FEDERAL COURT OF AUSTRALIA

NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1106

MIGRATION – judicial review – protection visa – appeal from decision of Refugee Review Tribunal – RRT affirmed decision of Minister’s delegate to refuse protection visa – privative clause decision – applicants citizens of Russia – claimed to fear persecution if returned to Russia – RRT disbelieved many of the applicants’ claims – whether jurisdictional unreasonableness – whether RRT failed to take into account relevant circumstances – no reviewable error

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 36, 65, 474, 476(2)(b)

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 considered

BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 considered

BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 referred to

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 referred to

Buck v Bavone (1976) 135 CLR 110 referred to

Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424 considered

Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 applied

Randhawa v Minister for Local Government & Ethnic Affairs (1994) 52 FCR 437 applied

Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 applied

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 applied

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 followed

NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805 applied

NAMM & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 617 OF 2002

HELY J

10 SEPTEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”) given on 2 May 2002 affirming the decision of the Minister’s delegate not to grant protection visas to the applicants.

2                     The applicants are citizens of the Russian Federation who claim to have left Russia because they were targeted by Chechen terrorists, and that the authorities were unable or unwilling to protect them from violence at the hands of the Chechen terrorists.  The applicants’ case was that they were targeted by Chechen terrorists because they were Russians, hence they had a well-founded fear of persecution by reason of their race.

3                     The applicants are husband and wife.  Where it is necessary to distinguish between them, I shall simply refer to the applicant in question as “the husband” or as “the wife”, without using the pseudonym by which their identities are concealed.

4                     The applicants lived in Sochi, which is a city on the coast of the Black Sea.  The husband was the owner of a car business located in the outskirts of the city.  The RRT accepted the applicants’ claim that on 10 July 1999 the husband was approached by a group of Chechens, and asked to collaborate in receiving and selling stolen cars which they would supply, but the husband refused to be involved in that activity.  In making that finding, the RRT said that it was “prepared to give the applicants the benefit of the doubt”, but this statement cannot in any sense dilute the finding which the RRT made.

5                     However, the RRT found “several subsequent key claims implausible” and was unable to accept them.

6                     The applicants said that they reported this incident to the police on the day it occurred and made a statement to the police.  The RRT does not deal specifically with the applicants’ claim in this respect.

The assault on the husband

7                     The applicants claimed that on 11 July 1999, before the closure of the car yard, a group of Chechens burst into the office at the car yard and severely beat up the husband.  All of the office was demolished and it took the husband a few hours to get himself home by taxi.  At the hearing before the RRT, the RRT asked the husband whether he had a medical report of his injuries, and whether he went to see a doctor.  The husband responded that he did not go to a doctor “because the injuries were mainly kick marks around the region of the stomach and the back”.  That was the end of the questioning on that topic.

8                     The RRT rejected this claim because:

–                    it saw an apparent contradiction between the written claim that the husband was “severely” beaten, and the type of assault which the husband described at the hearing; and

–                    it was of the view that it is “implausible that kicks to an area as sensitive as the stomach would not be serious enough to warrant a visit to a doctor for examination”.

It might be thought that there is some tension between these two propositions.

The abduction and rape of the wife

9                     The applicants claimed that on 12 July, in spite of the wife’s objections, the husband went to the prosecutor’s house of the central district and lodged a statement.  The RRT does not make any specific finding in relation to this assertion.  Later on 12 July the wife claimed to have been dragged into a car and forcibly abducted by persons who spoke a language which she did not understand, but which was not Russian.  The wife said that she was held in captivity for eleven days.  During that time four men repeatedly raped her and beat her.  They treated her “worse than a dog”.  On 23 July 1999 the wife was driven to the outskirts of the city and set free.  I will come to the applicants’ account of the circumstances which led to her release shortly.  On release, the wife staggered to the nearest house.  The owner called the police who interviewed her and sent her for medical examination and treatment.  The RRT had before it what was described as a “medico-legal examination report” conducted by the Sochi Medico-Legal Bureau on 23 July 1999.  The deputy head of that Bureau stated that he had examined the wife and established objectively the following:

“The lower back has a bruise of 4.5 x 5.0 cm in size, its borders are not well-defined.  The top lip has an avulsive wound of 0.8 cm in size, its edges are swollen and have hyperemia.  The top eyelid and temple area have a bruise of 2.5 x 3.0 cm in size, its borders are not well-defined.”

