FEDERAL COURT OF AUSTRALIA

SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418

Migration Act 1958 (Cth)

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 cited

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 applied

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 applied

Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304 cited

W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 applied

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 cited

SZCSC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1372 OF 2006

MANSFIELD J

23 MARCH 2007

ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed. 

2.                  The appellant pay to the first respondent his costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Belarus.  He is an engineer.  Shortly after he arrived in Australia on 27 September 2000 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  He claimed to fear persecution or to have a well-founded fear of persecution if he were to return to Belarus by reason of his political beliefs and activities.  His application was refused by a delegate of the Minister on 22 August 2002 and then by the Refugee Review Tribunal (the RRT) on 30 December 2003.

2                     The appellant applied to the Federal Magistrates Court to quash the RRT’s decision on the basis that it was tainted with jurisdictional error:  see Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.  On 30 June 2006 that application was dismissed.  This is an appeal from that decision.

3                     The appellant appeared in person before the Federal Magistrate and on this appeal.  Clearly, he was at some disadvantage in identifying precisely the jurisdictional error which he claimed the RRT had committed.  His contentions lapsed at times into an attempt to re-argue the merits of the case, even though neither the Federal Magistrates Court nor this Court on appeal can inquire into the merits of the case.  The Court’s jurisdiction is limited to determining whether jurisdictional error is established.  Review of the factual merits of the decision of the RRT in order that the Court substitute its view of the facts is not within the jurisdiction of either Court:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 

4                     In the appellant’s submissions to this Court, I discerned two threads of asserted jurisdictional error which, if established, might lead to the appeal being allowed and the RRT decision being set aside so that the protection visa application should be reheard by the RRT differently constituted.  Those grounds were:

1.                  that the RRT had not approached its review with a mind open to persuasion, or at least that it approached its task in a way which gave rise to a reasonable apprehension of bias on its part;

2.                  that the RRT, although it recited the applicable law correctly, somehow then misapplied the law so that it did not in fact address the question which it was required to address.

Either of those matters, if made out, may constitute jurisdictional error:  see e.g. per Kirby J in Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128.  The first of those matters remains available as a ground of jurisdictional error, notwithstanding s 422B of the Act:  see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214.

THE APPELLANT’S CLAIM

5                     The appellant was born in 1961.  He qualified as an engineer in Minsk in 1983.  He then worked in that capacity for various firms in Grodno until he came to Australia.  In the job he held for a year or so before he came to Australia, he travelled frequently to Poland in the course of his work.  He claimed to have a well founded fear of persecution for what he called in his application his “activities as an opposition agitator”, that is his political beliefs and activities through his involvement with the Belarusian Popular Front (BPF) and associated activities since 1998.

THE RRT’S CONCLUSIONS

6                     The Tribunal was not satisfied that the appellant has a well-founded fear of persecution if he returns to Belarus.  In essence, it did not accept his claims.  It thought that he was “prepared to tell lies if he believes that he can get away with it.”  It explained in some detail why it reached that conclusion.

7                     The appellant’s claims were apparently supported in significant respects by other evidence he presented to the RRT, to only some of which the RRT referred and only some of which it accepted.  As the appellant’s contentions on this appeal involve reference to all of that material, and how the Tribunal addressed it, it is necessary to refer to the appellant’s detailed claims, the supporting evidence, and the RRT’s findings, more or less sequentially.

INFORMATION PROVIDED TO SUPPORT THE CLAIM

8                     In his original application, the appellant made the following claims.

9                     As a student he had become involved with trade union activities at the Belarusian Polytechnical Institute and had been a trade union activist since that time.  He retained his trade union activism after independence.  In 1994 a new president of Belarus was elected.  By referendum in 1996, the President was given greater control and extended his presidency to 2001.  The appellant asserts that the vote in the referendum was falsified and led to fears of a potential dictatorship.  Consequently, opposition to the President became more active.  The appellant saw the views of the BPF opposition party as closest to his, and consequently became a sympathiser of the BPF political movement.  From 1998 he assumed a greater association with the BPF. 

