BZAB of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 879 (29 June 2005)

BZAB of 2004 v Minister for Immigration and Multicultural
and Indigenous Affairs [2005] FCA 879

MIGRATION – judicial review – protection visa – appeal from Federal Magistrate’s decision refusing review of Refugee Review Tribunal decision – whether jurisdictional error on part of RRT – whether RRT failed to address question of apprehended persecution on account of political opinions – whether RRT complied with procedural requirements of s 424A – RRT not required to give advance notice of reasoning – appeal dismissed

Migration Act 1958 (Cth) s 424A

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 cited

BZAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
QUD 225 OF 2004

FRENCH J
29 June 2005
PERTH (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD225 OF 2004

BETWEEN:	BZAB OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	29 JUNE 2005
WHERE MADE:	PERTH (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.

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	QUD225 OF 2004

BETWEEN:	BZAB OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	29 JUNE 2005
PLACE:	PERTH (HEARD IN BRISBANE)

1 The appellant, who is a citizen of Kazakhstan, came to Australia in December 2001. She applied for a protection visa, which was refused on 11 June 2002. She sought review of that decision by the Refugee Review Tribunal (the RRT). The RRT affirmed the refusal on 30 June 2004. The appellant sought judicial review of the RRT decision. Her application was dismissed in the Federal Magistrates Court on 25 October 2004. On 9 November 2004 she lodged a notice of appeal against the decision of the Federal Magistrates Court. By direction of the Chief Justice her appeal was to be heard by a single judge.

2 The appellant claimed to have a well-founded fear of persecution in Kazakhstan on account of her involvement in a Christian charitable organisation called Miloserdie and her assertiveness about human rights issues. Her complaint about the content of the RRT’s decision related to its alleged failure to address the question whether she had a well-founded fear of persecution on account of her political opinions. She also alleged procedural error in that the RRT had failed to give her notice of findings it intended to make adverse to her and was therefore in breach of s 424A of the Migration Act 1958 (Cth) (the Act). For the reasons which are set out below I am satisfied that neither of these grounds has any substance. The appellant, who must establish jurisdictional error on the part of the RRT in order to succeed, is, in substance, seeking to revisit the merits of its decision. The appeal will be dismissed with costs.

3 The applicant is a citizen of Kazakhstan who was born on 23 July 1972. She arrived in Australia from Malaysia on 5 December 2001 under a visitors visa. On 7 January 2002 she lodged an application for a protection visa with the Department of Immigration Multicultural and Indigenous Affairs. In a supporting statement she claimed to fear persecution on account of her nationality, her religion and her political opinion.

4 The appellant claimed that in Kazakhstan local and state authorities discriminate against ‘Russian speaking Christians’ and have tried to force them out of the State. This ‘hidden policy’ comprises threats and violence, lack of protection, discrimination and humiliation. She said that as a result of such policy hundreds of thousands of Christians had already fled Kazakhstan.

5 The appellant said that since 1993 she had worked as a volunteer in a Christian charity association called Miloserdie, which means ‘Compassion’. The aim of the organisation is to support vulnerable and unprotected elderly people. They are provided with medical assistance and food and assisted to go to church. The organisation purchases books and magazines for them and organises parties.

6 The appellant said she was very active in the association which, for reasons explained later in her statement, attracted adverse attention from anti-Russian Kazakh nationalists. From 1994/95 she began to receive threatening notes and phone calls. She was called names and ‘advised’ to go back to her motherland. She was threatened with beatings. In March 1998 she was beaten by some Kazakhs right in front of her home. A few people witnessed the attack but were too frightened to interfere. One of her attackers was a person who lived a few blocks away from her home. The following day she went to the police department and submitted a written statement. However the police regarded it as a ‘minor incident’. She was advised to go home and forget about it. She complained that it was not a minor incident but a planned attack and that she had already been subjected to threats and intimidation. She told the police that there were witnesses and that one of the attackers lived nearby. The police officer to whom she said these things became angry and told her to ‘go to Russia and ask Russian militia for protection’. The appellant said that she then sent a letter to the General Prosecutor complaining that the approach taken by the police was in itself persecutory. She received a reply about two months later. No action was taken.

