NACB v Minister for Immigration & Multicultural &

Federal Court of Australia|2003-03-07|Before: Lindgren J

INTRODUCTION 1 The applicants are a mother and her adult son. I will refer to them individually as "the Mother" and "the Son" and collectively as "the applicants". They seek review of a decision of the Refugee Review Tribunal ("the RRT") made on 23 August 2002 affirming a decision of a delegate ("the Delegate") of the respondent Minister ("the Minister") not to grant them protection visas. 2 The applicants are citizens of Russia. They arrived in Australia as visitors on 9 March 2000, accompanied by the Son's wife. All three applied for Protection (Class XA) visas on 7 April 2000. On that date the Mother submitted her own claim to be a refugee and the Son and his wife submitted claims as members of the family unit. As events transpired, the Son also made claims to be a refugee. The visas were refused by the Delegate on 2 May 2000. The three individuals lodged an application with the RRT for review of the Delegate's decision on 8 May 2000. 3 The daughter-in-law has returned to Russia and the application to this Court for review of the RRT's decision is made by the Mother and the Son alone. 4 The grounds of review identified in the application filed on 14 October 2002 included the alleged invalidity of s 474 of the Migration Act 1958 (Cth) ("the Act"). On 4 February 2003 the High Court held in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 that that section is valid. But consistently with that decision, the applicants rely on alleged jurisdictional error by the RRT. 5 The applicants submit that the RRT "usurped jurisdiction" or "acted in excess of jurisdiction" or failed, actually or constructively, to "attain jurisdiction" or to "exercise jurisdiction". The particular of these grounds as stated in the application is "jurisdictional unreasonableness (being the concept as referred to in BC v MIMA [2001] FCA 1669 [(2001) 67 ALD 60]; [64]-[69])". Further particulars of the jurisdictional unreasonableness relied on are that it was not reasonable for the RRT to find that it was self-evident that if the Mother: · genuinely believed that Russian military officers were in constant contact with Chechen rebels and provided them with weapons and ammunition; · genuinely believed that "the authorities" had an interest in visible tension in Chechnya because this justified the creation of "strong leadership" or "reanimation of totalitarian power"; and · had expressed these beliefs in letters she claimed to have written to the Russian authorities;

this would have been understood by her to be relevant to the claims she originally made that she and her son were threatened by Chechen rebels, and therefore would have been mentioned by her in her original claims. 6 The significance of this particular of unreasonableness will be better appreciated when I explain the background facts below, but it will be clear already that the ground is a complaint of unreasonableness in a finding by the RRT of "recent invention". 7 An alternative ground of review stated in the application is that if the RRT's decision was otherwise made within jurisdiction, it "was made in breach of an inviolable precondition to the exercise of jurisdiction" and that it was made "with a lack of bona fides". The "inviolable condition" relied on is the "attainment of jurisdiction". As particulars of the lack of good faith, the application repeats the particulars of jurisdictional unreasonableness referred to in [5] above. 8 I will refer later to the submissions made by counsel for the applicants in elaboration of the grounds summarised above.

