FEDERAL COURT OF AUSTRALIA

SZLKY v Minister for Immigration & Citizenship [2008] FCA 1755

SZLKY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1124 of 2008

EDMONDS J

21 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a judgment of the Federal Magistrates Court (Nicholls FM) given on 30 June 2008: SZLKY v Minister for Immigration & Anor [2008] FMCA 841.  The Federal Magistrate dismissed an application for review of a decision of the second respondent (‘the Tribunal’) that affirmed a decision of a delegate of the first respondent (‘the Minister’).

Background

2                     The appellant, who is a citizen of the Ukraine, arrived in Australia on 28 February 2007 as a crew member aboard the ship Sapphire Princess and applied for a Protection (Class XA) visa on 2 March 2007.  The appellant’s claims were set out in a statement accompanying his application.

3                     The appellant claimed to have worked for a number of shipping companies since 1991 as a barman, steward and waiter.  The appellant claimed that in 1991, all people selected to work abroad were under instructions from the KGB to provide information about fellow crew members and foreign visitors.  This was a condition of employment.

4                     During the appellant’s first trip, he purchased a gas pistol as a present.  He was subsequently approached by a person claiming to be a KGB agent who threatened the appellant and forced him to sign a document agreeing to pass on information.  However, the appellant was not contacted again and was able to work without further incident for a period of 15 years.

5                     In November 2006, a person claiming to be an operative of the Security Service of Ukraine (‘the SBU’) approached the appellant requesting his assistance and producing the document signed by him in 1991.  The appellant’s apartment was broken into two days later and a number of items were broken and stolen.  A handgun was found in the appellant’s bathroom by the police, about which he knew nothing.  The appellant was subsequently taken to the police station and questioned.

6                     The appellant was then approached by the same SBU agent, given a list of people living in Australia and shown some photographs.  He was told that he was to inform the SBU of the whereabouts of these people.  He was threatened with ‘unimaginable problems’ for him and his family if he failed to do the job.  The appellant subsequently left his ship in Australia after telling the ship’s management that he needed to return to the Ukraine.

7                     The appellant claimed that he feared for his life should he return to the Ukraine.

8                     On 18 May 2007, the delegate refused the visa sought, noting that the appellant’s claims were not supported by any evidence, lacked plausibility and, with regard to the SBU, were not supported by any independent information.  Relying on 2007 independent country information in relation to the Ukraine, the delegate also found that even if the appellant had been the victim of police or SBU corruption, it would be open to him to seek redress within the Ukraine through the courts or by appeal to an independent body such as the Ombudsman’s office.

PROCEEDINGS IN The Tribunal

9                     On 8 June 2007, the appellant lodged an application for review of the delegate’s decision with the Tribunal.  He attended a hearing before the Tribunal on 25 July 2007.  Following the hearing, the appellant wrote to the Tribunal providing further comment in response to issues raised.

10                  On 1 August 2007, the Tribunal issued a letter inviting comment in response to a particular article that the appellant had provided at the hearing, which asserted that the SBU was looking to recruit ‘... mostly émigrés and journalists to inform on the activities of Ukrainian opposition figures in Germany’ and that such recruitment is ‘... known to anyone who has a minimum experience with Ukrainian politics or SBU practice.’  The Tribunal also asked the appellant to provide translated copies of any information already provided by him to the Tribunal, as he considered relevant.

11                  On 20 August 2007, the appellant responded, claiming that the SBU would have regarded ‘ex-KGB operatives’ as the most professional specialists in the field and that he could not agree that the SBU only recruited people who had ‘minimum experience with Ukrainian politics or SBU practice.’  The appellant did not provide any translated copies of the information earlier supplied.

The Tribunal’s dECISION

12                  The Tribunal accepted that the appellant was a national of the Ukraine and that he feared harm in the Ukraine because of the SBU.

13                  The Tribunal did not accept the remainder of the appellant’s claims, finding that they lacked plausibility.  The Tribunal accepted that the events depicted in 1991 might have occurred, but was not satisfied that the appellant was approached by the SBU or anyone else after 15 years.

14                  The Tribunal did not consider it plausible that the SBU would approach the appellant based on his past experience (or ‘lack thereof’) and expect him to locate the whereabouts of certain persons in Australia through the Russian Orthodox Church in Croydon.  The Tribunal considered the appellant’s claims were: ‘... bordering on the fanciful and without any objective basis.’

