FEDERAL COURT OF AUSTRALIA

NADR v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 312

NADR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1176 of 2002

WILCOX J

26 MARCH 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the costs of the respondent, Minister for Immigration & Multicultural & Indigenous Affairs.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of the delegate of the respondent, Minister for Immigration & Multicultural & Indigenous Affairs, to refuse to grant to the applicant a protection visa.  The Tribunal was not satisfied that the applicant was a refugee within the meaning of the Convention on Refugees 1951, as amended by the Protocol on Refugees 1976.  The Tribunal member set out at some length the claims made by the applicant and her reasons for reaching the factual conclusions that she did. 

2                     The applicant is a national of Ukraine.  The case that he put to the Tribunal was that he had been an active member of a political party in Ukraine and was disturbed at what he regarded as corruption by some powerful members of that political party.  He said he made inquiries about this and raised the issue of corruption at various meetings within the party.  He gave an account of assaults upon himself.  He also claimed an attempt had been made on the life of his wife, by her being run down by a motor car.

3                     The details of these claims were spelt out at the oral hearing before the Tribunal.  The Tribunal member asked a number of questions about the details.  She dealt with the evidence in her reasons for decision.  I do not think it is necessary or desirable for me to go to the details, particularly as the applicant comes to the Court under a pseudonym.

4                     The application for review was argued by Mr Ian Archibald of counsel at some length.  I think he has put everything that could conceivably be put on behalf of the applicant, but his argument serves only to demonstrate that the Tribunal did not fall into any jurisdictional error. 

5                     Essentially, the case put by Mr Archibald was that the Tribunal should have found the facts differently from the way in which it did find the facts.  The underlying, although unstated, premise of the argument was that the statements made by the applicant to the Tribunal were true and the documents that were before the Tribunal should have been accepted as genuine.  It is, of course, impossible for me to approach the matter on that basis.

6                     The statements made by the applicant were claims made by him.  The Tribunal member was bound to consider them with care, and to reach conclusions about their accuracy and, if accurate, their significance.  I see no reason to doubt that the Tribunal member made an honest attempt to perform this function.  In particular, I reject the submission made by Mr Archibald, at the conclusion of his address and apparently as an after-thought, that the Tribunal member was biased. 

7                     Unusually, in the present case, I have had the benefit of going to the transcript of the proceedings before the Tribunal.  I have been referred to all the passages which Mr Archibald regarded as useful in making his client’s case.  There is nothing in those references that indicates the Tribunal member was attempting to silence or intimidate the applicant.  There was no aggressive questioning.  Nothing was said in the passages I have read which indicates a closed mind.  On the contrary, the Tribunal member was seeking greater specificity about claims that were expressed in quite general terms, which she wished fully to understand, in order to evaluate them.  This was an entirely proper course for her to take.  It is essential that Tribunal members ask whatever questions seem to be necessary in order for them to understand exactly what it is that an applicant is saying.  They have to bear in mind that some applicants are not articulate.  They do not necessarily volunteer all the information they are able to give. 

8                     I think the tone of the member’s questioning indicated she was trying to understand the applicant and was doing so with an open mind, ready to be persuaded if the evidence seemed cogent.  Ultimately, she was not persuaded and the Tribunal rejected key elements of the applicant’s case.  She went to country information to satisfy herself that the applicant would not be at risk of persecution if returned to Ukraine by virtue of his membership of the relevant political party.  However, she appreciated that his major complaint was not so much that he was at risk because of his membership of the party but, because of his activities in the party, in drawing attention to alleged corruption.  The Tribunal member appreciated she would not get much assistance on that issue out of the country information.  That is why she evaluated the particular claims made by the applicant.

9                     The last paragraph of the section of the member’s reasons headed “Findings and Reasons” was expressed in the following form:

“I do not accept that there has been serious mistreatment or any concerted or systematic harassment of the applicant for [sic] reason of his membership of the RUKH or [relevant] party nor for his involvement in its activities.  I am satisfied that the chance that harm, let alone harm amounting to persecution, would befall the applicant in the reasonably foreseeable future for reasons relating to his political affiliations is remote.”

It will be noted that this summary addressed both membership of the party itself and the applicant's involvement in activities of the party. 

10                  In support of his client’s application, Mr Archibald complained the Tribunal failed to elicit all the information that might have been elicited.  Perhaps it is correct to say that, with the benefit of hindsight, and reading the transcript at leisure, additional questions might occur to a person.  However, it seems to me there was no failure to carry out a proper investigation.  This is not a case where information could have been readily obtained from an independent source that would indicate the veracity of significant claims made by an applicant.  The complaint is essentially that the Tribunal Member failed to ask more questions than she did.  She did ask a number of questions.  I do not see any substance in this complaint.

11                  It has to be remembered that it is for the applicant to make the case of a fear of persecution.  The applicant in the present case had the benefit of advice from a migration agent employed by the Refugee Advice and Casework service.  That person assisted him in preparing the claim for a protection visa and in preparing his statement in support.

12                  It is next complained that the Tribunal failed to consider what had been said by the applicant at the time of his first interrogation, upon arrival in Australia at Darwin airport.  The Tribunal apparently had a tape of that interview.  The Tribunal Member said she did not propose to go to the tape itself.  Nonetheless, there was some reference during the hearing to what was said at Darwin. 

13                  Unfortunately I was unable to understand the point Mr Archibald sought to make in regard to the Darwin interview.  It seemed, eventually, to come down to the fact that the applicant had applied for a protection visa immediately upon arrival in Australia.  The Tribunal member was aware of this fact.  She said so herself in setting out the history of the claim.  It was not suggested that anything said at Darwin was a prior affirmation of a fact the applicant was accused of having invented at a later time. 

14                  A specific complaint was put to me that the Tribunal failed to seek further details of the assaults claimed to have been suffered by the applicant.  Perhaps the Tribunal member could have asked for a blow by blow description, but this seems hardly to have been necessary.  She knew that the applicant claimed that the assault was so severe that he ended up in hospital on at least one occasion.  It seems to me that it does not carry the matter much further, to have precise details of the circumstances of the assault or of the injuries that put him in hospital.

15                  In the same vein, Mr Archibald complained that the Tribunal failed to deal with the circumstances in which the applicant's wife was allegedly hit by a motor car in November 2001.

16                  The Tribunal member appreciated that the claim made by the applicant was that his wife was deliberately run down by unknown people who, he says, were associated with the persons about whose activities he was complaining.  The Tribunal member did not need to deal with the exact details of what happened on that occasion, particularly as she did not have the benefit of any evidence from the wife and there was nothing to indicate that the applicant himself was present on that occasion.  The Tribunal correctly understood the significance of the complaint and dealt with that matter. 

17                  It is not necessary, in dealing with the substance of a complaint, to set out all the minutiae surrounding it. 

18                  I have read and re-read the decision of the Tribunal.  I have heard Mr Archibald, who has a proper zeal for his client’s case, and gone over with him everything that he said.  I see no basis for a finding that the Tribunal fell into any jurisdictional error.  At most, it might be said the Tribunal made factual findings about which other people might take a different view.  I am not suggesting that I, myself, would take a different view about the findings.  It would not be appropriate for me to form a view about the facts.  This falls outside the Court’s jurisdiction.  All that can be said with certainty is that any error that might be attributed to the Tribunal was entirely of a factual nature.

19                  The application should be dismissed with costs and I so order.

Associate:

Dated:              9 April 2003