VBAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1614

FEDERAL COURT OF AUSTRALIA

VBAF v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1614 APPLICANT VBAF OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 89 of 2002 GRAY J 10 DECEMBER 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 89 of 2002

BETWEEN: APPLICANT VBAF OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 10 DECEMBER 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 89 of 2002

BETWEEN: APPLICANT VBAF OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 10 DECEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application seeking relief pursuant to section 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refusing to grant to the applicant a protection visa. 2 The applicant is a citizen of the Russian Federation. He arrived in Australia on 23 October 1998, with a visa entitling him to remain in Australia until 20 October 1999. He was then granted a further visa, which was extended twice until 7 October 2000. He then remained in Australia without a visa and was taken into immigration detention. While in immigration detention, on 19 November 2001, the applicant applied for a protection visa. On 11 December 2001, the delegate of the Minister refused to grant such a visa. 3 The applicant applied for review of that decision by the Tribunal. On 8 January 2002, the Tribunal conducted a hearing at which the applicant gave oral evidence. On 17 January 2002, the Tribunal published its decision and its written reasons for decision. Its decision was to affirm the decision not to grant a protection visa. It is in respect of that decision of the Tribunal that the applicant has applied to this Court. 4 Section 36 of the Migration Act 1958 (Cth) ("the Migration Act") provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. In s 5(1) of the Migration Act, the term "Refugees Convention" is defined to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the term "Refugees Protocol" is defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two instruments, taken together, the "Convention". 5 For present purposes it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to 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". 6 The applicant claimed that he was persecuted in his home country because he reported to the authorities fraudulent activities in relation to the operation of an electric power station. He claimed that, as a student researching his final year thesis, he spent a week in a power station, where he discovered discrepancies in the power output figures. He reported this to the police and was asked to provide a written statement. A week later, three men came to his flat and beat him and asked him to withdraw his statement. These men were members of the internal security forces, the former KGB, who worked as guards at the power station. They continued to beat the applicant, initially frequently and later less frequently, for a period of four months. He reported these beatings to the police three times, but the police would not believe him. 7 The Tribunal accepted that the applicant was a student who spent a week in a power station in order to do research for his final year thesis. The Tribunal did not accept the applicant's story about his discovery of discrepancies between the consumption of fuel oil and the power output of the power station. It did not accept that he reported these discrepancies or that he was beaten by guards of the power station. It found the applicant's story to be far-fetched and implausible. It concluded that the applicant's fear of persecution was not well-founded. 8 The Tribunal reached these conclusions for several reasons. The first was the delay between the applicant's arrival in Australia and his application for a protection visa. The applicant's explanation for the delay was that he had received advice from migration agents, who told him that he could not apply by himself, but that he needed the services of an agent who charged sums of money the applicant did not have. The Tribunal did not accept this story, because of the applicant's level of education, the fact that by himself he managed to apply for and obtain a visa and two extensions to that visa whilst in Australia and the fact that he also managed to travel around Australia. The Tribunal was obviously influenced by the fact that the applicant delayed well beyond the expiration of his previous visa before applying for a protection visa. 9 As well as delay, the Tribunal found against the applicant in relation to a number of factual issues. It found it implausible, and did not accept, that a person of the limited experience of the applicant would be able to conclude after a week at a power station that the problem he had identified was fraud and not a fault in the equipment. It did not accept the applicant's response to this suggestion, which was that the applicant was assisted by his supervisor in concluding that fraud was involved. The Tribunal found it implausible that the supervisor, or the institution at which the applicant was a student, would not have taken up the issue. 10 The Tribunal also found it implausible that personnel from the internal security forces would be used as guards at a power station. Even if they were, the Tribunal did not accept that corrupt elements in the power station would draw attention to their own fraud by sending their own guards to beat up the applicant. 11 The Tribunal did not accept that the applicant was beaten as often and as severely as he claimed. Although the applicant had described in detail how the beatings were conducted so as to leave no mark, the Tribunal found that beatings of the intensity and frequency claimed would be difficult to hide. In addition, there was no suggestion that the supervisor or the institution had taken any action in relation to the beatings, although the applicant was in contact with them to complete his thesis during the time that he was beaten. The Tribunal found that this was implausible and also found it implausible that the applicant was able to complete his thesis under the claimed circumstances. 