FEDERAL COURT OF AUSTRALIA QAAN/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 359 MIGRATION – appeal against refusal to grant Protection (Class XA) Visa–privative clause decisions – whether the rules of procedural fairness require an intelligible aural record of proceedings in the Refugee Review Tribunal – whether the Refugee Review Tribunal failed to act in good faith – whether findings of credibility made by the Refugee Review Tribunal deny review. Migration Act 1958 (Cth) s 474 Judiciary Act 1903 (Cth) s 39B Constitution s 75(v) Ex parte Smith; Re Russo [1971] NSWLR 184 referred to Plaintiff S157/ 2002 v Commonwealth of Australia (2003) 211 CLR 476 followed Craig v The State of South Australia (1995) 184 CLR 163 referred to Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 followed Devries v Australian National Railways Commission (1993) 177 CLR 472 referred to QAAN/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No Q 19 of 2003 SPENDER J BRISBANE 31 MARCH 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 19 OF 2003 BETWEEN: QAAN/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SPENDER J DATE OF ORDER: 31 MARCH 2004 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application filed 25 February 2003 is dismissed. 2. The applicant pay the respondent's costs, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 19 OF 2003 BETWEEN: QAAN/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SPENDER J DATE: 31 MARCH 2004 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an application for review filed in the Federal Court on 25 February 2003. The application seeks that the decision of the Refugee Review Tribunal ("the RRT") handed down on 5 February 2003 affirming a decision of a delegate of the Minister to refuse the applicant's application for a Protection (Class XA) Visa be set aside, and the matter be remitted to the RRT for determination according to law. The reasons for the RRT decision are dated 9 January 2003. 2 The applicant is a Russian national. He, his wife and child arrived in Australia as visitors in May 2000, and applied for Protection (Class XA) Visas on 8 June 2000. On 4 September 2000, a delegate of the Minister refused that application. An application for review to the RRT was lodged on 29 September 2000, and its decision affirming the decision not to grant the Protection Visa was made on 5 February 2003. 3 The applicant appeared on his own behalf in this Court, with assistance provided by a Russian interpreter. 4 The applicant states in the application for an order of review that he is aggrieved because: '(a) The Tribunal's approach was subjective towards the current political situation in Russia. (b) Not all available information on the Russia was used. (c) The decision maker was not acting in a good faith. [d] Audiotapes of interview were not given to applicant upon his request. [e] All applicant's claims were groundlessly rejected.' 5 The particulars of fraud, bad faith or actual bias are said to be: 'Audiotapes of interview were not given to applicant upon his request. Decision was based on personal believs of decision maker but not on provided evidenses.' 6 Despite some confusion as to whether the tapes referred to the initial departmental interview with the applicant, or to the record of proceedings in the RRT, it now appears that the applicant's complaints relate to the audio tapes recorded during his hearing in the RRT. The applicant complains that he asked for copies of those tapes, and despite many attempts to obtain them, did not receive the tapes until very much later, and well after the filing of his application for review to the Federal Court. 7 In a letter dated 7 July 2003, the applicant says: 'Upon receiving these audiotapes I found out that more than half of records was not intelligible. The quality of records makes me think that at the time of an interview same technical norms were breached.' He also notes that a copy of "Check – List Recording" is signed and dated but is not filled in, which indicates, so it was submitted by the applicant, that the document was signed before the hearing and 'proper recording procedure was not followed'. In that letter, the applicant further says: 'I am sure that tribunal member came to interview with his opinion already formed. My rights for a protection visa were denied from the very beginning of RRT hearing (before getting any of my evidences). To prove my opinion I would like to quote the RRT decision. On the first page of the refusal letter stated that I had been assisted by an interpreter and represented by my adviser. However, because my case was transferred to Brisbane my adviser was not present at the interview. That makes me think that decision was prepared before the interview. Unfortunately due to absence of intelligible audio-tapes I was denied an opportunity to provide weighted evidences of violations of judicial norms at the RRT hearing. … Within 9 months I was refused an access to audio-tapes, and they tried to substitute audio-tapes with transcript, which were incorrect and incomplete. I consider these actions as an attempt to cover up the obvious departmental procedural error.' The letter ends with a complaint that 'my son, my wife and me were denied a [fair] RRT hearing.' 8 The question of what occurred at the RRT, and the accuracy of what is said to be a transcript of that proceeding, has been a matter of concern to the applicant at least since the earliest days of this matter in the Federal Court. The applicant says that 'there's no chance, no possibility, to listen to the tape because the tape is corrupt.' The applicant says that at the RRT he mentioned that there were 'traces of handcuffs on his wrists … but he can't find any mentioning of them in the transcripts'. 9 I have listened to the tapes. 10 The quality in many parts is very unsatisfactory. The transcript is unhelpful in many respects, in that there is no differentiation (except for a small period at the start) between what is indicated in the transcript as being unintelligible and what is, in fact, being spoken in Russian. Notwithstanding that, listening to the tapes leads me to conclude that they are an imperfect but contemporaneous recording of what occurred. In particular, the voice of the female interpreter is softly spoken and, of all the speakers at the hearing, is the most difficult to pick up aurally. There is nothing to support the contention that there has been some editing or omission of what occurred from what is recorded on the tapes. It is quite likely, and I accept, that some things that were in fact spoken have not been picked up by the tape, or transcribed into the transcript. 