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MIGRATION - protection visas - application by two children born in Australia - parents previously refused protection visas - claim based on parents' fear of persecution - whether open to Tribunal to make findings of fact it made - whether Court can take account of facts subsequent to Tribunal's decision

Soudakov v Minister for Immigration & Multicultural Affairs [2002] FCAFC 23

Soudakov v Minister for Immigration & Multicultural Affairs [2002] FCAFC 23 (22 February 2002); [2002] FCA 140
Last Updated: 6 May 2002


Soudakov v Minister for Immigration & Multicultural Affairs [2002] FCAFC 23
Soudakov v Minister for Immigration & Multicultural Affairs [2002] FCA 140



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Soudakov v Minister for Immigration & Multicultural Affairs [2002] FCA 140

MIGRATION - protection visas - application by two children born in Australia - parents previously refused protection visas - claim based on parents' fear of persecution - whether open to Tribunal to make findings of fact it made - whether Court can take account of facts subsequent to Tribunal's decision

Migration Act 1958 (Cth) ss 5, 36, 476, 476(1)(a), 476(1)(e), 476(1)(g)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) s 3, Sch 1 item 8(1)

Yusuf v Minister for Immigration & Multicultural Affairs [2001] HCA 30 (2001) 180 ALR 1 applied

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234 referred to

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 referred to

MAXIM SOUDAKOV AND PAVEL SOUDAKOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1179 of 2001

GRAY, CARR AND GOLDBERG JJ

22 FEBRUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N 1179 of 2001




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

BETWEEN:
MAXIM SOUDAKOV

FIRST APPELLANT

BY HIS NEXT FRIEND SVETLANA SOUDAKOVA

PAVEL SOUDAKOV

SECOND APPELLANT

BY HIS NEXT FRIEND SVETLANA SOUDAKOVA

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
GRAY, CARR AND GOLDBERG JJ

DATE OF ORDER:
22 FEBRUARY 2002

WHERE MADE:
SYDNEY



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N 1179 of 2001




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

BETWEEN:
MAXIM SOUDAKOV

FIRST APPELLANT

BY HIS NEXT FRIEND SVETLANA SOUDAKOVA

PAVEL SOUDAKOV

SECOND APPELLANT

BY HIS NEXT FRIEND SVETLANA SOUDAKOVA

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
GRAY, CARR AND GOLDBERG JJ

DATE:
22 FEBRUARY 2002

PLACE:
SYDNEY




REASONS FOR JUDGMENT
THE COURT:

1 This appeal is from a judgment of a single judge of the Federal Court of Australia, Gyles J, given on 23 July 2001. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"), made pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act"). The Tribunal had decided on 5 March 2001 to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant each of the appellants a protection visa. Each of the appellants is an infant. Each brought the proceeding before Gyles J, and brings this appeal, by his next friend and mother, Svetlana Soudakova. The application for judicial review dealt with by Gyles J was lodged before 2 October 2001, so it is necessary for the Court to deal with the appeal on the basis of the provisions of s 476 of the Migration Act as they stood prior to amendments that came into operation on that date. See the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) s 3 and item 8(1) in Sch 1 to that Act.

2 Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The term "Refugees Convention" is defined in s 5 to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is similarly defined as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these instruments together as the &qu;
ot;Convention". For present purposes, it is sufficient to say that a person is entitled to a protection visa if he or she:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
3 The appellants' parents were citizens of the former Union of Soviet Socialist Republics ("USSR"). They arrived in Australia on 29 June 1991. In 1992, the appellants' father applied unsuccessfully for a protection visa for himself, the appellants' mother and their oldest child, the appellants' brother. The appellants' father was also unsuccessful in an application to the Tribunal for review of the decision to refuse a protection visa. The decision on that review was not given until 1997.

4 In the meantime, the first appellant, Maxim Soudakov, was born in Australia on 28 June 1994 and the second appellant, Pavel Soudakov (named Paul in the application for a visa), was born in Australia on 12 July 1997.

5 On 9 November 1999, an application for protection visas, on the form described as form 866, was received in the Department of Immigration and Multicultural Affairs ("the Department"). Part B of the form, which seeks particulars of persons included in the application and family composition, listed as applicants the two appellants, but was signed by their mother in both places provided for the signatures of applicants. It was dated 8 November 1999. Part C of the form is designated as the form for an applicant who wishes to submit his or her own claims to be a refugee. A separate part C was completed in respect of each of the appellants. Each part C was signed by the appellants' mother and dated 8 October 1999.

