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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming ethnic persecution in Russia - applicant claimed to live at the relevant time in Yakutia but RRT found that that claim was fabricated - whether reasoning of RRT illogical - no reviewable error found - application dismissed.

NALC v Minister for Immigration [2004] FMCA 617 (8 October 2004)

NALC v Minister for Immigration [2004] FMCA 617 (8 October 2004)
Last Updated: 20 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALC v MINISTER FOR IMMIGRATION
[2004] FMCA 617



MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming ethnic persecution in Russia - applicant claimed to live at the relevant time in Yakutia but RRT found that that claim was fabricated - whether reasoning of RRT illogical - no reviewable error found - application dismissed.



Migration Act 1958 (Cth), s.424A

Appellant S106/2002 v Minister for Immigration (2003) 198 ALR 59

Minister for Immigration v Eshetu (1999) 197 CLR 611

NACB v Minister for Immigration [2003] FCAFC 235

NATC v Minister for Immigration [2004] FCAFC 52

Re Minister for Immigration; ex parte Miah (2001) 179 ALR 238, 256

Applicant:
NALC



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ654 of 2003



Delivered on:


8 October 2004



Delivered at:


Sydney



Hearing date:


16 September 2004



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Mr R Killalea



Solicitors for the Applicant:


Rob Makin & Associates



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) The application for judicial review is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ654 of 2003

NALC


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 15 January 2003 and handed down on 11 February 2003. The RRT affirmed a decision of a delegate of the Minister not to grant protection visas to three applicants. Only the first of those three applicants (the applicant wife) is an applicant in these Court proceedings. I am told that the second applicant (her husband) has left Australia. I do not know the circumstances of the third applicant (their child). For convenience, I will refer to the applicant wife as the applicant, both in relation to the RRT proceedings and these judicial review proceedings.

2. The applicant had claimed a protection visa on the basis of asserted ethnic and religious persecution in the Russian Republic of Yakutia in 1997 and 1998. She arrived in Australia with her husband and child on 25 December 1998 (on visitor visas) and applied for a protection visa on 29 January 1999. The Minister's delegate refused the application on 19 March 1999 and the applicant sought review before the RRT. The RRT apparently conducted a hearing on 29 August 2000 at which the applicant and her husband produced copies of their Russian passports for overseas use. Subsequently, the RRT requested and obtained from the applicant her internal Russian passport.

3. It is apparent that the RRT had doubts about the applicant's claims that she suffered harm in Yakutia. On 20 September 2001 the RRT wrote to the applicant, pursuant to s.424A(1) of the Migration Act 1958 (Cth), seeking comments on information that appeared likely to be the reason, or part of the reason for the RRT deciding she was not entitled to a protection visa. That information was the visitor visa applications that the applicant and her husband had made at the Australian embassy in Moscow. Those applications purported to show, among other things, that the applicant and her husband had lived at Sochi in the Russian Republic of Krasnodor at the time when the applicant had asserted she lived in Yakutia.

4. The applicant responded on 11 October 2001[1]. In that letter the applicant stated, through her migration agent, that she and her husband had never lived in Sochi or anywhere in the republic of Krasnodor and that the information contained in the visitor visa application had been put there by a travel agent in Russia without the knowledge of the applicant and her husband.

5. The visitor visa application had purportedly shown that the applicant's husband had purchased an apartment in Sochi in December 1995 and that he had lived there from 5 February 1996. His Sochi address was indicated on his "propiska" (which was a form of internal residence permit which applied when Russia was part of the Soviet Union and for some time afterwards). The visitor visa application also purported to show that the applicant's husband was employed in Sochi. The address given for the applicant was the same as that of her husband, namely in Sochi.[2]

6. In contrast, the applicant's internal passport indicated that she was registered in Yakutia from May 1993 until July 1998.[3] The RRT was therefore confronted with apparently contradictory evidence. The applicant had asserted that the information in her internal passport was correct and that the information in her and her husband's visitor visa applications was a fabrication.

7. The presiding member rejected the applicant's explanation. The presiding member said[4]:

The first applicant's internal passport indicates that she had [a] propiska in Yakutia. She informed the Tribunal that a travel agency created the fiction that they lived in Sochi and neither she nor her husband had any knowledge of what information had been provided to the Australian Embassy. I attribute no weight to this explanation. I have checked the Migration Act Regulations for visitor visas. Living in a particular region of Russia or a particular region of any country is not a criteria [sic] required to be met when obtaining an Australian visitor visa. I am of the view that the 1st applicant has created her claims of living in Yakutia post February 1996 in order to enhance her claims to refugee status.

8. It followed that the RRT rejected the applicant's claims to have suffered harm in Yakutia in 1997 and 1998 on the basis that the applicant was not, at the time, living there as she had claimed.

The application for judicial review

9. The application for judicial review was filed in the Federal Court on 11 March 2003. The application was transferred to this Court by order of Hill J on 14 April 2003. The applicant was given time to file an amended application but has not done so. The application asserts jurisdictional unreasonableness and quotes the part of the RRT decision set out above. The application also asserts failure, or constructive failure, to obtain jurisdiction by reference to the same passage.

