CONCLUSIONS ON THE APPLICATION
2524 As mentioned, the applicants rely on several grounds in support of their application for a judicial review and it will be convenient to deal with them in their turn.
25 As has been seen, the first ground of review relied upon is the claim that the Tribunal failed to make findings on the motivation for the attacks made upon the applicants. In support of this ground, the applicants submitted that the Tribunal made no express finding rejecting the applicants' evidence of violent attacks by the Uzbek police and on a beneficial construction of the decision, appears to have accepted that the attacks occurred.
26 It is said that, on any view, the Tribunal made no finding which explicitly rejected the applicants' evidence that their attackers used racial epithets in the course of the attacks such as "Russian slut", "Russian pig" and "Russian bastard". In this context, the applicants say, the Tribunal erred in failing to make a finding on the motivation of the attackers. Several findings may have been open. They say one finding would have been that, consistent with the use of racial epithets, the attackers were motivated by the applicants' Russian ethnicity. Another alternative finding would have been that the attackers were motivated entirely by greed and by the applicants' resistance to their extortion demands. A further alternative finding, the applicants say, would have been that the attackers were motivated in part by a desire to obtain funds by extortion and in part by hatred for the applicants because they are Russian.
27 It is submitted, on behalf of the applicants, that a proper consideration of these alternatives was a fundamental element in the application of the provisions of the Convention; that is to say, if the Tribunal had found that the attacks fell within the second alternative, the Convention would not apply. If on the other hand, the Tribunal had concluded that the motivation was either the first or the third alternative, the attacks were indeed Convention-related forms of persecution.
28 It is argued for the applicants that a determination with respect to the motivation of the attacks was crucial because they provided examples of persecution in the past so that the inference would be available to found an inference as to the likely motivation behind any future persecution. It is said therefore for the applicants that the Tribunal has failed to make a finding on a question of fact which was essential to the correct application of the Convention. Reliance is placed in this connection upon the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at pars 55 and 56. In this way, it is said that s 430(1)(c) has been breached and accordingly this constitutes a ground of review within the meaning of s 476(1)(a). As an alternative ground for this argument it is contended for the applicants that, even if it be assumed (contrary to their submission), that the Tribunal must have found that the attacks were not in any way motivated by the applicants race, the Tribunal's reasons are basically deficient because they failed to explain how such a conclusion could be reached, given the apparent acceptance of the evidence of the attacks involved, being insults based on race.
3129 I have difficulty accepting this submission. As I have said, the Tribunal's reasons are lengthy. and it It is simply not feasible to do justice to them in a summary modemade for present purposes. As a matter of necessity therefore, as I have indicated, I have done no more than attempt to isolate the essential ultimate process of reasoning adopted by the Tribunal in coming to its ultimate conclusion. However, as I havesaid earlier before, the Tribunal's reasons must be read as a whole in order to understand properly the process undertaken by the Tribunal. In my opinion, when those reasons are read as a whole, what emerges is that the Tribunal has given careful and thorough consideration to, not only the individual claims made on behalf of the applicants, but has also considered each of those claims in the broader context of the general claim of persecution advanced on behalf of each of the applicants. Viewed in that light, it appears that the Tribunal was simply not prepared to accept that any material aspect of the case sought to be made by the applicants could be relied upon.
3230 As I have already said, the Tribunal found that the claims made by the applicants were quite exaggerated and incredible....… Given that conclusion, reached by the Tribunal on the whole of the material before it, I do not think it is now open to the applicants now to seek to isolate one or other aspect of their claim, and to seek to use that, as it were, as a platform upon which to erect an edifice of the kind now propounded.
31 The Court Book in this matter consists of 218 pages of material., aAll of that material was, of course, before the Tribunal. The Tribunal, of course, had the advantage of seeing and hearing from the applicants. It is quite impossible for the Tribunal to deal with each and every aspect of a number of individual claims advanced in a case such as the present. Indeed, any such fragmented approach could well lead to an artificial and unjust result.
32 In the Singh case, in the passage relied upon by the applicants (at pars 55,56), the majority of the Full Court (Black CJ, Sundberg, Katz and Hely JJ), observed that the reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision, so that failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c). That is so because, as their Honours point out, the process of reasoning adopted by the Tribunal has made that fact a material fact and, in that sense, the decision is dependent upon it. Conversely, as their Honours went on to observe, an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon, and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them. Accordingly, their Honours stated (at par 56):
"But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with."