10                  In that capacity, the appellant had access to workers and tried to move them to be involved in political activities against the ruling regime.  He urged them to take action to defend their rights, including to strike in support of their rights and in support of democracy.  In that, he confronted the government sponsored Federation of Trade Unions of Belarus (FTUB).  Those opposed to that regime in that way had restrictions placed upon them:  monetary controls, media abuse, harassment, seizure of assets, random arrests and the like.

11                  In 1999, the appellant commenced working for InCom Service in Grodno, a private company.  He was a member of the trade union of businessmen.  He supported the independent trade unions, in opposition to the FTUB.  He became active in the BPF leadership by supporting demonstrations, by taking groups of workers to Minsk to participate in demonstrations, by appearing and addressing human rights groups and the like.  During 1999 there were three Freedom Marches in which he played a minor part by organising to take workers from Grodno to Minsk to participate, and he also became the main organiser of similar demonstrations in Grodno.  The demonstrations were broken up by the police and security forces.

12                  The appellant claims that he was being beaten and traumatised.  In March 2000 he was detained and beaten and suffered a broken finger.  In all he was detained nine times, spending about 10 days in detention.  He also claims he was convicted on two occasions for active participation in demonstrations and on three occasions heavily fined in the face of fabricated evidence for “malicious hooliganism”.  The two convictions for participation in demonstrations led, on each occasion, to 15 days imprisonment.  He claims thereafter that his telephone was tapped by the security forces.  The KGB tried to recruit him as an informer.  He received a threat from the KGB that he would be prohibited from taking business trips to Poland, which was the main part of his job, unless he became an informer.  In June 2000 he received an “official warning” from the KGB to stop his opposition activities.  He then received information, when he indicated that he would not accept its invitation to stop his activities except by way of an informer to the KGB, that a case was being fabricated against him which could lead to several years’ imprisonment.  He therefore decided to flee Belarus and eventually came to Australia.

13                  To the RRT the appellant provided supplementary submissions dated on 3 October 2003.  They addressed a number of the matters upon which the delegate of the Minister had first decided adversely to his claim for a protection visa based upon rejection of the truth of his claims.

14                  The supplementary submissions addressed particular issues of concern to the delegate who initially rejected the claim.  In particular, they indicated:

(1)               The appellant had told the delegate at interview that he could not relocate to Poland because he would be unsafe there.  The delegate referred to the fact that a former chairman of the BPF, Zyanon Paznyak, had obtained asylum in Poland.  The supplementary submissions pointed out that the former Chairman of the BPF had first obtained asylum in the United States rather than Poland, but that he had subsequently returned to Poland where he felt sufficiently secure because of the resources available to him to obtain private security guards and the like.  The appellant did not have those resources behind him.

(2)               The delegate had said that the appellant’s knowledge of the BPF was no greater than that which could have been obtained by a search on the internet concerning that body. The appellant firmly disagreed with that and explained why.  (My reading of his interview with the delegate suggests that his knowledge of the BPF and of the personalities involved in it as well as its structure was quite extensive.)

(3)               The delegate had described the appellant as saying that he was merely an ordinary member of the BPF and so would not have any profile of significance to the Belarusian authorities.  The appellant said in his supplementary submissions that he did not have an official position in the BPF but that nevertheless he had quite a high profile because he was known as a person who had arranged the Grodno demonstrations and had arranged to take demonstrators from Grodno to Minsk to attend the Freedom Marches, and was involved in other activities.  He pointed out that what he said was confirmed by statements provided by the witnesses Grechko and Strelchenok.

(4)               The delegate said that a document which he had produced confirming his membership of the BPF was not the membership card but merely an application for membership and so did not confirm his membership of the BPF.  The appellant pointed out that the document produced to the delegate, whilst not a membership card, was in fact an internal BPF record of membership rather than, as asserted by the delegate, an application for membership and, the appellant said, was a form which he would not have been able to get but for access to its records.  (I note that the appellant apparently produced to the RRT his membership card dated 24 November 1997 with the supplementary submission provided through his migration agent.)

