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MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution - whether the Tribunal member placed undue pressure on the applicant - whether unjudicial conduct by the Tribunal member constituted a reviewable error - whether the Tribunal appropriately addressed the credibility of the applicant's evidence.

NAQQ v Minister for Immigration [2003] FMCA 3 (28 January 2003)

NAQQ v Minister for Immigration [2003] FMCA 3 (28 January 2003)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQQ v MINISTER FOR IMMIGRATION
[2003] FMCA 3



MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution - whether the Tribunal member placed undue pressure on the applicant - whether unjudicial conduct by the Tribunal member constituted a reviewable error - whether the Tribunal appropriately addressed the credibility of the applicant's evidence.



Migration Act 1958 (Cth) s.474

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Chen Xin He v Minister for Immigration (1994) FCA 954/95

Randhawa v Minister for Immigration (1994) 124 ALR 265

Velauther Selvaduri v Minister for Immigration (1994) FCA 301/94

H v Minister for Immigration (2000) 63 ALD 43

NAAV v Minister for Immigration [2002] FCAFC 228

SBBS v Minister for Immigration [2002] FCA FC 361

SDAA v Minister for Immigration [2002] FMCA 184

Minister for Immigration v SBAN [2002] FCAFC 431

WAGH v Minister for Immigration [2003] FCA 8

Applicant:
NAQQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 890 of 2002



Delivered on:


28 January 2003



Delivered at:


Sydney



Hearing date:


7 January 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr S. Lloyd



Solicitors for the Respondent:


Sparke Helmore Solicitors



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4000 in accordance with Part 21 rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 890 of 2002

NAQQ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a Lithuanian citizen. He appeared before the Tribunal on behalf of himself and his wife who had also made an application for protection. However, he is the sole applicant in these proceedings. It would appear that the applicants wife's claim for protection is based entirely upon her being part of her husband's family unit. The applicant and his wife arrived in Australia on the 31 October 1998. They were immigration cleared. On the 16 May 2000 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural Affairs. On 12 July 2000 a delegate of the Minister for Immigration refused to grant protection visas and on 10 August 2000 the applicant and his wife applied for review of that decision. The Tribunal's decision was made on 26 June 2002 and handed down on 18 July 2002. The Tribunal upheld the original decision of the Minister's delegate.

2. In his application for review in the Federal Court the applicant stated:

"(1) The decision-maker was not acting in good faith;

- she imposed undue pressure on the applicant;

- having no evidence she repeatedly stated that the applicant was not a credible witness;

- having made her decision she ignored the most significant facts; such as my past experience and expertise; knowledge of foreign languages; education; age and physical state."

3. The applicant, who was a resident of the town of Kaunas, was born in 1966. After he left school he received some training in electrical welding. He was then conscripted into the army, which in those days was part of the army of the Soviet Union. He claimed to have served in Afghanistan and to have worked for the KGB in Germany. He told the Tribunal that he spoke Russian, Polish and Belorussian. The applicant did his military service between May 1985 and August 1987. When he left the army he worked in general commerce, travelling between Lithuania and Poland. He bought goods in one country and would sell them in others. He does not appear to have gone back to electrical welding.

4. The applicant had no problems with authority until in 1997. After Lithuania had become independent (in 1991) he claims to have received a summons to attend a regional police office. He was there interviewed by a member of the Lithuanian Security Service and asked to work with them. The applicant was vague about the type of work he was being requested to do:

"Tribunal: Well what did they expect you to do?

Applicant: I think to implement some of their assignments...some tasks.

Tribunal:...What tasks?

Applicant: He did not say anything to me personally...I can only guess."

The applicant did not consent to collaborate. He told the security services that he would consider the matter. About six weeks later he was approached again and asked what his intention was:

"Applicant: I said it was incompatible with what I am doing, with what I am and there are other people who are doing that, that it belong to the past and I am not into that..."

