FEDERAL COURT OF AUSTRALIA NAAK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 160 NAAK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 12 OF 2002 HEEREY, LINDGREN AND MERKEL JJ 30 MAY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 12 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAAK APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY, LINDGREN AND MERKEL JJ DATE OF ORDER: 30 MAY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appellant have leave to file in Court, and to rely upon, an amended notice of appeal. 2. The appeal be dismissed. 3. 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 N 12 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAAK APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY, LINDGREN AND MERKEL JJ DATE: 30 MAY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT INTRODUCTION 1 The appellant appeals from a decision of a Judge of the Court dismissing with costs his application for review of the decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had dismissed his application for review of a decision of a delegate of the respondent, the Minister for Immigration & Multicultural Affairs, ("the Delegate" and "the Minister" respectively) by which the Tribunal affirmed the Delegate's decision not to grant the appellant a protection visa. The appellant was born in Vladivostok and is a citizen of the Russian Federation. His claim was that he had a well-founded fear of persecution in Russia because he is Jewish. background facts 2 The appellant was born on 25 March 1965. He visited Australia on three occasions prior to his latest arrival. Those three occasions were as follows: Arrival: 11 August 1996 Departure: 23 May 1997 Arrival: 15 October 1997 Departure: 27 April 1998 Arrival: 14 September 1998 Departure: 26 November 1998 3 The appellant claimed that in the summer of 1997, after coming back from Australia in late May of that year, he initiated inquiries at the Israeli Consulate in Moscow seeking information about migrating to Israel. He said that someone must have found out that he was a Jew, because one night at the end of June 1998 he received a threatening telephone call and a few days later someone spilled acid, or something similar, on his car's bonnet and punctured the car's tyres. After that, according to his claim, he found anti-Semitic leaflets in his mailbox, although he could not be certain whether they were directed specifically to him or were part of a mass campaign. Nonetheless, having read them, he became afraid. Some time later, residents in the building where he lived received a list of "enemies of Russia" living in the building which included three surnames, including that of the appellant. The list commenced: "Russian people! The time of getting Russia rid of Zionist filth is coming. Beware of and know how to recognise your enemies!" 4 The Tribunal accepted the appellant's claim that the events recounted above occurred, but did not accept that, considered individually or as a series, they amounted to harm serious enough to constitute "persecution" for the purposes of the definition of "refugee" in Art 1A(2) of the 1951 Convention Relating to the Status of Refugees as "amended" by the 1967 Protocol Relating to the Status of Refugees (together, "the Convention"). 5 The appellant claimed that in July 1998, a garage leased by the appellant's employer was set on fire. The employer was the "Gold Fish Company". The company's chief executive officer, Mr Makarov, told the appellant that the incident was "a second warning" from an unknown person who urged the company to employ Russians, not Jews. According to the appellant, Mr Makarov was forced to require him to take an unpaid vacation until further notice without any compensation. 6 The Tribunal said there was no evidence, and it was not satisfied, that the arson attack was directed at the appellant or that it was committed for a Convention reason. Additionally, the Tribunal was not satisfied that the arson attack constituted harm amounting to persecution suffered by the appellant. 7 The appellant claimed that commencing at the beginning of August 1998 there was, at the instigation of the company that insured the garage, an investigation in relation to the arson attack. One week later the appellant was interviewed. He told the investigator, who was "with the police", about the "second warning" received by Mr Makarov, and suggested that the arson was connected with the anti-Semitic actions directed at him. But the investigator suggested that the appellant himself had committed the crime and the investigator made anti-Semitic remarks. Indeed, the appellant claimed that he (the appellant) became the "main suspect" in the investigation. He said he became free of suspicion only when the insurance company convinced the investigator that the arson would not have benefited the appellant because he had no interest in the company. 