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MIGRATION - Review of decision of RRT - applicant masseur-coach of Ukrainian gymnastic team - required to inform on colleagues - failed to inform - threatened by security chief - room searched - applicant defected - findings by Tribunal of threat made to applicant and later to wife and mother - Tribunal's finding of no well founded fear of persecution inconsistent with evidence - findings of Tribunal indicate decision made lacking in bona fides - decision held invalid.

NAOS v Minister for Immigration [2002] FMCA 265 (8 November 2002)

NAOS v Minister for Immigration [2002] FMCA 265 (8 November 2002)
Last Updated: 13 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOS v MINISTER FOR IMMIGRATION
[2002] FMCA 265



MIGRATION - Review of decision of RRT - applicant masseur-coach of Ukrainian gymnastic team - required to inform on colleagues - failed to inform - threatened by security chief - room searched - applicant defected - findings by Tribunal of threat made to applicant and later to wife and mother - Tribunal's finding of no well founded fear of persecution inconsistent with evidence - findings of Tribunal indicate decision made lacking in bona fides - decision held invalid.



Migration Act 1958 (Cth) ss.420(2)(b), 474

NAAG of 2002 v MIMIA [2002] FCA 713

NAJD of 2002 v MIMIA [2002] FCA 1088

NAAV v MIMIA [2002] FCA FC 228

MIEA v Wu Shan Liang (1996) 105 CLR

Wu v MIMIA [2002] FCA 1242

WADK v MIMIA [2002] FMCA 175

WAAK v MIMIA [2002] FMCA 86

SBAU v MIMIA [2002] FCA 1076

R v Secretary Estate for the Home Department; ex-parte Bugdaycay [1987] AC 514

W/375/01A v MIMIA [2002] FCA FC 89

Applicant:
NAOS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 672 of 2002



Delivered on:


8 November 2002



Delivered at:


Sydney



Hearing Date:


30 October 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Sparke Helmore



ORDERS

The Court:

(1) Declares the decision of the Refugee Review Tribunal made on 31 May 2002 to be invalid and of no effect.

(2) Makes no order as to costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 672 of 2002

NAOS


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a Ukrainian citizen who came to Australia with the Ukrainian Olympic team as a coach-masseur to the gymnastic squad. As such he is immigration cleared and entitled to consideration for a protection visa Class XA (sub-class 866) which he applied for on 26 October 2000. On 8 November 2000 a delegate of the Minister refused to grant a protection visa and on 5 December 2000 the applicant applied for a review of that decision.

2. The review of the decision by the Tribunal was made on 31 May 2002 and handed down on 21 June 2002. It is in respect of that decision the applicant now seeks judicial review.

3. In his application, which was originally made before the Federal Court, the applicant stated:

i) The decision maker was not acting in good faith during the department's interview and the Tribunal hearing;

ii) The Tribunal failed to give weight to important issues such as the fact that I was subjected to Convention related persecution, the fact that I have a well founded fear of persecution for a Convention declared reason, the exceptional circumstances surrounding my decision to stay in Australia and to apply for a protection visa;

iii) I was subject to unprecedented pressure by the officers of the Department of Immigration."

4. The respondent submitted, and I accept, that those details of claim which refer to the actions of the Department including the Minister's Delegate, are not relevant to this review. Although the applicant was offered the opportunity of taking advantage of the Minister's legal advice scheme he declined to do so. His reasons for doing so were based on an innate suspicion of any Government sponsored assistance scheme. It is well known to members of this court and others practising within this field that such suspicion is widely held by persons originating from countries in eastern Europe which formally were under the control of totalitarian regimes. Although the applicant is mistaken in his suspicion, I accept that it is genuinely held and that no inferences should arise from his refusal. I also accept that as no legal representation or assistance was provided to the applicant the court should itself look carefully into the matter in order to test the validity of both the applicant's contentions and the respondent's reply thereto.

5. The applicant became coach-masseur to the Ukrainian gymnastic team in January 1999. When he took up that appointment he agreed to co-operate with the Ukrainian Intelligence Service ("UIS") because he was told that unless he did so he would be charged and convicted for failing to perform his military service obligations from 1992. The applicant agreed. Between 1999 and the Olympics in 2000 the applicant was the coach-masseur to the team and travelled with it to China and Germany. In February 1999 two team members left to work in Toronto and Las Vegas and the applicant was questioned as to why he had not reported them.