10. It is obvious from the foregoing that the terms of the applicant's visitor visa application made in Moscow was central to the RRT decision and was fundamental to the present judicial review application. In the circumstances, it is, to say the least, unfortunate that the RRT did not retain a complete copy of the applicant's visitor visa application. Only a part of it is reproduced in the court book.[5] The result was that the hearing of the judicial review application was significantly delayed twice while the Minister made efforts to search for documents relating to the applicant's visitor visa application. It ultimately transpired that the visa application file in Moscow had been destroyed but a substantial part of the visitor visa application remained available.[6]

I accepted an affidavit from Perpetua Emily Kish of the Minister's Department made on 5 September 2004 and related correspondence concerning the searches conducted. I rejected an application by Mr Killalea, on behalf of the applicant, for a further adjournment so that further searches could be made in Australia. This was on the basis of instructions conveyed to Mr Reilly, for the Minister, that no further documents relevant to the issue are available. I satisfied myself with the assistance of counsel that exhibit R1 does indeed say what the presiding member said was included in the visitor visa application in relation to the applicant and her husband.

Submissions

11. Mr Killalea submits, on behalf of the applicant, that the RRT's approach, as set out in the quoted passage, was to consider two premises that:

a) the applicant claimed that a travel agency created the fiction of her living in Sochi in completing her application for a visitor's visa; and

b) the RRT determined (correctly) that a person's place of residence in Russia was not a criterion for the grant of a visitor's visa.

12. The RRT concluded that the travel agency did not create a fiction about the place of residence of the applicant. Mr Killalea submits that the conclusion reached by the presiding member does not follow from the premises and is illogical vis a vis the premises. He submits that while the later reasoning of the RRT logically followed from the initial conclusion reached, that initial conclusion was fatally flawed.

13. Mr Killalea submits that jurisdictional error may be found on the basis of the asserted illogicality: Appellant S106/2002 v Minister for Immigration (2003) 198 ALR 59 at [9.8], per Gleeson CJ; [37] and [54] per McHugh and Gummow JJ; and [81], [116], [132] and [138] per Kirby J. He further submits that the illogicality may be constituted by lack of logical grounds or probative material supporting the impugned reasoning: Minister for Immigration v Eshetu (1999) 197 CLR 611 at [137] and [145]. Finally, Mr Killalea submits that the illogicality in reasoning enures in failure, or constructive failure to attain or to exercise jurisdiction: Re Minister for Immigration; ex parte Miah (2001) 179 ALR 238, 256 at [80].

14. Mr Reilly supported the following written submissions prepared by Mr Lloyd on behalf of the respondent Minister:

There is no lack of probative evidence or unreasonableness in the approach of the RRT.

The RRT had to choose between certain documentary evidence, including material provided to the Australian authorities prior to the protection visa application, and other documentary evidence supported by oral evidence.

The RRT found the applicant's explanation for the inconsistency in the documentary evidence to be unconvincing. That was a matter of judgement for the RRT. It did not require probative evidence. In any event, the RRT had probative evidence that the applicant lived in Sochi (which was the positive finding which it made).

It follows that, even if the ground of review advanced by the applicant were open, it has not been made out in the present case.

15. Mr Reilly further submits that illogicality of itself does not constitute jurisdictional error in any event: NACB v Minister for Immigration [2003] FCAFC 235 at [22]-[29]; and NATC v Minister for Immigration [2004] FCAFC 52 at [25]-[27].

Reasoning

16. I accept Mr Reilly's submission that irrationality does not of itself establish jurisdictional error. That much is clear from the decision of the Full Federal Court in NACB v Minister for Immigration. However, irrationality may point to jurisdictional error, as was made clear by Gleeson CJ in Appellant S106/2002 v Minister for Immigration at [9].

17. In this case there is nothing in the reasoning of the presiding member that establishes illogicality of a nature necessary to prove jurisdictional error. The asserted error assumes that the presiding member reasoned that because there is no requirement for an applicant for a visa to establish that they live in a particular part of Russia, the applicant had told the truth in her and her husband's visitor visa applications and had fabricated her claims of living in Yakutia in February 1996. The reasoning must be considered in its context. In the presiding member's view, there was no logical reason for the applicant, or someone on her behalf, to have made up a false address when applying for the visitor visas. The applicant, in her response to the s.424A letter, did not offer any coherent explanation as to why a detailed employment and residence history for her husband had been fabricated by the travel agent. The applicant made no claim that she was not living with her husband at the relevant time. The visitor visa application provided clear evidence that her husband was living and working at Sochi and that the applicant was living at the same address as her husband at the time when she claimed they were living in Yakutia.

18. Mr Killalea conceded that the propiska in the applicant's internal passport, purportedly showing residence in Yakutia, did not necessarily establish that the applicant lived there after 1995. It follows, in my view, that the RRT was entitled to prefer the evidence in the visitor visa application to the evidence in the applicant's internal passport. The applicant had asserted that she and her husband had never lived in Sochi or anywhere in Krasnodor and that the information in the visitor visa applications had been fabricated by the travel agent. However, no plausible explanation as to why the information in the visitor visa application had been fabricated was advanced by the applicant. In the circumstances, the presiding member made her own enquiry as to whether an explanation might be found in the requirements for a visitor visa. She found none. The presiding member did not find that the applicant fabricated her claims of living in Yakutia because there was no requirement in the Migration Act to specify a particular region of Russia when making a visitor visa application. Properly read, the presiding member's finding was that there was no logical explanation as to why the details in the visitor visa application would have been fabricated. The presiding member drew the conclusion that the details were not fabricated. That conclusion was reasonably open to her on the material before her.

19. I find that there is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision and the judicial review application must be dismissed.

20. In accordance with counsels' request, I will hear the parties as to costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 October 2004


--------------------------------------------------------------------------------

[1] court book, page 126

[2] court book, page 164

[3] court book, page 164

[4] court book, page 166

[5] at page 135

[6] exhibit R1
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