NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

FEDERAL COURT OF AUSTRALIA

NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Migration Act 1958 (Cth) s 36(2) SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 NADR of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N481 of 2003 HEEREY, RD NICHOLSON and SELWAY JJ 7 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N481 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NADR OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY, RD NICHOLSON and SELWAY JJ

DATE OF ORDER: 7 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed 2. The appellant pay the respondent's costs of the appeal. 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 N481 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NADR OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY, RD NICHOLSON and SELWAY JJ

DATE: 7 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 At the hearing we announced the appeal would be dismissed with reasons to be delivered later. These are our reasons. 2 This is an appeal from a decision of a primary judge (Wilcox J) dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of a delegate of the respondent to refuse to grant the appellant a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) ('the Act'): NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 312. 3 The Tribunal accepted that the appellant is a citizen of Ukraine. His claim was that he had well-founded fear of being persecuted for reason of his political opinion: Article 1A(2) of the Convention relating to Refugees as amended by the Refugees Protocol. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Convention. 4 The foundation for the fear claimed by the appellant was his membership of a political party. He claimed to have taken two steps within the party which had led to persecution by the state acting through police officers on behalf of the party. The first was in 1996 when he had complained to the party's central committee about corrupt activities of a political leader . The second was that he had written a report at the end of 2000 about party funds being used to buy votes. He claimed that this conduct had resulted in him suffering persecution. The first such occasion was in January 1997 when he was beaten by unknown assailants, following which he moved away to another part of his country. The second was in October 2001. The third comprised some 10-20 occasions thereafter where he was further assaulted. He claimed that his assailants had been hired killers and, in the case of the second occasion, police officers. He also claimed that in November 2001 his wife was the victim of a car crash which had been an attempt on her life. 5 The reason the Tribunal affirmed the decision of the delegate was that it did not believe the appellant. Its reasons for not doing so were that there were inconsistencies in his evidence; he had not explained why he had not applied for protection in countries he had visited en route to Australia; and there was no independent evidence which supported the appellant's claims. In particular there was not any independent information that the police assisted members of the political party to harass or attack their members or that hired thugs were associated with the police. Furthermore there was nothing to suggest that the government condoned the conduct alleged or was unable or unwilling to provide effective protection against harm inflicted on members or supporters of the political party. In particular, the evidence which was available related to politicians, journalists and influential business people and the appellant was not in any of those categories. In any event the Tribunal did not accept that the evidence before it could establish that the police were complicit as alleged. 6 The primary judge found that the essence of the case argued before him was that the Tribunal should have found the facts differently. He also rejected a contention that there had been any failure of proper investigation, characterising that complaint as one that the Tribunal member did not ask more questions than she did. His Honour also rejected a late claim of bias in the Tribunal member for which there were no proper ground advanced: SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19]. He did not see any issue arising from the Tribunal member's decision not to go to his arrival interview tape. He found no basis for saying the Tribunal had fallen into jurisdictional error. In particular, there was no reason why the Tribunal should have gone more precisely into the circumstances of the assaults or his wife's alleged accident. 7 The notice of appeal seeks to re-agitate each of the conclusions of the primary judge. 8 The first ground was that the primary judge erred in rejecting further evidence. This evidence was again tendered before us. It comprised affidavits from the appellant, Mr Dalton, Dr Davies and Mr Lin. It was accepted for the appellant that no application had been made to the Tribunal to tender this material. It was intended to use the material, if admitted, to support an argument on behalf of the appellant that it had been in error because it had not considered the matters now sought to be raised by this evidence. Given that there had been both the opportunity for oral submissions and a reserved opportunity for subsequent written submissions before the Tribunal, we refused leave for the admission of the evidence. We also refused leave to admit the affidavit of Dr Koscharsky which had not been among the evidence in respect of which admission had been sought before the primary judge. 9 The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. 10 The Tribunal's credibility finding was based on several elements comprising what the Tribunal characterised as inconsistencies in his evidence. These related to his explanations for not having sought protection in other countries he had visited en route to Australia; his evidence concerning a visit to Bulgaria; and his evidence concerning the 10 to 20 assaults upon him. In relation to the second of these elements the appellant had stated in his protection visa application that he had travelled to Bulgaria in May 2001. In oral testimony he stated it was his wife who visited Bulgaria. Counsel for the appellant, without prior notice, sought to move the Court on this appeal for leave to introduce a further ground of appeal to the effect that the Tribunal had denied the appellant procedural fairness in not putting to him that there was an inconsistency concerning the evidence on his visit to Bulgaria. We refused leave on the ground that the inconsistency was obvious and was not of the character which would have given rise to issues of the application of the concept of procedural fairness and so was unmeritorious. 11 There were no submissions to support the third ground that the primary judge erred in rejecting the claim of bias by the Tribunal nor any other reason for us to disagree with the reasoning of the primary judge on this issue. 12 The fourth ground of appeal was that the primary judge erred in not finding error of law in the Tribunal's findings concerning the applicant's failure to apply for asylum elsewhere and the weight given to it. This is an impermissible ground because it seeks to have this Court engage in merits review. 13 The fifth ground, that the primary judge erred in finding there was no failure by the Tribunal to carry out a proper investigation, was not argued in those terms and there is no reason for us not to accept the reasoning of the primary judge. 14 The sixth ground challenged the finding of the primary judge that the Tribunal did not need to have dealt in greater detail with the motor vehicle assault on the applicant's wife. In its reasoning on this issue the Tribunal noted the medical reports that she had been hit and her injury occurred as a result of a traffic accident. The submission for the appellant was that in considering this matter, the Tribunal had not taken into account the appellant had been in hiding when the attack on his wife occurred so that the attack should be seen as part of a systematic attack upon him; in short, that the attacks on he and his wife were linked and so part of persecution. To properly consider this submission we admitted into evidence an attachment to a letter which was in the appeal book and which apparently had been omitted from the papers before the primary judge, although the fact of its receipt was not admitted. The attachment, being a report on the case concerning the wife's traffic accident, stated that she had been hit 'by an unknown car carrying four unknown persons.' It also stated 'the unknown person tried to run her over three times….'. In its reasons the Tribunal concluded that it was not satisfied that the injuries outlined in the medical reports, which included the reports on the appellant's wife, evidenced that assaults on the appellant and his wife were because of his political opinion. Further it stated there was not any independent information to suggest that the police assisted leaders of the political party to harass or attack members of that party or that the thugs were associated with the police. There is nothing in the attachment which could have led to a different conclusion. The primary judge was correct in his view that there was no reason for further inquiry into the details of the wife's motor vehicle accident. 15 The final ground of appeal was directed to the failure of the primary judge to find error in the Tribunal's findings on the non-existence of independent country information which would support the matters put forward by the appellant. To support this, counsel for the appellant sought to reopen the question of the admission of the affidavit of Dr Koscharsky. The submission came down to the contention that the Tribunal should have known that Dr Koscharsky may have expressed a contrary view. To so express it makes apparent why we did not reopen the refusal of leave previously made. Given the opportunity for the appellant to present oral and subsequent written submissions on this issue in particular (it having been expressly identified by the Tribunal member as a problem), there is no basis upon which any error can be found in the reasoning of the primary judge in relation to it. 16 For these reasons we dismissed the appeal with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, RD Nicholson and Selway.