NARI v Minister for Immigration & Multicultural & Indigenous Affairs

The Federal Magistrate's decision 12 The Federal Magistrate acknowledged that the Tribunal stated that, in its view, the mother's return to Russia casts doubt on whether she had a well-founded fear of being persecuted in Russia. Her Honour also noted the Tribunal's finding that the fact that nothing further had happened to the appellant's paternal grandfather since the incident described in 1996 casts doubt on whether there was a real chance that the appellant would be persecuted by reason of his relationship with his father if he returned to Russia now or in the reasonably foreseeable future. The Tribunal also noted, as recorded by the Federal Magistrate, the fact that there had been no recurrence of communications or of threatening phone calls about the appellant's father since 1997. 13 The Tribunal took into account the appellant's delay in applying for his own protection visa. The Federal Magistrate noted that it was legitimate for a Tribunal to take delay into account (Selvadurai v Minister for Immigration and Ethnic Affairs (1995) 34 ALD 347 ('Selvadurai'). That conclusion is not challenged. The Federal Magistrate then set out the bases of the Tribunal's decision. Her Honour used the words of the Tribunal, 'having regard to the delay', in noting the Tribunal's conclusion that it did not accept that the appellant had a genuine subjective fear of being persecuted if he returned to Russia now or in the reasonably foreseeable future. Her Honour also noted the Tribunal's reference to its doubt about the mother's genuine subjective fear of persecution and the lack of evidence suggesting that the FSB or the Russian authorities had any interest in the appellant's father since 1997. 14 In the appeal before the Federal Magistrate, the appellant claimed that the Tribunal did not look properly at relevant and credible evidence given by the appellant and his father, that it did not consider favourable independent country information and that it did not consider its own decisions regarding the appellant's parents. 15 The main platform of the appellant's case, as raised at the hearing before her Honour, related to the Tribunal's treatment of the earlier, differently constituted Tribunal's assessment of his parents' claims. 16 The Federal Magistrate noted that 'it is well established that there is no jurisdictional error in a Tribunal failing to refer to decisions of the Tribunal in relation to other applicants for protection visas making claims on the same ground'. The Tribunal is to determine the case on the material before it in respect of the particular applicant. Her Honour cited a number of cases in support of that proposition, including Ibrahim v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 465 ('Ibrahim') where Marshall J held at [21] that a lack of consistency in the decisions of differently constituted Tribunals (there an earlier successful claim by the applicant's sister) did not give rise to jurisdictional error as the Tribunal was not bound to grant the brother a protection visa. Rather its task was to consider the evidence before it. Also, in NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1255 Moore J held at [10] that a failure by a Tribunal to refer to or rely on another Tribunal decision or failure to decide a matter consistently with other decisions of the Tribunal 'is irrelevant'. On appeal in NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 45, the decision was upheld without that finding being challenged or referred to by the Full Court. 17 On these authorities, it cannot be said that the Tribunal erred by delivering an adverse decision in the appellant's case simply because the First Tribunal had earlier found that the appellant's parents had a well-founded fear. The Tribunal was bound to take into account the merits of the appellant's case. Any evidence of persecution of the appellant's parents had to be considered as part of the appellant's claims that he had a well-founded fear - it could not, however, be determinative. 18 The Federal Magistrate, in considering the Tribunal's reference to the First Tribunal's decision, observed that 'it is important to consider precisely what the Tribunal found in relation to the applicant and what it said about his mother and her situation'. She observed that, contrary to the submission of the appellant, the Tribunal did not find that his mother had no well-founded fear of persecution at the time of the earlier Tribunal decision. Nor did it base its conclusions in relation to the appellant on a finding, as the appellant contended, that his mother had no subjective fear of persecution or 'solely on its doubts about the genuineness of her fear at the time she returned to Russia'. As her Honour said at [31]: '…Rather the Tribunal took into account a number of factors, including the fact of his mother's return to Russia, its doubts about the genuineness of his mother's fears at that time, its finding that there was no evidence that the Russian authorities had shown any interest in the [appellant's] father since 1997 and also on the [appellant's] delay in lodging his application for a protection visa.' 19 The Federal Magistrate conclusions, at [33] and [36], included:

• the findings of the Tribunal were open to it on the material before it, including the evidence of the mother's actions after October 1995;
• the fact of the earlier Tribunal decision did not compel a different approach;
• the Tribunal had regard to the earlier decision in determining whether it was satisfied that the appellant had a well-founded fear based on all the evidence before it;
• the Tribunal was entitled to reject the appellant's claim to have a genuine subjective fear of persecution having regard to the material before it and his delay in applying for a protection visa;
