SZDTQ v Minister for Immigration and Citizenship

THE TRIBUNAL 10 The appellant produced to the Tribunal a number of documents in support of his case. One set of documents comprised the summonses which he said were sent requiring him to attend for questioning by the General Prosecutor. Another document was a letter from a Moldovan lawyer describing what fate could befall the appellant were he to return to Moldova. 11 Before the Tribunal, the appellant expanded on the claims in his statement to the department. He said that as a consequence of his advice to conscripts as to their rights, his district did not fill its quota of conscripts. This caused his superiors to fabricate the charges against him. He also said that he was brought before a military court and that the court decided to expel him from the army, but that he was also given the option to resign, which he accepted. 12 The Tribunal did not accept the appellant's claims. The Tribunal did not accept that the appellant was forced to resign from the army because he was telling conscripts how to avoid military service or because his district did not meet its quota. In making this finding the Tribunal noted that independent country information suggested that only about 15% of the people who were eligible for military service were called up in Moldova and the army was able to fill its quota with volunteers. 13 The Tribunal found that the appellant's evidence about his human rights work in Moldova was inconsistent and contradictory, particularly in relation to the identification of the organisation for which he claimed to have worked. The Tribunal found that the inconsistencies in his evidence regarding the identity of the organisation in which he was involved, cast doubt on whether he was telling the truth about his involvement in a human rights organisation in Moldova. The Tribunal also stated that there was no evidence from reputable independent sources that human rights activists in Moldova faced harassment. The Tribunal stated that, based on the independent country information, it was difficult to accept that the appellant would have been singled out for harassment and prosecution by the authorities in Moldova because of his work for a human rights organisation. 14 The Tribunal also found it difficult to accept that the appellant would have had problems in Moldova because he had been discussing issues relating to conscription or a professional army, as conscription was not a big issue in Moldova. The Tribunal found that there was nothing in the appellant's claims to suggest that military authorities in Moldova had any interest in him after he had resigned from the army. 15 The Tribunal further rejected the appellant's claim that he was of adverse interest to the security forces in Moldova, or the KGB, and that he had been accused of conspiring with suspicious persons and being a spy. The Tribunal found that the summonses produced to support his claims were fabrications and placed little weight on the other documents the appellant produced to the Tribunal in support of his claim. The Tribunal found that the appellant was not telling the truth in relation to the events preceding his departure from Moldova. 16 The Tribunal concluded by stating at [121]-[122]: For the reasons given above, I do not accept that after the applicant resigned from the army he became involved in working for a human rights organisation, either the Human Rights Centre or "The Movement of Pacifist in Moldova for Peace, Freedom and Justice". I do not accept that the applicant was conducting research or writing a book on conscription, alternative military service or a professional army. I do not accept that the applicant's home in Kaushany was raided on 22 August 2000, nor that he was taken to the headquarters of the security service in Chisinau where he was detained and interrogated for about 15 hours nor that he or his mother subsequently received summonses to attend the General Prosecutor's Office in Chisinau or the Prosecutor's Office in the District of Tighina (Bender). For the reasons give[n] above I consider that the summonses which the applicant produced to the Tribunal are fabrications.

For the reasons given above I do not accept that the applicant has ever been of any interest to the authorities in Moldova nor that he has ever been accused of being a traitor or a spy.

THE FEDERAL MAGISTRATES COURT 17 On 21 November 2008, the appellant sought judicial review in the Federal Magistrates Court. The appellant particularised his complaints in an affidavit dated 21 November 2008, filed in support of his application. In summary, the appellant complained that: the Tribunal's decision was not made in good faith and that it took a preconceived approach to his case (para 8 of the appellant's affidavit) (Ground 1); it discredited him using incomplete and unreliable information (para 9 of the affidavit) (Ground 2); it perverted his claims by misquoting his evidence given to the second Tribunal (para 10 of the affidavit) (Ground 3); it attributed unlawful behaviour to him and proclaimed him to be a saboteur (para 11 of the affidavit) (Ground 4); it made a decision that was not in good faith (para 12 of the affidavit) (Ground 5); it demonstrated political engagement (paragraph 13 of the affidavit) (Ground 6); it did not understand his claims (para 14 of the affidavit) (Ground 7); it substituted concepts (para 15 of the affidavit) (Ground 8); it made unfounded suggestions (para 16 of the affidavit) (Ground 9); and it considered irrelevant issues and stereotyped him as a corrupt person (para 17 of the affidavit) (Ground 10). 18 The Federal Magistrate found that none of the grounds of review relied on by the appellant had been made out. The Federal Magistrate found that the Tribunal's decision was free from jurisdictional error and dismissed the application.

