NABW v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is an application for review of a decision of the Refugee Review Tribunal ("RRT") made on 30 October 2001. The RRT affirmed a decision of a delegate of the respondent ("the Minister") not to grant a protection visa to the applicant. 2 The applicant is a Russian citizen who last arrived in Australia as a temporary business entrant in December 1998. He applied for a protection visa on 7 January 1999. In substance, the applicant claimed that he had become committed to the teachings of Jehovah's Witnesses at the end of 1997 and that he feared persecution in Russia by reason of his religious beliefs. 3 The applicant gave evidence before the RRT and was represented at the time by a migration agent. The application to this Court is expressed to be made pursuant to s 476 of the Migration Act 1958 (Cth)("Migration Act"). It identifies several grounds by reference to the terms of s 476(1) as it stood prior to its repeal on 2 October 2001 by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 4 Since the application to this Court was filed on 19 November 2001 the grounds relied on by the applicant, who appeared without representation in this Court, are no longer available as a basis for relief. Had the application been framed as one made pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"), the Court would have had jurisdiction to issue writs of certiorari and prohibition in respect of the RRT's decision and to grant consequential relief. 5 Mr Lloyd, who appeared for the Minister, pointed out that there is authority for the proposition that an application which purports to be made pursuant to the repealed Part 8 of the Migration Act cannot be amended so as to invoke s 39B(1) of the Judiciary Act outside the time limitation now imposed by s 477(1) of the Migration Act (that is, twenty-eight days from notification of the RRT's decision): NACA v Minister for Immigration and Multicultural Affairs [2002] FCA 63. If that proposition is correct, the application must fail. I propose, however, to address the application on the basis that the applicant seeks to amend his application so as to claim relief under s 39B(1) of the Judiciary Act and that there is no impediment to his being granted leave by reason of the delay in the application being made. 6 On this approach, I would grant leave to amend the application if the applicant can demonstrate that the RRT committed a jurisdictional error in respect of which the Court has power to grant relief notwithstanding s 474(1) of the Migration Act. Section 474(1) provides as follows: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." The RRT's decision is a privative clause decision: Migration Act, s 474(2). 7 The applicant claimed before the RRT that Jehovah's Witnesses in Russia faced "genocide and a violent extermination". He claimed that he had received threats at his home in Vladivostock and that he had been attacked and beaten by unknown people. Some of the threats had been contained in fliers taped to the wall and door of his apartment. The applicant supported his case by producing photographs of the fliers. The police had refused to assist as part of a policy aimed (so he claimed) at the eradication of unconventional religious organisations. The applicant claimed that the threats had been made following a visit by him to a Russian Orthodox Church on 13 November 1998, in the course of which he had asked the priest why the Church hated Jehovah's Witnesses. 8 The RRT considered that the most significant factor casting doubt on the applicant's credibility was the independent country information which suggested, contrary to his claims, that Jehovah's Witnesses in Russia enjoy the freedom to practise their religion. While the RRT accepted that the Russian Orthodox Church was antagonistic towards sects such as Jehovah's Witnesses, the country information indicates that there had only been isolated instances of discrimination or harassment of Jehovah's Witnesses in Russia. In view of the inconsistencies between the country information and the applicant's claims, the RRT did not find him to be a credible witness. 9 The RRT nonetheless accepted that the applicant began attending meetings of Jehovah's Witnesses in Vladivostock in late 1997. It rejected, however, his claims that he had visited a Russian Orthodox Church in November 1998 and had subsequently been threatened as he had described. Moreover, the RRT found that the photographs of the fliers were fabrications, in that the same flier had been photographed in one location and then been photographed in the second location. The applicant's suggestion, made at the hearing, that the police may have fabricated the photographs was characterised as "completely fanciful". The RRT found that other documents produced by the applicant to support his case were also fabrications. 10 The RRT did not accept that the applicant had been threatened in Russia by reason of his religion. While it accepted that he would continue to attend meetings of Jehovah's Witnesses if he returned to Russia, it did not accept that there was a real chance that his life would be threatened or that he would otherwise be persecuted by reason of his religion. Accordingly, the RRT was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason in Russia. 11 The applicant filed a written submission in this Court. He disputed the RRT's finding that Jehovah's Witnesses did not face persecution in Russia. The submission referred to several decisions of the RRT which, so he claimed, supported the view that Jehovah's Witnesses had been targeted by local or regional authorities in Russia and were subjected to arbitrary harassment and restrictions. The applicant also took issue with the RRT's finding that the photographic evidence had been fabricated by him. 12 To the extent that the applicant challenged findings of fact made by the RRT, he was attempting to canvass the merits of the RRT's decision. For example, he disputed the findings made in relation to the photographs and criticised the logic of the RRT's reasoning. He also contended that the RRT had not taken into account, or had given insufficient weight to, factual information that supported his case. None of the issues of fact that the applicant raised is capable of constituting a jurisdictional error that might support a claim for relief in this Court under s 39B(1) of the Judiciary Act. 13 So far as the applicant's complaint relating to the RRT's failure to refer to its earlier decisions is concerned, the general principle is that the RRT is not bound to refer to such decisions merely because they raise similar issues to those presented by the particular application for review. The question for determination by the RRT is whether it is satisfied on the materials before it that the applicant has a well-founded fear of persecution if returned to his or her country of nationality: Vassilieva v Minister for Immigration and Multicultural Affairs [2001] FCA 733; Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 980, at [23], per Hely J (leave to appeal refused: Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 1791). The RRT is not bound by conclusions reached in previous decisions and is entitled to disregard those decisions if it considers them to be irrelevant: Soboleva Minister for Immigration and Multicultural Affairs [2001] FCA 528, at [21]-[25], per Moore J. 14 The highest that the matter can be put for the applicant is suggested by another passage from the judgment in Soboleva v Minister, at [26]. "where an earlier decision is both factually similar and temporally proximate to the circumstances of the application before the Tribunal and the earlier decision has been referred to and relied on by a party but not considered and referred to by the Tribunal, it may arguably give rise to error reviewable in this Court. That arguably is the position not because the Tribunal should, prima facie, follow earlier decisions but because an earlier decision of this type might be viewed as a vehicle used by a party to raise material questions of fact about which the Tribunal should, as required by s 430, make findings and set out the evidence in support thereof". 15 This passage refers to the law as it was prior to the repeal of the former Part 8 of the Migration Act and, in particular, by reference to the authorities interpreting s 430 of the Migration Act (which, in any event, were overruled by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1). Even if the passage represents the current law relating to jurisdictional error it would not help the present applicant. It is true that the applicant's representative referred the RRT to a recent decision of a differently constituted RRT concerning a successful application by a family of Jehovah's Witnesses from Russia. But the RRT in the present case expressly referred to this decision and noted that the circumstances in that case were different from those of the applicant. 16 In the course of oral submissions, the applicant contended that the RRT had not acted in good faith. The basis for this contention appeared to be the RRT's failure to take into account its earlier decisions. As I have already explained, this does not amount to an error on the RRT's part and cannot establish a failure on its part to act in good faith. 17 It follows in my opinion that the applicant has failed to establish any jurisdictional error that might attract relief under s 39B(1) of the Judiciary Act. Any application for leave to amend his application to claim such relief would be doomed to failure. It is not necessary to consider the effect of s 474(1) of the Migration Act. Accordingly, the application should be dismissed, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.