NATC v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-03-05|Before: Crennan JJ

the court: 1 The appellants are citizens of Russia. They appeal from a decision of a Judge of this Court dismissing an application under s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent to refuse the grant of a protection visa to each of the appellants. 2 Only one of the appellants, NATC, has made specific claims under the Refugees Convention as amended by the Refugees Protocol. His domestic partner, NATD, was included in that application as a member of his family unit, as permitted by the Migration Regulations. Following the Tribunal, we will refer to her hereafter as his wife. As a consequence of her inclusion as described these reasons are directed to the claims of the appellant, NATC. 3 The second appellant has affirmed and filed an affidavit on 26 February 2004 in support of an application for leave to wholly amend the notice of appeal to contain grounds: "1. His Honour erred in not finding that the RRT denied the Applicant procedural fairness. 1.1 RRT found 3 Summons were not genuine but the RRT did not put the issue of authenticity of those 3 Summons to the Applicants for their consideration and response. 2. His Honour erred in not finding that the RRT failed, or constructively failed, to exercise jurisdiction: (i) in failing to address the issue of persecution re the risk of NATC being forced to go to Chechnya, per se, rather than being forced to go in the context of it being contrary to law to refuse to go to Chechnya; (ii) in failing to find that the RRT's finding was not supported by logical grounds or probative material." 4 The original notice of appeal was prepared without legal advice. The amended notice of appeal was prepared after obtaining legal advice. The respondent did not oppose the filing of the affidavit or the necessary grant of leave and leave was granted. 5 The primary judge made clear to the appellants the limited bases upon which the Court can intervene in the decision of the Tribunal which the appellants sought to impugn through judicial review. The primary judge considered that none of the numerous factual criticisms of the Tribunal's findings and approach showed an error of law, let alone jurisdictional error. In doing so, the primary judge had regard to the findings of the Tribunal and the materials upon which the Tribunal's decision was made. 6 From the information filed in support of his application for a protection visa, and later in support of his review of that decision before the Tribunal, it appears that the appellant had been drafted by the Zheleznodorozhny District Registration and Enlistment Office in the Moscow region of the then Soviet Union. His military service record shows that he was a trainee, attached to a military unit for about five months in 1986 and that during this time did not see "the action and did not participate in combat campaigns". From October 1986 the appellant was attached to another military unit as a senior mechanic and was discharged in May 1988. A duplicate military service record, issued on 18 August 1998, records that as at 10 June 1998 the appellant was registered in the Army Reserve, with the military profession description of "senior mechanic; medium tank driver." The appellant states that he opposes the war with Chechnya as he does not wish to participate in military action against civilians and for that political reason he does not wish to serve there.