THE APPEAL 19 On 18 May 2009, the appellant filed a notice of appeal in which he stated that he was not satisfied with the Federal Magistrates Court's judgment and that he was going to contest each ground which had not been made out. The appellant further stated that: 1. The Federal Magistrate failed to make out that the Tribunal's approach to his case was unbiased; 2. The Federal Magistrate erroneously defined his claims as an attempt at merits review which the court could not undertake; and 3. The Federal Magistrate erroneously found that his claims had not been made out. 20 The gravamen of the appellant's contention in his oral submissions before me was that the Federal Magistrate erred in failing to find that the Tribunal had been biased. The appellant went on to say that the biased view of the Tribunal increased at each subsequent Tribunal hearing as its members were "looking after their own". The appellant also said that the Tribunal had not acted in good faith; made factual errors (including ignoring or twisting information provided in the appellant's statements, and ignoring evidence provided by others); and failed to comprehend the reality of Moldovan life. The appellant also said that the questions that the Tribunal asked him were misguided and that they were designed to lead the appellant "nowhere" or to a "cul de sac". 21 Although the appellant did not refer specifically to each of the grounds of complaint which he made before the Federal Magistrate in his oral submissions, I will deal with each of the grounds of complaint that were made before the Federal Magistrate because the ambit of the appellant's notice of appeal is sufficiently wide to call for such consideration.

Grounds 1 and 5 22 The appellant raised the absence of good faith on the part of the Tribunal in two paragraphs of his affidavit. In this regard, the appellant complained about the Tribunal's findings that the inconsistencies in his evidence as to the identity of the human rights organisation was an instance of the Tribunal forcing its preconceived ideas "down the throat". 23 The Federal Magistrate dealt with the complaints in para 8 and para 12 of the appellant's affidavit together. He found that the contentions raised were really an attempt to persuade the Court to undertake an impermissible merits review. The Federal Magistrate was satisfied that no lack of good faith on the part of the Tribunal had been shown in its decision. 24 In my view, the Federal Magistrate did not err in coming to the decision that he did. 25 An allegation of bad faith involves personal fault on the part of the decision-maker: SBAP v Refugee Review Tribunal [2002] FCA 590 (SBAP). The allegation must be distinctly made and clearly proved: SBAP and also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng). In order for bad faith to be established it must be shown that the Tribunal acted dishonestly, arbitrarily or capriciously: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. A presence or absence of honesty is often crucial in determining the existence of bad faith. A finding that a decision-maker has not acted in good faith is likely to be rare and extreme, especially where the only evidence available to support the allegation is the Tribunal's reasons for decision: SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547. 26 As the Federal Magistrate found, there was no evidence of an absence of good faith. The fact that the Tribunal made adverse credibility findings against the appellant and rejected his documentary evidence is not sufficient to demonstrate an absence of good faith. 27 It is also possible to construe the complaint made in para 8 of the affidavit, that the Tribunal took a preconceived approach to the appellant's case, as an allegation of bias. Although the Federal Magistrate did not discuss bias when dealing with para 8 of the affidavit, this does not constitute an error by the Federal Magistrate, as he dealt with allegations of bias in other parts of his reasons. In any event, the fact that the Tribunal made adverse credibility findings against the appellant is not in itself evidence of the Tribunal holding preconceived ideas as to the appellant or his claims. 28 These grounds of appeal are dismissed.

Ground 2 29 Before the Federal Magistrate, the appellant took issue with the reliance by the Tribunal on country information from the United Kingdom Home Office as to the composition of the military in Moldova. In finding that the appellant was not forced to resign because he was telling conscripts how to avoid service, the Tribunal relied upon the impugned country information. The Tribunal records that it put the substance of the country information to the appellant, namely that only about 15% of the people who were eligible for military service were called up in Moldova and that the army found it possible to fill its quota through volunteers. The appellant contended that his own experience did not accord with the country information. He also contended that the Tribunal had misinterpreted the country information that it put to him, and subsequently relied upon. 30 The Federal Magistrate observed that the weight to be given to country information was a matter for the Tribunal. There was, said the Federal Magistrate, no room for judicial review of the Tribunal's use of, or weight accorded to, any independent country information and any further examination of that information may amount to an impermissible merits review of the fact finding of the Tribunal. The Federal Magistrate observed that it was not a jurisdictional error for the Tribunal to rely upon inaccurate country information. The Federal Magistrate, accordingly, dismissed this ground of review. 31 In my view, the Federal Magistrate did not err in dismissing this ground of review. The Tribunal's choice of, and the weight attributed to, independent country information is a factual matter for it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and NBKT v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 419. The Tribunal was not required to accept claims of the appellant that are inconsistent with the information regarding the situation in the appellant's country of nationality: NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 32 The ground of appeal is dismissed.