(5)               The delegate had produced to him several documents which had been analysed to assess their genuineness.  Three were found to be genuine.  Two of them were summonses issued to the appellant’s wife requiring her attendance for examination at the Soligorsk Municipal and Regional Department of Internal Affairs on 8 and 9 November 2000.  The third was a certificate from the Grodno Municipal Emergency Hospital dated 17 October 2000 confirming that the appellant had attended there for medical treatment on 9 March 2000 when he had been found to be suffering from a right fractured index finger.  There were two documents which the delegate, on the information provided, had found not to be genuine.  They were summonses directed to the appellant apparently also from the Municipal and Regional Department of Internal Affairs requiring the appellant to attend for examination on 20 October and 27 October 2000.  The information provided through inquiries of that Department through the Australian Embassy was that the person who had purportedly issued those examination summonses did not exist. 

(6)               The appellant’s supplementary submissions explained that he had received those two documents after he had arrived in Australia, and that he had sought unsuccessfully to get information to confirm the means of inquiry about them because he himself had doubts that they were not genuine.  He also pointed out that there was independent information, particularly from a witness Sadaunichy, a former officer of the KGB, that he had been previously arrested, had previously been interviewed by the KGB, and that the fear of fabrication of charges was legitimate. 

(7)               The delegate had treated the summonses to his wife as irrelevant because they did not explain that they were related to the appellant’s departure from Belarus or his activities whilst there.  However, both the appellant’s wife and another person Baluyeva had provided statements saying that she had become of interest following the inquiries through the Australian Embassy as to the authenticity of the summonses (material before the Court indicated that the inquiry through the Australian Embassy had been made with the names on the summonses or putative summonses deleted so as not to identify the person involved, but of course if the documents were genuine (as two were found to be) they could be readily traced to the appellant’s wife by reference to the serial number which appeared on them).  His wife said that she had lost her job, and had privately been informed by her employer that it was because of her association with the appellant and to put pressure upon him.  That was confirmed by Baluyeva.

15                  There was further independent information provided to the RRT with that supplementary material.  Apart from the statement of the appellant, his wife and Baluyeva, Grechko’s statement confirmed that the appellant had taken part in the rallies and had been bashed and arrested in June 1999, Strelchenok’s statement confirmed that he had been arrested in October 1999 and generally his activities in rallies.  A statement from Antoshin confirmed that he had taken part in a rally in March 2000 and had been arrested and bashed and had been taken to hospital.  That was confirmed also by Sadaunichy, as well as confirming that in May 2000 the appellant had been interviewed by the KGB and that he had reason to believe that fabricated charges were being prepared against the appellant when he had declined to become a resource to the KGB in his further activities.

16                  I note also that at his interview with the delegate of the Minister on 12 April 2001, the appellant said that on 19 May 2000 he had been taken to hospital with a kidney injury after having been bashed.

17                  The RRT’s reasons, as is commonplace briefly record the background to the application, the legislative framework and the evidence.  The evidence is set out at some length.  The evidence of the appellant included the hearing before the Tribunal on 3 October 2003.  There is no transcript of that hearing.  I accept that the RRT’s recording of what was said at that hearing in its reasons is therefore accurate. 

18                  The RRT then went through the evidentiary materials under a series of headings concerning the applicant’s (and others’) evidence.  They included his membership of the BPF, his arrests, his claimed approaches from the KGB, his subsequent travels, the purported summonses, his son’s supposed membership of the “BPF Youth Front” and events after the appellant’s departure from Belarus.  Finally, it referred to other evidence.

THE RRT’S REASONS FOR DECISION

19                  The RRT said that:

In the present case I consider that the Applicant has demonstrated that he is prepared to tell lies if he believes that he can get away with it.

20                  The RRT then gave a series of reasons for that conclusion.

21                  The first was whether he had returned to Belarus after he had left in June 2000 for Moscow.  The RRT noted that the appellant had initially denied having returned to Belarus after he had left for Moscow at the end of June 2000, but after being required to explain the stamps on his passport, he acknowledged returning to Belarus on 19 September 2000 and crossing into Poland again on 25 September 2000.  He had apparently, according to the passport information, done so by car, although he had said that he had travelled by train between Belarus and Poland.  Those matters had emerged in the course of the RRT’s hearing.  Subsequently, a statement from a resident of Grodno was provided that said he had driven the appellant to Warsaw on 18 September 2000, that they had come back to Grodno on 19 September 2000 and that he had subsequently again driven the applicant to Warsaw on 25 September 2000.  That did not accord with the appellant’s evidence.  He said he had travelled to Warsaw by train.  He did not say that he had used a particular crossing (by car) because the checkpoint was not equipped with computers, although he had subsequently raised that with the RRT. 