BACKGROUND FACTS 9 The following account is generally based on the Mother's written statement, dated 4 April 2000, which accompanied her application made on 7 April 2000 for the protection visa, and on the RRT's reasons for decision. 10 On 30 July 1999, the Son was drafted for military service. After two months' training he was sent to the town of Mozdok as an armoured personnel carrier driver. The unit in which the Son served controlled border areas between Russia and Chechnya. 11 On 12 October 1999, the Son's armoured personnel carrier was blown up by a mine and the Son was taken prisoner by Chechen rebels. He and other prisoners of war were beaten brutally and were fed on only bread and water once a day. 12 In November 1999, the Son was placed in a truck with two armed Chechens and was told he was going to be executed. The Son "grabbed a hand grenade from one of the Chechens, pulled the pin, dropped the hand grenade in the truck and jumped out of it while it was moving at full speed". When he regained his senses following the fall, he saw the burning truck. 13 After four days he was picked up by Russian soldiers from an armoured personnel carrier and taken to a hospital in Mozdok on 10 November 1999. 14 On 18 November 1999, the Mother received a telephone call informing her where her son was. On 22 November 1999, she took her son from the hospital in Mozdok to Moscow to her sister's place where her son's fiancée lived. He needed "constant care" which the Mother was not in a position to provide because she was a single mother and had to return to her job as a physical education teacher and trainer in St Petersburg. 15 On 1 December 1999, the Mother began receiving telephone calls from a person with a Caucasian accent. He asked for her son. The caller said that "they" would find her son no matter where he was. She said that on 3 December 1999 at 6.00 pm she was attacked on the staircase of her apartment block. She said that her attackers had kept asking where her son was and told her that he had mortally wounded a Chechen field commander and that "they" had sworn to avenge him. The Mother said she realised that as long as her family stayed in Russia they would be "in grave danger of being wiped out physically". Accordingly, she decided to travel to Australia with her son and his wife (the Son and his fiancée had married on 11 February 2000). The Mother said that her son had suffered a very serious psychological trauma and that he was still screaming and talking in his sleep. 16 The Mother's statement appears to have been the only formulation of the applicants' claim to be refugees which was before the Delegate when he decided on 2 May 2000 that the Mother failed to satisfy the relevant criteria of either subclass 785 or 866 and refused her application for a Protection (Class XA) visa. The Delegate also pronounced himself not satisfied that the Son or his wife met the prescribed criterion in cl 866.222 of the Migration Regulations 1994 for the grant of a protection visa. In the "decision record", the Delegate stated that the Mother's claims were not related to any of the five grounds set out in Article 1(A) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively "the Convention"): race, religion, nationality, membership of a particular social group or political opinion. The Delegate stated that the Chechens' actions were "solely motivated by their desire to avenge the death of one of their commanders killed by her son when he escaped from captivity". A copy of the decision record was forwarded to the Mother on 2 May 2000. 17 The Mother, the Son and the latter's wife, lodged their application for review with the RRT on 8 May 2000. The daughter-in-law left Australia on 10 August 2000, and the Son informed the Department of Immigration & Multicultural Affairs ("the Department") in November 2001 that she had returned to Russia. 18 In March 2002, the Mother produced to the RRT what purported to be two letters from a girlfriend in Russia dated 22 June 2001 and 23 October 2001 and a letter from her mother in Russia dated 2 February 2002. The earlier of the two letters from the girlfriend referred to the fact that the Mother had lived at the girlfriend's place before leaving for Australia and to the fact that the Mother had told the girlfriend about the her "troubles and ... conflict with authorities and Chechens". The letter also stated that in May 2001 the local policeman had come to the girlfriend asking questions about the Mother and the Son. The second letter from the girlfriend reported that the local policeman had come to see her again the previous night (22 October 2001) and had asked questions about the Son, and, in particular, whether he had left "some documents, papers, written material or diaries". 19 The letter dated 2 February 2002 from the Mother's mother stated that just before New Year (1 January 2002) officers claiming to be from the "Public Prosecutor's Office" came to her place and showed her "some paper" telling her that it was a search warrant for her place, and asking her to produce anything belonging to the Son. The Mother's mother stated that one of the officers also asked about the Mother, what she was doing overseas and when she would return to Russia. She said that the officer had also asked about "some diary and photos". The Mother's mother said she did not know what diary and photographs they were talking about and asked her daughter whether their inquiries were related to the Son's having left the Army, and, if so, what the Public Prosecutor's Office had to do with it. Apparently the evidence did not reveal what reply, if any, the Mother made to her mother's questions. 20 The Mother and the Son gave evidence in an oral hearing before the RRT on 15 July 2002. The Son testified that he had been called up by the Russian Army in July 1999 and had received two months' training before being posted to Mozdok near the border with Chechnya. He confirmed that he had been taken prisoner by the Chechens after his armoured personnel carrier had run over a mine. He said the Chechens tortured him but did not interrogate him. He said they forced him to carry out the dirtiest work and that he had been kept as a person intended for execution. He said he had experienced nothing except humiliation and torment. He confirmed that he had escaped in November 1999, had been taken to a hospital in Mozdok and from there by his mother to Moscow. He said he had not been discharged from the Army and that there had been no specific date by which he was supposed to return after being released from hospital. He said he had not had any problem when leaving Russia, travelling on a passport in his own name. 21 When questioned about the letters produced by his mother, and in particular as to any reason why the police or the "Procurator's office" might be looking for him, the Son gave the following evidence: he said that one morning when he was taken prisoner by the Chechens they let him and the other three prisoners out to build defensive works. He said that he saw a small jeep with two Russian officers and a Russian soldier sitting in it; that the jeep stopped about 100 metres from where they were working; and that the Russian officers and Russian soldier got out of the vehicle and began talking to and shaking hands with the Chechens "who had been beating and killing him and the other prisoners". Before the RRT, the Son described this as "pure treason". 