The RRT also had before it a report by a psychotherapist of 21 February 2000 which contained a personal history given by the wife to the psychotherapist, which included an account of the rapes including an assertion that the wife tried to resist, but after being physically brutally hit, gave up her resistance.  The psychotherapist diagnosed post-traumatic stress disorder.  The report also contains a reference to “gynaecological trauma” without any further explanation.

10                  At the hearing the wife told the Member that the examination of her by the Medico-Legal Bureau was external only as whilst she had been raped, there were no internal injuries.

11                  The RRT was not satisfied that the rapes occurred because it found it “implausible” that if the wife had been repeatedly gang raped over a period of eleven days, the medical certificate would make no reference to this in any way, even if only to state that there was no evidence of external or internal injury in the vaginal region (albeit, according to the RRT, the absence of any injury whatsoever after such an ordeal would itself be surprising).

12                  The RRT does not make any specific finding about the abduction itself, but later on in its reasons the following appears:

“Hence I am unable to be satisfied that the harm which they claim they suffered at the Chechens’ hands actually occurred.  That is, I am unable to be satisfied that they suffered the claimed persecution for reasons of their race, imputed political opinion or religion.”

This is a very odd statement for the RRT to make, as it appears to involve a non sequitur.  However, on a beneficial reading of the RRT’s reasons I think the RRT intended to convey that as it did not accept the applicants’ claims as to the treatment meted out to them by the Chechens, it necessarily followed that they were not persecuted for a Convention reason.  At least implicitly, the RRT has rejected the claimed abduction.

The ransom demand

13                  The applicants claimed that at about the time of the wife’s abduction, the husband received a demand for payment of a ransom of $US200,000 which had to be paid by 22 July 1999.  The husband sought, but was unable to obtain, assistance from the authorities in relation to this demand.  By 22 July he claimed to have collected $US107,000 which he gave to the terrorists.  They apparently accepted this sum on the basis that the applicants would be given more time to sell their property, and to pay the whole sum.  On the following day the wife was released in the circumstances earlier recounted.

14                  The RRT found it “implausible” that the Chechens released the wife even though they had only received $US107,000, particularly when they demanded that the husband pay them the remainder.  The RRT stated:

“It seems to me highly unlikely that they would not have kept her in custody while her husband obtained the rest of the money.”

15                  The RRT appears to have reasoned as follows:

–                    the applicants claimed that the wife was abducted and held to ransom for the sum of $US200,000;

–                    they also claimed that the wife was released on payment of $US107,000, with the balance to be paid on the sale of property;

–                    it is “implausible” that the terrorists would release the wife in these circumstances; and

–                    therefore she was not abducted in the first place.

It is unclear why the RRT embarked upon this reasoning process given that it did not accept the claimed abduction.  A beneficial construction of its reasons suggests that this was simply another reason why the RRT found the applicants’ account to be unconvincing.

16                  The RRT said [158]:

 “I do not accept the adviser’s speculation, at the hearing that, if the applicants had wished to embellish – or invent – this claim they could have claimed that the ransom was equivalent to the amount purportedly paid, viz. $107,000.  If this were the case, the Chechens would have had no reason to persecute them any further, having obtained what they wanted in its entirety”.

The proposition that had the Chechens asked for and received $US 107,000, then they would not have asked for more is, as a matter of fact, highly questionable to say the least, but I do not see that the RRT’s assessment of the adviser’s speculation really leads anywhere.

A subjective fear of persecution?

17                  The RRT said:

“I find that, if the applicants had a subjective fear of persecution by Chechens in Sochi, they would also fear for family members.”

The only family member who was living in Sochi was a married daughter of the husband’s first marriage.  The applicants’ young daughter was in Ivanovo at the husband’s mother’s place.  This statement may be intended to convey that the RRT did not accept that the applicants had a subjective fear of persecution.

Relocation

18                  Finally, the RRT concluded that even if it were to accept the applicants’ claims of persecution, they could reasonably relocate to another part of Russia.  The RRT stated: “A particular choice for relocation would be Ivanovo”.  Ivanovo is where the wife comes from.  It is 1500 km from Sochi and the applicants both have friends and family there, including their young daughter, and the husband’s mother.  The RRT did not accept the applicants’ claims that in order to relocate they would have to reveal their new destination to the authorities in Sochi, hence the Chechens would discover where they were.  The RRT noted that the “propiska” system of registration does not involve a record being made at the place of first registration of any new address which is subsequently registered.