22                  At that point the RRT said:

I reject the applicant’s evidence regarding his movements.  I do not accept that the applicant genuinely held a subjective fear of being persecuted by the authorities in Belarus for reasons of his political opinion at the time he left Belarus, nor that he holds such a subjective fear at the time of this decision.  I do not accept that someone in fear of being arrested by the KGB in Belarus, as the applicant claims to have been, would have risked returning to Belarus, as he did.

23                  Then the RRT said that the applicant’s evidence was not credible in other respects.

24                  It secondly referred to his claims of being called to the KGB in mid May 2000 and at the start of June 2000 when he was warned to stop his activities for his own good.  The RRT did not think that the appellant had satisfactorily explained why the KGB, having had its first invitation for the appellant to act as an informer refused, did not then take away his passport as he acknowledged ultimately that it could have done.  Nor did the RRT think that the appellant satisfactorily explained why the KGB did not promptly fabricate a claim against him, as he asserted that it was about to do, given that at one point the appellant said  it would not take them long to do so.  It also had regard to his request to take evidence from a witness, Sadaunichy, who claims to have been a member of the economic police in Belarus and to have warned the appellant of the progress of fabrication of a criminal claim against him.  The RRT did not accept that evidence because it did not accept that the KGB would have warned the appellant if they intended to arrest him.  It said:

I consider that his claim that the KGB attempted to recruit him is a fabrication.  I do not accept Mr Sadaunichy’s evidence … I do not accept that anyone in fear of being arrested by the KGB would have returned to Belarus, as the applicant undoubtedly did, as established by his passport.  I reject the applicant’s evidence that he was called to the KGB, that the KGB tried to recruit him as an informant, that the KGB warned him to stop his activities and that the KGB were tapping his telephone and reading his mail.

25                  The third piece of material relied upon by the RRT was the appellant’s claim to have been assaulted during a demonstration in Grodno in March 2000.  It acknowledged the existence of the medical certificate confirming a fractured right forefinger on 9 March 2000.  It was, however, critical of the evidence of the appellant that he had had two fingers on both hands broken, in contrast to that medical certificate, of his witness Antoshin whose statement said that both the appellant’s wrists had been fractured as well as lacerations to his head and of the appellant’s explanation when those matters were put to him that the broken finger on his right hand had been put in a cast straight away and his left hand had merely been bandaged as had his head.  It commented:

If this were so, it would be remarkable if the hospital’s own records only suggested that the applicant had received treatment for a fracture of his right forefinger.

It noted that Antoshin’s statement that both his wrists had been fractured was not responded to.  It further noted a statement from Sidorik, confirming the appellant’s involvement in that protest in Minsk on 15 March 2000 resulting in the appellant “having both his arms/hands in plaster”.  Consequently, the RRT accepted that the appellant was treated for an injury to his right forefinger on 9 March 2000, but it did not accept his evidence or that of the witnesses about his other injuries, nor that the injury to his right forefinger was caused by him being beaten by the authorities.  To the extent to which that was confirmed by Sadaunichy, the RRT said that he had knowingly given false evidence to it. 

26                  There was a further medical report dated 19 May 2000 which the Tribunal also accepted to be genuine confirming that the appellant was on that date suffering from an abnormality in the functioning of his kidneys.  The RRT said:

Having regard to the view I have formed of the applicant’s credibility I do not accept, however, that this abnormality was caused by injuries the applicant received on 9 March 2000, nor that it was caused by the beating he claims to have received from police or OMON officers.  Since I do not accept the applicant’s account of what happened on 9 March 2000 it follows that I do not accept that he complained to the Public Prosecutor’s Office, as he claims, nor that he received no information regarding the progress of the investigation.

