Perchine v Minister for Immigration and Multicultural Affairs [2001] FCA 168 (27 February 2001)

Last Updated: 6 March 2001

FEDERAL COURT OF AUSTRALIA

Perchine v Minister for Immigration and Multicultural Affairs [2001] FCA 168

Andrei Perchine v Minister for Immigration and Multicultural Affairs

N 1104 of 2000

SYDNEY

MATHEWS J

27 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1104 OF 2000

BETWEEN:	ANDREI PERCHINE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	27 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1) The application be dismissed.

2) The decision of the Refugee Review Tribunal be affirmed.

3) The applicant is to pay the respondent'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 1104 OF 2000

BETWEEN:	ANDREI PERCHINE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MATHEWS J
DATE:	27 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 26 September 2000, which affirmed a decision of the respondent's delegate not to grant him a protection visa.

2 Under s 36(2) of the Migration Act 1958 (Cth), a criterion for the grant of a protection visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol (known compendiously as "the Convention"). In order for Australia to have protection obligations to the applicant, it must be established that he is a person who, "owing to a 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". The applicant says that he has a well founded fear of persecution in his country of nationality, Russia, on the ground of his political opinion.

3 The factual background is as follows. The applicant was born on 16 June 1961, and is now 39 years old. He came to Australia using a tourist visa on 20 February 1998. On 19 March 1998, he applied for a protection visa. His application was accompanied by a statement apparently completed through an interpreter. In it, the applicant said that he was a skilled technician in the Russian military service. In 1995 he was conscripted to an area near the Chechan border. He witnessed horrific scenes during the Chechan war and observed that some Russian officers were actively assisting the Chechans. He spoke out against this at a particular meeting. As a result, he was disciplined and arrested. Whilst in detention (where he remained for a matter of weeks) he wrote to the military prosecutor setting out his allegations.

4 Subsequently, criminal proceedings were commenced, presumably against the officers named by the applicant. The applicant was asked to give evidence against them. However various threats were made by telephone and fax, as to what would happen to him if he did so. He twice sought protection from the militia, but this was refused.

5 Not long afterwards the applicant was attacked by a group of strangers. He was bashed in the head with a solid object. Whilst recovering in hospital, a photograph of a dead body was sent to him with his name on it. He became frightened and left the hospital.

6 Rather than give evidence at the trial, as requested, the applicant sent a written account of his observations to the prosecutor and also to the president of the Russian Federation, Mr Yeltzin. The trial against the officers took place without his evidence. Later he learnt that they had received what he described as "symbolic sentences". A few days later his car was burnt down, and later again he received a further threatening phone call.

7 In January 1998, the applicant went to an adjoining country intending to seek asylum. However, he was told by a police officer that this country did not provide political or other asylum. Accordingly, he returned to Russia and shortly afterwards applied for an Australian visa. As already mentioned, he arrived in Australia on 20 February 1998, and sought a protection visa the following month.

8 On 1 May 1998, his application for a protection visa was refused by the Minister's delegate. The delegate did not accept that any persecution which the applicant feared was for a Convention reason. The delegate considered that the applicant had become a target of criminal activities because of events he had witnessed and not for any Convention reason. On 22 May 1998, the applicant sought review of this decision from the Tribunal. Well over two years later, on 6 September 2000, the Tribunal gave its decision, affirming the delegate's decision.

9 In the meantime, on 16 June 2000, the Tribunal held a hearing at which the applicant attended and gave evidence. On that occasion, the applicant provided considerably more information than had been given in his earlier statement. He said that he had been outspoken against what he had observed in relation to the war in Chechnya. He had given details of his allegations to a named journalist, as a result of which he had been interrogated by the militia. Later he was summonsed to go to a particular location in order to make a statement, but on the advice of others he refused to go.

10 The Tribunal noted the additional allegations made by the applicant since his original application and made the following comments:

"I accept that it is inevitable and indee, natural that matters of detail will emerge at a hearing before this Tribunal which are not recorded in an applicant's original statement. However, as I put to the Applicant, the new matters which he raised at the hearing before me are not mere matters of detail. The claim that he was interrogated by the militia or some special secret service because he had supplied some secret material to a journalist is an entirely new claim.

I do not accept that the Applicant mentioned these matters to his representative at the time that the statement accompanying his original application was prepared. I consider that the new claims which the Applicant raised at the hearing before me are embellishments to his original evidence. I consider that the course which the Applicant has followed since the rejection of his original application indicates an attempt on his part to alter his claims in an attempt to bring himself within the terms of the definition of a refugee in the Refugees Convention. I consider that the Applicant is prepared to tailor his evidence to what he perceives to be his advantage without regard for the truth. I do not consider that the Applicant can be accepted as a witness of truth."