12 The Tribunal was also influenced by the lack of evidence of any investigation by the authorities as a result of the applicant's report. It found that he had not claimed to have been summoned to give evidence in the past three years, although he had given the investigators his family's home address. 13 For these reasons, the Tribunal did not accept that the applicant was beaten by persons from the power station, that there was any reason for any persons from the power station to want to harm him or that he would be in danger from the same people in the foreseeable future, for the reasons it had cited. It therefore found that there was not a real chance that the applicant would come to any harm for a Convention reason, should he return to Russia. 14 The applicant's application to the Court, filed on 14 February 2002, was apparently based on a standard form, stating a number of grounds for review of the Tribunal's decision. It is unnecessary to canvass the terms of those grounds other than to say that they are as broad as can be imagined. The application provided no particulars of any alleged errors of the Tribunal or other grounds for reviewing its decision. 15 Because the applicant did not have legal representation, the Court referred him, pursuant to O 80 of the Federal Court Rules, so that he could obtain the assistance of a qualified lawyer for the purposes of advice and the drawing of an amended application if thought fit. Despite the referral, no amended application was filed. Accordingly, no further referral was made for the purposes of representation for the applicant and he appeared before me in person with the assistance of an interpreter in the Russian language. 16 The applicant made submissions critical of a number of findings of fact made by the Tribunal. He submitted that the Tribunal lacked knowledge or understanding of the culture of Eastern Europe, especially the former USSR. He told me, for instance, that power stations are regarded as premises requiring security and are guarded by members of the internal security forces, the former KGB. He also told me that the Tribunal was in error when it found that he claimed to have been assaulted while completing his thesis. He said that he had completed his thesis on the computer and it only remained to print it out. If he had not completed it, he would not have been able to come to his conclusion about the fraud and to report it to the police. 17 I put to the applicant in summary form the reasons why the Tribunal had rejected his application for a protection visa. In response to my questions, the applicant gave explanations and accounts, apparently similar to those he gave to the Tribunal. As I endeavoured to explain to the applicant, the Court cannot reach its own conclusions about the facts of a matter. The Migration Act clearly makes the Tribunal the ultimate trier of fact. Only if the Tribunal steps outside its function in a significant way can the Court set aside its decision and order that the applicant be given a second hearing by the Tribunal. 18 In this respect, the applicant told me that the Tribunal took only one week to give its decision after the hearing. He said that this gave rise to his belief that the decision had been made before the hearing. Further, the hearing took only one and a half hours and he was not asked any questions. He told the whole of his story from beginning to end and was only asked to repeat some of the segments of his speech. There was no investigation and no additional questions. Because the applicant was in detention at the time, he was not able to prepare for the hearing as well as he now could. Being out of detention now, he would be better able to supply the Tribunal with information from other sources in support of his case. 19 I have considered whether the submissions that the applicant made to me would be capable of establishing that the Tribunal failed to perform its function. In particular, I have considered whether it could be said that the Tribunal did not approach its task bona fide. If it were the case that the Tribunal had set out to defeat the applicant's claim for a protection visa, no matter what the applicant might say, that might be evidence of bad faith on the part of the Tribunal such as to take the decision outside the protection of s 474 of the Migration Act. 20 I have reached the clear view, however, that the matters raised by the applicant do not make out such a case. In fact, the period elapsing between the Tribunal hearing and the publication of its decision was nine days. The written reasons of the Tribunal were only a little over six pages in length. When its summary of the law was removed, there was even less for the Tribunal to prepare. No criticism can be levelled at the Tribunal for acting promptly to prepare reasons for decision while the issues were fresh in the Tribunal member's mind. The giving of a quick decision is not of itself sufficient to establish that the decision is preordained. 21 The applicant's recollection that he was not asked any questions other than questions requiring repetition of his story is not borne out by an examination of the reasons of the Tribunal. In particular, it appears from those reasons that the Tribunal put to the applicant at the hearing its concerns about his ability to identify fraud, given his lack of experience and the short time he spent in the power station. When I discussed this issue with the applicant, he did not suggest that the Tribunal had not asked him that question. In any event, the task of the Tribunal was to evaluate the material supplied by the applicant in support of his case. It had no obligation to seek to make that case for him.