FEDERAL COURT OF AUSTRALIA

Vichlenkova v Minister for Immigration & Multicultural Affairs [1999]

FCA 1338

IMMIGRATION – appeal from Refugee Review Tribunal – application for protection visa – applicant’s claim of persecution by reason of Chechen ethnicity – whether no evidence – non-existence of particular fact – mistake as to whether claims had been made in Departmental interview – whether decision based on that fact

Migration Act 1958 (Cth) s 476(1)(e) and (4)(b)

Australian Broadcasting Tribunal v Bond (1990) 179 CLR 321 applied

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 considered

Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 at pars 16 to 26 applied

DIANA VICHLENKOVA v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

N27 OF 1999

HEEREY, CARR and TAMBERLIN JJ

17 AUGUST 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant pay the respondent’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

HEEREY J:

1                     The appellant appeals from a decision of a judge of this Court which rejected the appellant’s application for review of a decision of the Refugee Review Tribunal.  The Tribunal had rejected the appellant’s application for a protection visa under s 36 of the Migration Act 1958 (Cth).  The appellant claims that she is a person to whom Australia has protection obligations under the Refugees Convention.  The appellant’s case is that she has a well founded fear of persecution in Russia because of her membership of a social group, namely those of Chechen ethnicity.  Her maternal grandmother was Chechen.

2                     The Tribunal found as a fact that this fear was not well founded.  A finding of fact as such is not open to review under s 476 of the Act.  In any case, there was abundant evidence to support the Tribunal's finding that the appellant would not be recognised or treated as a Chechen in Russia.  Amongst other things, her passport and birth certificate describe her as Russian, her surname is Russian and she has not lived in Chechnya.  Most notably, she knew her husband for 18 months before their marriage but he was not aware of her Chechen origins, such as they were, until she told him on their wedding day.

3                     The appellant’s further amended notice of appeal raised four grounds.  The first and third grounds challenged the primary judge's failure to find that the Tribunal erred by making findings for which there was no evidence.  This was said to make out the no evidence ground under s 476(1)(e) as qualified by s 476(4)(b).  The Tribunal was, of course, entitled, indeed bound, to assess the appellant's credibility.  It could reject her case if it contained inconsistencies or inherent implausibilities.  A rejection by a decision-maker of evidence need not necessarily be based on the demeanour of the person giving evidence.

4                     In written submissions and argument before the Court counsel for the appellant relied in essence on three facts for which there was said to be no evidence. 

5                     The first was a finding by the Tribunal of what was said to be an inconsistency between the appellant’s claim that her family had been forced from their flat and her statements in a Departmental interview.  Counsel contended that the inconsistency relied on by the Tribunal was a fact which did not exist. 

6                     The relevant passage from the Tribunal’s reasons is as follows:

“Likewise, the Tribunal does not believe that the applicant’s family have lost their flat for the reason she claims and that her brother was kidnapped for the reason she states.  At the time of the Department interview it was pointed out to her that her family were still living in the same flat in the same town, and she explained this by saying that they were only able to get her out of Russia – yet this is despite the fact that other members of her family (such as her mother and brother) she alleges had suffered far more in physical terms than the applicant claimed for herself.  However, by the time the applicant appeared before the Tribunal she claimed that her family had been forced to flee from the flat and to surrender it to people who kidnapped her brother.  The Tribunal believes that the applicant only alleged this in response to the questions put to her at the Department in order to further her claims.  The Tribunal in fact believes that the applicant's family have not been forced from their apartment at all and rejects the claims she made that she was not in contact with them.”

7                     The transcript of the evidence with the Departmental officer was put in evidence on the hearing of this appeal.  The interview took place on 17 June 1997.  The appellant was asked, in reference to her home address given in her passport

“And did you live there until your departure?‑‑‑Officially yes.

What do you mean by ‘officially’?‑‑‑Before I left after I was attacked in December my father took me and my brother to his cousin.

Okay.  Do your family still live there?‑‑‑I don't know exactly.

So when was the last time you talked to your parents?‑‑‑It was the end of March, on the phone.”

8                     So on this point it is correct to say, as counsel asserts, that the Tribunal did not refer accurately to what was said by the appellant in her interview.  Nevertheless, for reasons which I will mention in a moment, this is not necessarily conclusive of the result in the appellant’s favour.