6. When the applicant arrived in Australia for the Olympics his UIS contact, Mr Korobchinsky, gave him a list of surnames of suspected defectors which included the team doctor. On 14 September 2000 the doctor told the applicant that he intended to defect and the applicant cautioned him to be careful and not to talk about it. It transpired that the team doctor was an agent provocateur who reported the applicant to Mr Korobchinsky.

7. The Tribunal accepted that the applicant had been informed upon by the doctor and that:

"Mr Korobchinsky was angry and told the applicant that he would be in trouble upon return to the Ukraine."

8. The Tribunal made a further finding:

"With respect to the heated conversation with Mr Korobchinsky on 24 September 2000, the Tribunal accepts that at this time, the applicant told Korobchinsky in no uncertain terms that upon return to the Ukraine he would not continue his position subject to the condition of being an informant for the SBU. It also accepts that Korobchinsky had been drinking and was angry with the applicant and said that he should have said so prior to signing the 14 January 1999 document and accepting the position and travelling to Australia with the team. Additionally, he made threats to the applicant that both he and the applicant would be in trouble on return to the Ukraine."

9. The applicant told the Tribunal that his room in the Olympic Village had been searched and left in a mess. The applicant believed this was by members of the Ukrainian team and effected in order to obtain his passport:

"The Tribunal also accepts that the applicant's room was searched."

10. The applicant made claims regarding threats which had been made to his wife and mother and which were detailed in a letter found at [47 CB]:

"The Tribunal accepts the applicant's claims that his wife and mother have been contacted and threats made as a means of trying to gain his address and return to the Ukraine."

11. The applicant claims that threats had been made by telephone to his wife and mother:

"The Tribunal accepts the applicant's claims regarding the calls made to his wife and mother, ... his mother has been threatened."

12. The Tribunal summarised the fears held by the applicant in the following manner at [CB 75]:

"The applicant fears that he will be persecuted upon return because he has opposed such a powerful organisation (the SBU) and also because his defection is the very action his informant duties were designed to prevent. The Ukrainian Olympic performance is constantly threatened by trained athletics leaving for positions overseas, after the Government has invested time and money into training. Such departures decrease the team and country morale and also give impetus to defection by other athletes. The applicant said that the team were told in October 2001, when a Belgium team member and masseur defected, that serious actions would be taken against Ukrainian members if they so acted."

This paragraph is found under the heading "Findings and Reasons". It is not at any later stage further commented on in a way that would indicate that it was no more than the reporting of the applicant's submissions. I must take it to be a finding by the Tribunal.

13. In addition to the above findings the Tribunal had regard to various documents including the "United States Department of State, Country Report on Human Rights Practices - 2001, Ukraine". This report indicates inter alia:

"There are two principal security agencies, which have equal responsibility for internal security: the security service of Ukraine (SBU) and the Ministry for Internal Affairs... Members of the security forces committed human rights abuses.

The Government's human rights record was poor; however, there were improvements in a few areas. Police and prison officials tortured and beat detainees and prisoners, at times killing them. ... Police abuse and harassment of racial minorities is a continuing problem. The Government rarely punishes officials that commit abuses. ...The Government continue to infringe on citizen's privacy rights. ... Unlike in past years, there were no confirmed reports of political killings; however, abuse of prisoners and detainees, and harsh conditions at times led to death. During the first six months of the year there were 865 deaths in prison and detention facilities, many due to harsh conditions.

The constitution prohibits torture; however, police and prison officials regularly tortured and beat detainees and prisoners, and there were numerous reports of such abuse.

At times persons involved in property, inheritance or divorce disputes were diagnosed wrongfully with schizophrenia and confined to psychiatric institutions.

Critics of the Government also claimed credibly that the Government abused its authority over officers of the court by selectively charging and dismissing politically unsympathetic Judges.

Persons diagnosed with mental illness may be confined and treated forcibly, declared not responsible for their actions, and stripped of their civil rights without being present at hearings or notified of the ruling. There are approximately 1,200,000 registered psychiatric patients in the country... According to the Ukrainian psychiatric association, the health care ministry has not always co-operated with human rights groups attempting to monitor abuse of psychiatry."

