QAAC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 At the commencement of the hearing today, the applicant, through an interpreter, asked if he could be assisted at the bar table by a friend. He said that the extent of that assistance would be to identify documents and give him advice as to them. I indicated that I was agreeable to that course. However, as proceedings went on, it became clear that the lady sitting at the bar table was making submissions directly through the interpreter. Before the luncheon adjournment, I said that I would not countenance this procedure continuing. 2 It seemed to me that the submissions ignored the decision of the Full Court in NAAV v. Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 and sought to raise grounds of review available prior to the 2001 amendments to the Migration Act 1958 (Cth) (the "Act") without regard to such amendments. It seemed to me, also, that the submissions had little to do with the interests of the present applicant and much to do with a campaign against the amendments. In any event, for better or worse, I decided that I would no longer permit the lady in question to make submissions through the interpreter. However I received further submissions from the applicant. I also indicated that the applicant could continue to avail himself of such assistance as the lady was able to offer short of making submissions. 3 The present applicant is a citizen of the Russian Federation. He arrived in Australia on 1 August 1999, entering on a three month visitor's visa. He was born on 28 April 1974. On 13 September 1999, he applied for a protection visa, which application was refused by the relevant delegate within the department. That decision was reviewed by the Refugee Review Tribunal (the "tribunal"). The applicant again failed. On 24 February this year, he applied for review by the Court in a form which was appropriate for applications pursuant to s 476 of the Act prior to the amendments. The matter has proceeded upon the basis that it is an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth). 4 The applicant's claim to refugee status depended upon two main themes. The first concerned his obligation to provide military service to the Russian state. For some years prior to his departure from Russia he had been liable to military service and had received several summonses to which he had not responded. Nonetheless, by the time he left the country, no firm steps had been taken by the authorities to compel him to complete his service. The reason for his reluctance to undertake military service was that he had, for some years, been attracted to the teachings of the religious denomination known as Jehovah's Witnesses. His understanding of the teachings of that denomination was that he was prohibited from any form of military service. The second strand of his claim to refugee status also concerned his membership of that denomination. He claimed that adherents were subject to discrimination and persecution within Russia and that he would be unable to observe his beliefs, free of harassment, were he to return. There had been at least one occasion on which his worship was interrupted by State authorities. He and a colleague were, for a short time, detained. Some violence was offered in the course of his detention. Complaints about this were unsuccessful. 5 The tribunal disposed of these two strands of argument separately. As to his military service, it pointed out that the obligation to render military service was presumably a universal one. The applicant had never officially applied to avoid it upon the basis of his religious belief. Thus, as the tribunal pointed out, any attempt made by the State to enforce his obligation in this regard was not attributable to his religious belief and could not constitute persecution on account of those beliefs. The tribunal also pointed out that the applicant had turned twenty-seven, and according to the information available, he no longer had an obligation to undertake military service. 6 The tribunal recognised that he might nonetheless be prosecuted for his prior failure to comply with his obligation. However information available to the tribunal suggested that such prosecutions were rare, from which the tribunal inferred that it was unlikely that he would be subject to such prosecution were he to return to Russia. Information available to the tribunal also suggested that if he had such an obligation, it was unlikely that he would have been allowed to leave the country. The tribunal therefore inferred that apart from considerations of religion, it was unlikely that he would be subjected to any form of persecution as a result of his failure to render military service. 7 As to his membership of the Jehovah's Witnesses denomination, he led evidence which suggested significant persecution. However the tribunal had access to information from a number of sources which suggested that there was no significant discrimination against, or harassment of Jehovah's Witnesses in Russia, save for some isolated instances concerning "individual assailants". In particular, the tribunal recorded that: According to the foreign service secretary at Jehovah's Witnesses headquarters, Jehovah's Witnesses in Russia have full freedom of religion and are not persecuted for their religious beliefs; they assemble for their meetings and large conventions and preach the word of God in public. 8 In those circumstances, there can be little doubt that it was open to the tribunal to infer that the applicant had failed to demonstrate a reasonably held fear of persecution for religious reasons. 