and the existence of other information and other life facts.  The Tribunal member said that the applicant cannot be identified as a Chechen on the grounds of his materials, not taking into consideration the applicant’s evidences and closing his mind to existence of other information, what is, according to Justice Wilcox, actual bias.

The Tribunal certainly may make its finding on basis of its information but obviously the RRT should consider it critically and think critically of his findings especially if they are used for making a decision.  The Tribunal should allow other information to exist and keep its mind open to information which is wider than the limits of the possessed information – possessed materials.  As an example:  if someone has information that birds are flying creatures, then he can make a finding that a hen is not a bird, but to make the right finding he must estimate whether the information he has got is complete and absolutely correct.

If I am granted the special leave to appeal, I will also raise the question, “What quantity of information and materials is enough to make a finding which might be used for making a decision?”  It is not just important for my case.  The discussion in the Court of this question would clear the point of section 476(1)(g) of the Migration Act.  The decision may be reviewed when:

there was no evidence or other material to justify the making of the decision.

The point which is often used in migration cases.

Your Honours, I also would like to attract your attention to the point which is aside from the whole discussion.  The fact that the respondent asks the Court to dismiss my appeal, my application, what would at the same time deny me the right to work - my only source for living – and at the same time the respondent asks that I pay their costs.  These two demands are impracticable in real life.

KIRBY J:   They may be but they are the usual rule in this country, that if you make an application and bring another party to a court, if you lose you have to pay that party’s costs, otherwise people could quite unreasonably take neighbours and others that they did not like to court and run up huge amounts of costs which they could never recover.

MS VICHLENKOVA:   Yes, I understand that there are rules and I do understand that the rules are important.

KIRBY J:   The question of whether practically it is possible to recover the costs is a different question but, so far as the Court is concerned, that is the law.

MS VICHLENKOVA:   Yes, but, you know, there should be – I do not have a judicial education unfortunately, but, as I understand, the parties should have equal rights and possibilities and if the Minister of Immigration has much more bigger financial sources than I do, I do not think it should stop me from defending myself.

GLEESON CJ:   It does not stop you from bringing a case but it gives you something further to think about before deciding to bring it.

MS VICHLENKOVA:   Yes.  But it is the right of the Minister to say whether he wants me to pay the costs or not.

GLEESON CJ:   And he said he does.

MS VICHLENKOVA:   Yes.  So, I just wanted to - - -

KIRBY J:   He also says that you are significantly out of time for your application; you delayed bringing the application and you need an extension of time.

MS VICHLENKOVA:   You mean - - -

KIRBY J:   For bringing this application to this Court.

MS VICHLENKOVA:   What do you mean?

GLEESON CJ:   You have filed an affidavit in which you explained the delay, in effect suggesting that officers of the Federal Court gave you information on which you relied. 

MS VICHLENKOVA:   Yes.

GLEESON CJ:   We understand that.  Does that cover what you want to put to us?

MS VICHLENKOVA:   Yes.

GLEESON CJ:   All right, thank you very much.  Mr Johnson.

KIRBY J:   Mr Johnson, at the end of Justice Madgwick’s reasons, he was pretty critical of the Tribunal.  Do you remember that passage?

MR JOHNSON:   Yes.

KIRBY J:   And I think Justice Carr similarly, though a little less specific about it.  The matter that I would like your submission on relates to whether or not what then followed, that is to say, Justice Madgwick, say, at 38 – there was similar reasoning in the Full Court – that the Tribunal took into account an irrelevant consideration, but then it seems to have justified the conclusion of the Tribunal on the basis that there was overwhelming other evidence.  Now, the question that I need your submission on is:  is that a mistake on the part of the Federal Court in itself, as it were, evaluating the factual questions as distinct from scrutinising as on judicial review the conduct by the Tribunal of the factual consideration and, if there has been error shown, requiring that the decision be made free of error?

MR JOHNSON:   If I could perhaps answer your Honour Justice Kirby by making two points.  The first is that the case before Justice Madgwick was rather unusual in that there was a particular concession made.  And if I could take your Honour to page 37 of the application book, line 35 – this is in the Justice Madgwick’s reasons, he says:

There is, as conceded by counsel for the applicant, no possible realistic explanation for this contradiction, except that, in relation to these quite crucial matters, the applicant is not to be believed.  The strength of this reasoning, furnishes, in my opinion, an exceptional instance of the futility of the court intervening, assuming that reviewable grounds for intervening might otherwise be shown.

So, there is a concession made that there is no possible explanation for the contradiction, the contradiction being, of course, that on the one hand she was claiming that she was recognised, was a Chechen, but on the other hand the man who she married did not know that she was Chechen until she told him after they had been together for 18 months.

So, your Honour, that is the first point, that it is an unusual case.  It is not truly a case where the Federal Court has conducted its own assessment of the facts.