Psychotherapist’s report

19                  The RRT stated that it had carefully considered the psychotherapist’s reports on each of the applicants.  Her diagnoses were largely based on experiences and symptoms recounted to her by the applicants themselves.  The RRT said:

“I do not seek to comment on her opinion that both are suffering post-traumatic stress disorder.”

But, in any case, the RRT did not accept the applicants’ claims of persecution.

20                  It is implicit in this finding that the RRT has taken into account the psychotherapist’s reports, but in the RRT’s assessment, either the conclusion of post-traumatic stress disorder is wrong, or if it is right, then it flows from some cause other than the events which provided the foundation for the claim of persecution.

Jurisdictional error – jurisdictional unreasonableness

21                  The applicants contend that the RRT’s decision involved a jurisdictional error, constituted by jurisdictional unreasonableness.  The argument is based upon observations made by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650-9.  A similar argument was put to Sackville J in BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (on appeal [2002] FCAFC 221).  It was not necessary in the circumstances of that case for his Honour to determine the question, although his Honour observed that the borderline between judicial review on the merits (which is forbidden) and consideration of whether a finding as to a jurisdictional fact is unreasonable in the relevant sense (which is permissible), may be very difficult to identify.

22                  The steps in the argument are as follows:

–                    the effect of ss 36 and 65 of the Migration Act 1958 (Cth) (“the Migration Act”) is that the Minister and, on review, the RRT, if “satisfied” that an applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (“the Convention”) must grant that person a protection visa; if not so satisfied, the Minister or the RRT must refuse to grant the applicant the visa.  The satisfaction of the decision-maker is a so-called “jurisdictional fact”, in the sense that it is a precondition to the exercise of the statutory jurisdiction to grant a visa: Eshetu (supra) at 651, [129] –[130];

–                    a determination that the decision-maker is not satisfied that an applicant answers a statutory precondition to a power or obligation to confer a privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable in the exercise of the discretion conferred by s 75(v) of the Constitution: Eshetu, at 651, [131];

–                    where the existence of a particular opinion is made a condition of the exercise of a power, legislation conferring the power is treated as referring to an opinion which can only be formed by a reasonable person who correctly understands the meaning of the law under which he or she acts: Eshetu, at 652, [133], citing Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, at 430;

–                    in cases where the decision-maker must be “satisfied” of a matter, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it: Eshetu, at 653-654, [136], citing Buck v Bavone (1976) 135 CLR 110, at 118-119;

–                    within the framework of that principle, review is permitted in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds: Eshetu, at 657, [145];

–                    review may also be permitted if the evidence which establishes or denies or, with other matters, goes to establish or deny, that the necessary criterion has been met was all one way (thereby demonstrating that no reasonable decision-maker could have arrived at the decision in question): Eshetu, at 654, [137];

–                    the RRT committed jurisdictional error in the present case because its conclusion that it was not satisfied that the applicants were persons to whom Australia had protection obligations under the Convention was unreasonable in two respects:

·                    the evidence going to establish that the applicant had a well-founded fear of persecution for reasons of race was all one way; and

·                    the decision was based on findings or inferences of fact that were not supported by probative material or logical grounds.

This summary of the argument is largely taken from the decision of Sackville J at [14]. 

23                  In Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424 the appellant advanced an argument of jurisdictional unreasonableness founded on Gummow J’s reasons in Eshetu.  A majority of the Full Court (Hill and Stone JJ, Finkelstein J dissenting) rejected the argument.  But that decision was given in the context of the repealed Part 8 of the Migration Act, and in particular in the context of the former s 476(2)(b), which provided that “unreasonableness” was not a ground on which an application for review might be made.  Gamaethige does not decide whether “jurisdictional unreasonableness” may give rise to a jurisdictional error for the purposes of s 39B of the Judiciary Act.

24                  In proceedings before the RRT there is no contradictor, and no burden of proof.  The issue is whether the RRT is satisfied that the applicant has a well-founded fear of persecution for a Convention reason.  There is no presumption that the fear is well-founded unless the facts negate it: Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 at 574.  The RRT does not have to accept uncritically an applicant’s claims: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451.  A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348.

25                  In the present case, the RRT said that it did not believe the applicants’ claims.  It was not required to give detailed reasons as to why the applicants were not believed: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 at 423; but the RRT did give reasons for not believing the applicants’ claims, and findings on credibility are the function of the primary decision-maker par excellence.