9 As I understand it, the present application is governed by the recent decision of the Full Federal Court, reported sub-nom NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (supra). The effect of that decision was that the long-established principles to be found in the decision of the High Court in R v Hickman ex parte Fox v Clinton (1945) 70 CLR 598 apply to applications for review pursuant to s 39B. Nonetheless much time was spent in this case pursuing arguments which really depended upon assertions that the tribunal had overlooked relevant material, relied upon irrelevant material, made erroneous findings, reached mistaken conclusions or given inappropriate weight to evidence. 10 The applicant initially sought to amend his application to raise four grounds of review, namely: 1. The Tribunal involved (sic) in actual bias and the decision was made not in a good faith (sic). 2. The decision is not reasonably capable of reference in the decision-making power given to the Tribunal. 3. The decision does not relate to the subject matter of the legislation. 4. The decision exceeded the limits set out in the Constitution, or alternatively failed to exercise its jurisdiction, constituting a jurisdictional error within the meaning of Section 75(5) of the Constitution by ignoring relevant material, relaying (sic) upon irrelevant material, failure to provide to the Applicant to respond to adverse material (sic), making an erroneous finding and reaching a mistaken conclusion. 11 As to the question of actual bias and bad faith, the applicant relied primarily upon the assertion that the tribunal had neglected evidence favourable to his case and acted only upon evidence which was unfavourable. I see no objective reason for concluding that the tribunal acted other than fairly in deciding which evidence it would accept and which evidence it would reject. 12 Secondly, the applicant submitted that the tribunal was not independent because it was appointed by the Minister rather than some other party, such as the Attorney-General. Section 459 of the Act provides that members of the tribunal are to be appointed by the Governor-General. This would be so whether or not the recommendation was made by the Minister administering this Act or the Attorney-General. In any event, the weakness in this argument is that the tribunal is charged by statute with the review of departmental decisions. If there is any apprehension of bias based upon that fact, then it is something for which Parliament has legislated. It cannot be a basis for complaint. 13 Thirdly, it was said that bias or absence of good faith was demonstrated by the failure on the part of the tribunal to disclose to the applicant certain information relating to conditions in Russia upon which it subsequently relied. The first problem with this complaint is that there is no evidence that the tribunal acted upon material which was not disclosed to the applicant. In any event, pursuant to subs 359A(4), there was no obligation to invite him to comment upon this information because, as I understand it, it was not about the applicant or any other person, but about conditions in Russia generally, as they might apply to a particular class of persons of which the applicant may have been a member. Given that the tribunal followed the procedure prescribed by the Act, it cannot be said that its conduct demonstrated bias or bad faith. 14 Finally, it was said in reply that the tribunal had, at the very beginning, expressed doubts about the applicant's case by referring to the possibility that he was merely out to see the world or make some money. This appears to be a reference to the paragraph which appears at the foot of p 12 of the tribunal's reasons. The tribunal put to him that it was possible that an observer might conclude that he and his travelling companion were simply a couple of young men out to see the world. The applicant replied fully to that question, and the tribunal seems not to have taken the matter further. The question was not unfair, and nothing in that passage bespeaks actual bias or absence of good faith. 15 Moving to the second ground, namely that the decision was not reasonably capable of reference to the decision-making power given to the tribunal, this is simply untenable. The decision was to refuse a visa. The power given to the tribunal was to decide whether or not to grant a visa. There can be no suggestion that the exercise of the power was other than a bona fide exercise of that power. In the course of argument, the applicant abandoned reliance upon the third ground, that the decision did not relate to the subject matter of the legislation. As to the fourth ground, excess of jurisdiction, assuming that this is an available ground for present purposes, three of the four particulars relied upon are purely matters of fact or alleged errors in the exercise of the power. I can see no basis for asserting that, in this case, such alleged errors go to jurisdiction. 16 The fourth particular is that the tribunal failed to give the applicant an opportunity to respond to adverse material. The majority in NAAV made it clear that failure to comply with the procedural requirements of the Act will not generally lead to invalidity but, in any event, this complaint has the two fatal flaws to which I have already referred. Firstly, there is no evidence of any such failure and secondly, the Act, and in particular subs 359A(4), did not require the tribunal to invite comment on the information in question. In those circumstances, having regard to the limited grounds of review which are available with respect to a decision of this kind, the application must be dismissed. I order the applicant to pay the respondent's costs of the application, including reserved costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.