Ground 3 33 The appellant contended that the Tribunal misquoted his evidence to the second Tribunal. In this regard, the appellant complained that the Tribunal had recorded in its reasons that the appellant had told the second Tribunal that he was not persecuted for his human rights activities but due to the false charges against him, which arose from his military background. The appellant contended that this did not accurately reflect what he had said to the second Tribunal. 34 The Federal Magistrate rejected this ground of review. The Federal Magistrate observed that there was no transcript of the second Tribunal hearing in evidence, and found that the Court should accept the Tribunal's decision record as an accurate account of what was said at that hearing. 35 In my view, the Federal Magistrate did not err in making those findings. In the absence of any evidence as to what had transpired before the second Tribunal, the Federal Magistrate did not err in concluding that the decision record of the second Tribunal should be taken to accurately reflect what was said before it. 36 This ground of appeal is dismissed.

Ground 4 37 The fourth ground complained that the Tribunal had incorrectly attributed unlawful behaviour to the appellant, and classified him as a saboteur. The essence of this complaint is that the Tribunal stated in its reasons that the appellant had advised conscripts how they could avoid military service, when his evidence was that he had helped the conscripts by explaining the "legal avenues" for the conscripts not to serve in the army. 38 The Federal Magistrate found that the Tribunal had not suggested that the appellant had acted unlawfully in the advice he had given to the conscripts. Further, said the Federal Magistrate, the contention did no more than ask the Court to undertake an impermissible merits review of the Tribunal's decision. The ground of review, said the Federal Magistrate, did not disclose jurisdictional error. 39 In my view, the Federal Magistrate did not err in finding that the complaint did not disclose a jurisdictional error. The Tribunal's summary of the appellant's evidence is not objectionable and is capable of being read in a manner which does not suggest that the appellant was acting as a "saboteur". In any event, even if, as the Federal Magistrate said, the finding of the Tribunal was construed as a finding that the appellant had advised the conscripts on how to avoid military service; such finding would be a finding of fact which would not be open to review as jurisdictional error. 40 The ground of appeal is dismissed.

Ground 6 41 By this ground, the appellant complained that the Tribunal had exhibited an anti‑Russian bias. This contention is based on the fact that the Tribunal rejected the country information submitted by the appellant from a Russian source. In rejecting this information the Tribunal stated that "it is well-known that Russia backs the regime in the breakaway Trans-Dniester region and I give more weight to reports from reputable independent sources than I do to such pro-Russian sources". 42 The Federal Magistrate treated this complaint as an allegation of bias. The Federal Magistrate found that the language used by the Tribunal was not indicative of any bias. In my view, the Federal Magistrate did not err in coming to that view. 43 Actual bias exists where the decision-maker has a pre-existing state of mind so as to render them unwilling or unable to undertake any proper evaluation of the relevant evidence: Jia Legeng. Bias must be clearly alleged and proved. No inference of bias can be drawn from the mere adverse findings of the Tribunal's decision: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102. 44 Apprehended bias exists where a fair-minded lay observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. 45 In my view, the Federal Magistrate did not err in rejecting this ground of review. There was no evidence to suggest that the Tribunal did not bring an impartial mind to the decision, or on which a fair-minded and informed lay observer would apprehend the Tribunal might not bring an impartial mind to the resolving of the issues before it. 46 In particular, in my view, a fair-minded and informed lay observer would not, based on the language used by the Tribunal, conclude that the Tribunal might not bring an impartial mind to the resolution of the issues before it. The language used indicates that the Tribunal was engaged in a process of weighing country information and preferred to give more weight to the evidence of a source which was independent, as opposed to a source which, in the Tribunal's view, was not independent. It was open to the Tribunal to adopt the approach that it did and to make the findings that it did. This did not comprise evidence upon which a finding of apprehended or actual bias was open. 47 This ground of appeal is dismissed.