• it was open to the Tribunal on the material before it not to accept that there was a real chance that the applicant would be persecuted by reason of his relationship with his father or by reason of political opinion if he returned to Russia now or in the reasonably foreseeable future and that hence any fear was not well-founded;
• to the extent that adverse inferences were drawn by the Tribunal with respect to evidence presented by the appellant or his father at the hearing, there is no suggestion that such matters were not put to the appellant for comment;
• the parents' circumstances were relevant but not determinative of the appellant's application;
• the Tribunal was not obliged to call the appellant's mother to give evidence as the Tribunal did not find that she had no well-founded fear of persecution. 20 The crux of the decision which is being appealed is this finding: 'In this instance the mere fact that the Tribunal found that the applicant's fear was not well-founded despite the fact that the earlier Tribunal had accepted that his parents' fears were well-founded does not itself establish jurisdictional error as contended. The Tribunal must consider all available evidence before it and cannot, in principle, be constrained by what it has decided in earlier cases.'

The notice of appeal 21 The notice of appeal is in a somewhat narrative form. It acknowledges that the grounds raised before the Federal Magistrate 'mostly related to the Tribunal's failure to examine the [a]ppellant's mother claims properly; and the fact that the Tribunal challenged its own decision (differently constituted in April 2002)'. It raises as a ground of appeal that the Tribunal was obliged to give the mother the opportunity to comment upon its "fresh findings" which formed the reason or part of the reason for its decision. 22 The notice of appeal raises additional grounds which are said not to have been previously identified. The first is an asserted breach of s 424A(1) of the Migration Act 1958 (Cth) ('the Act'). The submission is that the Tribunal's decision was based on three findings: (a) The appellant's delay in making his application for a protection visa. (b) The fact that the appellant's mother returned to Russia and remained there for around nine months (prior to the time she came to Australia and applied for a protection visa). (c) The fact that from 1997 the FSB abandoned any attempt to force the appellant's father to return to Russia. It is said that each of these matters was not put to the appellant or his father by the Tribunal and that the failure constituted jurisdictional error. 23 The second ground was an alleged breach of s 476(1)(g) of the Act. That ground was abandoned in the appellant's written submissions, which was confirmed at the hearing. 24 In a document entitled 'Oral Submission', filed on the day of the hearing, the appellant expanded the ground of appeal based on the alleged breach of s 424A(1) of the Act, largely by reference to authorities. The basic premise, however, was that the Tribunal failed to raise with the appellant the matters as alleged. 25 In particular, the appellant said that the alleged failure on the part of the Tribunal on which he relied was that it was not put to him or his father that the FSB had abandoned attempts to force the appellant's father to return to Russia. 26 At the hearing, the appellant appeared in person assisted by an interpreter. The appellant understood sufficient English to understand much of what was said and used the services of the interpreter as necessary. 27 At the hearing, I determined that the issues raised warranted referral to a legal practitioner under O 80 of the Federal Court Rules with the following direction: 'The first appellant in this matter be provided with legal assistance pursuant to O 80 of the Federal Court Rules in the nature of legal advice and, if appropriate, preparation of written submissions on the issue of whether the Tribunal's erred in law in its determination of the issue of the appellant's delay in applying for a protection visa.' 28 Additional written submissions were filed by the appellant and by the respondent after the hearing. Mr Zipser, for the appellant, emphasised that if the Tribunal based its decision on the fact that nothing else had happened to the appellant or his family since 1997, they should have asked him direct questions and that such questions were not asked. 29 The respondent submits that the grounds of appeal based on s 424A of the Act were not expressly raised before the Federal Magistrate and ought to be dismissed for that reason. Counsel for the respondent, Ms Pepper, also submits that the Tribunal's decision was based on the appellant's delay in applying for a protection visa. 30 In addition, Ms Pepper asserted that each of the matters identified by the appellant were expressly raised with the appellant and his father, who was present at the hearing before the Tribunal as a witness for the appellant. Ms Pepper submitted that they were given an opportunity to comment both at the hearing and afterwards by way of written submissions to the Tribunal submitted by the appellant's representative ('the later submissions'). However, Ms Pepper conceded that it is apparent from the Tribunal's reasons that it was not explicitly put to the appellant or his father that the FSB was no longer interested in the father. She accepted that the Tribunal was obliged to put to the appellant any queries about the continued interest of the FSB in the father if that were to form a basis for its decision but submits that it was the responsibility of the appellant to establish an ongoing interest in the father as the basis for the appellant's present fear of persecution. 31 The appellant submits that the Tribunal was obliged to ask a direct question challenging the continued interest in the father and that failure to do so constituted jurisdictional error.