Ground 1 7 The appellant said that he received a summons requiring his attendance at the Military Registration and Enlistment Office of Sovetsky District on 29 October 1999. This summons was said to be the first of six, which ultimately were issued by the Russian authorities. 8 Each of the six summons produced to the Tribunal required the appellant's attendance before military authorities on six different dates, 29 October 1999, 6 January 2000, 15 February 2000, 10 July 2002, 27 January 2003 and 3 March 2003. Ground 1 of the notice of appeal, amended by leave, claims a denial of procedural fairness arising because the Tribunal did not raise the issue of authenticity of the last three abovementioned summons during the course of the hearing before it. The respondent does not contest that the authenticity issue was not raised. 9 The three summons in issue follow a call up notice dated 10 May 2001 which required the appellant to present himself "to be sent further for a two-month military training commencing on 1 June 2001." The subsequent "interrogation summons" requiring attendance on 10 July 2002 referred to the need for the appellant to report to a named investigator 'in relation to military service call-up issue." The next two summons in identical form are signed by an operative police officer and required "mandatory" attendance without reference to any reason, on 27 January and 3 March 2003. 10 The Tribunal did not accept that the appellant is being sought by the police, the District Interior Department, the Public Prosecutor's Office, the Military Prosecutor's Office or the military authorities for breaching any military service obligations by refusing to serve in Chechnya. In arriving at this view, the Tribunal did not accept the authenticity of three of the documents referred to above, nor did it accept the information directed to this aspect of his claims as set out in each of the letters received from his mother-in-law and mother respectively. The Tribunal formed this view, independently of the fact that it said to the appellant it did not place weight on the report of the Documentation Examination Unit ("the DEU") of the Department of Immigration, which had concluded that three earlier summons which the appellant had submitted in support of his initial application for a protection visa were fraudulent. For the purposes of the proceeding the Tribunal did not doubt the authenticity of the earlier three summons. 11 Further, while the Tribunal did not accept that the appellant was being sought by the authorities for breaching military obligations by refusing to serve in Chechnya, the Tribunal also did not doubt the veracity of the call up notice dated 10 May 2001 and found: "I note that the [Appellant] may have failed to comply with his obligations as a reservist by failing to respond to the letter from the military commissariat in Samara dated 10 May 2001 which he produced, requiring him to report for two months military training on 1 June 2001. However, if he is exposed to any penalty as a result I do not accept that this will be for reasons of his political opinion opposed to the war in Chechnya or for any other Convention reason." 12 The appellant's case was that the six summons were summons from the authorities in respect of an obligation on him to serve in Chechnya. There was a seventh summons requiring attendance on 1 November 1999 which was not produced to the Tribunal. The Tribunal did not accept this by reference to country information to the contrary, as well as by reference to the documents themselves. Each of the six summons referred in terms to penalties for non‑compliance. 13 In any event, to the extent that the genuineness of the first three summons was accepted (despite DEU advice to the contrary in respect of the first three summons) the Tribunal found any penalty arising from any default by the appellant was not a penalty in respect of his political opinion opposed to the war in Chechnya or for any other Convention reason. 14 Had the Tribunal found the last three summons to be genuine (for example, if it had raised their inauthenticity with the appellant and the appellant persuaded it they were genuine) it appears to us they would have been dealt with in the same way as the call up notice of 10 May 2001 and the earlier three summons. That is, any penalty to which the appellant was exposed for non‑compliance with the later three summons, like that to which the appellant may have been exposed in relation to the earlier three summons and the call‑up notice of 10 May 2001, would not be a penalty for reasons of his political opinion in relation to Chechnya or for any Convention reason. 15 So, even if a failure by the Tribunal to alert the appellant to any issue of authenticity in respect of the three later summons might be said to constitute a breach of procedural fairness (especially when the Tribunal explained its position in respect of three earlier summons in the series) it does not appear to us to have been a breach which would have affected the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. For this reason ground 1 of the amended notice of appeal is not made out.