27                  The fifth piece of information was the appellant’s claim to have been a member of the BPF.  It referred to the membership registration form originally produced and dated 28 December 1998, and noted that the appellant had said that he had become a member of the BPF originally at the end of 1998 or the beginning of 1999.  He also said initially that he had had a membership card but was afraid to carry it when he left Belarus.  It recorded (incorrectly I think) that the membership registration form was simply an application for membership available to anyone.  In any event, the appellant had later produced his BPF membership card, apparently issued on 24 November 1997, and he said he had joined the BPF at that time.  The RRT noted that the appellant had attempted to explain the discrepancy in his evidence by saying that he had to make a second application to join the BPF at the end of 1998 because he had had to go through a probation period.

28                  There were other concerns about the membership card.  The RRT placed weight upon the fact that the appellant had said that his membership card had been signed by the Chairman of the BPF, Vyachorka, but the membership card he had produced was signed by Korenko as President or Chairman of the BPF.  The appellant sought to explain that to the RRT by saying that his registration document had been signed by Vyachorka rather than his membership card, which he had been presented with by Vyachorka.  The RRT thought that because of the discrepancies in his evidence, that it should not accept that the membership card produced by the appellant was genuine.

29                  The next matter referred to by the RRT concerned a certificate issued on 10 November 1999 on the letterhead of the BPF signed by Vyachorka stating that the appellant had been a member of the BPF since 1997.  It noted that the document, apparently issued in November 1999, had not earlier been presented or referred to in evidence.  It said:

Given the applicant’s own evidence at the hearing before me that he would not accept the results of any inquiries made by the Australian authorities with the BPF with regard to whether any of the documents he produced were genuine – on the basis that the BPF would not tell the truth to the authorities of other countries – I have not considered it necessary to make further inquiries of the BPF with regard to whether this document is genuine.  In the absence of any explanation as to how it came to be produced at this late stage I do not accept that it is genuine.

30                  Next the RRT referred to the two police summonses to the appellant.  The appellant had suggested in his statement dated 11 November 2003 that the response of the Municipal and Regional Department of Internal Affairs about the two police summonses it apparently issued to him did not have regard to the fact that the named investigator, Sergienya, may have worked for the Prosecutor’s Office or the Secret Service, rather than for that Department.  The RRT did not accept that, as the translations said that the summons had been issued by Sergienya as an officer of that Department.  It did not accept that the summonses were genuine.  On the hearing of the appeal, the appellant acknowledged that the summonses were not genuine.  His concern was expressed another way.  It was that he had not been given a copy of the summonses, once they had been provided to the Department, so that he could not investigate their genuineness and so had been forced to explain their genuineness or speculate as to the source of their genuineness.  He said he should have been given a notice under s 424A to give him an opportunity to respond on that issue.

31                  Eighthly, the RRT referred to the claims of the appellant that his son had been a member of the BPF Youth Movement and had himself been victimised because of his father’s activities.  The son’s membership certificate dated 7 November 2000 was found to be not genuine because it was stamped with a form replaced in early 2000 and the signatory was not a recognised member of that organisation.  The appellant disputed the latter fact.  In his statement dated 11 November 2003, following a s 424A notice, he also disputed that the old style seal had not been used until the end of 2000.  There was no evidence in support of his assertion, and it conflicted with information provided by the BPF.  The appellant offered some other explanations about that, including that the BPF would not tell the truth to authorities of another country.  The RRT did not accept that to be the case, and so did not accept that the document produced to confirm his son’s membership of the BPF Youth Front was genuine.

32                  That led to an analysis of the claim that his son had been victimised, and expelled from education at university, because of his BPF membership and his father’s activities.  The appellant also said that his wife had been similarly victimised.  The RRT remarked that it was somewhat surprising that his wife was not dismissed from her job until 11 March 2002, even though she said that her employer had explained to her that this decision was made under pressure from the authorities.  There was substantial evidence about the circumstances of the son’s expulsion from university.  There was also a statement from the appellant’s wife in which she said that her employment had been terminated by mutual agreement because of the atmosphere of conflict at her place of employment because of her expressed political views.  Evidence also showed that the appellant’s son had been hospitalised for psychiatric treatment in October 2002, had been granted leave from his studies until 1 February 2003 and subsequently reaccepted into the educational institute.  Consequently, as the RRT said, his son had not been expelled from university for poor attendance (or fabricated poor attendance) as the appellant had claimed, but because of an illness and he had been able to resume tertiary studies by distance education.  The son’s evidence was also criticised by the RRT.  On the material provided, the AAT concluded that the son had suffered concussion as a result of a head injury on 3 June 2002, that he was subsequently hospitalised with psychiatric problems, and had been granted leave from his studies but had now resumed his studies.