Ground 7 48 By this ground the appellant contended before the Federal Magistrate, that the Tribunal had misunderstood his claims. 49 The appellant objected to the following statement which appears in the Tribunal's reasons describing the evidence which the appellant gave: He then said that it had not been the military authorities and that there were special organisations dealing with spies and traitors. 50 The appellant's complaint was that a reader could have the impression that he was talking about some "mysterious organizations" and thus was "suffering [a] persecution complex". 51 The impugned statement was made by the Tribunal in [50] of its reasons. The paragraph reads as follows: I put to the applicant that there was nothing in his claims to suggest that the military authorities in Moldova had had any interest in him after he had resigned from the army. The applicant said that after his resignation he had not stopped his activities: he had continued his activities at the Human Rights Centre and the military authorities had not liked this. He then said that it had not been the military authorities and that there were special organisations dealing with spies and traitors. He said that they were watching people like him who were working for the Human Rights Centre. He said that they had not been able to deal with him directly so they had decided to deal with him through the Prosecutor's Office. He said that he had been getting summonses from the Prosecutor's Office. 52 The Federal Magistrate was satisfied that the Tribunal was not under any misapprehension about what the appellant meant and that when the statement complained of is seen in its proper context, it was clear that the Tribunal was referring to the SIB. 53 Further, the Federal Magistrate also considered whether the impugned sentence could give rise to an apprehension of bias. The Federal Magistrate concluded that neither that sentence, nor any other evidence, supported a finding that the Tribunal believed that the appellant was suffering from a persecution complex, or that the Tribunal was biased. 54 In my view, the Federal Magistrate did not err in making the findings which he did. When the impugned sentence is viewed in its context, it is plain that the Tribunal was referring to the SIB, to which the appellant had referred in his statement and evidence, and was not suggesting that the appellant suffered from a persecution complex. Further, the language used by the Tribunal was not capable of giving rise to an apprehension of bias, nor, as I have previously stated, was there any other evidence before the Federal Magistrate to support a finding that the Tribunal was actually biased. 55 The ground of appeal is dismissed.

Ground 8 56 The eighth ground of review was that the Tribunal "substituted concepts". The appellant complains about statements in the Tribunal's decision to the effect that there appeared to be a contradiction between, on the one hand, the appellant's contention that he was accused of "undermining the defence and mobilisation ability of Moldova" by making proposals for the introduction of a professional army and the abolition of conscription; and, on the other hand, the fact that the Ministry of Defence was also proposing the introduction of a professional army. 57 Before the Federal Magistrate, the appellant complained that the concept of "the defence and mobilisation ability of Moldova" was a broader concept than the proposal for a professional army. Second, he said that his persecution in the military started before the Ministry made the proposal for a professional army. 58 The Federal Magistrate found that the appellant's complaint amounted to an attempt to embark upon a merits review of the Tribunal's decision. In my view, the Federal Magistrate did not err in characterising the complaints made by the appellant as an attempt to embark upon an impermissible merits review. Accordingly, this ground of appeal is dismissed.

Ground 9 59 The appellant complained, by this ground, that the Tribunal had made unfounded suggestions. His complaint arises from a statement in the Tribunal's reasons which records that the Tribunal put to the appellant that "if the authorities had believed that he was a spy or a traitor it was difficult to accept that they would simply have released him after he had been detained on 22 August 2000, as he claimed". 60 In his affidavit, the appellant comments as follows in relation to the impugned observations of the Tribunal: In my turn I could assume that if the decision-maker were in the shoes of the Moldovan "tonton makuts" he would have made short work of me straight away. 61 The gravamen of the complaint made by the appellant is somewhat elusive. However, the Federal Magistrate found that the impugned statement of the Tribunal was a summary of the evidence given by the appellant. He found that the statement was not a factual finding by the Tribunal. The Federal Magistrate found that the statement in the reasons simply recorded what the Tribunal had put to the appellant during the course of the hearing, in order to provide the appellant with an opportunity to respond to a matter which was potentially adverse to the appellant. The Federal Magistrate found that the ground of review did not disclose any jurisdictional error. 62 In my view, the Federal Magistrate did not err in making the findings that he did. The Federal Magistrate correctly characterised the impugned statement as a recording by the Tribunal of what it put to the appellant during the course of the hearing in order to provide the appellant with an opportunity to comment upon material which may be adverse to the appellant. The Tribunal properly put to the appellant a matter which could result in an adverse finding against the appellant. In doing so, far from committing jurisdictional error, the Tribunal, thereby, accorded procedural fairness to the appellant. No jurisdictional error is disclosed in the approach of the Tribunal, nor by the Tribunal making the impugned statement. 63 This ground of appeal is dismissed.