22 The Son ventured the opinion to the RRT that the police and the Procurator's office had taken an interest in him "because he was a witness to the crimes which were being perpetrated by the Russian Army". 23 It was these claims, made for the first time in the course of the RRT hearing, that form the centrepiece in the present application for review. The claim made by the Mother in her original application for a protection visa was characterised by the Delegate as a claim that Chechens were seeking revenge for the killing of their commander when the Son caused the truck in which he was travelling to be blown up. The new claim amounted to a claim that Russian authorities were the persecutors on account of knowledge which the Son had acquired as a witness to the criminal activity of soldiers of the Russian Army. 24 In answer to further questions by the Member, the Son said that he had kept a diary before he was captured by the Chechens and that the officers who did not want him to talk about what he had seen had not forgotten him and his mother. According to the RRT's reasons for decision, the Son said that the police and the Procurator's office wanted him as a witness but he thought this was "just an excuse" and that they were looking for him and his mother. He said it would "have an explosive effect if he were to talk about the events he had witnessed" and that the "people who did not want him to talk about this were using the police and the Procurator's office to find him". He said he had not taken any steps to publicise these matters while in Australia "because Australia had not offered him any protection and he was afraid". 25 The Mother said that she had written letters to the Prosecutor-General's office and the Commandant's office as soon as she had brought her son from Mozdok to Moscow (on 22 November 1999). She said that in the letters she expressed her anger "about everything that was happening in the army, the betrayal and the complete lawlessness and so forth". She said that she had stated in the letters that her son would not serve in "this fascist army". She also told the Member that her son had informed her of the incident in which he had witnessed the meeting between the Chechens and the Russian officers and soldier and that she had mentioned this in her letters. She said that her letters had produced "a result" only after she had come to Australia (in March 2000) (she was apparently referring to "a result" in the form of visits by the Russian authorities referred to in the letters which she had received from her girlfriend and mother, the earliest of which visits had occurred in May 2001 - eighteen months after she had supposedly written her letters to the Russian authorities). The Mother said that she had "only understood it in Australia" and "had not understood it in Russia", no doubt meaning that it was only since she had arrived in Australia that she had come to understand the true nature of her persecution in Russia and the true identity of her persecutors in that country. 26 The Mother told the RRT that she began receiving threatening telephone calls after she returned to work in St Petersburg, then said that there was only one such telephone call. She said that the caller had asked about her son and said that she should not bother hiding him because "they" would find him anyway. She also said that the caller had threatened death. She said she did not report this telephone call to the police but did report the next incident which was that she was beaten up in the driveway to the apartments where she lived. She said "they" had kept on saying "they" would find her son anyway. On this occasion, she sought treatment from a medical practitioner for pain in her shoulder and went to the police station to explain what had happened but she said that the police told her they could not provide an armed guard for her and suggested she approach a private investigator. When she realised that the police would give her no assistance, she did not make a statement to them. She said that the attack on her occurred on 3 December 1999 and that nothing further happened between then and 15 January 2000 when she resigned from her employment in St Petersburg, although she added that she had not been living at her home at the time. She said she might not have known about any further attempts to contact her because she was not living at her home. At the end of January 2000, the Mother moved from St Petersburg to Moscow on a permanent basis, having transferred her apartment in St Petersburg to her brother. 27 When asked the crucial question why she had not mentioned in the statement accompanying her original application for a protection visa the letters she claimed to have written to the Commandant's office and the Prosecutor-General's office, the Mother said that at the time she had not thought it at all significant but now realised that it was crucial. She said that at the time (apparently 4 April 2000) she was in a state of shock over what had happened to her son. When asked why she had not mentioned in that statement that she and her son claimed that he had witnessed Russian soldiers meeting with the Chechen rebels, the Mother repeated that she was still in a state of shock and also that she had not been able to recall all the details. She repeated that her son had witnessed the betrayal by the Russian soldiers and said that she had expressed all her anger and made threats in the letters she had written. 28 In accordance with s 424A of the Act, the RRT wrote to the Mother on 23 July 2002 referring to her failure to mention earlier her claims that the Son had witnessed the activities of the Russian soldiers and that she had written letters about this to the Prosecutor-General's office and the Commandant's office. The RRT's letter stated that the relevance of that failure was that it cast doubt on whether the applicants were telling the truth. 29 The Mother replied by a letter dated 12 August 2002 stating that she had seen no connection between her letters and the persecution by the Chechens. She also said that "due to fear, anxiety and distress [they] were physically and morally unable to analyse situation [sic] from logic [sic] point of view and come up with actual reasons of [sic] our persecution".

