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MIGRATION - refugees - protection visa - credibility - Refugee Review Tribunal - illogical reasoning - error of law - jurisdictional error - "want of logic" in Tribunal decision - whether irrational or illogical reasoning a ground of review - earlier Full Court decisions - precedent - no ground of review made out - appeal dismissed

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 (31 October 2003)
Last Updated: 31 October 2003


FEDERAL COURT OF AUSTRALIA
NACB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 235


MIGRATION - refugees - protection visa - credibility - Refugee Review Tribunal - illogical reasoning - error of law - jurisdictional error - "want of logic" in Tribunal decision - whether irrational or illogical reasoning a ground of review - earlier Full Court decisions - precedent - no ground of review made out - appeal dismissed

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 165 cited

Immigration and Multicultural Affairs, Minister for v Epeabaka (1999) 84 FCR 411 followed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Immigration and Multicultural Affairs, Minister for v Anthonypillai (2001) 106 FCR 426 cited

Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 discussed

WADE of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 214 cited

NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 32 cited

Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 discussed

NACB AND NACC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 402 OF 2003

TAMBERLIN, EMMETT AND WEINBERG JJ

31 OCTOBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 402 of 2003





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

BETWEEN:
NACB

FIRST APPELLANT

NACC

SECOND APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
TAMBERLIN, EMMETT AND WEINBERG JJ


DATE OF ORDER:
31 OCTOBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal is dismissed with 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 402 of 2003





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

BETWEEN:
NACB

FIRST APPELLANT

NACC

SECOND APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
TAMBERLIN, EMMETT AND WEINBERG JJ


DATE:
31 OCTOBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
1 The appellants are a mother and her adult son, both citizens of Russia. We will refer to the mother as the appellant. They arrived in Australia as visitors on 9 March 2000 and applied for protection visas on 7 April 2000. Only the appellant made a specific claim for refugee status, although the son also claimed to be a refugee. The appellant's daughter-in-law, who also arrived on the same date, claimed to be a member of the same family unit and combined her application with their applications.

2 The appellant is aged in her late forties. She worked from 1976 until January 2000 as a physical education teacher in St Petersburg. In her statement accompanying her original application for a protection visa, she said that her son had been granted a deferment from being called up for military service while studying at the Sports Academy in St Petersburg. After he had completed three years at the Academy, he took leave of absence and was subsequently drafted into the Russian forces on 30 July 1999. The appellant said that, after two months training, her son had been sent to the town of Mozdok as an armoured personnel carrier driver. She said that the unit in which her son had served controlled the border areas between Russia and Chechnya.

3 The appellant said that on 12 October 1999, her son's armoured personnel carrier was destroyed by a mine and he was taken prisoner by Chechens. She said that he and other prisoners of war were beaten brutally and fed only bread and water once a day. She said that in November 1999, her son had been placed in a truck with two armed Chechens and had been told that he was going to be executed. She said that he grabbed a hand grenade from one of the Chechens, pulled the pin, dropped the hand grenade in the truck, and jumped out of it while it was moving at full speed. She said that, after four days, her son had been picked up by a Russian armoured personnel carrier and taken to a hospital in Mozdok on 10 November 1999.

4 The appellant said that she received a telephone call on 18 November 1999 telling her where her son was situated. On 22 November, she took her son to Moscow to her sister's home. She said that she was required to return to work in St Petersburg and that on 1 December 1999, she had begun to receive telephone calls from a caller with a Caucasian accent asking for her son. This was intended to convey that the accent indicated a Chechen speaker and therefore she believed the Chechens were interested in her son. The appellant said that her son suffered serious psychological trauma and was still screaming and talking in his sleep after she located him.

5 The appellant's case as formulated in the application for protection visa was that, if returned to Russia, her son would be faced with physical extermination and that the authorities could not and would not protect her, as they were involved in political power struggles and were not interested in protecting people like the appellant. The fear was of Chechen revenge for the actions of her son against which he could not be protected.

6 On 2 May 2000, the delegate of the respondent ("the Minister") refused the application on the basis that the appellant's claims, at face value, were not related to any of the five grounds provided for in Article 1A of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The delegate concluded that the appellant's son was not pursued by the Chechens because of race, religion, nationality, membership of a particular social group, or political opinion. The actions of the Chechens were found to be solely motivated by their desire to avenge the death of one of their commanders killed by the appellant's son when he escaped from captivity. Independently of this finding, the delegate was not satisfied that the Russian authorities would be unwilling or unable to protect the appellant and her family from Chechen revenge attacks. This was based on independent country information. The delegate also considered that the appellants had the option of relocating to another part of the country where they would be anonymous.

