FEDERAL COURT OF AUSTRALIA Egounova v Minister for Immigration & Multicultural Affairs [2002] FCAFC 153 migration – appeal – no error in primary judge's reasons Migration Act 1958 (Cth) ss 424A, 424C(2), 476(1)(g), 476(4), 481 OLGA EGOUNOVA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1198 of 2001 LINDGREN, FINKELSTEIN & ALLSOP JJ 24 MAY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1198 of 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: OLGA EGOUNOVA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN, FINKELSTEIN & ALLSOP JJ DATE OF ORDER: 24 MAY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the appeal be dismissed; and 2. the appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1198 of 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: OLGA EGOUNOVA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN, FINKELSTEIN & ALLSOP JJ DATE: 24 MAY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT 1 This is an appeal from the orders of a judge of the Court made on 26 July 2001 dismissing an application for review by the appellant from a decision of the Refugee Review Tribunal (the Tribunal) which affirmed the decision of the delegate of the respondent to refuse the appellant and her two daughters protection visas. 2 The appellant is a citizen of Russia. She and her two daughters arrived in Australia on a visitor's visa in February 1998. Shortly thereafter, on 27 March 1998, they applied for protection visas. The two daughters had no case for a protection visa separate from that of their mother. The application was refused by a delegate of the respondent on 10 June 1998. An application for review was made to the Tribunal. On 19 June 2000 there was a hearing before the Tribunal. The Tribunal handed down its decision on 26 October 2000. 3 The appellant claimed to have been a witness to electoral fraud in St Petersburg in October 1997. After and in connection with what she saw, the appellant claimed to have suffered a range of harm amounting to persecution under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (together the Convention). We do not propose to set out the facts in detail. These have been set out in the Tribunal's reasons over fifteen pages. The Tribunal rejected the appellant's claims and evidence. 4 Important, indeed central, to the appellant's claims was the assertion that the fraud she had witnessed occurred on 12 October 1997 in an election held on that day in St Petersburg. 5 At the hearing (on 19 June 2000) the Tribunal gave the appellant further time, until 17 July 2000, to produce documentary material regarding the date of the election. On 17 July 2000, a migration agent acting for the appellant wrote to the Tribunal stating the following: I was instructed by my client, Mrs Olga Egunova, [sic: Egounova] to inform you that she has been unable to obtain requested information in relation to election where Mrs Egunova was participated [sic] as an observer in October 1997. Mrs Egunova explained to me that she had got in touch with some of her friends currently living in St. Petersburg. They informed her that due to the lack of funds and equipment most libraries do not keep information regarding events happened [sic] not only in 1997 but in 1998 and 1999. Therefore they were unable to obtain any relevant information with regard to discussed matter. I believe you will take into account the fact that being in Australia Mrs Egunova has limited opportunities to obtain requested information. I would also like to inform you that Mrs Egunova is sure that the second round of election to the local municipality was held on [sic] October 1997. I look forward to hearing from you. [emphasis added] 6 On 6 September 2000 the Tribunal wrote to the appellant identifying material (which was enclosed) that indicated (so the Tribunal said) that the election in St Petersburg due to be held on 12 October 1997 was postponed by court order and that it was held on 9 November 1997. The material was comprised of five extracts from the St Petersburg Times. The letter was sent by registered post and was sent in conformity with the obligations of the Tribunal under s 424A of the Migration Act 1958 (Cth) (the Act). There is no suggestion that the letter was not in compliance with the requirements of s 424A. We have examined it. In particular, it fulfils the requirements of subs 424A(1). Indeed the importance of the material was self evident. The appellant's claims as to harm and threats were said to arise out of what had happened, and what she saw, on 12 October 1997. If there was no election on that day, then the things that she said happened shortly thereafter either may not have happened, or may not have happened for reasons related to politics (and so for a Convention reason). The letter of 6 September 2000 concluded with the following in bold, in capitals and in a box, immediately above the signature of the Deputy Registrar (of the Tribunal), Sydney Registry: If you do not give comments by 27 September 2000 the Tribunal may make a decision on the review of your case without further notice. 