KIRBY J:   It is a question though of trying to elucidate what weight, if any, the Tribunal statement that she “looks like any other Russian person” played in its reasoning to its conclusion.  It mentioned that, so on the face of things it must have played some part.  What I am concentrating on is whether the Federal Court erred in failing to require correction and removal – elimination of that fact.

MR JOHNSON:   For the second point, your Honour, I was going to the Full Court’s decision and perhaps if I could answer both of your Honours’ questions simultaneously.  Justice Heerey, who was the senior judge on the appeal and whose judgment I will refer to as the principal judgment, did interpret his Honour as having found that there was “no reviewable error”.  That is at page 5 of his reasons, page 51 of the application book.  He says, starting at line 20:

The final ground of appeal was that the trial judge erred in concluding that whether or not the Tribunal erred, the Court should not remit the matter because it would be “futile” to send it back.  However, his Honour found that there was no reviewable error and on that basis the conclusion he reached was inevitable.

The other matter, your Honours, is that what appears to have happened – and I make this submission based upon the totality of what Justice Heerey has written and also what Justice Carr has written – is that the Full Court has itself examined the question of whether there was error in the RRT’s decision and the Full Court, in relation to the question whether there was any error in the Tribunal’s conclusion that she, in effect, looked like any other Russian, occurs in Justice Heerey’s reasons at the bottom of page 49.

KIRBY J:   He said:

There was, in fact, material before the Tribunal to the effect that Chechens are dark skinned.

MR JOHNSON:   Yes, and then over the page - - -

KIRBY J:   That was before the Tribunal, was it?

MR JOHNSON:   Yes, and over the page he says:

To the extent that the Tribunal assumed that Russians had fair skins, this was a matter of fact and thus within the province of the Tribunal. 

So, really, your Honour, the Full Court has looked at the question itself and ‑ ‑ ‑

KIRBY J:   The complaint was it was not brought to the notice of the applicant so that she could say there are some Russians living in the Steppes or somewhere else who are dark skinned.

MR JOHNSON:   Well, if I could deal with that point, your Honour, there are a couple of answers to that.  The first is - - -

KIRBY J:   This area is full of stereotypes, you know:  people have stereotypes.

MR JOHNSON:   Yes, of course, your Honour, but having said that, your Honour, it has to be borne in mind that this is a case where the applicant was coming along to the Tribunal, making a submission that she was recognised in Russia as Chechen, notwithstanding a lot of objective indicators to the contrary, including a lot of documentation to the contrary, including the fact that most of her ancestry, at least, was either Russian or Tartar and despite the fact that she had not lived in Chechnya.

If I could perhaps focus on your Honour’s precise question as to whether there was any error in the Tribunal not expressly putting to her that it was troubled by the discrepancy in relation to the boyfriend, could I say a number of things, your Honour.  Firstly, it is truly a natural justice point and so it is a point which in a Part 8 application such as this could not have succeeded in any event because of section 476(2).

KIRBY J:   Yes, we are familiar with that section.

MR JOHNSON:   Of course, your Honour, and of course what was decided in Eshetu.  That is a first answer, your Honour, and it is a complete answer in itself.

The second answer is that this was not something which arose from some third party.  This was something which the applicant had herself put forward and it is a case for application of the general rule that generally an applicant cannot complaint if what he or she puts forward is rejected without further notice.  If I could take your Honours - - -

GLEESON CJ:   I think we are familiar with that principle.  There are many cases, I think, that establish that judges do not have to, as it were, tell people in advance of every reservation they might have about acceptability of their evidence. 

MR JOHNSON:   That is right.

GLEESON CJ:   All right, thank you, Mr Johnson.  Is there anything you want to put in reply?

MS VICHLENKOVA:   I just wanted to repeat that there are mistakes – I mean errors where procedure were not observed required by the law and whatever can be said it does not change.  This fact stays the fact and it is an error.  Also, I do not know, I am sorry, I have never been in the courts before but I do not know what you have read in what I have written but I think I have explained enough this, as I think, silly “fiance” question.

GLEESON CJ:   Well, we understand what you say about that.

MS VICHLENKOVA:   And, you know, if it was put before me in the Tribunal, which was not, I would have explained it.  It was not a close person to me.  I know it is not to explain – you are not people whom should I explain this to but I could explain it if I was asked because this was the big point in the refusal in all instances:  the Tribunal, Federal Court, Full Federal Court.  As we see, as the other court said, Full Federal Court, Justice Madgwick, Federal Court, they said this was – they show that this was the only question why there was the decision made.  All other arguments of the Tribunal as shown by other courts are very loose.  This is what I want to say. 

GLEESON CJ:   Thank you. 

The Court is of the view that in this matter there is insufficient reason to doubt the correctness of the decision of the Full Court of the Federal Court of Australia to warrant a grant of special leave to appeal, and the application is refused.  The applicant must pay the respondent’s costs of the application.

We will adjourn to reconstitute.

AT 11.51 AM THE MATTER WAS CONCLUDED