7 In her application for review of the delegate's decision by the Refugee Review Tribunal ("RRT"), the appellant repeated the claim that her son had been taken prisoner by the Chechens and had escaped by killing a commander. In March 2002, the appellant produced to the RRT two letters from a friend, dated 22 June 2001 and 23 October 2001, and a letter from her mother dated 2 February 2002. The letters from the appellant's friend referred to the fact that the appellant lived at her home before leaving for Australia. They stated that in May and again in October 2001, the local police came to see the appellant's friend asking questions about the appellant and her son and seeking information in relation to whether she had left "some papers, written material or diaries". The letter from the appellant's mother of 2 February 2002 stated that just before the New Year 2000, officers, who said they were from the Russian Public Prosecutor's Office, visited her and showed her "some paper" telling her it was a search warrant and asking her to produce anything belonging to the appellant's son. The appellant's mother also stated in her letter that one of the officers asked about the appellant, what she was doing overseas and when she would return to Russia. She said that she had also been asked about "some diary and photos".

8 The RRT hearing took place on 15 July 2002. Eight days after the hearing, on 23 July 2002, the RRT member wrote to the appellant stating:

"The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows. In the statement accompanying your original application you claimed that you and your son had been threatened because your son had mortally wounded a Chechen commander when he had escaped from the Chechens and they had sworn to avenge him. At the hearing on 15 July 2002 you and your son claimed that your son had witnessed a meeting between the Chechens who had captured him and Russian officers. You said that the people who had committed treason were pursuing you and your son to try to cover up the crime they had committed and that they were using the police and the Procurator's offers to try to find you and your son. You said that your son had told you what he had witnessed and that you had mentioned this in letters you had written to the General Prosecutor's office and the Commandant's office before you left Russia. This information is relevant because the fact you did not mention these matters in the statement accompanying your original application casts doubt on whether you and your son are telling the truth about these matters."

9 The appellant replied on 12 August 2002, prior to the RRT decision.

10 In that letter she said:

"... due to fear, anxiety and distress we were physically and morally unable to analyse situation from logic point of view and come up with actual reasons of our persecution. That's why in our written statement we mentioned the most significant facts but ignored facts, which, as we believed, had nothing to do with our case. We did not claim that I wrote letters to the General Prosecutor's Office and the Military Office, because, at the time we saw no connection between this fact and our persecution by Chechens. We did not mention that my son saw traitors in the Chechen camp because we saw no connection between this fact and the fact that we were persecuted by Chechens. I believe, at that time it was very reasonable for us to believe that we had been subjected to threats and violence because my son killed a Chechen commander.
Another issue which is to be raised here is the fact that over the past six months we have received a number of letters from Russia. Even though we still were in doubt as to why the Militia had been interested in us, we provided the Tribunal with these letters and their translations. I wish to stress - around six months ago the Tribunal received some new evidence, or it's better to say - additional evidence regarding our case. I am certain that anyone in my position would rethink his or her case after receiving such vital information. ..."

11 In the reasons for decision, the RRT member noted that the appellant confirmed that she had written letters to the Prosecutor-General's office and the Commandant's office and said that she had done this as soon as she had brought her son to Moscow. This was in November 1999. She said that she had expressed all her anger in these letters. Copies of the letters were not produced. She had said that she was furious about everything that was happening in the army, the betrayal and the complete lawlessness. She said that her son had told her that he had witnessed a meeting between the Chechen and Russian soldiers and that she had mentioned this in her letters to the authorities. She referred to the letters she had received from her friend and mother which she had produced. She said that she had only understood the significance of the son witnessing the meeting between Russian soldiers and the Chechens after the application for refugee status and she had not understood its significance in Russia or during the early period of her stay in Australia.

RRT FINDINGS AND REASONS

12 The RRT noted that at the hearing before it, the appellant claimed for the first time that her son had witnessed a meeting between Chechens and Russian officers and that the Russian officers appeared on friendly terms with the Chechens, although there is no evidence as to what was said or as to the identity of the Russian and the Chechens. The appellant said that the Russians were pursuing her and her son to cover up the crime (treason) which Russian soldiers had committed in apparently liaising with the Chechens and that the army officers were using the police and the Procurator's office to try and find her son. She said that her son had told her what he had witnessed and she had mentioned this in letters she wrote to the Prosecutor-General's office and the Commandant's office before leaving Russia.

