Egunova v Minister for Immigration & Multicultural Affairs [2001] FCA 1200

FEDERAL COURT OF AUSTRALIA

Egunova v Minister for Immigration & Multicultural Affairs [2001] FCA 1200

OLGA EGUNOVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1240 OF 2000 HILL J 26 JULY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1240 OF 2000

BETWEEN: OLGA EGUNOVA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 26 JULY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent Minister'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 1240 OF 2000

BETWEEN: OLGA EGUNOVA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 26 JULY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, Mrs Olga Egunova, is a citizen of Russia. She and her two daughters arrived in Australia on a visitors visa in February 1998 and shortly thereafter (on 27 March 1998) applied for protection (class AZ) visas. The daughters had no case separate from that of their mother. A delegate of the Minister refused the application and Mrs Egunova (together with her daughters) applied to the Refugee Review Tribunal (the "Tribunal") for a review of that decision. 2 It is a criterion for a protection visa that the Minister or, in the case of a review, the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as affected by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (which are together referred to as the "Convention"). Australia has protection obligations to a person who falls within the definition of refugee in article 1A(2) of the Convention. That article defines a refugee as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ..." 3 Mrs Egunova based her claim on a series of incidents, all closely related, arising out of an election which she said had taken place in October 1997. At that time she had been elected as a member of the regional electoral commission in respect of an election in her local municipality in St Petersburg. She observed, as votes were counted, what can be described as electoral fraud, namely, the replacement of votes in favour of one candidate with votes in favour of another. 4 Her case was that she had complained about this and following her complaint had been threatened. She said she was dismissed from her employment on what was said to be the ground of staff reduction, when in fact there had been advertisements for vacancies. She said she wrote down everything she knew and sent it to a newspaper but nothing was published. She claimed to have received a "writ" from a mental hospital ordering her to go for a regular examination when she had not been under any previous treatment. She did not go. Ultimately, she said, she was forced to sell her apartment, apartments being very precious in St Petersburg just as they were, I understand, during the previous communist regime in the then Leningrad. As it happened, she did not receive any money for the apartment. She claimed to have been later beaten after lodging an application with a court in relation to the sale money apparently on her husband's initiative. There were further calls from the mental hospital. She was threatened after the court case took place. She did not believe the Russian authorities would protect her because she believed she was persecuted due to their unofficial authorisation. She ultimately came to Australia. Her claim was that she was entitled to be regarded as a refugee for she had suffered persecution, including beatings, harassment, loss of apartment, loss of job and ultimate loss of husband, for reasons of political opinion. 5 The Tribunal recognised that her claim really turned upon the initial electoral fraud which she had claimed to have seen. She said the election took place on 12 October 1997 and that this was the second round of the election, a previous round having been held on 27 September 1997 with none of the candidates receiving a sufficient majority. A candidate had been a Mr Nilov from the Afghanistan Veterans Party. Mr Nilov was the leader of this party and ultimately won the seat for which she had been counting votes. She claimed to have been dismissed from her employment on 16 October 1997, that is to say, four days after the electoral counting. 6 The Tribunal gave Mrs Egunova until 17 July 2000 to produce evidence regarding the election in respect of which she claimed to have counted votes. The Tribunal noted that the Afghanistan Veterans Party appeared to be a minor and obscure party although Mrs Egunova claimed that it was well known in Russia and had nationalistic programs. On 17 July 2000 Mrs Egunova's representative indicated that Mrs Egunova had been unable to obtain any information in relation to the election. However, he affirmed on her behalf that she was sure that the second round of the election had been held in October 1997. 7 On 6 September 2000 the Tribunal notified Mrs Egunova, purporting to act in accordance with s 424A of the Migration Act 1958 (Cth) (the "Act"), that it did have information concerning the election. According to that information the first round of the election was held in St Petersburg on Sunday, 28 September 1997 and two persons, one of whom was Mr Nilov, had progressed to the second round. It seems that the second round was due to be held on 12 October 1997, in accordance with Mrs Egunova's claim, but had been postponed, so the Tribunal said, after the Primorsky District Court had found the first round of the election to be void. That decision was subsequently overturned and, according to the Tribunal, Mr Nilov ultimately won in the second round of the election held on 9 November 1997. 8 The information which the Tribunal referred to suggested that there had been no election in fact held in October 1997, contrary to Mrs Egunova's claim. 9 The Tribunal recognised that the whole of Mrs Egunova's claim turned upon her having participated in the counting of votes in an election held in October 1997. The election and observation of fraud which occurred at it were critical for her claim that such persecution as she endured was for a Convention reason, namely, by reason of political opinion. Apparently the representative of Mrs Egunova requested the Tribunal to grant further time to produce evidence regarding the election. Ultimately, that opportunity was not given. 