8 The Tribunal accepted that the investigator may have dismissed the appellant's "unfounded suppositions based solely on a series, over a few days, of anonymous anti-Semitic insults and threats at the [appellant's] home". The Tribunal also accepted that the investigator may have dismissed the appellant's suspicions in a manner which the appellant found insulting and that the investigator may have made anti-Semitic remarks in that context. However, the Tribunal was not satisfied either that the arson was directed at the appellant or that the investigator failed to perform an obligation to provide him with adequate protection in relation to the anonymous threats. The Tribunal remarked that the provision of such protection was not within the investigator's responsibility and that the appellant had failed to approach the appropriate authorities. 9 In September 1998, the appellant commenced a proceeding in a court for compensation "for moral and financial damages suffered by [him] and caused by the law-enforcement authorities of Vladivostok". He said that after lodging the claim, he travelled to Australia but "had to return because the court hearing was fixed for December and [he] had to attend it in person (the hearing was postponed and fixed for January)". (As noted earlier, having arrived in Australia on 14 September 1998, the appellant did indeed return to Russia on 26 November 1998.) The Russian court found that the actions of the police were in compliance with the law and on 21 January 1999 dismissed the appellant's case and ordered him to pay costs (which he has not yet paid). 10 The appellant claimed that a few days after the court decision, he received another threatening phone call, this time at his mother's house where he had re-registered his residence after returning from Australia. He said he decided to flee Russia but, because he had no money and no employment, he could not do so until February 1999. He claimed that he was afraid to stay at his house and instead stayed in the countryside at his grandmother's house. He also said that his grandmother's house had "mysteriously" burned down six months prior to the arson incident and had only been rebuilt in December 1998. 11 The appellant's new passport was issued on 4 January 1999 and was valid until 4 January 2004. On 13 February 1999 the appellant departed Russia and on 17 February 1999 he arrived in Australia on a student visa which was to expire on 15 March 1999. On 12 March 1999 he applied for a protection visa and provided a statement of that date in support. On 4 May 1999 the Delegate refused the application for the protection visa. On 26 May 1999 the appellant applied to the Tribunal for review of the Delegate's decision (the application to the Tribunal was accompanied by a letter, purporting to come from the appellant but in fact signed by his migration agent, addressing the reasons for refusal of the visa which had been given by the Delegate). 12 There was a hearing before the Tribunal on 24 July 2000. On 4 July 2001 the Tribunal made its decision to affirm the Delegate's decision. On 31 July 2001 the Tribunal handed down that decision and forwarded a copy to the appellant. the proceeding before the tribunal 13 In the course of recounting the background facts above, we have referred to the responses of the Tribunal to some of the appellant's claims. The Tribunal questioned the appellant about his claims. In his answers he elaborated on them. The Tribunal reviewed country information in relation to the position of Jews in Russia. As well, it reviewed the legal principles relevant to its task. 14 The Tribunal saw the appellant's claim to refugee status as resting on two broad categories of harm: first, the alleged series of anonymous threats and insults received at his home; and, secondly, the destruction by fire of his employer's garage and its sequelae, including termination of the applicant's employment by the Gold Fish Company. As noted above, the Tribunal accepted the appellant's evidence in relation to the anonymous telephone threats, anti-Semitic leaflets, list of "enemies of Russia", the splashing of his car with acid and puncturing of its tyres, and the single anonymous telephone threat shortly after the court decision in January 1999. However, the Tribunal did not accept that these incidents amounted to harm serious enough to constitute persecution within the meaning of the Convention. Moreover, the Tribunal was not satisfied that they were committed with the collusion of agents of the State or that the State was unable or unwilling to provide the appellant with effective protection. The Tribunal noted that the appellant had not sought protection from the Russian authorities, from which, the Tribunal found, "protection might reasonably have been forthcoming". 15 In relation to the arson attack and the events which the appellant alleged followed it, its sequelae, again we have referred to the Tribunal's treatment of those claims earlier. In addition to the matters already mentioned, the Tribunal noted that there was no suggestion that the appellant's court action failed for any Convention reason or that that failure demonstrated an absence of State protection. 