NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 312

FEDERAL COURT OF AUSTRALIA

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 312 NADR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1176 of 2002 WILCOX J 26 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1176 of 2002

BETWEEN: NADR

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 26 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent, Minister for Immigration & Multicultural & Indigenous Affairs. 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 1176 of 2002

BETWEEN: NADR

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 26 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of the delegate of the respondent, Minister for Immigration & Multicultural & Indigenous Affairs, to refuse to grant to the applicant a protection visa. The Tribunal was not satisfied that the applicant was a refugee within the meaning of the Convention on Refugees 1951, as amended by the Protocol on Refugees 1976. The Tribunal member set out at some length the claims made by the applicant and her reasons for reaching the factual conclusions that she did. 2 The applicant is a national of Ukraine. The case that he put to the Tribunal was that he had been an active member of a political party in Ukraine and was disturbed at what he regarded as corruption by some powerful members of that political party. He said he made inquiries about this and raised the issue of corruption at various meetings within the party. He gave an account of assaults upon himself. He also claimed an attempt had been made on the life of his wife, by her being run down by a motor car. 3 The details of these claims were spelt out at the oral hearing before the Tribunal. The Tribunal member asked a number of questions about the details. She dealt with the evidence in her reasons for decision. I do not think it is necessary or desirable for me to go to the details, particularly as the applicant comes to the Court under a pseudonym. 4 The application for review was argued by Mr Ian Archibald of counsel at some length. I think he has put everything that could conceivably be put on behalf of the applicant, but his argument serves only to demonstrate that the Tribunal did not fall into any jurisdictional error. 5 Essentially, the case put by Mr Archibald was that the Tribunal should have found the facts differently from the way in which it did find the facts. The underlying, although unstated, premise of the argument was that the statements made by the applicant to the Tribunal were true and the documents that were before the Tribunal should have been accepted as genuine. It is, of course, impossible for me to approach the matter on that basis. 6 The statements made by the applicant were claims made by him. The Tribunal member was bound to consider them with care, and to reach conclusions about their accuracy and, if accurate, their significance. I see no reason to doubt that the Tribunal member made an honest attempt to perform this function. In particular, I reject the submission made by Mr Archibald, at the conclusion of his address and apparently as an after-thought, that the Tribunal member was biased. 7 Unusually, in the present case, I have had the benefit of going to the transcript of the proceedings before the Tribunal. I have been referred to all the passages which Mr Archibald regarded as useful in making his client's case. There is nothing in those references that indicates the Tribunal member was attempting to silence or intimidate the applicant. There was no aggressive questioning. Nothing was said in the passages I have read which indicates a closed mind. On the contrary, the Tribunal member was seeking greater specificity about claims that were expressed in quite general terms, which she wished fully to understand, in order to evaluate them. This was an entirely proper course for her to take. It is essential that Tribunal members ask whatever questions seem to be necessary in order for them to understand exactly what it is that an applicant is saying. They have to bear in mind that some applicants are not articulate. They do not necessarily volunteer all the information they are able to give. 8 I think the tone of the member's questioning indicated she was trying to understand the applicant and was doing so with an open mind, ready to be persuaded if the evidence seemed cogent. Ultimately, she was not persuaded and the Tribunal rejected key elements of the applicant's case. She went to country information to satisfy herself that the applicant would not be at risk of persecution if returned to Ukraine by virtue of his membership of the relevant political party. However, she appreciated that his major complaint was not so much that he was at risk because of his membership of the party but, because of his activities in the party, in drawing attention to alleged corruption. The Tribunal member appreciated she would not get much assistance on that issue out of the country information. That is why she evaluated the particular claims made by the applicant. 9 The last paragraph of the section of the member's reasons headed "Findings and Reasons" was expressed in the following form: "I do not accept that there has been serious mistreatment or any concerted or systematic harassment of the applicant for [sic] reason of his membership of the RUKH or [relevant] party nor for his involvement in its activities. I am satisfied that the chance that harm, let alone harm amounting to persecution, would befall the applicant in the reasonably foreseeable future for reasons relating to his political affiliations is remote." It will be noted that this summary addressed both membership of the party itself and the applicant's involvement in activities of the party.