6 Inevitably, the applications were based on what was said to be likely to happen to the appellants' parents if they and their children should return to what is now the Russian Federation. In a letter accompanying the applications, the appellants' migration agent referred to: the parents' fear of discrimination and threats to their lives from the authorities because of the family's religious background; the virtual impossibility of the parents obtaining employment as a result of the family's religious background and current Russian regulations in relation to residence permits (formerly known as "propiskas"); the fact that the appellants were "virtually stateless people"; continuing deterioration of the political situation in the Russian Federation, evidenced by the war in Chechnya and the adoption of discriminatory religious laws; and the fact that members of various church organisations, including the Russian Orthodox Church Abroad ("ROCA"), were constantly subjected to persecution by Russian authorities. The applications were accompanied by documentary material relating to religious freedom and human rights in the Russian Federation. On 1 December 1999, the delegate of the Minister refused the application of each of the appellants for a protection visa. The appellants applied to the Tribunal for review of that decision. The Tribunal conducted a hearing on 20 December 2000, at which evidence was given by the appellants' mother, the Archbishop of the ROCA in Australia and New Zealand (Archbishop Hillarion) and the appellants' migration agent.

7 On 5 March 2001, the Tribunal gave a single decision, affirming the decision not to grant protection visas. It also published written reasons for its decision, some thirty pages in length. In those reasons, the Tribunal referred to the claims that had been made in the migration agent's letter accompanying the appellant's original applications, as well as the claims made by their parents in their unsuccessful applications. The Tribunal also gave consideration to claims made in evidence at the hearing.

8 The Tribunal treated the appellants' parents as stateless persons, eligible to apply for citizenship of the Russian Federation, but who had not done so. It also treated the appellants as stateless. It pointed out that the Convention provides that a stateless person is assessed against his or her country of previous habitual residence. Although the appellants have never lived in Russia, the Tribunal treated the Russian Federation as their "country of reference", because this was the country of previous habitual residence of their parents and their older brother. The Tribunal found that, if the parents were to become citizens of the Russian Federation, the appellants would also become eligible for that citizenship. It found nothing in the evidence to suggest that the parents or the appellants would be denied citizenship if they sought it.

9 To the extent to which the appellants relied on claims of their parents, which had been rejected already, the Tribunal pointed out that it had already been decided that the parents did not face persecution on the grounds of their membership of the ROCA or the father's ethnicity. The Tribunal expressed agreement with the earlier decision.

10 The findings of the Tribunal in relation to the appellants' applications may be summarised as follows:

* It did not accept that the appellants would face harm from the return of a communist

regime, as there was no evidence of the likelihood of a communist resurgence in

Russia.

* It noted that economic harm, such as that feared by the appellants' father, generally does not come within the ambit of the Convention.

* Since arriving in Australia, the appellants' parents have become active members of

the ROCA. Long-standing antagonism between this church and the Russian Orthodox Church in Russia ("the Moscow Patriarchate"), and changes to the law regulating religions in 1997, have led to the ROCA being deprived of church buildings and suffering other constraints. Its members have had to worship in their homes. There has been some violence against ROCA priests, although the culprits were not identified and their motives not proven. The Russian Government does not support or encourage the ROCA. Although there has been some evidence of harassment of members by the Russian authorities for reasons of their ROCA membership, the Tribunal did not regard this as constituting Convention-related persecution. Members are not prohibited or prevented from practising their own variant of Russian Orthodoxy. Harassment is not sufficient to constitute persecution. The need to worship at home because of the lack of church buildings does not constitute persecution as defined in the Convention. The Tribunal did not accept the claim of the appellants' mother that the appellants could be killed because of their parents' membership of the ROCA.

* The Tribunal did not accept that, even if it were true that many priests of the Moscow

Patriarchate are former KGB agents, and the appellants' mother could not bring herself to make her confession to them, her refusal to confess had any Convention-related implications.

* The Tribunal did not accept that the appellants' parents would be accused of being

traitors for having applied for refugee status abroad or would be denied citizenship or

residence permits or would be unable to find work.

* The Tribunal did not accept the appellants' mother's claim that the family would

suffer because "pro-communist structures" have returned.

* The Tribunal accepted that certain categories of people, including many of obvious

Central Asian or Caucasian appearance have been denied residence permits or had

difficulty obtaining them in certain Russian cities and regions, and have been harassed by the authorities in other ways. It noted that the appellants and their mother were not of Central Asian or Caucasian appearance, although the mother claimed to have Tartar ethnicity. The Tribunal did not accept that the reason why the appellants' mother had not suffered any discrimination because of her ethnicity when she lived in Russia was that she had concealed her ethnicity, because at that time, ethnicity was recorded in internal passports. The appellants would not face persecution because of their mother's ethnicity.

* The Tribunal did not accept that the appellants would face discrimination or other harm amounting to persecution because of their parents' ethnic origins.