33                  It concluded:

As stated above, I consider that the applicant has demonstrated that he is prepared to tell lies if he believes that he can get away with it.  I do not accept him as a witness of truth.  I do not accept that he was a member of the BPF, as he has claimed, nor that he took part in various demonstrations organised by the BPF, nor that he was arrested, beaten by the police or OMON officers, imprisoned or fined as a result of his participation in such demonstrations.  For reasons given above, I do not accept that either the membership card or the certificate which he has produced in support of his claimed membership of the BPF are genuine.  As he himself conceded, the registration form which he produced is just that and does not establish that he was ever a member of the BPF.  For reasons likewise given above I do not accept that the applicant’s son was a member of the BPF “Malady Front” or Youth Front as he claims, nor that the certificate which the applicant produced in support of his son’s claimed membership of that organisation is genuine.

For reasons given above I do not accept that either the applicant or his son were approached by the police or the KGB to act as informers, as they claim, nor that the applicant fled Belarus in June 2000 because he feared being arrested and imprisoned on charges fabricated by the KGB.  To the contrary, I consider that the applicant’s evidence in support of his application for a protection visa is a fabrication and that he has persuaded various friends to provide evidence in support of his application.  As stated above, I do not accept that anyone in fear of being arrested by the KGB would have returned to Belarus, as the applicant undoubtedly did, as established by his passport.  To the extent that the applicant’s friends in Belarus and his wife and son and their friends have made statements in purported collaboration of the applicant’s evidence I likewise reject their evidence.  As indicated above, I consider that Mr Sadaunichy has knowingly given false evidence to the Tribunal.

34                  Consequently, the RRT did not consider that the appellant genuinely held a subjective fear of being persecuted by the authorities in Belarus for reasons of his political opinion at the time he left Belarus, nor at the time of its decision.  It concluded that, whatever the reasons for his wife being summonsed by the police, they were not because the appellant was of any interest to the authorities.  Nor was her dismissal from her employment as a consequence of the appellant’s political beliefs or activities.  It accordingly did not think that there was a real chance that the appellant would be involved in opposition political activity if he returns to Belarus now or in the reasonably foreseeable future.

35                  The RRT also rejected the suggestion that the appellant had a well-founded fear of persecution by reason of being identified as a failed asylum seeker on his return to Belarus.  Information available to it indicated that, unless he was a member of a political opposition group, or a known political opponent of the government, there was no real chance that he would be persecuted simply for having been a failed asylum seeker in Australia.

36                  The independent information before the RRT did indicate a foundation for the RRT accepting that those actively supporting the BPF and its pro-democracy and/or pro-independence movements were vulnerable to persecution by the authorities.  It indicated that there had been substantial arrests and violence on the occasion of protests, and charges of “malicious hooliganism” and the like.  The RRT did not need to address those matters, because the appellant did not first satisfy the RRT that he held a genuine fear of being persecuted for reasons of his political beliefs and activities if he were to return to Belarus.

37                  That lengthy reference to the evidentiary material and the way the RRT addressed it is necessary to address the claim that the RRT demonstrated ostensible bias in its consideration of the appellant’s claims.

38                  The test for apprehended bias in relation to a body such as the RRT is whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the RRT might not bring, or might not have brought, an impartial mind to the resolution of the question to be decided:  see per Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-435, at [27]-[28] and the cases cited at fn 7.

39                  There is nothing to suggest the RRT conducted the hearing in a way which might indicate a closed mind on its part.  The only evidence as to how it conducted its hearing is from its own recital of those events. They disclose only a firm testing of the claims made by the appellant, in some instances by confronting him with inconsistencies in documentary materials and in the statements of himself and others.

40                  It will be rare that an allegation of ostensible bias will be made out on an analysis of evidentiary materials before the RRT and its assessment of them, where otherwise no legal error is disclosed in its reasoning:  see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756, at [44] and the cases cited there.