11 In my opinion, the rules of procedural fairness do not require that an intelligible aural record of the proceedings in the RRT be made. See Ex parte Smith; Re Russo [1971] NSWLR 184. Even a failure to follow proper recording procedure would not provide a basis for the Court to conclude that the applicant had been denied procedural fairness. 12 It may be that the findings of the RRT were based on an erroneous appreciation of what the applicant said, or a misunderstanding in respect of some aspects of the account given by him. 13 One possible example of that relates to the question of handcuffs, and scarring. 14 In the reasons of the RRT, the Tribunal said: 'When I noted that he had held a multiple entry tourist visa valid for entry to Spain until 22 April 2000 he said that after he had been detained for three days he had required urgent medical treatment. He said that when he had been interviewed by the primary decision-maker he had shown him the scars demonstrating that he had been beaten when he had been detained. I noted that the occasion when he had claimed he had been beaten when he had been detained was the incident on 14 December 1999. The Applicant said that this was correct. He said that he had not been physically beaten when he had been detained in April 2000 but he had been kept handcuffed and he had needed medical treatment.' In relation to this passage, the applicant through the interpreter told the Court that he had never claimed that he had got his scars on 14 December 1999. The interpreter said: 'He always stated that it had taken place on 17 April 2000. And then they changed the dates the client says, and that's why they did not believe him that he could get his scars on 17 April.' And later the interpreter said: 'He was beaten both in April and in December, but the scars from handcuffs were – he got them in April. He got the scars in April not in December but the physical abuse took place both in December and in April.' 15 The applicant's complaint of the RRT's reasons concerning his representation by a migration agent is, in my view, the result of a misunderstanding on the part of the applicant. The applicant claims that the Tribunal recorded that his migration agent was present at the hearing of the RRT when in fact he was not, and that this indicates that the RRT had made up its mind before the hearing. 16 The reasons of the RRT on which this submission is based are: 'The Applicant appeared before the Tribunal to give oral evidence by video conference on 23 October 2002. The Tribunal was assisted by an interpreter in the Russian language. The Applicant was represented by Mr Mikhail Plottsev of Consulting Centre A-Link, migration agent.' This has been misunderstood by the applicant as indicating that Mr Mikhail Plottsev is recorded by the RRT as having been present at the video conference. The sentence dealing with representation does not, in my view, contain the implication that Mr Plottsev was present at the video conference; still less does the sentence suggest that the decision had been made in advance or that the RRT had made up its mind. 17 Section 474 of the Migration Act 1958 (Cth) relevantly provides: '(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).' 18 In Plaintiff S157/ 2002 v Commonwealth of Australia (2003) 211 CLR 476, the High Court considered the extent of the protection afforded to decisions of an administrative character by s 474, in circumstances where it was alleged that there had been a denial of procedural fairness in arriving at the decision in question. The Court held that s 474 did not prevent the judicial review of decisions that involved jurisdictional error. 19 In Craig v The State of South Australia (1995) 184 CLR 163 the High Court at 179 said that if an administrative tribunal: '… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error that will invalidate any order or decision of the tribunal which reflects it.' 20 Section 39B of the Judiciary Act 1903 (Cth), subject to certain qualifications, confers upon the Federal Court jurisdiction of the character of the High Court set out in s 75(5) of the Constitution. Notwithstanding the provisions of the privative clause, the Court may exercise its powers, but only in relation to decisions affected by jurisdictional error. 21 I turn to consider whether, in fact, there is any jurisdictional error which taints the decision of the RRT in the present case. 22 The applicant claimed to have been employed as a television journalist by a television channel, Teleinform, in Moscow. He alleges that in the autumn of 1999, the management of Teleinform decided to do a series of reports in the early stages of the Second Chechen War. The applicant says that on 17 October 1999 he left Moscow with a support crew to travel to Chechnya. He says that he returned to Moscow on 26 October 1999 and prepared a story on the war. 23 He again left Moscow with his crew on 2 November 1999 to return to Chechnya. On this occasion he says that Russian forces stopped him and his crew at a checkpoint near Samashki and that all their equipment and film were confiscated. He says that he was separated from the rest of the crew and kept in a ditch overnight while his documents were verified. He was driven the next morning to a place in the Stavropol region where his passport and money were returned to him. He returned to Moscow on 14 November 1999, where he found the rest of the crew had also been released, although without their equipment and footage. 24 The applicant alleges that when he returned to work the next day, he was told that his report was unsuitable for broadcast. Within days, he alleges he was dismissed without references. The applicant alleges that this conduct occurred because his reporting on the war in Chechnya was not politically acceptable. The applicant says he was unable to find alternative work in the electronic media. 