FEDERAL COURT OF AUSTRALIA

Charaev v Minister for Immigration & Multicultural Affairs [2000] FCA 865

IMMIGRATION – no evidence ground – applicant must establish that decision of Tribunal was based upon a fact, that there was no evidence of that fact before the Tribunal, and that the fact is disproved.

Migration Act 1958 (Cth), ss 476(1)(g), 476(4)

Curragh Queensland Mining v Daniel (1992) 34 FCR 212 at 224

Pat Tat Choi v Minister for Immigration and Multicultural Affairs [1998] FCA 1556

T v Minister for Immigration and Multicultural Affairs [1999] FCA 878

Television Capricornia v Australian Broadcasting Tribunal (1986) FCR 511.

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854

SERGUEI CHARAEV v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 66 of 2000

SPENDER, MADGWICK AND EMMETT JJ

28 JUNE 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal is allowed.

2.                  The matter is remitted to the Refugee Review Tribunal for determination according to law.

3.                  The respondent is to pay the appellant’s costs.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant is a national of the Russian Federation.  He entered Australia, with his wife, daughter and son, on 30 August 1996.  The appellant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 19 September 1996.  On 8 May 1997, a delegate of the Minister refused the grant of a protection visa to the appellant and members of his family.  An application was made to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 7 October 1994, the Tribunal affirmed the delegate’s decision not to grant protection visas.

2                     On 6 November 1998, the appellant filed an application for an order of review by the Federal Court of the decision of the Tribunal.  On 17 December 1999, a judge of the Court dismissed that application with costs.  From that order, the appellant now appeals to the Full Court.

3                     The appellant asserted before the Tribunal that he faces a real chance of persecution in Russia for reasons of the stand he said he had taken in opposition to the authorities of the

local administration in the area of Komsomolsk.  The appellant claimed that he was opposed to the undemocratic system that he says still operates in Russia.

4                     The appellant, after completing his eduction in the Russian Far East, followed a variety of occupations in Komsomolsk, including the occupation of senior detective in the Department of the Militia.  The head of the Department was one Major General Balanev, a long-standing member of the communist party.  The appellant claimed that he has always been opposed to communism.

5                     In October 1995, the appellant was approached by several persons who demanded, in a threatening manner, that he should vote for Balanev in the December 1995 elections to the Russian Duma.  He refused and the following day was called to see his superior, Mr Krasikov who threatened that if he did not vote for Balanev he would not be paid.  He continued to refuse to vote for Balanev and his salary was then stopped for about 4 months from December 1995.

6                     The appellant claimed that in January 1996 he began receiving threats by telephone and his summerhouse burned down.  In the following month his wife and children were also threatened by phone and his car was smashed up.

7                     In March 1996, the appellant wrote to the Russian Minister for Internal Affairs telling him about the attempt to force him to vote for Balanev.  He also told the Minister about a murder investigation that he had been engaged in and about his discharge from that case.  He received no reply. 

8                     The appellant claimed that in late April or early May 1996 he was dismissed from employment.  He also claimed that there was an attempt to murder him.

9                     In its reasons, the Tribunal said:

“The principal issue of credibility in the present case arises from certain entries in the applicant’s employment book.”

The employment book appears to be a record maintained in Russia in respect of each employee, recording particulars of employment with employers from time to time. 

10                  The Tribunal referred to three matters in relation to the employment book in the context of assessing the appellant’s credibility as follows:

·               An entry dated 9 November 1995 refers to an award for good results in performing official duties;

·               An entry dated 6 May 1996 states that on that date the appellant was engaged as commercial director in the “Vostok GDDV”;

·               There is no entry showing the appellant’s dismissal, the stopping of his salary or making any other adverse comment.

11                  The Tribunal considered that it was significant that the entry of 9 November 1995 was made at around the time when the appellant claimed he was in serious disfavour with his employers.  The appellant responded when that point was put to him by the Tribunal by saying that the entry must have been a false entry put there by Krasikov to hide the true facts.

12                  The appellant also said that he was never engaged as commercial director in the Vostok GDDV and that that entry must also be a false one.  He suggested that a friend, who had helped him hide following his dismissal in 1996, might have written it because the tourist agency that looked after his visa might have required such an entry.  The appellant asserted that he was unaware of the entry until it was brought to his attention by the Department.

13                  The Tribunal regarded the appellant’s explanations of the entries of 9 November 1995 and 6 May 1996 as unconvincing.  The Tribunal considered that if a false entry were to be placed in the employment book by Krasikov, it would be one to justify dismissal rather than a favourable entry.  Further, the Tribunal could not see why a tourist agency would be interested in the appellant’s employment and considered that it was inconceivable that the appellant’s friend would make such a significant false entry without telling him.  The entries and the appellant’s explanations in relation to them are matters that it would be legitimate for the Tribunal to take into account in assessing the appellants credibility in relation to his claim to fear persecution and in relation to the question of assessing that such fear is well founded.