41                  I do not consider that the RRT’s reasons demonstrate that it may have approached its task with a closed mind.  It has carefully analysed the evidentiary material.  Where there is apparently genuine documentary material, it has accepted that material.  The difficulty confronting the appellant was that that material did not accord in significant respects with his evidence, or with his and others’ evidence, so as to present a consistent and cogent detailed version of events.  It is only by taking the appellant’s evidence at a high level of generality that the inconsistencies pointed out by the RRT would be of no significance.  The RRT, when concerned about the credibility of a claimant, does not demonstrate ostensible bias by a firm and sometimes vigorous testing of the evidence.  It was entitled to compare the detail of the evidence to assess whether it is consistent both with the appellant’s own claims and internally.  It was entitled to look carefully at the appellant’s own claims and the material which related to them to assess whether that material was itself consistent.  If there were discrepancies in that material, even of detail, it was entitled to explore those discrepancies to see if there were satisfactory responses to them and to assess their cumulative significance.

42                  Of course, the existence of discrepancies in detail is not necessarily of great moment.  Experience shows that records are not necessarily always complete; the person making the record may not fully record information or may record information inaccurately.  Human memory is not perfect.  In stressful circumstances such as those the appellant asserts, and especially with the passage of time, perfect consistency of detail is not to be routinely expected.  The RRT would be aware of such matters, and sympathetic to them.

43                  However, the RRT need not ignore discrepancies and inconsistencies.  It is a matter for its own fact finding as to their significance overall.  In its reasons, I do not think the RRT has gone beyond a careful appraisal of the evidence, a weighing in all the circumstances of that evidence in the manner I have described, and the reaching of a conclusion.  Once it had decided that the appellant’s claims were fabricated, it was entitled not to be satisfied that he held a genuine fear of being persecuted for reasons of his political opinion if he were to return to Belarus.

44                  I have not overlooked the extent to which the appellant’s claims were supported by independent witness statements.  The RRT has not overlooked them.  It has rejected them, including the evidence of Sadaunichy who now resides in Australia.  It is not sufficient for the appellant to demonstrate legal error to assert that others may have given more weight to that evidence.  Nor is it an error of law to have rejected Sadaunichy’s evidence corroborating parts of the appellant’s claim, in effect because it rejected the appellant’s evidence:  see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [11]-[19] per Gleeson CJ, [46]-[52] per McHugh and Gummow JJ, [173] per Callinan J.  Even though the corroborative statements were quite extensive, the RRT’s approach to them does not demonstrate in my view ostensible bias on its part.

45                  The general description of the RRT having misapplied the law can be addressed in particular respects, and by way of a general overview.

46                  The appellant complained that the RRT did not take evidence from Baluyeva, Antoshin and Grechko orally by telephone, despite the request that it should do so.  The nature of the RRT’s obligation under s 426(3) of the Act is discussed in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304, a case concerning the analogous obligation on the Migration Review Tribunal under s 361(3) of the Act.  It is obliged to give genuine consideration to such a request.  In doing so, it must have regard to matters such as the relevance and potential importance of the proposed evidence, the sufficiency of any written evidence already provided, and other matters:  see the discussion in W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 at [2], [30]-[32].

47                  The RRT declined the request because it “would have no guarantee about who was at the other end of the line.”  I must express concern at that reason.  It would be applicable to almost every request to take evidence from an overseas witness.  There are opportunities then in a telephone hearing to probe witnesses as to background facts which they might be expected to know to test their identity or their relationship with the particular applicant.  However, more importantly to the RRT was its concern – based on the appellant’s evidence – that telephones in Belarus may be tapped so that the RRT thought the witnesses may be endangered by giving telephone evidence.  That was a proper concern for the RRT, although if the proposed witnesses were prepared to undergo the risk it is hard to see why it should lead to the RRT declining to hear their evidence.  However, on balance, I do not think it has been shown that the RRT failed to give genuine consideration to that request, so it has not been shown to have failed to comply with s 426(3).

48                  It is of course possible that oral evidence, even by telephone, would have been more cogent and detailed than the brief written statements submitted to the RRT.  That is a commonplace experience.  But it was not suggested on behalf of the appellant that the written statements were merely brief summaries of the proposed evidence, or that there were constraints on the contents of the written summaries.  Whilst the approach of the RRT to this issue is not, in my view, an ideal one, I do not think it adds to the claim that the RTT may have approached its task with a closed mind so as to enhance the claim of ostensible bias.