14. It is against this background that the Tribunal came to the following conclusions:

"The Tribunal accepts the applicant's evidence that he continued with his duties and that the squad were very successful. ... The Tribunal finds that the applicant was not subjected to any serious harm, or persecution within the meaning of s 91 of the Act by virtue of this conversation (the conversation on 14 September 2000 with Korobchinsky.

The Tribunal does not accept the applicant's belief that the object of the exercise (the search of his room) was to gain his passport so that it could be used against him, or to prevent his travel. The Tribunal finds that this is mere speculation and that the room may have been searched given the knowledge that the applicant kept medical supplies. ...The Tribunal finds that the essential and significance reason for the search was not based on a Convention ground, but was a random non-Convention based act.

The Tribunal does not accept that the threats made by Korobchinsky (on 24 September) amount to serious harm and therefore finds that they did not constitute persecution within s 91R of the Act.

[Having found that the team doctor had been beaten up] The Tribunal notes that there was no retaliatory action taken to protect the SBU operations, to the applicant's knowledge, after this event. The Tribunal finds that this lack of concern is indicative of the overall lack of importance, or concern taken by the SBU or of Korobchinsky of the informant duties in Australia. The Tribunal finds that this discloses that there was no imputation of any adverse political opinion, by any one opposing the activities.

The Tribunal finds that if the SBU and/or, the Ukrainian authorities were serious concerned, or interested in the applicant and he was imputed with an anti Government political opinion, then immediate action would have been taken against him, particularly given that the competition had ended and his services were no longer required.

The Tribunal finds that this (the threats against his wife and mother) is consistent with the Government's desire not to lose talented sports people to foreign countries. The Tribunal finds it is understandable that the Government would make efforts for the applicant's return to resume his duties.

The Tribunal does not accept, however, that this letter (CB 47) gives rise to any well founded fear or persecution upon return to the Ukraine."

15. The Tribunal noted that the applicant had given evidence that in his last contact with his family he had been told that he was being offered his old job back at the same salary. The Tribunal considered this to be evidence that the Government is eager for his return to the Ukraine because of his skills and of the desire to prevent the loss of talented sports people and coaches to overseas countries. The Tribunal noted that no harm had actually come to either of the applicant's (now former) wife or mother.

16. Finally, the Tribunal:

"Notes that the country information, as set out above whilst supportive of the applicant's concerns of corruption and reports of politically based killings, finds that this relates to high profile political activists. The applicant possesses no such profile and would not be imputed as such, as a coach who failed to return from the Australian Olympics."

17. It is the applicant's case that the various findings of the Tribunal are so inconsistent and illogical that they indicate a failure by the decision maker to make her decision in good faith. The applicant would argue that it is inconceivable that a decision maker who had found the existence, in a modern democratic republic, of Soviet style internal security systems including the requirement of persons on foreign trips to inform on others to prevent their defection, could at the same time find that a person who has fallen foul of the security forces in the manner accepted of the applicant, would not have a well founded fear of persecution for the Convention reason of imputed political opinion (opposition to the Government) if he was forced to return home.

18. Mr Smith who appeared for the Minister, argued that there was sufficient information before the Tribunal and in the Court Book from which one could successfully argue that the Tribunal had not acted inconsistently but had made findings which were reasonably available to it from the facts. He argued that, even if I was not prepared to accept this submission, the findings of the Tribunal were no more than what Allsop described in NAAG of 2002 v The Minister [2002] FCA 713 at [13]:

"The state, or lack of satisfaction reached with attendance to what, absent from s 474 may have been irrelevant considerations, or with whatever misunderstanding of the right question to answer, whether capricious, arbitrary or lacking in probative foundation or a rational connection with circumstances present or fanciful." [Emphasis added].

19. Such decisions, he argues, are protected from review by the widening of the powers of the Tribunal pursuant to s 474 (NAAV v The Minister [2002] FCA FC 228).

20. As I am mindful of the direction of the High Court in MIEA v Wu Shan Liang (1996) 105 CLR 259:

"The reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed...any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision (per Brennan CJ, Toohey, McHugh and Gummow JJ at 272).

It is necessary to examine the Tribunal's reasons for decision in order to see whether the disregard of the evidence is so "blatant" that an inference can be drawn that the decision maker had not honestly attempted to exercise the relevant statutory power (per Sackville J Wu v Minister for Immigration & Multicultural Affairs [2002] FCA 1242 at [59] ).