7 On 9 May 1998 at about 8pm a young man approached her as she was walking along a footpath and introduced himself as a relative of one of her patients. They started talking and then somebody pushed her from behind. A car appeared and she was forced into it. She was driven across the city centre towards a park. At the park the car stopped and she was pulled out onto the ground. While she was on the ground the occupants began kicking and beating her. She lost consciousness. When she regained consciousness she saw them standing around her. One of them said to her that she was a Christian bitch and that if she wanted to live she should sell her house and leave Kazakhstan. She was told that if she talked about the incident she would be buried alive. She said she was taken to a hospital where doctors gave her some first aid and called the police. A policeman came about two hours later. She told him what had happened to her and signed some papers. She was asked to come to the police station when she had recovered. Ten days later she went to the police station and was made to wait for about two hours. At the end of that time an officer told her it would be better if she retracted her statement. She said she wanted the matter to be investigated. She said that if police refused to investigate it she would apply to international human rights bodies. The appellant claimed that the police officer said that she could even apply to her Lord and added that ‘stupid bitches’ like her did not live long. When she returned home she found almost all of the windows of her house broken. There was a note on her driveway saying ‘you are dead’.

8 The appellant decided to leave Kazakhstan for a time and on 9 June 1998 she travelled to France where she spent two weeks working for a British/French couple looking after their children and doing some housework. She then decided to go back to Kazakhstan. Instead of going to her home she spent three weeks at a friend’s place. She contacted the police twice and also the General Prosecutor’s office but was given no information. On 18 July 1998 she departed Kazakhstan for Malaysia and signed a contract with her employers in Malaysia until December 2001. A year after the incident had occurred her family received a letter from police saying that her case was closed because of ‘lack of evidence’.

9 In the meantime, according to the appellant, her parents received a number of threatening phone calls and on 7 January 2001, which is the Russian Christmas Day, their house was broken into. The intruders broke furniture, windows, and electrical appliances but did not take anything, leaving a note saying ‘Russians get out of Kazakhstan’.

10 The appellant returned to Kazakhstan on 19 July 2001 to visit her parents. On 25 August she received a phone call. The caller asked her whether she was still alive and added ‘be prepared to die’. She called the police, who she said, refused to take any steps to sort the matter out and told her the call was not a serious threat. On the following day her dog was killed. A neighbour had seen two young men get out of the car, heard the dog barking and screaming and then heard nothing. Two days after that, according to the appellant, she was nearly run down by a car. She got out of the way at the very last moment. She believed it was an attempt to kill her because the incident happened just 20 or 30 metres from her house. The headlights of the car were off.

11 As a result of these further incidents the appellant decided to leave Kazakhstan for good. On 10 September 2001 she flew from Kazakhstan to Malaysia. She worked out her contract with her employers in Malaysia until December 2001. She had been granted an Australian visa on 5 July 2001. She had a close friend in Australia, whom she had met in Malaysia in August 1998, and who had invited her to visit. She said in her statement that the fact that she had a visa granted on 5 July 2001 had nothing to do with her later decision to apply for a protection visa. She couldn’t have applied for asylum in Malaysia. So far as she was aware the Malaysian authorities would not accept refugees. Malaysia is a Muslim country and she already had a visa to a democratic Christian country, being Australia.

12 On arriving in Australia the appellant applied for a protection visa. On 11 June 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, refused the application for a protection visa. On 9 July 2002 the appellant lodged an application with the RRT seeking review of the decision to refuse her a protection visa. A hearing date was fixed for 26 February 2004. On 30 June 2004 the RRT affirmed the decision not to grant the appellant a protection visa. The appellant sought judicial review of that decision. Her application was dismissed by the Federal Magistrates Court on 25 October 2004. She was evidently represented before the RRT and the Federal Magistrates Court by a migration agent, Mr Volonski. On 9 November 2004 the appellant lodged a notice of appeal against the decision of the Federal Magistrates Court given on 25 October 2004.

13 In its reasons for decision the RRT set out the substance of the claims made by the appellant in her statement in support of her application for a protection visa. It then referred to oral evidence which she had given to the RRT at the hearing on 26 February 2004.

14 The appellant told the RRT that immediately before leaving Kazakhstan she was a qualified ‘ambulance doctor’ or ‘doctor’s assistant’. In that capacity she would attend emergencies at peoples’ homes and on the road, assisted by a nurse and driver. She was permitted to provide emergency treatment but not surgical treatment. She was also a qualified schoolteacher and had formerly worked as such.

15 The appellant told the RRT of her involvement with the organisation known as Miloserdie. Her association with it was only as a volunteer. She had not held any office or formal position in it. When she began her association with Miloserdie the appellant had done non-medical work for the clients of the charity which included house cleaning, shopping, bringing literature from the church and writing letters that the clients dictated to her. Other doctors and nurses joined the organisation so that the tasks like cleaning and shopping were done by less qualified volunteers leaving the appellant to devote herself largely to the provision of medical assistance. Unlike many volunteers, she was an active participant and gave all her free time to the organisation. She claimed that she was the most recognisable, most high profile member and was openly against government policy concerning the younger generation. She was open about her political opinion and her opinion of the policy of the national government. In her letter to the General Prosecutor’s office following the incident when she was beaten in the street near her home and refused help by police, she had said that she disagreed with the current policy of the Kazakh government and its violation of constitutional and human rights. She said, in her letter, that the police only made an appearance of looking after order in society. The appellant told the RRT that she openly expressed her opinions to patients, colleagues, bosses and even her church parish. Her status as a ‘key figure’ in Miloserdie was attributable to her high qualifications, her right to treat people medically and her professional standing.