13 In the view of the RRT, the appellant was now seeking to claim that she and her son were being persecuted for reasons of political opinion and that the Russian authorities were at least complicit in the persecution. The RRT member noted that the appellant's contention was that she believed that Russian military officers were in constant contact with Chechen rebels, that they provided them with weapons and ammunition, and that the Russian authorities had an interest in visible tension with Chechnya because this justified the creation of strong leadership in Russia or reanimation of totalitarian power. After noting this statement, the RRT stated:

"It is self-evident that if the Applicant genuinely believed this, and expressed such views in the letters she claims to have written to the Commandant's office and the Prosecutor-General's office, this would have been relevant to her original claims that she and her son were being threatened by the Chechens. In fact the Applicant now says that she does not believe that she and her son were ever genuinely threatened by Chechens. She says that she believes that the people whom she now claims to fear wanted her to make a written complaint to the police that she and her son had been threatened by Chechens so that if they were subsequently murdered it would be easy to say that the Chechens had killed them.
I do not consider that it is credible for the Applicant to claim that, although she mentioned all the other facts relating to her son having been taken prisoner by the Chechens in the statement accompanying her original application, she failed to mention in that statement that he claimed to have witnessed Russian soldiers meeting with the Chechens because she was in a state of shock, because she had not been able to recall all the details or because she saw no connection between this and the persecution she claimed to fear from the Chechens. It is to be remembered that the Applicant says that her son told her that he had witnessed a meeting between the Chechens and Russian soldiers and that she says that she mentioned this in the letters she claims to have written to the Commandant's office and the Prosecutor-General's office in November 1999. She says that she wrote the letters because she wanted to justify her son's decision to leave the army and because she was outraged by what her son had seen and experienced. She said that she expressed all her anger and made threats in the letters she wrote. I do not consider that it is credible for the Applicant to claim that she omitted to make any mention of the matters when applying for a protection visa less than six months later because she was unable to recall all the details or because she did not consider these matters to be relevant.

I conclude that the Applicant and her son have fabricated their claims that the Applicant's son witnessed a meeting between the Chechens and Russian soldiers and that the Applicant mentioned this in the letters she claims to have written to the Commandant's office and the Prosecutor-General's office in November 1999. I consider that they have fabricated these claims in an attempt to overcome the problems identified in the decision under review with their original claims, namely that on the face of it they bore no connection with one of the five Convention reasons and that the Russian authorities would have offered them effective protection against any threat they might have faced from Chechen rebels. ..." (Emphasis added).

14 Essentially for these reasons, the RRT dismissed the application.

DECISION OF PRIMARY JUDGE

15 The primary judge concluded that the RRT's assessment of the facts was clearly open to it, that it was reasonable to conclude that the late and additional claim of Russian official involvement constituted recent invention, and that it was also reasonable for the RRT not to be persuaded by the explanation offered by the appellant: see NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 165. His Honour pointed out that the appellant had the assistance of an interpreter when she made her application for a protection visa in early April 2000. His Honour also formed the view that it was open to the RRT not to be persuaded in all the circumstances and not to accept the explanation that the late claim had been overlooked due to fear, anxiety, distress and an inability on the part of the appellant and her son to analyse their situation from a logical point of view. His Honour also considered that there was no substance in the submission that the RRT's decision was based on findings or inferences of fact which were not supported by some probative material or logical grounds. He stated that recent invention was a logical ground on which the RRT was entitled to disbelieve the appellant, and her son.

REASONING ON APPEAL

16 The claimed illogicality, by the appellant, of the above reasoning of the RRT is that at the time when the initial application was made, the appellant was not aware of inquiries having been made by Russian authorities. Her case is that on learning of this, only then did she perceive the connection between the meeting where her son witnessed the incident between Russian and Chechnyan personnel and the reporting of that incident by her to Russian authorities, who then had an interest to persecute her son and possibly the family.

17 Counsel for the Minister submitted that there was no illogicality because on her original claim, the appellant stated that Russian authorities could not protect her and her family against the Chechen rebels. Therefore, it could be expected that she would have mentioned the reported liaison between the Russian officers and the Chechen rebels in her earlier statement. In our view, this submission is not made out because at the time of the original application she was unaware of any interest by the Russian authorities in the activities of her son.

