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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

VCAH v Minister for Immigration [2003] FMCA 106 (31 March 2003)

VCAH v Minister for Immigration [2003] FMCA 106 (31 March 2003)
Last Updated: 10 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VCAH v MINISTER FOR IMMIGRATION
[2003] FMCA 106



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.



Migration Act 1958 (Cth)

Migration Legislation Amendment (Procedural Fairness) Act 2002

S157/2002 v Commonwealth of Australia (2003) HCA 2

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449

Craig v South Australia (1995) 184 CLR 163

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

Minister for Immigration and Multicultural and Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21

Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611

Re the Minister; ex parte Durairajasinghan (2000) ALR 407

NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 713

Applicant:
VCAH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ447 of 2002



Delivered on:


31 March 2003



Delivered at:


Melbourne



Hearing Date:


15 October 2002



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicant:


Mr Horan



Counsel for the Respondent:


Mr Gibson



Solicitors for the Respondent:


Australian Government Solicitor



ORDER

The Court orders:

(1) That the application is dismissed.

(2) The applicant pay the respondent's costs assessed pursuant to the Federal Magistrates Court Rules 2001, part 21, rule 21.10.

(3) It is certified that pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ447 of 2002

VCAH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The matter proceeds in this Court following an order that it be transferred into the Federal Magistrates Court of Australia, that order being made by Finkelstein J on 10 May 2002.

2. The applicant filed his application on 25 March 2002. He amended that application by the filing of an amended application dated 15 October 2002. The application is made under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the amended Part VIII of the Migration Act 1958 (hereinafter referred to as the Act).

3. If I determine that the decision is a privitive clause decision within the meaning of s.474 of the Act then I am satisfied that the application being commenced on 25 March 2002 was commenced within the period of 28 days as limited by s.477(1)(b) of the Act.

4. The applicant is a male national of the Ukraine who arrived in Australia on 1 January 2001. Upon arrival he was the holder of a sub-class 456 visa (temporary business entrant valid for three months).

5. On 15 February 2001 the applicant lodged an application for a protection visa. A delegate of the Minister refused such visa application on 18 April 2001.

6. On 20 September 2001 an application to review the delegate's decision was received by the Refugee Review Tribunal (hereinafter referred to as the RRT). The applicant was invited to attend a hearing on

15 November 2001. The applicant attended and gave evidence with the assistance of an accredited interpreter in the Ukrainian and English languages. The applicant also filed submissions in support of his application before the Tribunal.

7. On 18 February 2002 the RRT affirmed the decision of the delegate not to grant a protection visa to the applicant.

8. The applicant claims to fear persecution at the hands of the Ukrainian state authorities by reason of his knowledge of corruption and his involvement in the publication of two different secret tapes. The first implicates the President of Ukraine in the disappearance and presumed murder of a journalist and the second reveals links between the President's administration and a Mafia boss.

The Tribunal hearing

9. The Tribunal accepted that the applicant was a journalist who worked with a media company called Neest. His mentor at Neest he claimed to be the investigative journalist, Mr Gongadze, who had established a reputation for uncovering government corruption. The Tribunal accepted that Mr Gongadze disappeared on 16 September 2000. The connection of this disappearance to the applicant and the version of the Gongadze affair provided by the applicant however, indicated to the Tribunal that the applicant's connection to this event had been manufactured in order to create a case for future persecution.

10. Referring to country information, the Tribunal found that Mr Gongadze was a frequent critic of both the government and leading business figures. In July 2000 in an open letter addressed to the Prosecutor General, Mr Gongadze complained of government harassment including being followed and questioned by security forces. In early November police found a decapitated body outside of Kiev. It was believed the body was that of the by then missing journalist. The government asserted that it was conducting a full scale investigation into Gongadze's disappearance. No positive identification was made by the year's end with the process of conducting DNA testing not occurring until mid-December. On 28 November 2000 the leader of the Socialist party, Mr Moroz, accused the President and other senior government officials of complicity in the disappearance of Gongadze. He also released audio tapes purporting to be conversations between the President, his administration chief and Minister of Internal Affairs discussing the desirability of Gongadze's abduction. The tapes were not authenticated officially by the year's end.