3533 Those observations are, of course, helpful, in that they necessarily illustrate how difficult it is to generalise in this area. and that, but ultimately, the Court, in any application for judicial review sought to be based upon this ground, must focus upon the particular approach taken by the Tribunal and considered that approach in the context of the claims that are made.
34 So viewed, in my opinion, the Tribunal did not commit any breach of the requirements of s 430(1)(c). Rather, in my view, the Tribunal made a full and thorough assessment of the claims made and in a proportionate manner dealt with those claims by making the findings that appeared to the Tribunal to be appropriate in order to consider whether the Convention applied. I therefore reject the first ground of the application for review.
3635 The second basis relied upon as providing warrant for intervention by way of judicial review, as has been noted, is that the Tribunal made an error of law in relation to the motivation for the persecution. In this regard, the applicants point to the Tribunal's reliance upon information provided by DFAT::
"Ethnic Russians may be subject to closer and more regular attention from the militia though the difference in treatment would be marginal."
3736 It is said, on behalf of the applicants, that this information clearly raised a real prospect that corrupt Uzbek police would, at least in part, select their victims by for reason of their Russian ethnicity. It is said on behalf of the applicants that, notwithstanding this information, the Tribunal appears to have assumed that the cConvention did not apply, merely because the more severe treatment of Russians was "marginal". This submission is made by a reference to a passage in the following reasons of the Tribunal:
"I prefer the advice of the Australian Department of Foreign Affairs and Trade that there would only be marginal differences in the treatment of ethnic Russians when compared with the treatment of ethnic Uzbeks."
3837 It is said that this reasoning, and the failure torevert resort to what is was described, in argument, as a "principle" explained by the Full Court in Rajaratnam v Minister for Immigration and Multicultural Affairs ([2000] FCA 1111 at par 46), demonstrates an error of law within the meaning of s 476(1)(e).
38 In Rajaratnam, Finn and Dowsett JJ made some general observations, which I will not attempt to summarise here, but which addressed the question whether an extorted party may have been chosen, or not chosen, specifically as a target of extortion for a Convention reason.
39 Again, as in the case of the Full Court decision in Singh, the observations are, with respect, helpful, but are necessarily expressed in general terms. Again, in any individual case, it is essential to concentrate in the first instance on the particular context.Here also, I am of the view that, in order to understand the Tribunal's approach, its reasons must be read as a whole. When those reasons, in all their detail, are considered as a whole, I can discern no error of law in the respect suggested. The question rather is, in my view, truly one of fact. In the ultimate analysis, the Tribunal has accepted that ethnic Russians may be subjected to closer and more regular attention from the militia, but has concluded that the difference in treatment would be "marginal". That being so, I am not persuaded that any error of law in this connection has been demonstrated.
40 The final basis for challenge change to the Tribunal's decision, relates to the findings made in relation to the question concerning effective protection by the home State. It is settled lawmore in this area, that the question here is whether it can be said that there is a reasonable willingness on the part of the law enforcement agenciesy, and the courts, to detect, prosecute and punish offenders.
41 Again, the Tribunal addressed this matter in considerable detail. In the submissions advanced on behalf of the applicants, reliance is placed upon the Tribunal's conclusion that there was a real chance that the applicants would be subject to corrupt practices by the Uzbek police. However, as the applicant's submissions recognised, the Tribunal went on to conclude that,. nonetheless, the applicants could obtain effective protection from the ggovernment. The expression of the Tribunal's reasons was:
"The Government of Uzbekistan will provide them with the same level of protection as any other citizen of Uzbekistan, and with the level of protection sufficient to remove a real chance of their being persecuted by Uzbeks or Muslims, by reason of their race, (Russian) or their religion, (Russian Orthodox)."
42 It is said that there are internal and other inconsistencies in this conclusion. I cannot agree. Clearly the issue was a factual one, albeit one of considerable complexity, but ultimately the Tribunal was called upon to make a judgment, or assessment, on what was likely to happen if the applicants returned to Uzbekistan now or in the reasonably foreseeable future. In principle, these were matters of fact , (albeit secondary fact),, but I can discern no error of law in this connectionconvention, and certainly no material error of law (in the sense that a finding needed to be made of the kind mandated in the circumstances described by the Full Court in Singh's case above).
43 For those reasons, the application must be dismissed., and I so order
I certify that the preceding forty-three-five (435) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.