21. The Tribunal made findings that the applicant was not imputed with any adverse political opinion prior to his departure from (sic) Australia and that at the time of his departure from the Ukraine he was not subject to serious harm nor persecuted within the meaning of s 91R. I do not believe that the applicant has challenged this finding, but in any event, it is consistent with the facts.

22. At [CB 76] the Tribunal deals with persecution in Australia and commences with the conversation on 14 September 2000. It states that:

"The Tribunal finds that the applicant was not subjected to any serious harm, or persecution within the meaning of s 91R of the Act by virtue of this conversation. Additionally the applicant was not imputed with any anti Government political opinion."

The Tribunal bases this finding on the fact that the applicant had continued with his duties and that the squad was very successful. It is difficult to see why the negative conclusions concerning harm and imputation with anti-government and political opinion follow from the continuation by the application of his duties. The threat, which was accepted, was a threat of future problems if the applicant returned to the Ukraine.

23. The second negative finding against the applicant concerned the search. The Tribunal, having posited an alternative motive for the search, does not content itself with indicating that it cannot be satisfied that the applicant's suggested motive was correct. It makes a positive finding that "the essential and significant reason for the search was not based on a convention ground, but was a random non-convention based act." The only evidence of this finding is the Tribunal's belief. I find it hard to accept that an official search for drugs would have been conducted in this way, i.e. in the absence the applicant, without notifying his team manager either before or afterwards of the fact of the search or its result.

24. The third finding of the Tribunal against the applicant is that the threats made by Mr Korobchinsky at the second conversation did not amount to serious harm and did not constitute persecution or give rise to the applicant being imputed with anti-government opinion. The reason for this, again, is that nothing else happened to the applicant:

"While someone searched his room, no action was taken against him. He was not confronted and required to provide his passport, despite his evidence that almost all the team members passports were held."

25. Whilst this statement is factually correct it relies on the applicant's statement in questions 36-40 of part C of his application reproduced at [58CB]. In this statement the applicant makes it clear that as soon as he had returned to his room after it had been searched, he was told by a friend that he should stay in Australia if he did not want to disappear somewhere in the Ukraine. He then wrote a note saying that he was going to stay in Australia, left it on the table and left.

26. The next finding of the Tribunal adverse to the applicant relates to the beating up of the informant doctor.

"The Tribunal notes that there was no retaliatory action taken to protect the SBU actions, to the applicant's knowledge, after this event. The Tribunal finds that this lack of concern is indicative of the overall lack of importance, or concern taken by the SBU, or Korobchinsky or the informant duties in Australia."

The fact that the applicant did not know whether or not any retaliatory action was taken is not proof that it was not. In fact, Mr Korobchinsky made a point of telling other members of the team that the applicant was an informer. Mr Korobchinsky having made that fact public would have been aware that this would have caused the applicant to be made a pariah by other members of the team (see applicant's statement [CB 16]) and (given the Tribunal's finding about the doctor) possibly beaten up.

27. The Tribunal then found:

"If the SBU and/or, the Ukrainian authorities were seriously concerned, or interested in the applicant and he was imputed with an anti Government political opinion then immediate action would have been taken against him, particularly given the competition had ended and his services were no longer required."

I cannot find any evidence to support that statement in any document in the court book.

28. The Tribunal then deals with the applicant's failure to return to the Ukraine and found that [CB 78] since the team returned to the Ukraine in 2000 there have been three different people occupying the applicant's position and they have been successively dismissed due to the teams poor performance. The Tribunal found that it was understandable that the government would make efforts for the applicant's return to resume his duties. This finding in the context of the succeeding sentence certainly appears reasonable. But it becomes more perplexing in the context of the information which was provided to the applicant (and the Tribunal) that he was wanted back in the Ukraine. This came in the form of a letter from his wife and other communications indicating, not a benevolent but on the contrary a hostile, attitude by the authorities and in particular Mr Korobchinsky. The Tribunal found that the letters and communications did not give rise to a well founded fear of persecution, because not withstanding the threats that were made, nothing had happened to the applicant's wife or mother. The Tribunal believed that in the absence of reprisals against the applicant's family his own personal position was safe. This finding was made despite the Tribunal's exposition at [CB 55] of the law on "well founded fear" noting that:

"A `real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well founded fear of persecution even though the possibility of the persecution occurring is well below fifty percent."