11. The applicant claimed that he and others produced a TV program with Gongadze's support which dealt with organised crime and official corruption. That program started in the spring of 1999. Page 253 of the Amnesty International Report 2001 indicated that Gongadze was also an independent journalist who was in hiding before June 2000 when he wrote the open letter. He was working from Kiev and the applicant at the time was in Lviv. The Tribunal found that Gongadze may have worked for Neest at some point but no source available to the Tribunal indicated that he in fact worked for Neest. The applicant started working for Neest in July 1998 and the Tribunal found that the association between the applicant and Gongadze was not close.

12. The applicant claimed that Gongadze managed to acquire a tape which showed that the President sanctioned his assassination. Furthermore, the applicant claims that the contents of the tape were revealed by Gongadze to the newspaper of another applicant and on the applicant's TV program. The Tribunal found this version of events to not be consistent with what had been reported in the US Department of State - Country report - Ukraine 2000 and in the Amnesty International report 2001. Those sources made it clear that the scandal erupted on 28 November when the Socialist party leader in Parliament accused the President and produced tape recordings.

13. The Tribunal found the applicant's claims as to Gongodze having possession of tapes (with the subject matter as described) not to be supported by country information. The Tribunal found that Gongadze did not reveal the tapes to the newspaper or the applicant's television program as claimed and that therefore as a consequence the applicant was not questioned by the authorities. The Tribunal noted that it appeared 28 November 2000 was the date when the existence of the tapes was revealed.

14. The applicant also claimed that two of his colleagues secretly filmed a meeting which took place in a Kiev restaurant between a member of the Ukraine administration and a well known crime boss. The applicant then claimed to reveal the existence and contents of this tape on his television program. The Tribunal found the applicant's claims replete with implausibilities and found there to be a lack of evidence that any of the alleged filming took place. Furthermore, the Tribunal did not accept the applicant's claim that he took a copy of the Kiev tape with him when leaving the Ukraine knowing as he did that no video tapes were allowed to be taken out of the country.

15. The Tribunal found the story presented by the applicant to have been concocted and did not accept that he faced any real chance of persecution for a Convention reason should he return to the Ukraine. The Tribunal found that the applicant did not have a well founded fear of persecution for any Convention reason now or in the foreseeable future.

Considerations

16. The applicant in the proceedings before me claimed that the Tribunal acted without or in excess of jurisdiction and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material in that:

* the Tribunal incorrectly assumed that the tape recordings produced in Parliament by the Socialist party leader were those claimed to have been revealed by Gongadze to Prystay's newspaper and the applicant's television program;

* the Tribunal incorrectly relied on information relating to the accusations made in Parliament on 28 November 2000 as information which was inconsistent with the applicant's claims.

17. Furthermore, the applicant claimed that the Tribunal's decision was based on a finding of a particular fact that did not exist and for which there was no evidence, namely, that the Tribunal found that the applicant had made claims that Gongadze had released to Prystay's newspaper and the applicant's television program the tape recordings that were produced in Parliament by the Socialist party leader. The applicant claims that there was no evidence to support this finding and that the applicant himself did not make such claims in his application for a protection visa or in his review application to the Tribunal.

18. Furthermore, the applicant claimed that the decision was not a bona fide attempt by the Tribunal to exercise the powers conferred on it in that the Tribunal had a closed mind and commenced with the predetermined view that the applicant's claims had been concocted.

The law

19. Following the High Court decision in S157/2002 v Commonwealth of Australia (2003) HCA 2, I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 (Cth) notwithstanding s.474 of the Act.

20. On 4 February 2003 the High Court gave judgment in S157/2002 v Commonwealth of Australia. The High Court determined that the privitive clause provision in s.474 of the Act properly construed is a valid enactment. It found the proper construction of the Act, including s.474, imposed an obligation of providing a fair hearing as a limitation upon the decision making authority; see per Gleeson CJ (at 37 to 38), Gaudron, McHugh and Gummow, Kirby and Hayne JJ (at 83); and per Callinan J (at 160). The question whether procedural fairness must still be accorded by the Tribunal so that it acts within its jurisdiction, in the light of the Migration Legislation Amendment (Procedural Fairness) Act 2002 is yet to be determined. The decision in S157/2002 related to the Act as it stood prior to that amendment.

21. The decision in S157/2002 is binding upon this Court. An administrative tribunal exceeds its power and thus commitments a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal's power (Craig v South Australia (1995) 184 CLR 163, per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive and these different kinds of error may well overlap (see Minister for Immigration and Multicultural and Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21).