REASONING OF THE RRT 30 In the "Findings and Reasons" section of its reasons for decision, the RRT stated as follows: "In her letter dated 12 August 2002 the Applicant said that she had not mentioned that her son had seen traitors in the Chechen camp or that she had written letters to the General Prosecutor's Office and the Military Office because at the time they had seen no connection between these facts and their persecution by the Chechens. She said that they had rethought their case in light of the letters they had received from Russia indicating that the police and the Procurator's office were interested in them. She said that she believed that Russian military officers were in constant contact with Chechen rebels, that they provided them with weapons and ammunition and that the authorities had an interest in visible tension in Chechnya because this justified the creation of 'strong leadership' or 'reanimation of totalitarian power'. It is self-evident that if the Applicant genuinely believed this, and expressed such views in the letters she claims to have written to the Commandant's office and the Prosecutor-General's office, this would have been relevant to her original claims that she and her son were being threatened by the Chechens. In fact the Applicant now says that she does not believe that she and her son were ever genuinely threatened by Chechens. She says that she believes that the people whom she now claims to fear wanted her to make a written complaint to the police that she and her son had been threatened by Chechens so that if they were subsequently murdered it would be easy to say that the Chechens had killed them. I do not consider that it is credible for the Applicant to claim that, although she mentioned all the other facts relating to her son having been taken prisoner by the Chechens in the statement accompanying her original application, she failed to mention in that statement that he claimed to have witnessed Russian soldiers meeting with the Chechens because she was in a state of shock, because she had not been able to recall all the details or because she saw no connection between this and the persecution she claimed to fear from the Chechens. It is to be remembered that the Applicant says that her son told her that he had witnessed a meeting between the Chechens and Russian soldiers and that she says that she mentioned this in the letters she claims to have written to the Commandant's office and the Prosecutor-General's office in November 1999. She says that she wrote the letters because she wanted to justify her son's decision to leave the army and because she was outraged by what her son had seen and experienced. She says that she expressed all her anger and made threats in the letters she wrote. I do not consider that it is credible for the Applicant to claim that she omitted to make any mention of these matters when applying for a protection visa less than six months later because she was unable to recall all the details or because she did not consider these matters to be relevant. I conclude that the Applicant and her son have fabricated their claims that the Applicant's son witnessed a meeting between the Chechens and Russian soldiers and that the Applicant mentioned this in the letters she claims to have written to the Commandant's office and the Prosecutor-General's office in November 1999. I consider that they have fabricated these claims in an attempt to overcome the problems identified in the decision under review with their original claims, namely that on the face of it they bore no connection with one of the five Convention reasons and that the Russian authorities would have offered them effective protection against any threat they might have faced from Chechen rebels. I consider that the letters from a girlfriend dated 22 June 2001 and 23 October 2001 and from the Applicant's mother dated 2 February 2002 which the Applicant produced to the Tribunal in March 2002 were fabricated for the same reason, to suggest a spurious interest in the Applicant and her son on the part of the police and the Public Prosecutor's or Procurator's Office and thereby to suggest that the Russian authorities were complicit in the persecution which the Applicant and her son now claimed to fear." (my emphasis) The RRT's reasons for decision went far beyond these three paragraphs but they were the focus of the applicants' attack on the hearing before me.