Ground 10 64 In this ground the appellant complained that the Tribunal stirred up "irrelevant issues and stereotypes me as a corrupt person". The gravamen of the appellant's complaint relates to the Tribunal's finding that the summonses issued by the General Prosecutor that he provided to the Tribunal were fabricated. 65 The appellant stated that since there was no evidence that the summonses were "physically" fabricated, it meant that all of them were issued in Moldova. It followed, said the appellant, that he could not have influenced their content. The appellant also complained that the Tribunal was wrong to have treated the letter from a Moldovan lawyer, which the appellant had provided to the Tribunal, as a letter which dealt with a hypothetical situation, and the Tribunal was wrong to have given it little weight. The appellant went on to complain that the reference by the Tribunal to the fact that there was a high degree of corruption in Moldova, meant that the Tribunal had found him to be a "bribe giver". 66 The Tribunal's finding that the summonses were fabricated was based on the fact that the appellant submitted two summonses which called upon him to attend the General Prosecutor's office on 29 August 2000, but at different times. In addition, one of these summonses, which had been submitted to the Tribunal, had been completed indicating that the appellant (contrary to his evidence) had attended the General Prosecutor's office. The Tribunal gave the appellant an opportunity to explain the inconsistencies in these summonses and the notation reflecting his attendance at the office of the General Prosecutor. The appellant sought to explain the fact that one of the summonses reflected that he had attended the office of the General Prosecutor by saying that perhaps it was his mother that had attended the General Prosecutor's office. The Tribunal was not satisfied by the appellant's attempts to explain these matters. In conjunction with country information from the United Kingdom Home Office that Moldova was a "notoriously corrupt country", the Tribunal did not accept that any of the summonses which the appellant had provided were genuine. 67 The Federal Magistrate was satisfied that the Tribunal properly examined the summonses provided by the appellant and put its concerns about them to the appellant. The Federal Magistrate found that the Tribunal did not err in dismissing the summonses as fabrications. 68 In my view, the Federal Magistrate did not err in making those findings. The findings were factual findings. The Tribunal gave the appellant an opportunity to comment on the potentially adverse findings, and on the evidence, it was open to the Tribunal to make the findings that it did. 69 As to the letter from the Moldovan lawyer, the Tribunal found that the letter addressed a hypothetical case, and not a case which had been put by the appellant to the Tribunal. In its reasons, the Tribunal said that it gave greater weight to the adverse view that it formed as to the credibility of the appellant than to the letters and other statements which had been produced in support of the appellant's case. 70 The Federal Magistrate found that the Tribunal did not fall into jurisdictional error by adopting this approach. The Federal Magistrate referred to the following observations of Bennett J in the case of SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] (SZKRR): The Tribunal made a comprehensive finding about the appellant's credibility. It stated, with some care, the basis for that finding based upon a series of factual matters and it explained its reasons in each case. It then found that considering the evidence cumulatively, it did not accept the appellant's claims. Having made that prior finding on credibility, the Tribunal was entitled to place no weight on evidence purportedly corroborative of the appellant's case (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ and [49] per McHugh and Gummow JJ). 71 In my view, the Federal Magistrate did not err in making these findings. The Tribunal had come to an adverse conclusion as to the credibility of the appellant on other grounds. The observations of Bennett J in the case of SZKRR are, in my view, germane, to the approach taken by the Tribunal in this case. The Tribunal did not fall into jurisdictional error by adopting the approach which it did. The adverse findings as to the appellant's credibility were open to the Tribunal on the evidence before it. 72 This ground of appeal is dismissed. 73 As mentioned above, the focus of the appellant's oral submissions before me, was that the Tribunal was biased. A major element of the appellant's contention was that the Tribunal approached his case with a predisposition to find against him because it was seeking to protect the decisions of the previous Tribunals. It is possible to construe the appellant's references in his oral submissions to the defects in the approach of the Tribunal (which reflect to a large extent the complaints contained in the grounds dealt with above) as being relied upon as conduct by the Tribunal which when viewed cumulatively, demonstrated bias by the Tribunal. In my view, whether viewed discretely or cumulatively, the grounds relied on by the appellant do not demonstrate actual or apprehended bias. As set out above, the fact that a Tribunal makes adverse credibility findings, and rejects evidence advanced by an applicant, does not without more amount to evidence of bias. There was no evidence before the Federal Magistrate to show that the Tribunal, in finding against the appellant, did so in order to protect the decisions of the previous Tribunals. As set out above, the Federal Magistrate examined each of the grounds relied upon by the appellant, and rejected them on their merits. In doing so, the Federal Magistrate did not err. 74 The appeal is dismissed with costs. I certify that the preceding seventy‑four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate: Dated: 21 October 2009 Counsel for the Appellant: The Appellant appeared in person.

Solicitor for the First Respondent: DLA Phillips Fox