* The Tribunal did not accept the claim that it would be "virtually impossible" for the appellants' parents to obtain employment in Russia because of their religious background and because of the regulations governing residence permits.

* The Tribunal rejected the immigration adviser's allegation that the Russian militia have a database of peoples' ethnic backgrounds.

* The Tribunal was satisfied that the chance of the appellants experiencing persecution because of their parents' religious beliefs or ethnicity in the foreseeable future was remote.

* Accordingly, the Tribunal could not be satisfied that the appellants' fear of persecution for a Convention reason was well-founded.

11 The appellants applied to the Court for review of the decision of the Tribunal. Their application raised three grounds: procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed (s 476(1)(a)); the decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both (s 476(1)(e)); and there was no evidence or other material to justify the making of the decision (s 476(1)(g)). The application contained no particulars of these grounds. Because the appellants did not have legal representation, Gyles J referred them for legal advice, pursuant to the Court's legal referral scheme. This did not result in the filing of any amended application. The appellants' mother, as their next friend, made submissions on their behalf before Gyles J.

12 In his reasons for judgment, Gyles J recorded that the s 476(1)(a) ground (that procedures that were required by the Migration Act to be observed were not observed) was mentioned only briefly. His Honour held that the ground could not succeed in the face of the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1. His Honour also recorded that no separate argument was directed to the ground of error of law. He could see no proper basis for finding any such error.

13 In relation to the third ground, Gyles J recorded that the appellants' mother argued that the Tribunal ignored the statement of Archbishop Hillarion who, she said, possessed more information about the situation in Russia than anyone else. Instead, the Tribunal was alleged to have acted upon other, more unreliable, material. The appellants' mother also submitted that the Tribunal did not take into account the birth of both appellants in Australia and alleged that they lost their rights to live in Russia and to be registered in Russia.

14 Gyles J found that the Tribunal did not ignore the statement of Archbishop Hillarion. Rather, it chose not to accept that statement in full, in the light of other evidence and information which it preferred. This was a course open to the Tribunal. The Tribunal chose not to accept information before it which would have raised a likelihood of the risk of religious persecution. His Honour held that there was nothing to indicate that the Tribunal did not appreciate the particular position of the appellants. Bearing in mind the limitations on the role of the Court pursuant to s 476 of the Migration Act, his Honour found that the basis for the application was not established. He dismissed the application, but did not award costs against the appellants as they were infants, whose application was made by their next friend.

15 The notice of appeal filed on behalf of the appellants by their mother as next friend raises in the same terms the grounds that were raised by their application at first instance. Again, no particulars were provided. Nothing in the document suggested how it might be said that Gyles J had made any error. No amended notice of appeal has been filed. No written contentions have been filed on behalf of the appellants.

16 At the hearing of the appeal, the appellants were present. Their mother, as next friend, handed up written submissions in the English language and made oral submissions through an interpreter on their behalf. The written submissions stated that the Tribunal's decision rested on three findings:

* The appellants would be entitled to citizenship of the Russian Federation.

* The appellants would not face persecution on the ground of their membership of the ROCA.

* The appellants would not face harm from the return of a communist regime.

17 As the above summary of the Tribunal's findings indicates, this submission does not represent accurately the reasoning of the Tribunal. To the extent to which the Tribunal dealt with the entitlement to citizenship of the Russian Federation of the appellants and their parents, it had before it material entitling it to reach the conclusion to which it came. Similarly, it was open to the Tribunal on the material before it to conclude that the appellants and their parents would not face persecution on the ground of their membership of the ROCA, if they were to go to Russia. The Tribunal was also entitled to reject the assertion that the appellants would be at risk because of the likelihood of the return of a communist regime.

18 The appellants' mother's written submission was necessarily based on her own fear of persecution and that of her husband, the father of the appellants. It suggested that the Tribunal "has entirely misconceived our case." The submission raised three reasons why it is said that the appellants' parents fear persecution. Broadly speaking, they were grounds relating to citizenship and residence permits, religion and ethnic origin.

19 The submission suggested that the appellants' parents would be considered by the Russian authorities to be traitors, having lived in Australia for more than ten years. Their situation is known to the Russian authorities, because they have been forced by the Compliance Section of the Department to deal with the Russian Consulate to obtain a new Russian passport. They had no alternative but to reveal that they had stayed in Australia for so long because they had applied for a protection visa. As a result, it was submitted, they face persecution and imminent threat to their freedom should they go back to the Russian Federation. The submission made reference to the case of a Mr Alekseev, to which the Tribunal had been referred. He had applied for political asylum in Germany, but after four years decided to return to Russia. He was intimidated, threatened, detained and beaten by the police. He was deprived of registration and was forced to live and work illegally in Moscow. His flat was searched by the police and documents relating to his application for political asylum were confiscated. On 16 May 2001, the Tribunal decided to grant Mr Alekseev a protection visa.

