Applicants S276 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215

FEDERAL COURT OF AUSTRALIA

Applicants S276 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215

MIGRATION – whether the decision of the Refugee Review Tribunal has been shown to have been illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 – cited APPLICANTS S276 OF 2002 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 537 OF 2004 BEAUMONT, MERKEL AND HELY JJ 16 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 537 OF 2004

BETWEEN: APPLICANTS S276 OF 2002

APPELLANTS

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, MERKEL AND HELY JJ

DATE OF ORDER: 16 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT 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 537 OF 2004

BETWEEN: APPLICANTS S276 OF 2002

APPELLANTS

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, MERKEL AND HELY JJ

DATE: 16 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The present matter has a litigious history. The appellants, a husband, his wife and their daughter are citizens of the Russian Federation. After their applications for protection visas were refused by a delegate of the respondent ("the Minister") they applied to the Refugee Review Tribunal ("the RRT") to review the delegate's decision. The RRT affirmed the delegate's decision. 2 The appellants applied unsuccessfully under the now repealed Pt 8 of the Migration Act 1958 (Cth) to Sackville J to review the decision of the RRT (see [2001] FCA 1524). Subsequently, the appellants applied unsuccessfully to Emmett J ([2002] FCA 724) and then to Tamberlin J ([2002] FCA 944) to extend the time within which they may appeal from the orders of Sackville J dismissing their application to review the decision of the RRT. The male appellant then applied in the High Court for an order nisi under s 75(v) of the Constitution for declaratory relief to the effect that the RRT's decision is null and void and for a writ of mandamus directing the RRT to hear and determine his application for the grant of a protection visa. The application was remitted to the Federal Court and came on for hearing before the primary judge (Jacobson J). His Honour appeared to treat the application as being made by all of the appellants and stated that, at the request of the Minister and counsel for the appellants, he would proceed to a final hearing so that his orders "are final rather than interlocutory". 3 The application to the primary judge concerned the claim of the male appellant to be entitled to a protection visa on the ground that he has a well-founded fear of political persecution if he returned to his country of nationality, the Russian Federation. The claims of the male appellant's wife and daughter were dependant on the success of the male appellant's claim. 4 The facts upon which the male appellant's claim was based, which were generally accepted by the RRT, were summarised in the written submissions of his counsel as follows: "The appellant claimed that he was employed as the General Director of TVT Company Ltd (St Petersburg). TVT was owned by Mr Kim. Mr Kim had strong links inside the Russian Government including links to the immediate entourage of President Yeltsin. In February 1999 the appellant became aware that TVT funds were being directed, by Mr Kim, to support the political campaign of Mr Serdyukov, Vice-Governor of the Leningrad region. In February 1999 Mr Kim warned the appellant to keep out of things that had nothing to do with him and (Mr Kim) said 'in a sinister way that a person could only leave him by dying'. In March 1999 the appellant (together with the Executive Director) leaked information to the Tax Department about purported breaches of the taxation law by the TVT Company Ltd in relation to funding 'political forces of St Petersburg and Leningard Region'. Shortly after, the appellant was informed by Mr Kim that the Chief of Taxation Police was a friend of Mr Kim's and the Chief had provided documents to Mr Kim which, Mr Kim said, disclosed information which could only be known to the applicant or the Executive Director. Mr Kim threatened retribution (the applicant 'should wish he were never born') if he came to know who had provided the information. … As a result of the above matters, the appellant became concerned for the safety of his wife and daughter and made plans to flee Russia. The appellant and his family fled Russia in September 1999." 5 The issue agitated by the appellants before the primary judge, and agitated by them again on the appeal, concerns the manner in which the RRT arrived at its conclusion that it was not satisfied that the male appellant had a well-founded fear of persecution. Counsel for the appellants challenged the RRT's finding that it did not accept that the male appellant faced a risk of harm on his return to Russia because nothing adverse was done to him from the time he divulged the information in question (accepting that in or about March 1999 Mr Kim suspected that the male appellant played a role in divulging that information) and the time he fled Russia in September 1999. The particular finding sought to be impugned was the RRT's finding that "if these powerful people had a serious interest in harming the applicant or getting rid of him, they would have done so soon after they learned of his actions" and, accordingly, that "[i]t makes no sense that they would wish to harm him on his return, when they did nothing to him over the six months before he left". 6 Counsel for the appellants contended that there is no logical ground or supporting probative material on the basis of which the RRT was entitled to make that finding. On the contrary, it was argued that the evidence supports the male appellant's explanation that retribution may have been stayed until after the elections scheduled for October 1999. Thus, so it was argued, there was illogicality in the decision-making process amounting to a failure to exercise jurisdiction. 7 In the present appeal it is unnecessary for the Court to consider the circumstances in which illogicality might found a basis of review for jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 ("S20") at 61-62 [8]-[9] per Gleeson CJ, at 67 [37] and 71-72 [54]-[55] per McHugh and Gummow JJ and 77 [81], 85 [116], 88-90 [131], [132] and [138] per Kirby J. It is sufficient for present purposes to state that for such a ground to be capable of being made out it must, at the least, be shown that the process of reasoning leading to the decision sought to be impugned was illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds: see S20 at 71 [52], 89-90 [138] and 98 [173]. 