29. The Tribunal found that the authorities had contacted the applicant's family:

"In an effort to encourage his return to the Ukraine so that he can resume his duties as coach/masseur with the Ukrainian gymnast team."

30. Given the Tribunal's findings about the nature of the communications from Mr Korobchinsky to the applicant's wife and mother, this seems an odd way to go about persuading a defector to return. It seems to me that there has already been too much speculation in the Tribunal's reasons for decision for me to make a speculative assessment as to what the authorities might have done if they had really wanted the applicant to return and take up his duties. But this could have included writing a letter to him for his wife or mother to forward, rather than making threats to them.

31. The final finding of the Tribunal against the applicant is that the breaches of human rights so fully documented in the reports which form part of the court book would not affect the applicant as he was not a high profile political activist. It may well be that the applicant is not a target for a politically motivated killing of the type which occurred to Heorhiy Gondze, Borys Vihrov or Ihor Bondir. He might more readily be associated with Yevhen Kornuta "A resident of the Cherkasy region who was detained in 1999 on suspicions of theft. He later died from injuries sustained from the beatings." The applicant might have been one of 865 persons who died in prison in six months or one of the 1,200, 000 persons in psychiatric institutions.

32. In WADK v MIMIA [2002] FMCA 175 Driver FM reasserted the view which he expressed in WAAK v MIMIA [2002] FMCA 86 that s.420(2)(b) of the Migration Act:

"Is a legislative command establishing an overarching principle which imports the fundamental requirement that the RRT deal with cases individually on their merits."

33. Federal Magistrate Driver took the view that this was an essential requirement of the Migration Act and that the privative clause does not so widen the powers of the Tribunal to prevent such a breach vitiating the decision. I would respectfully agree with the views of Federal Magistrate Driver which I believe are, in their own way, consistent with the decision of Mansfield J in SBAU v MIMIA [2002] FCA 1076 at [31 and 32]. In that case, His Honour made it clear that it was the court's duty to decide whether the decision of the Tribunal had arisen from a bona fide attempt to perform its function of reviewing the decision of the delegate:

"...errors or illogicality might either alone or in conjunction with other matters, demonstrate or tend to demonstrate a lack of good faith on its part. They may show such capriciousness on the part of the Tribunal that only one conclusion is open to the court." [31]

His Honour went on to say that a decision on these matters is a decision by the court as a matter of fact. His Honour ended with a quotation with Lord Bridge in R v Secretary Estate for the Home Department; ex parte Bugdaycay [1987] AC 514 at 531:

"The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."

34. In W/375/01A v MIMIA [2002] FCAFC 89 the Full Bench of the Federal Court, before quoting the excerpt from Lord Bridge above said:

"Moreover, in refugee cases there is good reason to look at the Tribunal's reasons not, of course, with eye attuned to the perception of error but to ascertain whether, in truth, there is a reviewable error of law. Indeed, in these cases it is the duty of the Federal Court to subject the Tribunal's decision to `more rigorous examination' than in other cases, and for obvious reasons."

35. It is my view that the consistent inability of the Tribunal in this case to identify any evidence upon which its findings were based and its apparently capricious use of assumptions, which appear on the face of the document to be contrary to the accepted evidence, manifests a failure by the Tribunal to exercise its powers in good faith. I believe that the Tribunal exceeded the norms of decision making behaviour identified by Allsop J in NAAG of 2002 v MIMIA [2002] FCA 713 as being protected by s 474 and stepped over the line which separates a valid decision from an invalid one. The approach which I have taken finds support in the views of Allsop J expressed in NAJD of 2002 v MIMIA [2002] FCA 1088 at [25].

36. I declare that the decisions of the Refugee Review Tribunal made on 31 May 2002 and handed down on 21 June 2002 to be invalid. This means that the applicant's request to have the decision of the delegate of the Minister reviewed remains on foot and will doubtless now be carried out by the Refugee Review Tribunal constituted by a different member. In the event that it is considered necessary for me to make further orders in the nature of prerogative writs I am prepared to do so by application. The applicant was self- represented and is therefore unable to be awarded costs.


I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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