FEDERAL COURT OF AUSTRALIA NADO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 169 MIGRATION – appeal from a decision of a primary judge affirming decision of Refugee Review Tribunal – whether jurisdictional error existed in the decision of the Refugee Review Tribunal Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 36(2), 91R, 91R(2) NADO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 448 OF 2003 FRENCH, SACKVILLE & HELY JJ 8 AUGUST 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 448 OF 2003 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADO APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH, SACKVILLE & HELY JJ DATE OF ORDER: 8 AUGUST 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with 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 448 OF 2003 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADO APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH, SACKVILLE & HELY JJ DATE: 8 AUGUST 2003 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of a judge of this Court which dismissed an application by the appellant under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal ('the RRT') made on 15 October 2002. By that decision, the RRT affirmed a decision of the Minister's delegate not to grant a protection visa to the appellant. 2 The appellant is a national of Russia and a homosexual. He claimed to fear persecution in Russia by reason of his homosexuality. The RRT accepted that, as a Russian homosexual, the appellant was a member of a 'particular social group' for the purpose of the Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees ('the Convention'). However, the RRT found that the appellant's claimed fear of persecution was not genuine, and it was not satisfied that the appellant's fear of Convention-related persecution were well-founded. The RRT was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention. Therefore the appellant did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) ('the Act') for a protection visa. The proceedings at first instance 3 Before the primary judge, the appellant claimed that the RRT had exceeded its jurisdiction and erred in law in arriving at its decision. Neither the application, nor the affidavit in support, identified the grounds on which the appellant relied, and despite directions that written submissions be provided by the parties in advance of the hearing, written submissions were not provided by the appellant. However, at the hearing the appellant tendered a letter to him from a barrister who had been appointed pursuant to a migration legal advice scheme. The letter advised that there were two arguable jurisdictional errors, being that: (a) the RRT did not address the possibility of economic persecution in the form of repeated termination of employment or demotion; and (b) the RRT failed to apply itself to the real question on the issue. 4 The primary judge found that neither of the conceivable jurisdictional errors identified by counsel provided the appellant with a credible or otherwise viable basis for review of the RRT's decision because they did not have any 'persuasive footing' in the light of the evidentiary findings of the RRT. The primary judge addressed and rejected other submissions put by the appellant, but it is not necessary in order to dispose of this appeal to summarise the primary judge's treatment of all of those matters. 5 The primary judge noted that the appellant's presentation of his case for refugee status has undergone a progression of changed or modified testimonies since the application was originally lodged, in apparent tandem with the appellant's perception as to what might best advance his prospects for qualification as a refugee. The grounds of appeal 6 The Notice of Appeal contains three grounds: '2. His Honour erred in his rejection or failure to give sufficient consideration to the submission that in the premises, the internalisation of my homosexuality, should be regarded as a condition amounting over time to persecution. 3. His Honour failed to give sufficient consideration to the likelihood of persecution arising from the probability that if I were to return to my country of origin, and am able to secure employment that I am likely to face repeated termination or demotion of employment, due to employer perceptions of my homosexuality. 4. His Honour did not recognise the error of law on the part of the Refugee Review Tribunal in its finding that the assault on me by the police shortly before my departure from Russia was not Convention related, and/or motivated by police perceptions as to my homosexuality.' The appellant elaborated upon these grounds of appeal in a document styled 'Applicant's Outline of Submissions' filed with the Court on 4 August 2003. Ground 2 7 The internalisation of the appellant's homosexuality was referred to by the RRT in the following passage: '… it is understandable that a well-founded sense of social stigma might make him prefer to keep his sexuality generally to himself and that this may cause him stress. Still, such stress as might arise from internalisation of this aspect of his identity cannot reasonably be regarded as a condition amounting, even over time, to actual "persecution" by others for reasons of something perceived by them about him.' 8 Before the primary judge, the appellant submitted that the RRT only considered physical harm. The primary judge held, correctly, that the RRT did take into account what might be described as the appellant's claim of non-physical harm, but did not think that it was serious enough to amount relevantly to persecution. 9 It is clear from the passage which we have quoted that the RRT did take into account the appellant's claim in this respect and no error, let alone a jurisdictional error, has been established in relation to the RRT's treatment of this claim. 10 The Notice of Appeal assumes that it was the primary judge's function to engage in a merits review, and to consider afresh the appellant's claims about the internalisation of his homosexuality amounting to persecution. That was not the primary judge's function. This ground of appeal fails. Ground 3 11 The appellant completed his university degree in 1985. His application for a protection visa asserts that his employment history thereafter was as follows: - September 1985 – September 1986: Teacher; - September 1986 – April 1988:Engineer; - April 1988 – April 1989: Engineer; - April 1989 – June 1994: Engineer (Primorskgidromet); and - September 1994 – January 1999: Fitter (Primorskgidromet). 