8 At the outset it is appropriate to consider the context in which the particular finding sought to be impugned was made. The male appellant's fear was that because his actions against Kim had potentially serious repercussions for politically powerful people like Serdyukov, who would have also been exposed, any one of those persons would have a serious interest in harming the male appellant if he returned to Russia. In that context one of the issues the RRT addressed was whether there was a risk of such harm occurring when no adverse action was taken against the male appellant in the period between March 1999 (when his role was suspected) and September 1999 when he left Russia. On that issue the RRT stated: "When asked at hearing why he thought he was not actually harmed or mistreated by the authorities after the incident in February 1999 and before he left Russia in September 1999, the applicant said that it is difficult to answer that question. He referred to the elections in October 1999 and suggested that as he had become important he suspects the authorities were waiting until after the election to act against him. He offered no other explanation. He said he did not know the criteria they follow, but he received an important warning and managed to escape in time. The Tribunal does not find this explanation very convincing. The applicant was called to meetings with Kim first in February 1999 when he was warned to keep out of things that were not his business. The applicant leaked the information in late March 1999, and one week later he was called to another serious meeting with Kim. By them Kim apparently knew about his actions. The applicant was told of Kim's discussions with the Head of Taxation, and Kim is said to have warned the applicant that he should wish he had never been born if he was responsible for the leak. The Tribunal accepts this account of what happened, and that in a general sense Kim warned the applicant and let him know clearly of his powerful political and other connections. However apart from serious warning no further action was taken against the applicant by Kim, or Serdyukov, or people linked to them or acting on their behalf. In the Tribunal's view, if these powerful people had a serious interest in harming the applicant or getting rid of him, they would have done so soon after they learned of his actions. The applicant did not leave Russia until September 1999 almost six months later, and he lived at the same address during that time and despite his concerns continued to work for Kim. In the Tribunal's view the fact the applicant was not harmed further by those he feared over these months suggests strongly that they had no serious interest in doing so. It makes no sense that they would wish to harm him on his return, when they did nothing to him over the six months before he left. The Tribunal is not satisfied that this warning the applicant was given was sufficiently serious, either on his own or together with the other circumstances accepted by the Tribunal, to now give rise to a well-founded fear of persecution if the applicant return to Russia." 9 The RRT's "it make no sense" finding was merely an emphatic statement by it that it did not accept that the persons who may have had reason to harm the male appellant while in Russia would wish to do so on his return, when they did nothing to him in the six months before he left. The primary Judge was correct in stating that the RRT did not make a finding that there was no other possible explanation for the absence of adverse action against the male appellant in the six months between February to September 1999. Rather, as counsel for the Minister submitted, correctly in our view, the RRT proceeded on the basis that it was open to it to either accept or reject the male appellant's explanation as to why he was not harmed in the six months from February 1999 to September 1999. When the RRT rejected the male appellant's explanation it was plainly open to it to infer that the absence of such harm meant that there was no ongoing intention to inflict it. 10 The RRT's finding was also supported by the fact that the male appellant was unable to say why no action was taken against him before he left Russia and could go no further than state that because he had "become important" he suspected "the authorities were waiting until after the election to act against him". The male appellant did not proffer any other factual basis for his "explanation", which the RRT did not find to be "very convincing". 11 It must follow that the appellants have not established that the RRT fell into error in its fact-finding task of assessing the past in order to predict the future. Accordingly, the primary judge was correct in rejecting the appellants' submission that the "it makes no sense" finding sought to be impugned was tainted by lack of probative material or logical grounds. In those circumstances the appellants cannot succeed on their appeal. 12 In any event, the finding sought to be impugned cannot be considered alone. It was merely one of the RRT's findings that led it to conclude that it was not satisfied that the male appellant had a well-founded fear of persecution. The other findings, which we summarise below, were probative of the issue to which they were directed, which was whether the RRT was satisfied that the male appellant had a well-founded fear of persecution if he returned to Russia. 13 The other findings made by the RRT in support of its conclusion are: · the release by the police of TVT's Executive Director after being held for a short period, if true, suggests that neither the authorities or powerful people had a continuing interest in the executive director; · the RRT did not accept that the police visited the male appellant's family members shortly after he left Russia because it did not accept they would have waited until after the male appellant had left Russia before making such visits; · independent country evidence does not support the male appellant's claim that he faces persecution in Russia "because of the particular low-level actions he took in support of democracy"; · the evidence is that the authorities had no special interest in the male appellant when he departed Russia through the airport in September 1999 without any problems at all; · the fact that the male appellant did not apply for refugee status in Finland or in Holland, which he visited after Kim's warning to him, casts serious doubt on his claim that he had a well-founded fear of persecution for a Convention reason when he left Russia in September 1999. 14 The RRT relied on all of the above findings, which included adverse findings as to credit, to conclude that the male appellant's fear of persecution is not well-founded and that it was therefore unnecessary for it to consider whether the fear was held for a Convention reason. Each of the above findings was open on the evidence before the RRT and was not arrived at illogically or irrationally. Thus even if, contrary to our view, there was some illogicality by the RRT in relation to one finding it does not follow that that has resulted in the decision it reached being tainted in a manner that amounts to jurisdictional error. In view of our conclusion that there was no illogicality we need not further pursue that matter. 15 In the circumstances it is also unnecessary to consider whether res judicata, issue estoppel, Anshun estoppel and abuse of process preclude the appellants from succeeding on their appeal in any event. 16 For the above reasons the appeal is to be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court