GROUNDS OF APPEAL
13 The notice of appeal filed on 6 March 2007 stated the following:
The Refugee Review Tribunal and Federal Magistrates Court committed jurisdictional error and an error of law in finding that I was not entitled to the grant of a protection visa. I informed the Federal Magistrates Court in submission 5.2.2007 about RRT did not inquire if the conscientious objectors Jehovah's Witnesses were sent to prison from official government of Russia, who would have such information, but from member of our organisation Mr Kalin, who is interested in this matter, does not wish the members of my organisation seeking refuge. Federal Magistrates Court ignored that.
14 The notice of appeal also stated the appellant was attaching additional information regarding imprisoned conscientious objectors who were Jehovah's Witnesses. I was told that such information was filed with the Court and sent to the first respondent. Such information did not appear to be on the Court file, but the appellant handed me such additional information which I have marked for identification. Only the first five folios are additional as the other material consists of documentation before the Tribunal and in fact appears in the appeal book. I was told by the appellant that the additional information, other than that which was already before the Tribunal, was obtained by the appellant himself from the Internet, after the Federal Magistrates Court decision. It is material relevant to the year 1998 and indicates that, at that time, at least two Jehovah's Witnesses who were conscientious objectors were imprisoned. This is not inconsistent on its face with the statements of Mr Kalin as Mr Kalin only stated that "currently", namely in October 2002, there were no Jehovah's Witnesses imprisoned in Russia for reason of the conscientious objection. The appellant, however, says that the additional information is relevant to support his version of events because it is relevant to the time he was in Russia. In this way he says it supports his credibility of the facts he placed before the Tribunal.
15 Before going to the question of the admission into evidence of the additional information, I will deal with the substantive ground of appeal raised in the notice of appeal filed on 6 March 2007. In the decision of the federal magistrate the ground now relied upon in the notice of appeal was discussed as follows, at [17]:
The applicant in his oral submissions today presented a further argument challenging this part of the Tribunal's reasoning. This was that the Tribunal should not have relied upon the statements from the chairman of the church, but should have obtained information from the Russian authorities as to how objections to military service by Jehovah's Witnesses were dealt with by police and other authorities. He argued that the chairman "is interested in this matter, and does not wish the members of my organisation seeking refuge".
And at [18]:
However, the Tribunal was not obliged to conduct further inquiries, and might have been criticised if it relied upon information from the Russian authorities themselves. In my opinion, this argument only challenges the merits of the Tribunal's factual assessment, and does not reveal jurisdictional error.
16 The substance of this ground is that there was a failure by the Tribunal to inquire from the Russian Government whether conscientious objectors were sent to prison in the circumstances alleged here by the appellant.
17 It would appear that s 422B of the Migration Act 1958 (Cth) applies to the appellant's application. Prior to the introduction of s 422B there was generally no obligation on the Tribunal to conduct its own investigation or to make some particular inquiry: see generally, WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25]; Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632 at 641; and S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133 at [13]. With the introduction of s 422B this position is made clear: see SZGQN v Minister for Immigration and Citizenship [2007] FCA 428 at [28].
18 In any event, it is apparent from this case that the Tribunal did make inquiries as to whether conscientious objectors were sent to prison. It relied upon information from Mr Kalin in forming its view on whether conscientious objectors were sent to prison. I see nothing wrong with the approach of the Tribunal in making this choice in its assessment of the information, and this is clearly a factual matter for it: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [13].
19 I now turn to the question of the additional information. In my view the appellant has had ample opportunity to put material to the Tribunal and to place any evidence to rebut the statements of Mr Kalin. In fact, the appellant did address the Federal Magistrates Court as to Mr Kalin possibly being wrong. Even before the federal magistrate no additional information was sought to be tendered into evidence. No sufficient explanation is now offered in relation to the additional information sought to be relied upon and why it was not sought to be relied upon earlier: see generally, Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 at [68] and following.
20 It is not sufficient to say, as the appellant does, that upon the Federal Magistrates Court making its decision, he tried harder to find further material. The appellant was well aware that his credit was in issue before the Tribunal, and he should have made all efforts to produce all the material he wished to rely upon before the Tribunal. Even if the new evidence would now be admissible, to which I refer to, for example, Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, remembering that this is a review procedure, in my view, I should not allow the additional information to be adduced by the appellant before me.
21 There is a public interest in disposing of public law cases in a timely manner and this is not a case where the issue to be agitated here was not appropriately and clearly put to the appellant before the Tribunal. Fairness does not dictate in this case that I should allow the appellant to tender into evidence any new material for the purposes of this appeal. My function is to review the decision of the federal magistrate and the Tribunal and not to consider the appellant's visa application on the merits and de novo. This is particularly so where the Tribunal did not accept the appellant as a witness of truth.
22 I further observe that the additional material seems to me to be relevant to the appellant's credibility. The Tribunal, in considering the material of Mr Kalin, was treating it as confirmatory of its view that the appellant was not telling the truth about his involvement with Jehovah's Witnesses. Even if the Tribunal had the additional information before it, any response, in my view, would not have affected the Tribunal's finding about the credit-worthiness of the appellant. I am not satisfied that there is any significant possibility that the decision of the Tribunal or the Federal Magistrates Court would have been different if the additional information now sought to be relied upon was in fact before either the Tribunal or the federal magistrate.
23 In my view, the approach of the Tribunal and the federal magistrate, and their conclusions, were correct. Accordingly, the appeal will be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.