11 The Tribunal went on to reject virtually every factual claim made by the applicant other than the proposition that, in the mid 1990s, he had been called up to serve in Chechnya. The Tribunal accepted neither the claims made in his original application, nor the additional assertions contained in his evidence before the Tribunal. As a result, the Tribunal did not accept that the applicant had a well founded fear of persecution on the ground of his political opinion. It thus affirmed the delegate's decision.

12 The applicant has sought judicial review. In his application to the Court he relied on three grounds, which I shall discuss later, under, respectively, ss 476(1)(a), 476(1)(e) and 476(1)(g) of the Act. The matter first came for hearing before me on 13 December 2000. The applicant was assisted by an interpreter, but was not legally represented. The applicant presented written submissions in court. In them he reasserted the genuineness of his fears and the fact that the persecution he feared was on the ground of his political opinion.

13 The applicant said in his submissions that he wanted to refer to the transcript of the evidence he had given before the Tribunal. At the hearing he said that some serious verbal exchanges had taken place between the Tribunal member and his (the applicant's) immigration agent. The applicant had not raised, as a ground of review, that the Tribunal's decision was affected by actual bias. Nevertheless the matters he raised at the hearing, combined with the Tribunal's very strong adverse credibility findings, persuaded me that I should obtain a copy of the transcript of the Tribunal's hearing. Accordingly, the case was adjourned until today so that this could be done.

14 The transcript has now been taken out and I have had an opportunity of reading it. It is true that the Tribunal member was at times brusque and short with the applicant. At one point he gave vent to his apparent frustration in a most unfortunate manner. Having quoted back to the applicant a portion from his (the applicant's) original statement, the member said, "What does that mean? Don't play games. Don't be stupid." A little later the applicant commented, "maybe this policeman had some other motives." The Tribunal member responded, "And then again maybe your story isn't true at all."

15 It is most regrettable that exchanges of this nature should take place at a Tribunal hearing. It gives little reassurance to an applicant that his or her claim is being considered in a cool, impartial and dispassionate manner. On the other hand, the transcript does not go so far as to suggest that the Tribunal member had such a closed mind to the issues raised that he was not open to persuasion by the applicant's case, this being the essential test of actual bias under s 476(1)(f). Therefore, regrettable as the intemperate outburst of the member was, I do not consider that a ground under s 476(1)(f) has been made out.

16 This takes me to the grounds of review which were relied upon by the applicant in his notice of application. The first, under s 476(1)(a) of the Act, is that requisite procedures in connection with the making of the decision were not observed. As Mr Wigney, who appears for the respondent, points out, no details have been provided of this ground. The Tribunal's decision appears on its face to meet the requirements of s 430 of the Act. There is no suggestion of any other requisite procedures which the Tribunal failed to observe. Accordingly, so far as I can ascertain, there is no substance in this ground.

17 A similar comment can be made about the second ground, that the decision involved an error of law under s 476(1)(e) of the Act. Again no details have been provided in support of this ground. As is normal practice with unrepresented applicants I have critically examined the Tribunal's decision in order to discern whether any error appears on its face. So far as I can ascertain it does not. This ground must also be rejected.

18 The final ground is under s 476(1)(g), that there was no evidence or other material to justify the making of the decision. This must be read in conjunction with s 476(4)(b), which requires that the person who made the decision based the decision on the existence of a particular fact and that fact did not exist. This ground of review is not easy of application. Serious difficulties face most applicants who seek to rely on it. In some cases these difficulties are insurmountable. This case, in my view, is one of them.

19 In order to make out this ground it must be established: first, that the decision of the Tribunal was based on a fact; secondly, that there was no evidence of that fact before the Tribunal; and thirdly, that that fact is disproved.

20 The Tribunal's finding that the applicant fabricated his claims cannot be categorised as a finding as to a "particular fact" under s 476(4)(b). Rather it is a conclusion drawn by the Tribunal on the basis of the material before it. Nor can this ground be used to impugn the Tribunal's findings that the events described by the applicant did not occur. In N258/00A v Minister for Immigration and Multicultural Affairs at [2000] FCA 993, Katz J, after considerable discussion, concluded that par 476(1)(g) does not apply to findings of the non-existence of facts.

21 Quite apart from these fundamental matters of principle, there is nothing in the factual material before me to support this ground. Accordingly it must be rejected.

22 As the applicant has been told, the powers of this Court to set aside a decision of the Tribunal are extremely limited. In particular the Tribunal's factual findings cannot be challenged in this Court, so long as there is some evidence to support them. The mere fact that I find some of the Tribunal's findings surprising and would not have made them myself is not sufficient to establish a ground of review.

23 No reviewable error has been established. Accordingly I have no choice but to dismiss the application and affirm the decision of the Tribunal.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated: 27 February 2001

Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the Applicant:
Counsel for the Respondent:	Mr M Wigney
Solicitor for the Respondent:	Clayton Utz Solicitors
Date of Hearing:	13 December 2000 and 27 February 2001
Date of Judgment:	27 February 2001