7 By letter dated 26 September 2000 the same migration agent as sent the letter of 17 July put the following to the Tribunal: I refer to your letter of 6 September 2000. You have advised that information provided by you does not accord with the account given by the applicant. I had an opportunity to meet the applicant on 22 September 2000. Her comments in relation to the information posted to us are as follows: The information provided by you do [sic] not suggest that there was no [sic] any election on 12 October 1997. It says that the second round was due to be held on 12 October 1997 but was postponed after the Primorsky District court voided the first round of the election. The information says nothing of election which was held on Sunday, 9 November 1997. Even if Mr. Nilov won the seat in the second round, which allegedly was held on 9 November 19997 [sic] it does not mean that there was no [sic] any campaign on 12 October 1997. The applicant claims that taking into account numerous facts of violation of law in Russian Federation, facts of repression, intimidation, well-known facts of false or incorrect procedures it is more than possible that election held on October 1997 was unlawful. In any case, regardless of whether the second round held on 12 October 1997 was lawful or unlawful it did take place. Ms. Egunova [sic] has asked me to inform you that she will do her best to find people participated [sic] in that particular campaign (held on 12 October) and will provide you with relevant evidence. It should also be noted that the information provided by you does accord with account given by the applicant. She did say of facts of repression [sic]. According to the applicant she was subjected to threats, intimidation and etc. As it was mentioned in 'Liberal Parties Join Forces in Election' there have been threats and intimidation; some people were physically threatened. I look forward to hearing from you. [emphasis added] 8 Another month passed before the Tribunal handed down its decision (on 26 October 2000), though it was dated 4 October 2000. No further material was provided by the appellant to the Tribunal. The appellant before us said that she requested from the Tribunal more time 'by computer'. We take that to be by email. There was no evidence of this. The Tribunal made no mention of it. Neither counsel before us for the Minister (who appeared at first instance) nor the solicitor instructing him had any knowledge of such a communication. 9 The Tribunal did not give any further notice of its intention to hand down its decision. 10 Relevantly, subs 424C(2) is in the following terms: SECT 424C Failure to give additional information or comments … (2) If the applicant: (a) is invited under section 424A to comment on information; and (b) does not give the comments before the time for giving them has passed; the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information. 11 In its decision the Tribunal said: …The Applicant's representative has indicated that the Applicant will do her best to find people who participated in the election on 12 October 1997 and that she will provide the Tribunal with relevant evidence. However, as set out above, I afforded the Applicant with the opportunity after the hearing to produce evidence regarding the election in which she claimed to have counted votes. The Applicant's representative indicated in his letter dated 17 July 2000 that he was instructed that the Applicant was unable to produce such evidence. The Applicant's representative has not indicated in his letter dated 26 September 2000 the timeframe within which the Applicant hopes to be able to provide the Tribunal with evidence from people who participated in the election on 12 October 1997. Having regard to the Tribunal's statutory objective set out in section 420 of the Migration Act to provide a mechanism of review that is fair, just, economical, informal and quick, I do not consider that I should defer making my decision on this review to give the Applicant the opportunity of providing information which she has already been given the opportunity to provide and which her representative informed the Tribunal, in his letter dated 17 July 2000, she was unable to provide. 12 The appellant complained before us that she should have been given more time to meet the matters dealt with in the letter of 6 September 2000. She made the same complaint before the primary Judge. In the circumstances described above, we see no basis for a conclusion that there was any breach of any procedures under the Act. The course adopted by the Tribunal was open to it. It had authority to make and hand down a decision when it did. Nor do we see any unfairness in the course adopted by the Tribunal. 