9                     The second matter was another finding by the Tribunal of alleged inconsistency and recent invention.  This instance related to the appellant’s dismissal from her teaching job.  The Tribunal said:

“In her initial application she stated that she had been sacked from her job and that she believed it was because she was Chechen though this was never stated to her directly – yet in her statement to the Tribunal she claimed that this reason was put to her directly when she was dismissed.  The Tribunal does not believe this was the case.”

10                  In fact at the interview the following question was asked:

“You say that you were sacked because of your ethnicity.  Why do you think this?‑‑‑Because the deputy director who sacked me, he said: ‘We sacked you because you are Chechen’.  She said ‘I don’t have anything against you personally but the reputation of this school is more dearer to me and I don't want Chechens to work in our school’.”

11                  Again I will postpone my comments in relation to this fact.  

12                  The third fact relied on was put in this way.  It was said that the Tribunal could not have come to the conclusion that the appellant would not be regarded as a Chechen and that there was no material to base the Tribunal's observation as follows:

“The applicant looks similar to any other Russian person and is not of the physical profile as mentioned in the information cited above (being dark skinned young males) who are commonly imputed to be Chechen and against whom a great deal of discrimination may be suffered at the hands of Russians generally.”

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

14                  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.  Since the whole thrust of the appellant's case was that she would be persecuted in Russia because of her Chechen connections it was legitimate for the Tribunal to consider whether and to what extent she would be recognised in Russia as a Chechen.

15                  So, what then is the consequence of there being, in respect of the first and second matters mentioned, some facts found, or observations made, by the Tribunal which were not based on the evidence before it?  Section 476(4)(b) provides that the ground specified in paragraph (1)(g) (that is there was no evidence or other material to justify the making of a decision) is not to be taken to have been made out unless (relevantly for present purposes) the person who made the decision based the decision on the existence of a particular fact and that fact did not exist. 

16                 In Australian Broadcasting Tribunal v Bond (1990) 179 CLR 321, Mason CJ (with whom Deane J agreed) said (at 358) that the non-existent fact has to be one “critical” to the making of the decision.  His Honour was discussing an identical provision in the Administrative Decisions (Judicial Review) Act 1974 (Cth).

17                 To adopt the language of metaphor, a fact may be critical to the making of a decision if it is a link in a chain of reasoning leading to the making of the decision; see the decision of the Full Court in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212.  However, in the present case, the more appropriate metaphor is the strand in the net:  Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 at pars 16 to 26.  There were many factors on which the Tribunal could and did rely in coming to the conclusion that any Chechen connection of the appellant would not be recognised and would not create a real chance of her being persecuted in Russia.  These were factors quite independent of any assessment of her credibility.  

18                  These factors included, as already noted, that her surname is Russian and her passport and birth certificate give no indication of Chechen origin and there is, as noted, the striking fact about her fiancee’s lack of awareness.  So, for those reasons, I think to the extent that there was any mistake by the Tribunal as to findings of fact, that they were not facts on which the decision was based, within the meaning of s 476(4)(b). 

19                  There was a further ground of appeal alleging actual bias but this was abandoned.

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. 

21                  The appeal should be dismissed with costs, including reserved costs. 

Associate:

Dated:              17 August 1999

On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

CARR J:

22                  I agree generally with the reasons of the presiding judge and I agree also that the appeal should be dismissed.

23                  The essential finding of fact made by the Tribunal was that the appellant had not been persecuted by reason of her partial Chechen ethnicity.

24                  Two of the bases for the Tribunal’s findings of credibility may have involved factual mistakes concerning what claims had previously been made by the appellant during the decision-making process.  However, there were other bases upon which the Tribunal was entitled to decide not to believe the applicant.  These included the reasons relating to the applicant’s fiance, as referred to by the primary judge at page 2 of his Honour’s reasons at page 181 of the Appeal Book.

25                  Furthermore, in my view, the factual assessments made in relation to the credibility of the appellant which the appellant challenged in this appeal, were not facts of the type referred to in s 476(4) of the Migration Act.  There was, in my view, no appealable error in the essential factual conclusions reached by the Tribunal concerning past persecution.  There was ample evidence upon which it was open for the Tribunal to make the factual conclusion on which it based its decision, namely, that the applicant had not been persecuted for reasons of her partial Chechen ethnicity.  The presiding judge has referred to some of that evidence.

26                  I join in the proposal that the appeal should be dismissed with costs.

Associate:

Dated:              17 August 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

TAMBERLIN J

27                  I agree with the reasons of Heerey J and the remarks of Carr J.  I consider the appeal should be dismissed with costs.

Associate:

Dated:              17 August 1999