15                  The Tribunal considered that independent information provided by the appellant regarding the SBU, but noted the significance of the ‘Orange Revolution’ and the changes that would have taken place regarding the SBU’s practices since then.  In any event, the Tribunal concluded that, given the implausible circumstances surrounding the appellant’s own case, it did not accept that such generalised reports made the appellant’s own case any more plausible.

16                  For the above reasons, the Tribunal also did not accept that criminal charges had been fabricated against the appellant in the Ukraine.

17                  Given that the Tribunal did not accept that the SBU had approached the appellant in the past, it was not satisfied the appellant had a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returned to the Ukraine in the foreseeable future.

18                  The Tribunal also found that, even if the events in 1991 had taken place, it was not satisfied those events in themselves, combined with the passage of time, would themselves give rise to a well-founded fear of persecution.

19                  On 18 September 2007, the Tribunal handed down its decision affirming the decision of the delegate.

The proceedings In the Federal Magistrates Court

20                  The proceedings in the Federal Magistrates Court were commenced by application filed by the appellant on 8 October 2007.  The appellant filed an amended application on 10 January 2008.

21                  In a judgment delivered on 30 June 2008, the Federal Magistrate considered the grounds of review raised in the amended application and rejected each of them, dismissing the application with costs.

22                  By Notice of Appeal filed on 18 July 2008, the appellant appeals from the whole judgment of Nicholls FM.  The appellant filed written submissions on 3 November 2008.

Grounds of the appeal in this Court

23                  Under the heading ‘Grounds of Appeal’, the appellant set out seven paragraphs, the first five of which comprise factual assertions, not grounds of appeal.  Paragraphs numbered 6 and 7 appear to contain the substance of the appellant’s complaints.  In effect, these paragraphs and the submissions filed by the appellant appear to assert the following grounds of appeal:

(1)               His Honour should have concluded that the appellant did provide the Tribunal with evidence regarding certain issues upon which the Tribunal found that the appellant had been unable to elaborate.  Therefore, his Honour should have concluded that the reasoning adopted by the Tribunal was unreasonable.

Particulars of the relevant findings of the Tribunal are as follows:

(i)                  The appellant was unable to elaborate on why, if the SBU already knew the four people lived in Croydon, they were not able to establish their addresses.

(ii)                The appellant was unable to elaborate on why the SBU did not turn to the Ukrainian Ministry of Internal Affairs in Australia.

(iii)               The appellant was not able to elaborate on why the SBU would approach him, except to say that he had good communication skills, was going to Australia and already had experience with the KGB.

(2)               His Honour should have accepted that the Tribunal failed to accord the appellant procedural fairness and he was not given a sufficient opportunity at the hearing and after the hearing to address the Tribunal’s concerns about his claims.

The following particulars are provided in support:

(i)                  The post-hearing letter mentioned by his Honour did not address the Tribunal’s concerns but addressed irrelevant information that was not related to its subsequent reasons.

(ii)                The appellant did elaborate on the above mentioned issues.

(iii)               The Tribunal concealed the fact that he elaborated on these issues.

The MInister’s Submissions

24                  The Minister submitted that these grounds did not have any merit, for the reasons set out below.

First Ground

25                  The Minister submitted that the appellant failed to identify under this ground, and in the submissions made in support of this ground, any error of principle in the Federal Magistrate’s conclusion that the Tribunal’s decision was not ‘unreasonable’.

26                  The Minister observed that, in the court below, the appellant did not raise the claim, nor provide any evidence in support of a claim.  He did not elaborate on the issues referred to above.  Instead, he claimed that ‘no person would be able to elaborate on these’.  Accordingly, the appellant cannot now complain that the Federal Magistrate did not draw conclusions on this basis.  The Minister also submitted that the appellant should not be permitted to raise this point for the first time upon appeal when it could possibly have been met by calling evidence below: Water Board v Moustakas (1988) 180 CLR 491.

27                  In any event, the Minister submitted, this ground amounts to no more than a disagreement with the Tribunal’s rejection of the appellant’s evidence, which is a complaint going to the merits of the decision.  The Tribunal was entitled to conclude that it was not satisfied with the evidence provided by the appellant and it was open to the Tribunal to find that the appellant’s claims were implausible based on its dissatisfaction with the evidence before it.