MY REASONING ON THE PRESENT APPLICATION 31 In my opinion no ground of review is established.

32 The applicants submit that, contrary to the finding of the RRT, it was not self-evident that if, at the time of applying for the protection visa on 7 April 2000, the Mother had:

· believed that the dealings between the Russian officers and soldier and the Chechen rebels had taken place and had been witnessed by her son; and · five months earlier, in November 1999, had written to the authorities complaining about the matter;

she would have appreciated that this information was relevant to her and her son's claim to refugee status and to their stated claim that they were being threatened by Chechens. 33 The Member's assessment of the facts, in particular, the assessment in the passages which I have emphasised above, was clearly open to it. It was at least reasonable for the RRT to conclude that the late claims constituted an instance of recent invention and for it not to be persuaded by the explanation offered by the Mother. The Mother had the assistance of an interpreter when she made her application to the Department for a protection visa in early April 2000. She said that her statement dated 4 April 2000 which accompanied her application was read back to her in her own language and that she thought it accurately reflected her claim to be a refugee. Yet her claim before the RRT was that only some five months earlier she had written to the offices of the Commandant and of the Prosecutor-General making different claims which were not mentioned in her application for the protection visa. 34 The applicants rely on various passages from the judgment of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 ("Eshetu"). After referring to a passage from the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119, Gummow J stated as follows (at [137]): "Th[e] passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way." (my emphasis) Later (at [145]) Gummow J stated as follows: "Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision-maker was arrived at reasonably, I would not adopt the criterion advanced by Lord Wilberforce [in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047]. I would prefer the scrutiny of the written statement provided under s 430 [of the Act] by a criterion of 'reasonableness review' [his Honour cited Schwartz, Administrative Law, 3rd ed (1991), s10.32]. This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone [above, at 118-119]. It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds [his Honour cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366; Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777]." (my emphasis) The applicants rely on the "evidence ... all one way" passage and the "probative material or logical grounds" passage in support of their submission that the RRT's decision was infected by jurisdictional unreasonableness. Counsel for the applicants accepted, however, that for my purposes as a single judge sitting at first instance, illogical reasoning leading to a factual conclusion is not, as such, on the present state of the law, a ground of review; he referred to Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 (an appeal from the decision in that case was heard by the High Court on 2 October 2002 (Appellant S106/2002 v Minister for Immigration and Multicultural Affairs), judgment reserved). In view of the conclusion I reach below, I refrain from discussing this issue. 35 The applicants' case is not advanced by the first passage from the judgment of Gummow J in Eshetu set out above. Apparently, for present purposes, the applicants rely on the fact that there was no evidence contradicting the Mother's explanation as to why the late claim had not been made at the outset. But Gummow J did not mean that where the only testimony before a decision-maker is one way, the decision-maker is bound to accept it. In the context of cases of the present kind, it is not uncommon, where an important claim surfaces for the first time late in the day and after there has been ample opportunity for it to be made earlier, for the RRT to draw an inference of recent invention. The RRT is not disentitled to do so merely by the fact that there is no direct evidence contradicting the explanation offered. Nor was the RRT here bound to give reasons for not accepting the explanation, that is to say, for remaining persuaded, in all the circumstances before it, that the particular claim was the product of recent invention: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]. 36 I do not intend to signify that an asylum seeker must, at his or her peril, have made some reference to every claim, at the very first encounter with an officer of the Department. It may be unrealistic, for example, to expect an unassisted asylum seeker who has just arrived after a lengthy flight to do so at the initial interview at the Australian airport. But the present case is not of that kind. As the Member noted, the applicants had the benefit of an interpreter when the original application was made on 7 April 2000. The applicants learned, following the Delegate's decision on 2 May 2000, the reason why they were refused protection visas. The late claim was not made until the hearing before the RRT on 15 July 2002 - more than two years after the Delegate's decision. It was open to the Member not to be persuaded, in all the circumstances, to accept the explanation that the late claim had been overlooked due to "fear, anxiety and distress" and an inability of the applicants "to analyse [the applicants'] situation from logic [sic] point of view" and to "come up with actual reasons [for their] persecution" when, with assistance, they applied for protection visas on 7 April 2000. 37 Similarly, it is not true that the RRT's state of satisfaction "was based on findings or inferences of fact which were not supported by some probative material or logical grounds". The RRT was not satisfied that the Mother was a person to whom Australia had protection obligations under the Convention (see subs 36(2)(a) of the Act). Not being satisfied that this criterion was met, the Minister was not only not bound to grant a visa: he was bound to refuse one (see subs 65(1) of the Act). In the present case, the RRT's failure to be satisfied of the existence of the statutory criterion was based on probative material and logical grounds, in so far as it was based on the RRT's finding of fabrication of claims based on its non-acceptance of:

the Son's testimony that he witnessed an apparently friendly meeting between Chechen rebels and the Russian soldiers;
the Mother's testimony that in November 1999 she wrote to the offices of the Commandant and the Prosecutor-General mentioning this meeting and expressing her anger at what had happened to her son and making threats;
the suggestion that the police and the Procurator's office have an interest in the applicants, or in any diary the Son may have kept, or in any documents which might be in his possession; and
the suggestion that the police or the Procurator's office are interested in where the Mother is or what she has been doing overseas.

That non-acceptance was based on the inference of recent invention which was supported by a failure to mention those matters in the statement dated 4 April 2000 or in the accompanying application dated 7 April 2000 or, indeed, prior to the hearing on 15 July 2002. Recent invention is a "logical ground" on which the RRT was entitled to disbelieve the applicants. 38 It is clear that the suggestion of an absence of bona fides on the part of the Member is not sustainable. 39 The RRT attained, did not usurp, exercised and did not exceed jurisdiction.

CONCLUSION 40 For the above reasons the application will be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate: Dated: 7 March 2003 Counsel for the Applicants: Mr RW Killalea

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 9 December 2002 and 10 February 2003

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