13 The appellant also asserted before us (as she did through her migration agent in the letter of 26 September 2000 to the Tribunal, and before the primary Judge) that the material referred to by the Tribunal did not form any basis for any conclusion that the election did not take place on 12 October 1997. On the basis of the newspaper extracts, the Tribunal concluded that the election did not take place on the day on which the appellant insisted that it was held, that is, 12 October 1997. Thus the Tribunal found that the appellant had not been a witness to electoral fraud as she claimed and that any vicissitudes that had befallen her did not occur for the reason that she claimed, that is, not for a Convention reason. 14 There was no other claim or basis put forward by the appellant for considering that any harm that had befallen her was for a Convention reason. Also, the Tribunal did not accept that any harm that had befallen her had been with the authorisation of the Russian authorities. 15 The appellant claims that she is, and was, entitled to have the decision of the Tribunal set aside on the basis of para 476(1)(g) and subs 476(4) of the Act. She says that there was no evidence or other material to justify the making of the decision. It is unnecessary to delve into any of the complexities of the relationship between para 476(1)(g) and subs 476(4) of the Act. We think that the material provided to the appellant under cover of the letter of 6 September 2000 was an ample foundation for the conclusion reached by the Tribunal about the date of the election. The relevant passages of the Tribunal's reasons, in this respect, were as follows: The information available to the Tribunal further indicates that as a result of the decision of the Primorsky District Court, the second round did not take place on 12 October 1997: 'Last Thursday, the St Petersburg City Court invalidated the decision of the Primorsky district court to annul the results of the first round of by-election for an empty seat in the city Legislative Assembly and cancel the second round, according to local press reports. The second round of balloting – which was to be held on Oct. 12 – would have decided a winner between the former Public Health Committee chairman Alexander Redko, who led the first round, and Oleg Nilov, who is supported by the Union of Veterans of the War in Afghanistan. The Primorsky court voided the first round, following the appeal of Vyacheslav Marychev and Yury Shutov, both first round losers, declaring that seven ballots cast in the first round were invalid for various reasons. The City Election Committee has yet to settle a date for the second round of elections between Redko and Nilov.' ('Vote Back On Again', St Petersburg Times, October 27 – November 2, 1997)' The information available to the Tribunal further indicates that the second round of the by-election was eventually held on Sunday, 9 November 1997: 'Oleg Nilov, supported by the Union of Afghan War Veterans, won the second round of a by-election for the empty Primorsky seat in the city Legislative Assembly Sunday, Interfax reported. Nilov gained 58.39 percent of Sunday's vote, according to City Electoral Committee figures cited by St Petersburg Channel 5 on Monday. He easily outpolled his opponent – former Public Health Committee chairman Alexander Redko – who picked up 38.38 percent.' ('Nilov Wins By-Election', St Petersburg Times, November 10-16, 1997)' 16 The appellant asserted before us that orders of courts are often ignored in Russia. She may be correct. She continued to insist that the election took place on 12 October 1997. That was a factual question decided by the Tribunal with probative material before it, in a manner not attracting any ground of review under s 476 of the Act. 17 In any event, the Tribunal said that even if it were to accept the appellant's version of the events in question, it did not accept that the Russian authorities would not have protected her had she sought their protection. This finding was not challenged. Thus, even if, contrary to the primary Judge's view and our view, there was an error in the fact finding of the Tribunal vulnerable to attack under s 476 of the Act, there was an independent ground for the conclusion of the Tribunal such that no order would or should be made setting aside the decision of the Tribunal under s 481 of the Act. 18 The primary Judge was of the view that there had been no error of law demonstrated, whether within subs 476(1) of the Act or otherwise. We agree with him. The matters about which the appellant complains are factual matters. 19 It was not the function of the primary Judge, and it is not the function of the Court on appeal from the primary Judge, to rehear questions of fact unless the fact finding process has been infected by an error under s 476 of the Act. No such error has been demonstrated before us. None was demonstrated before the primary Judge. 20 The appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren, Finkelstein and Allsop JJ. Associate: Dated: 24 May 2002 The appellant appeared in person (with an interpreter). Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: Sparke Helmore Date of Hearing: 23 May 2002 Date of Judgment: 24 May 2002