12 In a declaration lodged in support of his application for a protection visa, the appellant asserted that his demotion to the position of fitter in 1994 occurred as a result of a vigorous campaign of humiliation targeted at his dismissal, because his secret life as a homosexual became known at his place of work. 13 The RRT, in its discussion of the applicable legislation, adverted to the provisions of s 91R of the Act to the effect that persecution must involve 'serious harm' to the appellant, and systematic and discriminatory conduct. The RRT noted that the expression 'serious harm' includes, amongst other things, significant economic hardship or denial of capacity to earn a livelihood, where such hardship or denial threatens the appellant's capacity to subsist: s 91R(2) of the Act. 14 In the course of its reasons for decision the RRT noted that the appellant had managed to stay with the same employer for over a decade before coming to Australia [AB 99]. The RRT's findings include the following [AB 107]: 'The Applicant's evidence strongly supports the impression that his membership of this group [ie homosexuals] is either not obvious or not of interest to the majority of the population around him most of the time, or both, in spite of it evidently having got him off on a poor footing at school and university, and making him feel a degree of shame in his formative years under Soviet laws and codes. Particularly in recent years, the Applicant has enjoyed continuity of domicile and income, living at the same home and working with the same employer for several years. By his own evidence, his sexuality was known to his family, for whom it is not a serious issue, his neighbours, his employers and his colleagues, and, all the while, the instances of actual harm towards him that are attributable by him to knowledge of his sexuality have been few in number, isolated over time, and highly individualised. At the same time there is no evidence of the authorities condoning or encouraging such treatment of him. There is certainly no evidence of knowledge of the Applicant's sexuality leading to anything that could be called sustained or systemic harm towards him.' 15 When the matter came before the primary judge, the appellant tendered as 'Exhibit 2' a handwritten document which included the following: 'The work I was ultimately forced to do was manifestly incompatible with my occupational training. The Tribunal had a [sic] reasonable evidence of how I was repeatedly forced to change jobs and was demoted once my sexuality became known. This was not addressed in an appropriately serious way by the Tribunal.' 16 The appellant put the following submission to the primary judge: 'As soon as … my office found I am a homosexual I was fired. I was consequently forced to leave or they just fired me under various pretexts – under various official pretexts. As a result I was forced to take up a very low paid job which did not correspond to my qualification. Wasn't up to my qualification and my education … it was difficult to find any job whatsoever. So I had nothing else but stay – keep that low paid job. According to the Convention this also must be considered as harm inflicted on me. That was happening over a long period of time … constantly.' 17 Exhibit 2 was not before the RRT. The primary judge observed, correctly, that one could not identify the submission quoted above as falling within the scope of the narrative of events set out by the RRT in its reasons for decision. It is true that in his declaration accompanying his application for a protection visa, the appellant asserted that his demotion to fitter in 1994 was by reason of his homosexuality. But it is clear that the RRT considered the appellant's economic circumstances referable to his employment. It is also clear from the passage which we have quoted above that the RRT did not regard those circumstances as amounting to persecution, particularly having regard to the provisions of s 91R. The appellant, on his own claims, was employed by the one employer for the decade preceding his departure from Russia. 18 No error, let alone a jurisdictional error, arises in relation to the RRT's treatment of this claim. It was not the function of the primary judge to engage in a merits review of this claim. This ground of appeal fails. Ground 4 19 One of the principal matters on which the appellant relied in the proceedings before the RRT was that in about October 1998 he was attacked by one of his neighbours for reason of his homosexuality. He complained to the police who questioned his neighbour about the incident. The appellant went back to the police and complained about their lack of follow-up. The police became threatening towards him, and on the appellant's story, they beat him up. The appellant then lodged a complaint about the unlawful acts of the police with the public prosecutor's office. During an interview with the public prosecutor's office, he was informed that the police were acting lawfully. He was accused of slander and advised to take his statement back, otherwise a criminal case would be levied against him. 20 After the hearing before the RRT, the appellant embellished these complaints in two respects. First, he claimed that he was forced to perform or told that he would have to engage in oral sex with one of the police officers and threatened with an immediate spell behind bars with criminal detainees where he would have been sexually victimised further by fellow inmates. The RRT expressed concern that the appellant did not mention this new claim during previous opportunities. Second, the appellant contended that his interview at the public prosecutor's office was a period of 'detention' and he produced a translation of a purported document ostensibly certifying the appellant's 'detention' by the authorities for three hours on 20 October 1998. The RRT did not accept that this was a genuine document. There appears to be some confusion as to whether the alleged detention was in the police station, or the prosecutor's office, but nothing turns on this. 21 The RRT's finding in relation to this claim is as follows: 'The Applicant's evidence of what happened in 1998, the episode that supposedly motivated his flight to Australia, shows only that the police did not like being told they had failed to bring