25 The applicant alleges that he lodged a complaint with the Public Prosecutor's Office about the unlawful actions of the militia in Chechnya. Several days later, the applicant says he was summoned to the local police office to see an officer of the FSB (the Federal Security Service, the successor of the KGB) who told him that it was in his best interests to desist from gathering information and material relating to the war in Chechnya. The applicant alleges that on 14 December 1999 he was picked up by two FSB officers in plain clothes who were waiting outside his home in a car. He says that they drove him to a deserted forest area where he was bashed inside the car before being given a severe beating whilst handcuffed to a tree. He says that while this was happening he was told that he must change his attitudes and not meddle in areas of official policy. He was eventually released and abandoned. He obtained a lift to the nearest hospital. Soon afterwards, he began receiving anonymous threatening telephone calls. 26 On 24 December 1999, the applicant travelled with his wife and son to Spain. The applicant returned to Moscow on 8 January 2000. He went to Spain again on 28 January 2000 and stayed there for almost a month. The applicant travelled again to Spain on 3 March 2000 and returned to Moscow on 15 April 2000. The applicant, his wife and child left Moscow and arrived in Australia in May 2000 and applied for protection visas on 8 June 2000. 27 The RRT gave lengthy reasons, over some 26 pages. In essence the RRT based its decision, affirming the decision not to grant protection visas, on its assessment of the credibility of the applicant. The RRT said that it 'did not form a favourable impression of the credibility of the Applicant on the basis of the evidence at the hearing.' It gave detailed instances of matters in respect of which it did not regard the applicant's evidence as credible. 28 The RRT accepted that there was 'ample evidence of interference with the freedom of the press in Russia, and of threats to journalists, particularly those who run foul of local authorities in the various cities, regions and independent republics …'. The RRT nonetheless said that there was nothing in the evidence available to the RRT to suggest that the Russian Government or its agencies had persecuted people such as the applicant who tried to publish material relating to human rights abuses in Chechnya in the press in Moscow or on the Internet. The RRT said that if the applicant had been harassed, threatened and attacked by the FSB, he could have applied for refugee status in Spain. The applicant travelled to Spain on 24 December 1999, 28 January 2000 and 3 March 2000. On no occasion did the applicant apply for refugee status in Spain. The RRT considered the applicant was prevaricating in relation to his evidence on his travel to Spain, and if there was any truth in it, he would have returned to Spain where his wife and children were, and would have applied for refugee status rather than recalling his wife and child to Moscow (notwithstanding his claims that he believed they were in danger), and then departing with them for Australia. 29 Based on its assessment of the applicant, the RRT considered that the applicant had fabricated the claims which form the basis of his application; that he was not employed as a television journalist; that he had not made two trips to Chechnya in the course of his employment; that he was not detained on any second trip to Chechnya; that he was not dismissed from his employment as a television journalist; and that he had not been harassed, threatened or attacked by the FSB. 30 This wholesale rejection of the applicant's version of events are strong findings, but they were open to the RRT to make. 31 As a result of the RRT's findings, particularly those relating to his credibility, the RRT did not accept that there was a real chance that the applicant would be persecuted for a Convention reason if he returned to Russia. The RRT was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to Russia, and it followed that he was not a person to whom Australia had protection obligations under the Refugees' Convention as amended by the Refugees' Protocol. 32 It may very well be that there were errors and misunderstandings by the RRT concerning aspects of the applicant's account. Erroneous findings of fact do not amount to jurisdictional error. The reasons for decision of the RRT indicate to me that it considered his evidence: it did not dismiss the applicant's contentions out of hand. There is nothing in the decision which would support the allegation that the RRT failed to act in good faith. Similarly, there is nothing to support a conclusion that the RRT was committed to a conclusion prior to embarking on the review process, and that it was not open to persuasion. 33 As to the RRT's finding on the applicant's credibility, in Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407, McHugh J said at par 67: '… a finding on credibility … is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.' 34 In this case the RRT gave reasons why it made the findings of credibility that it did. The finding as to the credit of the applicant is a finding of fact, and a reviewing body is not to set aside such a finding simply because the probabilities of the case are against, or even strongly against, such a finding. The High Court (Brennan, Gaudron and McHugh JJ) in Devries v Australian National Railways Commission (1993) 177 CLR 472 said at 479: 'If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" (S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 at p 47) or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" (Brunskill (1985) 59 ALJR at p 844; 62 ALR at p 57).' 35 No jurisdictional error has been shown in the reasoning of or the procedure adopted by the RRT. The applicant has been unable to point to any particular evidence which it is said was relevant to the RRT's consideration, which the RRT was bound to consider, but did not consider. 36 Jurisdictional error not being shown to have been made out, the application is dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate: Dated: 31 March 2004 Counsel for the Applicant: The applicant appeared on his own behalf Counsel for the Respondent: Mr Matthew Brady Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 1 August 2003 Date of Judgment: 31 March 2004