Ground 2 16 In ground 2 of the notice of appeal, amended by leave, the appellant claims that the Tribunal assessed the appellant's claim for protection by reference to the question of whether the appellant could be required by law to go to Chechnya rather than by reference to whether he could be forced by unlawful actions of the Russian authorities to go to Chechnya. 17 He claimed before the Tribunal that when he appeared in response to the first summons it was suggested to him that he sign a contract to serve in Chechnya as a tank mechanic driver and that he refused. He claimed that he was offered money and was given time to consider the matter. He claimed that he received another summons three days later to attend on 1 November 1999 however this summons was not one of the six documents tendered in evidence. After attending and receiving a similar offer to contract to serve in Chechnya he said he again refused. He claimed that he was warned there "could be bad consequences." 18 The appellant claimed before the Tribunal that on the evening of 1 November 1999 two people came to his residence and invited him into their car for a conversation. He claimed that he was forced into the car and was driven to an unknown destination where he was then assaulted. He claimed that he was warned that he would be taken by force if he did not sign a contract to go to Chechnya. He claimed that as a result of the injuries he received in the assault, he was hospitalised for two months. 19 The Tribunal noted that the appellant claimed that he had breached the law under which he had to perform military service by refusing to sign the contract and that rather than being arrested he had been beaten up. The Tribunal also noted that the appellant had claimed that if he returned to Russia he would be imprisoned because he was guilty of state treason. 20 The Tribunal did not accept the appellant's claims that his call-up would result in deployment to Chechnya, with a threat of imprisonment for high treason or death if he refused. The Tribunal took into account that the Australian Department of Foreign Affairs and Trade had advised that the conscription of ex-servicemen for the purpose of fighting in a conflict within Russia could take place only on a voluntary contract basis. The Tribunal put to the appellant that because President Putin had issued a decree stating that conscripts with less than six months' experience should not be sent to Chechnya, this meant that a larger proportion of the forces fighting in Chechnya is made of kontraktniki, or contract soldiers, many of whom are reservists, who had been attracted by the very generous pay offered. The appellant agreed this was correct and stated: "he had been offered 800 roubles a day but he had not been prepared to earn money killing innocent people." The Tribunal found: ". . .I do not accept that he had an obligation under military law or ordinary law to serve in Chechnya. I do not accept that he committed any crime by refusing to sign a contract to serve in Chechnya." 21 In not accepting that the appellant had an obligation under military law or ordinary law to serve in Chechnya, the Tribunal also had regard to country information. Colonel‑General Vladislav Putilin, commander of the main organisation and mobilisation director of the Russian Staff, is reported as having said in an interview on 8 February 2000: "Nobody will ever send reservists to Chechnya or to any other hot spot, because it is against the law." The Tribunal also noted that a representative of the Moscow Helsinki Group had told the Canadian Immigration and Refugee Board on 28 and 29 February 2000 that: " . . . Reservists were usually recalled for two months' training, and that she had no knowledge of reservists being sent to Chechnya." 22 In the course of the hearing the Tribunal put to the appellant that if he had committed a crime at the Military Registration and Enlistment Office he could have been arrested then and there. The Tribunal found that if the appellant's evidence was to be believed, rather than arresting him they abducted him, took him into the forest, beat him up and left him for dead. However, the Tribunal found that this aspect of the appellant's evidence did not make sense. It said: "If the people who he says beat him up did so with the intention of forcing him to go to Chechnya they would hardly have left him in the woods. At the very least they would have ensured he got to the hospital." 23 The appellant urged the Tribunal to accept the proposition that there existed, at an unofficial level, persons who had employed tactics of intimidation and physical assault for the purpose of persuading the appellant to enter into a contract to go to Chechnya. His wife gave evidence to the Tribunal that she thought those who had beaten up her husband "had been acting half legally and half illegally." The Tribunal accepted that the appellant had sustained injuries, including fractured ribs and bruising to his kidneys, which had resulted in his hospitalisation in a clinic in Samara at which he was treated from 2 November 1999 to 29 December 1999. The Tribunal said: "There is nothing in the independent evidence available to me which would support the [Appellant's] contention that reservists are being forced to go and fight in Chechnya." 24 Further, the Tribunal did not accept the evidence of the appellant (and his wife) as to how or why he suffered the injuries on 1 November 1999. Relevantly, the Tribunal found: ". . .the [Appellant's] claims that they then abducted him, took him into the forest, beat him up and left him for dead, do not make sense to me as an attempt to force him to sign the contract. I do not accept that the [Appellant] and his wife are telling the truth in relation to their claims regarding the attempt by the Russian authorities to force the [Appellant] to serve in Chechnya. I do not accept that there is a real chance that the [Appellant] will be arrested, imprisoned, killed or otherwise persecuted by reason of his refusal to serve in Chechnya if he returns to Russia now or in the reasonably foreseeable future." 25 We accept the respondent's submissions on this issue that whilst the Tribunal did assess the question of whether the appellant could be forced as a matter of law to go to Chechnya, the Tribunal also considered other forms of force even at an unofficial level and was not satisfied by the appellant's evidence that the assault which occurred was referrable to the appellant's political opinions in respect of Chechnya. Thus, the Tribunal, although satisfied that the assault and subsequent hospitalization occurred, was not satisfied that these events had anything to do with the appellant's refusal to enlist or his opinion about Russian intervention in Chechnya. Therefore, it cannot be said that the Tribunal ignored or failed to deal with all aspects of the appellant's claims, whether based on lawful or unlawful compulsion to serve in Chechnya. We do not accept the appellant's submission that the Tribunal's approach was facile or that the Tribunal failed to address the "real question" as it was put on behalf of the appellant. It might be said that even if all the appellant's claims were accepted his mistreatment was due to his refusal to enlist, rather than the political opinion which informed that refusal. It cannot be said that the Tribunal's findings were not open. Nor can it be said the Tribunal's lack of satisfaction in respect of the appellants' accounts constitutes illogical reasoning of the kind discussed in Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002; Appellant S106 v Minister for Immigration and Multicultural Affairs (2003)198 ALR 59; in any event, want of logic does not of itself suffice to constitute and error of law: NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30]. 26 The primary judge found: "The factual findings might, perhaps, not have been made by everybody, but that of itself is of no significance." 27 Opinions can vary upon what is inherently improbable or unacceptable as evidence of a fact or of what evidence "makes sense", that is whether evidence is probative in relation to a particular fact. In the absence of perversity or some manifest error sufficient to give rise to some jurisdictional error, the Court cannot intervene. We find no error in the primary judge's approach, which is consistent with the Full Court's observations in NAAH v Minster for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 at [27]:

"For a court to set aside a negative decision on the basis that a reasonable decision‑maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision‑maker would be to travel far beyond any of the well‑established circumstances in which courts can set aside administrative decisions."

Ground 2 of the notice of appeal, as amended by leave, has not been made out. 28 The appeal must be dismissed with costs. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Sundberg and Crennan.

Associate: Dated: 5 March 2004 Counsel for the Appellant: Mr R W Killalea Solicitor for the Appellant: R Makin & Associates Counsel for the Respondent: Mr G Kennett Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 5 March 2004 Date of Judgment: 5 March 2004

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