49                  The appellant’s claims fitted to some extent with accepted documentary materials.  His claims, in broad terms, were also confirmed by the statements of several witnesses.  That degree of verification was greater than is commonly the case.  Whether the Court or a differently constituted AAT would have balanced those matters with the matters of concern to the AAT as constituted to reach a different conclusion is not a matter for decision.  As I have said earlier in these reasons, it is not the Court’s role upon an appeal such as the present (or the role of the Federal Magistrates Court) to substitute its own view as to the facts.

50                  The appellant contended separately that the RRT had failed to comply with s 424A of the Act by failing to give him the opportunity by written notice to comment upon its concern that the two summonses apparently issued to him were not genuine.  Not only did the RRT regard those documents as not genuine (a finding which ultimately the appellant accepted), but it placed weight upon the fact that they were presented by the appellant and upon his evidence at the RRT hearing that they may have been issued by an officer of another departmental unit, when it was apparent that the investigator named in them was not employed in the particular Department.

51                  The information that the summonses were not genuine was notified to the appellant by letter of 23 July 2002, and was also a matter raised by the delegate of the first respondent and in the delegate’s decision.  It was the subject of submission by the appellant to the RRT in the extensive “Case Submission”.  Moreover, that information was also specifically the subject of the notice under s 424A(1) given to the appellant on 21 October 2003.

52                  In my view, s 424A(3)(b) leads to the conclusion that the RRT in the circumstances was not obliged to give such written notice in the circumstances in respect of the second step in the contention.  Section 424(3)(b) exempts from the operation of s 424A information that the appellant gave to the RRT for the purposes of the application.  That encompasses the oral evidence of the appellant endeavouring to explain that the summonses may have been issued by an officer of another departmental unit.

53                  The appellant also contended that the RRT had failed to consider the claim that he had a well-founded fear of being persecuted if he returned to Belarus by reason of his membership of a particular social group, namely the social group comprising those who participated in trade union demonstrations.  I do not accept that contention, simply because I do not consider that it was raised before the RRT.  The appellant’s claim to a protection visa was based upon feared persecution for his political beliefs and activities, and not for his membership of a particular social group;  see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.

54                  Finally, as the appellant invited the Court to do, I step back to see if some jurisdictional error must have been committed by the RRT even if it is not readily discernible.  His claim was based upon events which the RRT accepted:  the existence of an opposition active trade union movement involved in anti-government demonstrations including on particular dates, and evidence of persecutory behaviour at least towards those promoting those protests, including in the BNF.  His claim of having suffered injuries on or about the times of two significant protests was accepted, namely a fractured finger and a kidney injury.  His claim was apparently verified by several witnesses.  Despite all that material, his claim failed because the RRT thought he was fabricating his claimed role as an activist, and consequently it rejected the confirmatory and apparently independent corroborative evidence, as well as corroborative evidence from his wife and son.  It did so by a close analysis of the oral evidence and documentary material, indicating some discrepancies between his evidence and that of his witnesses or of the other material.  Some of those discrepancies might be seen to be minor:  for example, the assumption that a hospital medical certificate issued some six months after treatment would necessarily replicate fully the details of the examination, and not simply the principal injury, may not be made by all fact-finders.  The analysis of the discrepancies by the RRT has not, however, persuaded me that it may not have approached its task with an open mind.  And there are other discrepancies, such as the appellant’s explanations about his movements between Belarus, Moscow and Poland about the time he last left Belarus, which do not lend themselves to such ready explanation.

55                  Notwithstanding the apparently cogent material in support of the appellant’s claim, I do not think that the RRT has been shown to have somehow reached its decision by some latent error of law.  It is not the role of the Court to form a view as to whether it would have reached a different factual conclusion on the evidentiary material.

56                  As the decision of the RRT is not infected with jurisdictional error, and there is no error on the part of the learned Federal Magistrate, the appeal is therefore dismissed.  The appellant should pay to the first respondent his costs of the appeal.

Associate: 

Dated:         23 March 2007