20 The second ground for fearing persecution was membership of the ROCA. The submission raised the manner in which the Tribunal dealt with the evidence of Archbishop Hillarion. The third ground was the appellants' mother's Tartar origin and the possibility of persecution as a person of Caucasian origin.

21 All of the matters raised by the submission were matters in respect of which it was open to the Tribunal to make the findings it made. The Tribunal was entitled to weigh against the evidence of the appellants' mother in relation to citizenship and residence permits the material it had from other sources, and to reach a conclusion adverse to the appellants on this issue. If the circumstances of the parents have changed since the Tribunal's decision, because of their dealings with the Russian Consulate, the change cannot be a ground for overturning the Tribunal's decision. For the same reason, the fact that the outcome of Mr Alekseev's case has become known since the Tribunal made its decision in the present case cannot be a ground for overturning the Tribunal's decision. Judicial review of the Tribunal's decision must be conducted on the basis of the factual material before the Tribunal, not on the basis of facts that have come to light, or have occurred, since the decision was made. In addition, the decision on Mr Alekseev's case is in no sense a precedent for dealing with the appellants' case. The Tribunal is obliged to deal with each case on its own facts. At best, the facts found by the Tribunal in an earlier decision might be accepted as material supporting a particular conclusion in the instant case. In dealing with the appellants' case, the Tribunal took account of the facts of Mr Alekseev's case as they were presented to it. The subsequent confirmation of those facts by the Tribunal cannot be used to overturn the decision in the appellants' case.

22 The Tribunal was not bound to accept all that Archbishop Hillarion said. It was entitled to weigh his evidence against other material before it and to make its findings on the material it accepted. The same applies in relation to the appellants' mother's Tartar background. The Tribunal was not obliged to find in favour of the appellants on that issue.

23 The appellants' mother's written submission referred to Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234, as a case in which the Tribunal had made a decision against an applicant on the basis of information from other sources, ignoring the evidence and information provided by the applicant and other witnesses. It may have been the intention of whoever assisted in the preparation of the submission to refer to Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845. Each case was based on the proposition that a failure by the Tribunal to expose its process of reasoning in finding against an applicant on a factual issue, or to set out its findings of fact on a material issue raised by the applicant, was a failure to comply with s 430 of the Migration Act and enlivened that ground in s 476(1)(a) (failure to observe a procedure required by the Migration Act to be observed in connection with the making of the decision). Since the High Court of Australia decided Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1, that proposition is no longer sustainable. In any event, the Tribunal in the present case did set out in its reasons for decision its reasoning on the issues before it and did not fail to make findings on material questions of fact.

24 The oral submissions made by the appellants' mother at the hearing of the appeal sought to canvass again factual issues relevant to the family's circumstances. This Court, sitting on appeal from a single judge, cannot make findings in respect of such issues. It has no power to form its own view of the merits of the appellants' case. If it thought that the factual issues might have been determined in favour of the appellants, it has no power to make such a determination.

25 As was pointed out by Gyles J, the Court has a limited role to play in relation to proceedings of this kind. The Tribunal has power to conduct a full review on the merits of a decision of a delegate of the Minister refusing an application for a protection visa. The Tribunal conducted such a review in the present case. The role of the Court in relation to a judicial review does not include a full review on the merits. Judicial review is limited to the grounds specified in s 476 of the Migration Act. There is considerable authority as to the content of those grounds. The role of the Full Court on appeal is even more limited. It can only allow an appeal if it appears that the judgment of the primary judge is affected by error.

26 In the present case, a careful examination of the reasons for judgment of Gyles J does not disclose any error on his Honour's part. No case for procedural irregularity was made out in relation to the Tribunal's decision. Nor was there any indication that the Tribunal's decision was affected by error of law. His Honour dealt correctly with the argument that there was no evidence justifying the Tribunal's decision. It is not possible to rely on that ground in a case such as this, in which the Tribunal has based its conclusions on its acceptance of some of the material before it and its rejection of other material. For the Court to overturn a decision of the Tribunal in those circumstances would be for the Court to engage in merits review, which it has no power to do.

27 For these reasons, the appeal must be dismissed. No order for costs should be made, for reasons similar to those for which Gyles J made no order for costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: 22 February 2002

Counsel for the Appellants:
The appellants were present in person. Their next friend and mother made submissions on their behalf.




Counsel for the Respondent:
S Lloyd




Solicitor for the Respondent:
Sparke Helmore




Date of Hearing:
19 February 2002




Date of Judgment:
22 February 2002

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