About a month later he received another summons and went again to the police station. Another conversation took place and he was again given time to think about the offer. About a month later the applicant met the officer again in the street and the officer repeated his request and put some pressure on the applicant:

"Applicant: How come I was refusing to collaborate with the security services, it was my country I have to help, in case I continue refusing because now I receive a lot of information from him, he started giving hints reminding me that my private business involves transportation of goods throughout all regions and areas...

Tribunal: So what do they want you to do...I am still at a loss as to what the man, Robert wanted you to do?

Applicant: He did not say specific tasks..."

The applicant did not agree to work for the security services.

5. Some time later the applicant was arrested and imprisoned. He remained in prison for eight months. He appears to have been arrested at the border between Lithuania and Poland as part of a random check of his vehicle. He was accused of smuggling liquor and cigarettes. The applicant claimed the charge was trumped up and that he was only released after agreeing to work for the security services and promising not to leave the country. The applicant did not accept that he had been arrested because he was suspected of not paying tax in relation to his trading activities. The applicant left the country shortly after his release. He did not apply for asylum in Australia for eighteen months after his arrival.

6. The applicant was represented before the Tribunal by a migration agent. He was not represented in these proceedings, having refused an offer of assistance under the Minister's scheme.

7. Since the imposition into the Migration Act 1958 (Cth) ("the Migration Act") of s.474 (the privative clause) and the decision upon its validity by the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 the powers of the Tribunal have been so widened that its decisions are exempt from review unless they fall within the three exceptions formulated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. The decision in NAAV can be read as adding an additional ground, namely the failure by the Tribunal to comply with an inviolable precondition upon the exercise of the power.

8. The applicant's grounds of appeal argued that the Tribunal did not approach its task in a bona fide manner. At the hearing I did not have before me either the tape of the interview with the Tribunal or a transcript. The applicant acknowledged that he had the tape in his possession. I adjourned the hearing on the basis that the applicant would provide me the tape and with a note of those parts of it which would evidence the complaints of lack of good faith that were contained in the application. I agreed that I would hear the tape and if I believed there was an arguable case in respect of any of the matters claimed I would bring the parties back for further hearing. I advised the applicant that if I did not believe there was anything on the tape, which was capable of founding a claim for lack of bona fides, then I would not recall the parties but would give my judgment.

9. In the event the applicant provided me, not with just a copy of the tape, but with a transcript. It is this transcript that is quoted in these reasons for decision. The transcript came with notations upon it indicating:

* (interrupted, denied an opportunity to answer the question)

**(spoken in frustrated tone)

***(spoken angrily and loudly)

There are several examples of the * complaints, a few less of the ** complaints and only three of the ***complaints. I have checked the transcript against the tape and believe that it is reasonably accurate.

I have come to the view, for the reasons expressed in this judgment, that there was no utility in recalling the parties before coming to my decision. I will deal with each of the applicant's grounds of appeal in turn.

10. Undue pressure on the applicant:

The general principles to be applied when a court is considering whether or not a Tribunal failed to enter upon its task in a bona fide manner have been authoritatively set out by the Full Bench of the Federal Court in SBBS v Minister for Immigration [2002] FCA FC 361 at [43 to 48]. The first four principles are summed up at [43] as follows:

"43 First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial."

The conduct of a Tribunal has been considered in a number of recent matters including WAGH v Minister for Immigration [2003] FCA 8 where the applicant argued that the Tribunal's failure to look at the applicant during the hearing, making negative hand gestures and using a short tone resulted in an absence of bona fides. At [51] the court held:

"[51]Want of good faith on the part of the Tribunal is a serious allegation which is not a vehicle for exploration of the merits of the Tribunal's factual reasoning nor review of the levels of patience or courtesy exhibited by Tribunal members."

In SDAA v Minister for Immigration [2002] FMCA 184, I found that the strong language used by the RRT, although indicative of a lack of sympathy, could not itself constitute a lack of bona fides.