The appellant's delay in making his application for a protection visa 32 The submissions made by Mr Zipser on behalf of the appellant after the hearing refer to the Tribunal's 'question regarding the applicant's decision to apply for a business visa (rather than a Protection visa)'. They then refer to the appellant's explanation as given to the Tribunal at the hearing and add additional information and explanation. That explanation is referred to in the Tribunal's reasons. 33 In the Tribunal's reasons, reference is made to the fact that the Tribunal put to the appellant 'the fact that he had delayed applying for a protection visa for many years cast doubt on whether he genuinely feared being persecuted if he went back to Russia now'. The reference to this issue as having been put to the appellant is not challenged. It appears that the relevant matters were put to the appellant. 34 The Tribunal said that it had regard to the appellant's delay in lodging his application for a protection visa in deciding not to accept that he has a genuine subjective fear of being persecuted if he returns to Russia now or in the reasonably foreseeable future. This related to the subjective element of the claimed well-founded fear. However, I do not accept that this was the sole basis for the Tribunal's decision, as was submitted by the respondent. The Tribunal continued and referred to the appellant's mother's return to Russia and the lack of manifestation of interest by the FSB in the appellant's father since 1997. 35 Mr Zipser submits that the Tribunal recorded the applicant's explanation for his delay in lodging a protection visa but did not take it into account or evaluate the explanation. In particular, he contends that the Tribunal did not: · 'accept that "the existence of delay does not end the inquiry" and it was necessary for the Tribunal to consider and evaluate any explanation by an applicant for their delay; · consider whether it believed the applicant's explanation; · if it did not believe the applicant's explanation, explain why it did not believe the explanation (in particular, where the Tribunal did not make a general credibility finding against the applicant or a finding that he was not telling the truth in relation to other matters); and · if it believed the applicant's explanation, explain why the explanation was not "a good reason for the delay".' 36 He submits that, if the Tribunal is going to reject an explanation of an event or emotion, the Tribunal's findings must be clear and the reasoning process exposed (W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [67] per Tamberlin and Nicholson JJ). 37 A complaint that the Tribunal failed to make a finding on a question of fact relevantly means that a procedure required by the Act had not been observed (Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 ('Yusuf') at [5] per Gleeson CJ). There is no requirement to make a finding on every question of fact, even a material question of fact. All the Tribunal is obliged to do is to set out such findings as it has made (Yusuf at [10]). The Tribunal is not required to set out findings that it did not make. It is obliged to set out its findings on those questions of fact which it considered to be material to the decision which it made and the reasons it had for reaching the decision. If a matter is not mentioned, it can be inferred that it was not material to the decision (Yusuf [68] - [69]). 38 In this case, the delay was referred to, as was the appellant's explanation of the delay. This was not a case where the Tribunal relied upon delay to conclude that the claims were invented. It was considered by the Tribunal as relevant to the assessment of the genuineness, or at least the depth, of the appellant's alleged fear of persecution, as in Sevadurai, to which the Tribunal referred. The fact that the Tribunal referred to the explanation indicates that the delay itself was not an end to the inquiry (Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 812 at [10] per Wilcox, Einfeld & Tamberlin JJ). 39 While no reasons were given for rejecting the appellant's explanation for the delay, it is implicit in the Tribunal's treatment of the delay that it either did not accept the explanation or that it did not find that the explanation sufficiently discounted negative inferences raised by the delay. It cannot be said of the instant case that the Tribunal erred in failing to consider the appellant's application or failed to conduct a review in the narrow and limited way described by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [50]. Nor, as the Full Court explained in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 ('WAEE') at [46], was it necessary for the Tribunal to 'refer to every piece of evidence and every contention made by an applicant in its written reasons' (see also NAPE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1124 at [25] per Hill J. The Tribunal's reasons are not to be scrutinised 'with an eye keenly attuned to error' (WAEE at [46]). There is no requirement that the reasoning process for each finding made be exposed (Pollocks v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 195 ALR 73 at [35]). 