26                  The RRT did not have any material before it which “proved” that the applicants’ claims were untrue.  Nonetheless, it was obliged to make its own assessment as to whether it accepted the applicants’ account of the relevant events.  The applicants contend that “there is no logic” in any of the RRT’s findings which I have summarised above.  For example, it is said that there is no logic in finding that the wife’s account of being raped was implausible upon the basis of what was, or was not, contained in the medical certificate as there may be explanations as to why the certificate took the form which it did such that there is no inconsistency between the terms of the certificate and the wife’s claims.  But this assertion of “no logic” does not rise above a contention that the RRT wrongly found the facts, and that the reasons given by the RRT for finding the facts in the way which it did are unconvincing.  That falls short of establishing that the decisions which the RRT made are not ones that could be arrived at by any reasonable decision-making process.  Unless that is established, the argument based on the reasoning of Gummow J in Eshetu, even if otherwise correct, does not get off the ground.

Jurisdictional error – failure to take relevant matters into account

27                  The applicants contend that there was a jurisdictional error in the RRT’s failure to take into account relevant considerations, constituted by failure to consider the import of reports of a psychotherapist in relation to the applicants’ psychological condition.  It was contended that the RRT simply declined to consider the psychotherapist’s opinion.

28                  Again, in my view, this argument does not get off the ground because it is patent on the face of the RRT’s decision that it had regard to the psychotherapist’s report, but was not persuaded by the opinions expressed in that report because they were based upon a “history” recounted to the psychotherapist by the applicants, which “history” the RRT did not accept.  It is not necessary to pursue the distinction between relevant considerations, and pieces of evidence, as the RRT did not overlook this evidence.

The privative clause

29                  The applicants contend that at least in the context of s 65 of the Migration Act, jurisdictional error is not protected by the privative clause, because there is a difference between usurpation of jurisdiction which is never attained, and acting in excess of jurisdiction once attained.  The latter may be protected by the privative clause, but the former is not.  Jurisdiction under s 65 is not attained, according to the applicants’ submission, until the decision-maker is validly satisfied, one way or the other, as to the matters referred to in s 65.  The result is that the privative clause will have no work to do in the area of visa applications, because once the decision-maker is validly satisfied or not satisfied as to the matters referred to in s 65, then the Migration Act dictates the outcome.

30                  No authority was cited in support of this supposed distinction between usurpation of jurisdiction which is never attained, and acts in excess of jurisdiction once attained.  There is no logic in the distinction.  Either there is jurisdiction, or there is not.

31                  Counsel for the applicants accepted that none of the judgments in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 supported the distinction for which he contends.  Counsel also accepted that his submission runs contrary to “the general tenor” of that decision.  In my view, I am precluded by the decision of the majority of the Court in NAAV (supra) from accepting the submission.  That is because the majority held that the jurisdiction of the RRT was attracted by a valid application to the RRT made under s 412 to review an RRT-reviewable decision.  Once that jurisdiction was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded area of authority and powers brought about by s 474(1), with the consequence that the decision of the RRT was lawfully made subject to the Hickman exceptions: per von Doussa J at [639].

Lack of bona fides

32                  The applicants also contend that even if the rule in Hickman’s case applies, the RRT’s decision is void for lack of bona fides on the part of the decision-maker.  In the applicants’ contention, the unreasonableness of the RRT’s findings in rejecting the applicants’ claims indicates a “lack of intellectual honesty” in approaching the issues before the RRT.

33                  In NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805 I rejected a similar complaint because I found that the RRT addressed each of the applicant’s claims and endeavoured to make an assessment of those claims.  Bad faith is not just a matter of poor execution or poor decision-making involving error.  A failure to act in good faith involves a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the decision-maker.  That has not been established here.

Constitutional validity

34                  The applicants formally submitted that s 474 of the Migration Act is invalid as it purports to oust the judicial power of the Commonwealth which is vested in Commonwealth courts by virtue of Ch III of the Constitution, and for being inconsistent with s 75(v) of the Constitution.  The applicants accept that I am bound by the decision of the Full Court in NAAV (supra) to reject the applicants’ submissions, which were put to me in order to preserve its position on appeal.  The submissions are in writing which I have had placed with the papers, hence it is unnecessary for me to pursue this matter any further.

Conclusion

35                  The application should be dismissed with costs.

Associate:

Dated:              10 September 2002