28                  Even if ‘unreasonableness’ in the relevant sense was available as a ground of review in the proceedings below, no legal error attends the Federal Magistrates Court treatment of that ground, and the Minister submitted that the first ground of appeal should be rejected.

Second Ground

29                  The Minister submitted that this ground, or the appellant’s submissions in support of this ground, also failed to identify any error of principle in the findings of the Federal Magistrate that there was no denial of procedural fairness in relation to s 424A and s 425 of the Migration Act 1958 (Cth) (‘the Act’).

30                  The Minister submitted that the Tribunal was not required to put the appellant on notice of its view that the appellant did not elaborate on the above issues pursuant to s 424A of the Act.  Neither gaps in the appellant’s evidence nor the Tribunal’s subjective evaluation of the evidence constitute ‘information’ for the purposes of s 424A: (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [214]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

31                  The Tribunal was also not required to put the appellant on notice of its view that appellant did not elaborate on the above issues pursuant to s 425 of the Act.  This section did not oblige the Tribunal to give the appellant a ‘running commentary’ on what it thought about the appellant’s evidence: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48].

32                  As held by the Federal Magistrate, the determinative issue in the Tribunal’s decision was that the appellant’s claims lacked plausibility.  The appellant was already on notice that the implausibility of his claims was a determinative issue, as the delegate’s decision turned on the same issue.  In any event, the Minister submitted that at the hearing, the appellant was squarely put on notice that the Tribunal considered that his story might not be plausible.

33                  The Minister submitted that the assertion that the Tribunal ‘concealed’ that the appellant elaborated on the above issues does not identify any breach of the statutory procedural fairness requirements.  In its decision, the Tribunal referred to the evidence given by the appellant in relation to the above issues at the hearing and in his post-hearing submissions.  As submitted above, this complaint amounts to no more than a disagreement with the Tribunal’s view of the appellant’s evidence, which seeks to challenge the merits of the decision.

34                  The Minister submitted that the assertion of denial of procedural fairness has not been made out and should be rejected.

Analysis

35                  On his application for review to the court below and on his appeal to this Court, the focus of the appellant’s grounds of review/appeal and his submissions in support of those grounds has been three statements appearing in the Tribunal’s Statement of Decision and Reasons under the heading ‘Findings and Reasons’.  Those three statements are:

(i)         The applicant was unable to elaborate on why if the SBU (Security Bureau of Ukraine) already knew the four people lived in Croydon they were not able to establish their addresses.

(ii)        The applicant was unable to elaborate on why the SBU did not turn to the Ukrainian Ministry of Internal Affairs in Australia.

(iv)              The applicant was not able to elaborate on why the SBU would approach him, except to say that he had good communication skills, was going to Australia and already had experience with the KGB.

36                  These three statements are nothing more than components of the Tribunal’s process of reasoning.  The Tribunal, before making these statements, had already expressed the view that the appellant’s ‘claim lacks plausibility’ and, following the making of the statements, expressed the view that the appellant’s ‘claims are bordering on the fanciful and without any objective basis’.

37                  In making these statements, the Tribunal was profiling its process of reasoning, namely, even the appellant was unable to elaborate on those aspects that best exemplify the implausibly of the claims.

38                  In his submissions to this Court, the appellant now says that he did elaborate on the matters the subject of all three statements.  This was not put to the Federal Magistrate below and consequently his Honour’s failure to find that the appellant did elaborate on the matters, the subject of all three statements, cannot found any error on his Honour’s part.

39                  Moreover, for the reasons set out at [24] – [28] of his Honour’s reasons for judgment, the matters the subject of all three statements are not ‘information’ for the purpose of s 424A of the Act.  The Tribunal had no obligation to provide the appellant with its reasoning process.

40                  Furthermore, the profiling of the Tribunal’s reasoning process in this way does not exemplify bias on the part of the Tribunal or a denial of procedural fairness by reference to s 425 of the Act.  In this respect, his Honour’s reasoning and conclusions on these issues does not disclose any error on his part.

Conclusion

41                  There is no appellable error disclosed in the Federal Magistrate’s reasoning, nor any jurisdictional error in the Tribunal’s decision.

42                  The appeal must be dismissed, with costs.

Associate:

Dated:         21 November 2008