14                  The matter of the absence of any entry to show the appellant’s dismissal, however, is in a different category.  The appellant asserted that the fact of his dismissal was indicated by a stamp of his employer, which appears between an entry of 30 April 1996 and the entry of 6 May 1996.  The Tribunal considered that that explanation as to the lack of any record dismissal “does not stand up”.  The Tribunal considered that it was inherently unlikely that a stamp, without more, would be taken to show dismissal, as opposed to resignation, retirement, promotion to another position or retrenchment.  In addition, the Tribunal attached weight to the fact that the stamp is undated.  The Tribunal did not accept that the employment book of a person would fail to show the date upon which that person was dismissed.

15                  In assessing the appellant’s credibility, the Tribunal also took account of his assertion that he had not looked at the employment book before, in spite of the fact that his whole claim to refugee status turns on his relationship with his employers.  The Tribunal considered that the obvious thing for a person in the position of the appellant would be to look through the book immediate upon receiving it, in the hope of finding material to confirm his claims.   The Tribunal was satisfied that the appellant would have examined his employment book carefully and would not have been taken by surprise at the Departmental interview as he claimed.

16                  The Tribunal also considered that it was unlikely that in December 1995 the appellant, having fallen out with his superiors, would be entrusted with the task of investigating a murder that those same superiors must have known could implicate them and their associates.  However, if that were the only credibility problem, the Tribunal would have been prepared to extend the benefit of the doubt to the appellant.  But, when considered together with the “inescapable difficulties” arising from the employment book, the Tribunal considered that it was clear that the appellant’s story “cannot stand”. 

17                  Thus, the employment book was a critical factor in the Tribunal’s decision.  The Tribunal considered that the entries in the employment book are genuine and show that, contrary to the appellant’s claims, he has not had an adverse profile with the authorities in Komsomolsk.  For that reason, the Tribunal rejected the claims of threats, physical attacks and, significantly, dismissal from work.  The Tribunal concluded:

“These claims are unsupported by any independent evidence and the Tribunal finds that these things did not happen.”

Thus, it is apparent that the Tribunal made findings about the appellant’s employment, and its termination, that were critical to its decision.

18                  The grounds upon which review was sought by the Federal Court included the following:

“There were no evidence or other material to justify the making of the decision.”

That was also a ground of appeal to the Full Court.  Such a ground is within s 476(1)(g) of the Migration Act 1958 (Cth).  However, that ground is qualified by section 476(4), which provides as follows:

“(4)     The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)       the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)               the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

19                  In order to make out the ground in s 476(1)(g), as qualified by s 476(4), the following must be established:

·               the decision of the Tribunal was based on a fact;

·               there was no evidence of that fact before the Tribunal;

·               the fact is disproved.

See Curragh Queensland Mining v Daniel (1992) 34 FCR 212 at 224, Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854, Pat Tat Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1556, T v Minister for Immigration & Multicultural Affairs [1999] FCA 878 and Television Capricornia v Australian Broadcasting Tribunal (1986) FCR 511.

20                  It is fair to conclude that the Tribunal based its decision, at least in part, on its conclusion that the appellant had not been dismissed as he asserted. It is necessarily implicit, in the Tribunal’s conclusion that the appellant was not dismissed, that the appellant left his employment voluntarily.  Accordingly, one particular fact on the existence of which the Tribunal based its decision was that the appellant left his employment voluntarily.

21                  The only material before the Tribunal upon which it based its conclusion that the appellant must have left his employment voluntarily appears to have been the absence of any entry in the employment book.  The mere absence of such an entry is not of itself capable of establishing the manner in which the appellant’s employment was terminated.  Thus there was no evidence before the Tribunal of the circumstances of the termination of the appellant’s employment. 

22                  However, there was before the primary judge a document certified by a public notary, to which the seal of the Chief of the Khabarovsk Region Interior Department purported to be affixed.  That document purports to say that the appellant, a senior detective for the investigation of personal property thefts, is to be dismissed for committing actions not compatible with the requirements for personal and moral qualities of interior department employees as of 30 April 1996.  No attack on the authenticity of the document was mounted on behalf of the Minister. 

23                  That document was not before the Tribunal.  It establishes that the appellant was in fact dismissed.  Accordingly, the document establishes that a particular fact, the existence of which the Tribunal based its decision, did not exist.  Therefore, the appellants’ voluntary departure from employment, as opposed to dismissal, has been disproved.

24                  It follows that the ground in section 476(1)(g) of the Migration Act has been made out.  Accordingly, the appeal should be allowed and, in lieu of dismissal of the application, there should be an order that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for determination according to law.  In lieu of the order that the applicant pay the respondent’s costs, there should be an order that the respondent pay the applicant’s costs.  The Minister should pay the appellant’s costs of the appeal.

Associate:

Dated:              28 June 2000