his complaint to a conclusion that he liked. He asserted to the Tribunal that he may have been a little vehement in his complaint to the police. His evidence showed that the police responded to him, albeit in a short-lived manner, they way they are reportedly wont to do to any people who cross or criticise them, criminal or innocent. For a number of reasons, the Tribunal has serious problems with the quality of the evidence about the beating from the neighbour or, more particularly, about what supposedly followed, at the police station and in the hands of the internal affairs officers, but in any event, the Tribunal finds that the harm the Applicant claims to have received from the authorities after the claimed beating by the neighbour was not Convention-related. It is sufficiently clear from his evidence that they did not harm him because he was "homosexual", ie, something that he is, but because at two discrete stages, in the police station and at the office of internal affairs, they took poorly to his criticism of their approach to an "individual" complaint, ie something that he is perceived to have "done".' 22 The Tribunal found that nothing of a significant note occurred to the appellant after the claimed events of October 1998, although he remained in the same home, job and city for several months after the interview. This suggested to the RRT that the police had no interest in persecuting the appellant or, at the very least, in continuing to persecute him for reasons of his homosexuality, whether they were aware of it or not, for they left him alone for all those months. 23 The decision to which the RRT came in this respect was a decision with respect to a matter of fact. It was for the RRT to decide whether or not to accept the appellant's claims, and it was influenced in its decision by its assessment of the credibility of the appellant as a witness. The RRT was of the view that it could not rely on elements of the appellant's evidence, and that he exaggerated his situation. In relation to the particular incident now under consideration, the RRT said: 'The Tribunal has come to the same conclusion about the degree of degradation the Applicant claims to have received when the police supposedly beat him. The Tribunal also regards this as an improvised revision, but, in any event, stresses that it was an isolated incident even taken at face value, the whole assault on him was an isolated incident that occurred not for reasons of the Applicant's sexuality but for reasons of his daring to confront and complain.' 24 It is true that in the appellant's original declaration he said that when he visited the police station to make an enquiry about his complaint, he was beaten by the policemen, but his assertions in relation to oral sex were made for the first time in a letter of 5 September 2002. 25 The primary judge correctly concluded that the RRT's decision in this respect was a decision on a question of fact which was not 'realistically susceptible' to being set aside. This ground of appeal fails for that reason. Other matters 26 In the appellant's outline of submissions, other matters are referred to which fall outside the grounds of appeal. Nonetheless we shall deal with them or some of them, albeit briefly. The appellant submits that the RRT failed to apply itself to 'the real question on the issue of what is the persecution in my case'. The essence of this claim is said to be that the appellant's core human rights described in the International Covenant on Civil and Political Rights have not been protected. The rights which the appellant asserts include: - a right to equal protection; - a protection of personal privacy and integrity; - the right to internal movement and choice of residence. Whilst this is not being restricted on the basis of the appellant's sexuality his contention is that because of the situation in Vladivostok pertaining to homosexuals, it compounds the persecution and closes off an escape; and - liberty of expression, assembly and association. This appears to be the second of the issues identified in the barrister's advice referred to above. There are at least two answers to the appellant's submission in this respect. First, the appellant did not rely upon this matter before the RRT. The persecution which the appellant told the RRT he feared was violence at the hands of the police or others against which the State was unwilling to protect him. Second, the appellant did not satisfy the RRT that he had a well-founded fear of persecution involving serious harm and systematic and discriminatory conduct. Any failure to protect the appellant's 'core human rights', assuming it to have occurred, would not amount to persecution unless the requirements of s 91R were satisfied. 27 A number of miscellaneous complaints are made about the RRT's decision and that of the primary judge which we do not propose to recount. None of them comes anywhere near establishing jurisdictional error on the part of the RRT, or appellable error on the part of the primary judge. 28 Finally, we should record that in addition to specific criticisms which the RRT made in relation to the appellant's credibility, the RRT found that the appellant had demonstrated a pattern of behaviour which was highly inconsistent with what one would reasonably expect to be the actions of a person who came to Australia to seek protection with a fellow asylum seeker, or of a person who, all the while, believed in his own heart and mind that serious harm or persecution would be unavoidable back in Russia. The appellant claimed to be such a person. That finding added to the RRT's view that the appellant's claim to fear of persecution was not genuine. Clearly, that was a matter which the RRT was entitled to take into account and which influenced its factual conclusions. 29 In his oral submissions to this Court the only claim made by the appellant was that the RRT had failed to take account of the fact that he had been dismissed from a number of positions. His own submissions made it clear that this claim had not been put to the RRT. Moreover, it is difficult to reconcile this with his employment history set out in par [11] above. Conclusion 30 The appeal is dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 8 August 2003 Appellant appeared in person Counsel for the Respondent: Mr M Wigney Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 August 2003 Date of Judgment: 8 August 2003