40 The appellant contends that the Tribunal was obliged to consider and evaluate the explanation for the delay and that it did not set out its reasons for rejecting that explanation. Ms Pepper submits that, on a proper reading of the totality of the decision, it is clear that the Tribunal had regard to and considered the explanation and, by implication, rejected it or, at least, did not accept it. Conversely, she submits that it cannot be inferred that the Tribunal failed to consider the explanation, which it referred to. It is not necessary for the Tribunal to refute each aspect of the evidence that is contrary to findings of material fact (Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [65] per McHugh J). 41 As was observed by Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20 (2003) 198 ALR 59 at [14], expression of a conclusion in a certain sequence does not indicate a failure to consider the evidence as a whole. The appellant has not been able to point to any basis for a conclusion that the Tribunal did not have regard to his explanation of the delay or that it did not properly assess its significance. The complaint is that there was no written deliberation in the reasons on that evidence, although it was clearly adverted to. 42 It cannot be said that the delay was the sole reason for the Tribunal's conclusion. As the reasons were expressed, it cannot be said to be the dominant reason. The appellant's fear of persecution was directly related to the Russian authorities and their continuing interest in the appellant's father. In that regard, the Tribunal came to conclusions on the evidence that there was no well-founded basis for a present fear of persecution. Those conclusions were based in large part on the activities of the appellant's father, mother and wife during the relevant period and the absence of evidence of continuing interest after 1997. The appellant's delay was not relevant to the objective elements and was not determinative of the issue of subjective fear. 43 Accordingly, even if there were a failure properly to consider the appellant's explanation of delay in applying for a protection visa, it cannot be said that such failure amounted to jurisdictional error.

The appellant's mother's return to Russia 44 The later submissions state that 'at the hearing the question was raised as to why [the appellant's mother] decided to go back to Russia' and then provided a commentary on that subject. The Tribunal referred in its reasons to the later submissions. 45 The Tribunal's reasons refer to the fact that it put to the appellant that it appeared that his mother had waited in Russia to get a visa to come to Australia rather than getting a visa for some other country and the appellant offered an extended explanation. The Tribunal noted also that it had put to the appellant in the course of the hearing 'the fact that his mother returned to Russia at all, and then remained there, apparently waiting in hope of being granted a visa to travel to Australia, casts doubt on whether she had a well-founded fear of being persecuted in Russia'. 46 These references in the Tribunal's reasons were not challenged as a representation of what took place at the hearing,. The Tribunal did not fail to put these relevant matters to the appellant.

The lack of action by the FSB since 1997 in respect of the appellant's father 47 The Tribunal noted the appellant's reference to events that had taken place with respect to his father in 1997. 48 The Tribunal's reasons note that it suggested to the appellant that the FSB could have instituted charges against his father and sought extradition. A detailed discussion on that topic then ensued. The Tribunal asked the appellant's father whether he had done anything to publicise what he knew about the FSB since 1996. 49 The later submissions commence: 'I refer to your advice to provide you with additional relevant information regarding some matters raised in the course of the hearing'. There are then four numbered issues. The first refers to whether the FSB could have opened a criminal case against the appellant's father to ask for extradition. The second concerns the likelihood of harm to the appellant if he returns to Russia and includes a discussion about the mother's fear of persecution. The third is the assertion 'obviously the [appellant's] father is still on the authorities' 'black list'', followed by a reference to the letter and email to the Department of Immigration, which I take as referring to the events in 1997. The fourth is an assertion that there is a strong possibility that the applicant will be harmed if he returns to Russia, in order to force his father to return to that country. 50 The Tribunal dealt with the evidence given by the appellant and his father concerning the allegations about the appellant's father in Australia in 1997. These events were the subject of the later submissions. It was submitted that the appellant's fear of being persecuted was well-founded, based inter alia on these communications with the Department of Immigration. The communications were accepted by the previous Tribunal as relevant to the father's claims. 51 The Tribunal noted, however, that there appears to have been no recurrence of such communications and threatening telephone calls since 1997. It was for this reason that the Tribunal concluded 'it is difficult, therefore, to accept that the FSB or the Russian authorities more generally would be motivated to put pressure on the [appellant] by reason of his relationship with his father if he were to return to Russia now or in the reasonably foreseeable future'. 