16 Finally, the Tribunal thought that the appellant's loss of employment and suffering of an order for costs were not Convention-related harm and that neither circumstance was sufficiently serious to amount to persecution. The Tribunal noted that the appellant was a qualified tradesman who had worked in several enterprises other than those of the employer whose garage had burned down, and that he had not, by reason of his dismissal, been prevented from undertaking employment to support himself. the proceeding before the primary judge 17 Her Honour noted that the appellant's application for an order of review listed three grounds, namely, those referred to in s 476(1)(a), (c) and (g) of the Migration Act 1958 (Cth) ("the Act") but provided no particulars (the case is not affected by the amendments which were made to the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) as from 2 October 2001). Her Honour noted that the appellant's written submissions referred to the s 476(1)(e) ground (and to that ground alone). In this respect, the appellant submitted that the Tribunal had ignored the fact that the investigator had accused him of being a criminal and that, despite his proving his innocence, the investigation continued. The appellant's claim before her Honour was that the investigator's comments and attitude showed that he suspected the appellant because of his Jewish ethnicity. He claimed that, if he was returned to Russia, a case would be fabricated against him and he would be imprisoned. 18 Her Honour observed that this claim had not been made at any time prior to the hearing before her. 19 The primary Judge noted that the following were elements of the Tribunal's decision: "(a) the Tribunal did not think the incidents of which the [appellant] complained were sufficiently serious, either individually or as a series, to constitute persecution; (b) the Tribunal did not accept the acts were committed with the collusion of agents of the State; and (c) because the [appellant] had not sought State protection the Tribunal was not satisfied that the State was unable or unwilling to provide the [appellant] with effective protection." 20 Her Honour observed that the appellant did not challenge conclusion (a) above and, in the light of decided cases, could not have done so with any prospect of success. Her Honour also thought it had been open to the Tribunal to find, as it had done, that the appellant would receive effective governmental protection in Russia. 21 Finally, her Honour described the appellant's "real complaint about the Tribunal's decision" as a complaint relating to the weight that it had attached to independent country information and its rejection of the appellant's interpretation of the motivation behind the events which he had experienced. Her Honour said that review on this ground would involve "an impermissible trespass into the merits of the [appellant's] claim". conclusions on the appeal 22 On the hearing of the appeal, counsel for the appellant sought leave to file in Court, and to rely upon, an amended notice of appeal. The amended notice of appeal was based on the grounds referred to in s 476(1)(b), (c) and (e) of the Act. Counsel for the Minister indicated that she wished to reserve her position, and, if necessary, according to how the appellant's submissions developed, to be given the opportunity to make supplementary written submissions. We indicated that we would decide the appellant's application for leave to amend in the course of giving our reasons on the appeal itself. 23 We have heard the appellant's submissions on the appeal and have not found it necessary to call on the respondent. There is no prejudice to the respondent if we allow the appellant's application for leave to amend and we will do so. 24 We have considered carefully the written and oral submissions made by counsel for the appellant. We agree with the primary Judge that the appellant's complaint is one about the Tribunal's findings of fact, and, in particular, its finding that it was not satisfied that the arson attack was directed at the appellant or that it was committed for a Convention reason. This was a factual finding that was open to the Tribunal. 25 We also agree with her Honour that the appellant's complaint about the Tribunal's decision related to the weight the Tribunal attached to aspects of the evidence and other material before it – a matter which is quintessentially a question of fact for the Tribunal. 26 In any event, there is a further difficulty with the appellant's submissions. The Tribunal stated in the conclusion of its reasons for decision that even if the arson attack was directed at the appellant for a Convention reason, the resulting harm to the appellant was not sufficient to amount to persecution: it had not prevented him from obtaining other employment and the Tribunal implicitly found that there was not a real chance of recurrence of the same or similar circumstances. This finding was open to the Tribunal on the evidence. It constituted an independent basis for the Tribunal's conclusion that it was not satisfied that the appellant faced "a real chance of Convention-related persecution in Russia". 27 For the above reasons, we are not satisfied that her Honour erred in holding that the grounds relied upon by the appellant were not made out. conclusion 28 Leave to amend will be granted but the appeal will be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 3 June 2002 Counsel for the Appellant: Mr R W Killalea Solicitor for the Appellant: Ian D Graham & Associates Counsel for the Respondent: Ms N E Abadee Solicitor for the Respondent: Clayton Utz Date of Hearing: 30 May 2002 Date of Judgment: 30 May 2002