18 It is also submitted for the Minister that the RRT gave three separate reasons for refusing to accept her explanation in the letter of 12 August 2002, sent to the RRT after the hearing. In particular, the RRT rejected the assertion that she was in a state of shock and that she had not been able to recall all the details when making the original application or that she saw no connection between this and the persecution she claimed to fear from the Chechens. As to the first two matters, these adverse findings reflect on the credit of the appellant and must be borne in mind when determining whether there was reviewable error. However, the reasons of the RRT do not point to the non-acceptance of the excuses as the basis of the decision. Rather the rejection of her evidence as credible turned on the reasoning that her story was a recent invention designed to overcome the delegate's finding.

19 The suggestion that she saw no connection between the inquiries which the authorities had made and the report she had made to the Russian authorities in November 1999 prior to receiving information that such inquiries were being made, is a reasonable submission on its face. It is by no means self-evident that she would have referred to the meeting in the original application.

20 The claim that the Russian military were concerned to persecute and harass the appellant and her son because her son had seen Russian officers speaking with Chechen rebels is not, of itself, an implausible proposition. It is true that the evidence only indicates the son had observed a meeting taking place and that there is no evidence as to what was said or done, but the inference for which the appellant contended was plainly open.

21 There was an important error in the logic adopted by the RRT in framing its reasons in the terms quoted. The question that arises is whether this, of itself, constitutes an error of law.

22 In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, the Full Court held that want of logic by an administrative decision-maker in drawing an inference of fact, does not, per se, constitute an error of law. The Court agreed with the primary judge that a failure rationally to consider probative evidence was not to be equated with a simple mistake of fact. However, in the view of the Court, on the current state of the authorities, that difference did not of itself allow for the elevation of such a failure to a mistake of law. The Court referred to the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 where his Honour said:

"Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." (Emphasis original).
23 In that case, Brennan, Toohey and Gaudron JJ agreed with the judgment of Mason CJ.

24 Epeabaka was followed by this Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 437, Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at 428 and 444 and WADE of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 214 at [27]. Gamaethige was applied by the Full Court in NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 32 at [44]-[46]. It is well-settled that a Full Court of this Court should follow decisions of an earlier Full Court on the same question unless the Court is of the view that the earlier reasoning was clearly wrong. In this case we are not so persuaded.

25 The decision in Gamaethige went on appeal to the High Court as Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 and the appeal was dismissed. In that matter McHugh, Gummow and Callinan JJ held that the decision of the RRT was not shown to be illogical, irrational or lacking in a basis in findings or inferences of facts supported on logical grounds.

26 Gleeson CJ observed (at 62 [9]) that:

"... It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged."
27 The judgments of McHugh, Gummow and Callinan JJ proceeded on the basis that the determination by the RRT was not irrational or illogical as the appellant had contended. The High Court in Appellant S106/2002 made no reference to the line of Full Federal Court authorities referred to above.

28 In Appellant S106/2002, McHugh and Gummow JJ referred to the remarks of Mason CJ in Australian Broadcasting Tribunal v Bond and said (at 72 [57]):

"The minister's reliance upon what was said by Mason CJ in Australian Broadcasting Tribunal v Bond was misplaced. Mason CJ there was construing those of the grounds of review of decisions, specified in s 5 of the ADJR Act, in particular that the decision `involved an error of law', which might embrace complaints as to fact finding. The court was not considering notions of jurisdictional error elaborated in the decisions given under s 75(v) of the Constitution. Section 5 is construed with a scope which spans more than jurisdictional error. Thus, for example, it is a ground under s 5(1) that `the decision involved an error of law' (para (f)), yet as Muin v Refugee Review Tribunal illustrates, there may be errors of law within jurisdiction and so beyond the constitutional writs. In any event, as the judgments in Minister for Immigration and Multicultural Affairs v Rajamanikkam illustrate, what was said in Bond respecting erroneous fact finding and review under s 5 of the ADJR Act may give rise to differences of opinion in this court." (Footnotes omitted).
29 In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error. Nor does the want of logic which has been identified in the present case sound a "warning note" of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

30 Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT. However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT's reasoning. Moreover, there are several bases upon which that reasoning can, in any event, be supported. Accordingly, on the present state of the authorities, there is no reviewable error.

31 The order of the Court is that the appeal is dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Emmett and Weinberg.




Associate:

Dated: 31 October 2003

Counsel for the Appellants:
R W Killalea






Solicitor for the Appellants:
Ian D Graham & Associates






Counsel for the Respondent:
J D Smith






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
14 August 2003






Date of Judgment:
31 October 2003


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