52 Ms Pepper submits that, in the totality of the evidence and the questioning by the Tribunal, the proposition that the FSB was no longer interested in the appellant's father was put to the appellant, in that the components of that interest were raised. 53 With regard to the evidence of the beating of the appellant's paternal grandfather, the Tribunal concluded that the fact that nothing further had happened to the grandfather since that incident casts doubt on whether there is a real chance that the appellant will be persecuted by reason of his relationship with his father if he returns to Russia now or in the foreseeable future. 54 I am of the view that the ongoing interest of the FSB in the appellant's father formed both a basis for the appellant's claim and a basis for rejection of that claim. It was up to the appellant to establish that ongoing interest. In any event, in view of the matters specifically referred to in the Tribunal's reasons and, particularly, the contents of the later submissions, I agree with the respondent's submissions that the appellant was given particulars of that subject matter, to the extent that the Tribunal was obliged to raise it, within the requirements of s 424A of the Act. He was given the opportunity to deal with the issue. 55 The Tribunal made it clear that its decision was made in respect of the likely persecution of the appellant now or in the reasonably foreseeable future by reason of his relationship with his father. As was pointed out in Ibrahim and Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353 at [23] - [24], the Tribunal's task is to consider the evidence before it and to consider whether a person has a well-founded fear of persecution at the time of the decision. The Tribunal member had to make up his own mind on the basis of the material before him (Witharana v Minister for Immigration & Multicultural Affairs [1998] FCA 1696). 56 It is not sufficient that the First Tribunal found that the appellant's parents had a well-founded fear of persecution. The question for the Tribunal was whether or not the appellant had a well-founded fear of persecution. To this end, the Tribunal properly considered objective factors - such as the evidence of the persecution of the appellant's parents and grandfather; and subjective factors - such as the appellant's delay in applying for a protection visa. The Tribunal correctly, in my view, considered the evidence regarding the persecution of the appellant's parents in the light of factors peculiar to the appellant's case. This included the facts that a significant amount of time had passed with the FSB showing no interest in the appellant or his relatives and that, when the appellant's mother returned to Russia in 1996 many months passed and she was untroubled by the FSB. As Ms Pepper noted at the hearing and in her written submissions, each of these key matters was raised with the appellant in accordance with s 424A of the Act, though not as she concedes, in exact terms. 57 That the Tribunal made its decision based upon these factors, as they apply specifically to the appellant, cannot be said to amount to an error of law. 58 The First Tribunal's decision concerned a well-founded fear by the appellant's father and mother. This Tribunal had to consider whether the appellant had a well-founded fear. The Tribunal was not bound by the First Tribunal's decision and, moreover, the well-founded fear of persecution that was found to exist at the time of the First Tribunal's decision did not necessarily apply to the time of this Tribunal decision. The events on which the earlier decision was based took place in and prior to 1997. This decision was made on 30 April 2003. 59 The Tribunal set out the basis of its decision, including its consideration of the material in respect of the appellant's parents that had been presented to it. That material had also been the subject of consideration by a differently constituted Tribunal. The Tribunal made specific reference to the decision of the First Tribunal to set aside the refusal of the parent's application for protection visas. The Tribunal did question the mother's fear in the circumstances of her return to Russia. However, it did not question the matters relating to the father, in particular his history, the attack on his father in 1996 and the events in Australia in 1997. The question was not the veracity of those events but whether there was a basis for the appellant's present well-founded fear. 60 The Federal Magistrate concluded that none of the grounds raised before her established jurisdictional error on the part of the Tribunal. None was apparent on the material before her Honour. I see no error in that conclusion. 61 Further, no jurisdictional error on the part of the Tribunal has been established in respect of the additional grounds raised without objection before me. 62 Accordingly, the appeal must be dismissed with costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 2 June 2005 The First Appellant appeared in person with the assistance of an interpreter

Solicitor for the Respondent: Blake Dawson Waldron