10 The Tribunal said, having regard to the material to which it referred, that it had no reason to doubt the independent evidence which indicated that the second round of the election did not take place on 12 October 1997. It followed from that that the Tribunal could not accept that she was threatened that night, was dismissed from her job, or that any of the other matters she claimed occurred to her, at least because of political opinion arising out of her observation of electoral fraud. The Tribunal concluded that it was unable to be satisfied on the evidence before it that she had a well-founded fear of being persecuted for a Convention reason if she returned to Russia and affirmed the decision of the delegate of the Minister not to grant to her a protection visa. 11 Mrs Egunova applied to the Court for judicial review under s 476 of the Act. The application referred to ss 476(1)(a) and 476(1)(c) and claimed there was no evidence or other material to justify the making of the decision. None of the grounds of review to which the application referred are in any way particularised. 12 Before the Court, Mrs Egunova was unrepresented although she had the assistance of an interpreter in the Russian language. She read a statement of her submissions which was translated. She said that the Tribunal had not been correct in arriving at the decision that she was not a refugee. She said that the Tribunal had no proof, had demonstrated no common sense and that its reasoning process bore no relationship to the real situation that existed in Russia today. 13 She noted that the Tribunal had based its reasons on the fact that the election had not been held on 12 October 1997 relying on an article reporting on a decision of a court which had apparently cancelled the election on that day and delayed it until later. However, she said there was no information before the Tribunal which proved that an election on 12 October 1997 did not happen. She pointed to the fact that the Tribunal had at one stage suggested that an election had occurred on 12 February 1998 and later had suggested it occurred on 9 November 1997. She criticised the Tribunal's decision because the Tribunal believed in democracy and lawfulness existing in Russia, although there was no information that this was correct. She said the Tribunal believed that all was normal in Russia and that the law worked normally, when this was not so. 14 Her substantial complaint seems to be that the Tribunal had assumed that once a court order was made it would be implemented. That is to say that once the court order was given the election would be postponed. However, she said there was information that this was not the case. She referred to a report which she sought to tender (it had not been before the Tribunal) as demonstrating that human rights in Russia were not followed and for that matter that court orders were not followed. She complained that her request for further time to produce information had been rejected and requested that I send back to the Tribunal, or at least a Tribunal differently constituted, her claim so a decision could be made with proper proof. 15 She pointed out that the Tribunal was obliged not to make a decision until the facts relevant to that decision were proven. The report to which she referred is a typed document headed, "Human Rights Developments in Russia (1999)". I have marked it for identification, "MFI1", having regard to Mrs Egunova's stated desire to proceed through as many courts as possible by way of appeal. 16 She says that the document (it showed no provenance) was given to her by a solicitor. It is, perhaps, a composite summary of articles that has been prepared by the solicitor. No doubt material not before the Tribunal might be admitted to prove that a material fact found by the Tribunal was wrong in circumstances where a no evidence submission was to be made. However, ordinarily the Court is not entitled to look at material that was not before the Tribunal. The document was objected to by counsel for the Minister and I must uphold the objection, especially given the total lack of provenance of the document. I could not accept it in evidence as proof of the matters referred to in it. 17 At the end of the day the complaint by Mrs Egunova is that the Tribunal found that the election, upon which her entire claim depended, did not take place at the time she said it did. I have to say that I find it surprising that people, if they are to be believed, are required by the Tribunal to be precise about the time when some things are said to happen. A difference of a few days ordinarily would not seem to me to require one to disbelieve an applicant. Perhaps this case may be different in that Mrs Egunova was very precise about the chronology to which she referred. But, be that as it may, the questions whether that election and the electoral fraud, which were the foundation for what thereafter was said to have happened to Mrs Egunova, took place are matters of fact for the Tribunal. 18 Parliament has, in this country, determined that this Court has no jurisdiction to consider matters of fact in migration cases, even if the Court itself might arrive at different findings of fact. As the law stands I have no authority to embark upon a review of the merits of the case. I can only consider those grounds of review which are set out in s 476(1) of the Act. However, Mrs Egunova has not made out any of those grounds. 19 There is nothing in the Tribunal's reasons that indicates that it made an error of law or other error within s 476(1). There was certainly evidence before it on which the Tribunal was entitled to hold that the second round of the election did not occur when Mrs Egunova said it did. It would not be an error of law for the Tribunal to find that a court order was in fact implemented when the material before it indicated this was the case even if it is possible that it was not. The questions whether the second round of the election occurred and when it did were matters for the Tribunal and not matters for me to decide. It follows that I must dismiss the application. I would order the applicant to pay the respondent Minister's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.