In H v Minister for Immigration (2000) 63 ALD 43 the applicant had complained that the Tribunal member had exhibited a degree of scepticism and impatience with the story which was being told to him. At [12] Hely J:

"It is probably a fair comment to say that the transcript reveals that the presiding member exhibited a degree of scepticism and impatience with the story which was being told to him. At some points in the transcript, the presiding member indicated that he did not find what was being put to him by the applicant in the least bit convincing, and that he believed that the applicant was lying. ...

It would have been better if some of the statements made by the member had been left unsaid. But I am not satisfied that the member came to the hearing with his mind made up such that he was not open to persuasion."

In Minister for Immigration v SBAN [2002] FCAFC 431, Heerey and Kiefel JJ said at [8]:

"Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty."

These decisions are but examples of the many where unjudicial conduct by Tribunal members has been held not to constitute reviewable error. It is only where that conduct is itself evidence of a mind not open to persuasion that a valid finding that a Tribunal did not enter into its task in a bona fide manner will be made. The conduct complained of in the instant case does not provide such evidence.

11. It is to be born in mind that s.424(2) and s.425(1) of the Migration Act give the Tribunal the power to invite the applicant to provide more information and give evidence relating to the issues under review. This is generally in circumstances where the Tribunal member is not satisfied on the papers that the applicant has demonstrated a well-founded fear for convention reasons but may still be entitled to protection. It is not unexpected that in these circumstances the transcript will reveal a degree of scepticism on the part of the presiding member.

12. The Tribunal having no evidence repeatedly stated that the applicant was not a credible witness:

This is a reference to the Tribunal's reasons for decision. At [CB 52] the Tribunal says:

"Central to the applicant's claim is his detention in 1998 and the SSD's attempts to recruit the applicant. Whilst I accept that the applicant was detained by the Lithuanian authorities, I do accept the applicant's claims as plausible that he was detained on trumped up charges for his political opinion or that the SSD persecuted him as he refused to be recruited by them."

The Tribunal then proceeds to provide three reasons in three separate paragraphs for the conclusion it has made about the plausibility of the applicant's claim. The statement itself and the justification for it followed immediately upon a paragraph which the Tribunal set out the requirements upon it to consider all the evidence and determine that which it finds credible (Chen Xin He v Minister for Immigration (1994) FCA 954/95). It noted that the applicant's account should be accepted if it is credible, plausible and does not run counter to the generally known facts and that a decision-maker is not required to accept uncritically the applicant's unsupported assertion (Randhawa v Minister for Immigration (1994) 124 ALR 265. I am satisfied that the Tribunal appropriately addressed its consideration of the applicant's credibility in regards to the passage quoted and I take the same view of the following passage which comes immediately after the three reasons referred to above:

"Therefore, I am satisfied the applicant had no characteristics making him attractive him for the SSD to recruit and I find such a claim implausible."

The Tribunal noted the applicant's delay in applying for asylum and said after consideration of Velauther Selvaduri v Minister for Immigration (1994) FCA 301/94 at [CB 53]:

"I place weight on this omission in assessing the overall credibility of the applicant's claims."

It is the Tribunal's duty to make decisions as to the credibility of the applicant and making such a decision, informed by the evidence and the relevant law, is the proper way to exercise its powers.

13. I am satisfied that the Tribunal came to no reviewable error in the manner in which it made its conclusions concerning the credibility of the applicant.

14. The Tribunal had ignored the most significant facts such as past experience and expertise; knowledge of foreign languages; education; age and physical state.

The significant facts referred to by the applicant are facts, which he put forward as supporting his claim that he was approached for recruitment by the SSD. All those matters were referred to in the second paragraph of [CB 53] where the Tribunal stated:

"I am of the view these skills would be held by the majority of the Lithuanian population who have been under Soviet occupation since 1991."

The applicant is in effect asking the court to come to a different conclusion to that of the Tribunal concerning these claims. This is not within the power of the court.

14. The applicant has not satisfied me that the Tribunal entered upon its task in a manner, which lacked bona fides. I must therefore dismiss the application for review and order that the applicant pay the respondent's costs which I assess in the sum of $4000 in accordance with Part 21 rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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