22. The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretion that are conferred by the Act. That is, it is to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2, Division 3, Subdivision AB of the Act.

23. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of any or all allegations put before it by the applicant.

24. The Tribunal considered the applicant's claims as to two specific and separate matters, namely the acquisition of a tape by the investigative journalist, Mr Gongadze, who was later found dead, and the secret filming of a meeting in the Kiev restaurant. It was said that during this meeting a tape was passed across the table. Other factual matters in support of these two episodes were relied upon by the applicant. The Tribunal rejected on credibility grounds the applicant's claims.

25. Review of the "merits" is not within the scope of judicial review and it is not for this Court to reassess the factual material that was placed before the Tribunal. The Tribunal made findings as to the likelihood or not of certain aspects of the applicant's claims being true which were open on the material before it after a consideration of matters that were logically probative concerning these issues. The applicant argues that the Tribunal took into account irrelevant material by misunderstanding the applicant's claim in that the applicant did not claim that the tapes that were revealed in Parliament were the same as the Gongadze tape provided to the applicant for his TV program. This misunderstanding the applicant claimed gives rise to a jurisdictional error which invalidates the Tribunal's decision notwithstanding the privative clause contained in s.474 of the Act.

26. I accept the respondent's submission that it was open for the Tribunal to assume on the basis on which the claim was put that the "applicant's tape" and the "Parliament tapes" dealt with the same subject matter. Furthermore, the applicant's submission ignores the fact that it is the disclosure of the President's involvement in the "plot" and the time at which this occurred which is the real basis of the inconsistency upon which the Tribunal relied. In making the findings it did the Tribunal based its findings on independent country information which demonstrated that the scandal broke at the time of, and as a result of, the disclosures by the Socialist party leader, Moroz, in Parliament on 28 November 2000. Had the scandal of the President's involvement been first brought to public attention at a significantly earlier point in time as claimed by the applicant, then the country information could not have been correct. As part of its fact finding function the Tribunal was entitled to prefer objectively sourced material to the evidence of the applicant. In doing so, it did not commit jurisdictional error as suggested by the applicant.

27. The Tribunal made reasoned findings based upon the inferences which were reasonably open to it to draw. In Re The Minister; Ex parte Durairajasinghan (2000) ALR 407 at 67, McHugh J said:

"In addition, the prosecutor alleges that the Tribunal breached s.430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were `utterly implausible'. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word `implausible'. The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged."

28. The Tribunal may have referred to and relied upon implausibilities as stated by it in Case book 68/69 but is clearly entitled as an aspect of the fact finding function reposed in it by the Act to do so. It is for the Tribunal to accord what weight it thinks appropriate to the evidence before it and to accept or reject inferences which an applicant may seek to have drawn from all his evidence.

29. The Tribunal considered the arguments put by the applicant and also considered independent country information that was in its possession and which it particularised in respect of the applicant himself. The Tribunal concluded that the applicant did not have a well founded fear of persecution for Convention reasons.

30. The Tribunal's decision is a privitive clause decision therefore for the purposes of s.474 of the Act.

31. The applicant argued before me that the decision was not a bona fide attempt by the decision maker to exercise the power which the Act reposed in such decision maker (see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598).

32. The question of what constitutes "bad faith" for the purposes of the Hickman principles has been considered in a number of authorities. Bad faith is a serious matter involving personal fault on the part of the decision maker going beyond errors of fact or law. As said by Allsop J in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 713:

"Bad faith is not just a matter of poor execution or poor decision making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question."

33. There is no evidence before me that the decision maker was animated by any personal bias against the applicant or had in mind any purpose other than that delegated to him under the Act. There is no evidence that the decision maker had a pre-existing state of mind that disabled him from or rendered him unwilling to make a proper evaluation of the matters before him nor those relevant to the decision to be made. There is no evidence which would support the inference of actual bias.

34. The Tribunal was entitled to accept or reject the claims of the applicant without having the proper exercise of its fact finding function being said to demonstrate capriciousness amounting to a lack of good faith.

I can find no lack of bona fides on the part of the Tribunal.

35. I dismiss the application and order that the applicant pay the respondent's costs pursuant to part 21, rule 21.10 of the Federal Magistrates Court Rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date:
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