16 The appellant lived in Talgar which is a town with a population of about 40,000. She lived there with her parents. Her father worked at a special school for children with disabilities as a supervisor of the gardening and transport staff. Her mother also worked for a government department which had responsibility for industrial safety. Her problems had started in 1994 when she began receiving papers or letters in her mailbox or on the ground nearby addressed to ‘Russians’ or ‘occupants’ but not bearing her name. She referred to the telephone calls which she began to receive in which callers asked her to leave the country. They did not refer to her by name. She continued to receive such calls until she left Kazakhstan. Similar calls continued to come in her absence and were received by her parents. She said it was ‘normal practice’ for Russian speaking people to receive such calls. She alleged that hundreds of Russian speaking families receive letters of the kind that she received. When a Russian goes to the shops people would say things like ‘get out of here, Russian swine’, when the Russian person was purchasing pork.

17 The appellant claimed that part of the reason she received calls was because of her involvement in Miloserdie. The first threats came, she said, because the organisation had adopted an unpopular notion which she described as ‘internationalism’. This was a word she used to describe the readiness of the organisation to provide assistance to people regardless of their nationality for the health and well being of all. She contrasted it with the ideas of patriotism and nationalism. She claimed that it was the secret policy of the Kazakh government to squeeze out Russians from the country. Miloserdie was perceived by Kazakhs as an organisation undermining the nationalism that Kazakh organisations promoted.

18 The appellant described to the RRT the beating which she said she had received in 1998. She recalled that her assailants spoke the Kazakh language. One of the members of the group was a person she recognised as someone she had seen several times in the area. He was the one who pushed her so that she fell to the ground. He proceeded to kick her and other members of the group joined in. A person who lived nearby told her that he had seen everything. Her neighbours did not contact the police about the incident because they were frightened of the police. The RRT put to her that she would have been likely to have routine contact with the police because of the nature of her employment as an ambulance doctor. However she said her contact with the police was lim ited to situations in which somebody had died at which time she had to inform the police and wait until they arrived.

19 The appellant told the RRT that nothing had led her to anticipate the attack. She said it was dangerous for a Russian person to walk around the streets of her town. Asked why she still would walk alone in the street she said she was a well respected member of society, a lot of people knew her and people would often stop her in the street and ask her for medical assistance. It had never occurred to her that somebody would hit her. She had not sought medical treatment. Because of her medical training she was able to treat herself. Her injuries did not require hospital treatment.

20 In relation to the incident of 9 May 1998 when she was forced into a motor car, the appellant said she was approached by a young man who said he wanted to talk to her about a patient whom she had treated during her ambulance shift a couple of days before. It was then that the motorcar pulled alongside and the young man pushed her into it. When she asked the people in the car why they were taking her and where they were going she was told to shut up. The men called her a number of unpleasant names while stressing her Russian ethnicity. She described the incident in which she was beaten at the park by the occupants of the car. When she regained consciousness the men who had attacked her were standing around her and saying things such as ‘Get out of here with your charity otherwise you will die’.

21 The RRT pointed out to the appellant that she had not mentioned the reference to the charity in her statement describing the circumstances of the abduction. She told the RRT however that the main things that had been said to her were about the charity. She also told the RRT that other members of the organisation received letters and phone calls. Before she was assaulted nothing physical had happened to any of the members.

22 The appellant told the RRT that she had suffered from brain injury, concussion and a lot of soft tissue injuries and bruises to her face and body. Her face was ‘broken’ and her body covered in bruises. There had been an injury to her stomach that could have required surgery, but she only found out about it later and had no surgery. She suspected that the injury to her brain might have caused her to have problems with her eyesight. She had spent ten days in hospital receiving injections to decrease the pressure of the fluid on her brain and to relax blood vessels in her head and stomach. She was given Lasix. She was told not to let herself be exposed to bright lights or television which might irritate her eyesight. She was visited in hospital by a policeman who took a written statement and advised her to go to a police station. She then recounted what she had previously said had happened at the police station.

23 The appellant went on to tell the RRT about making contact with the British/French couple who had a business in Almaty and were seeking a professional nanny to care for their child. Following the abduction and beating she contacted them again and was offered the job initially on the basis of a probationary period of two weeks. She worked for them for two weeks in Paris and then returned to Kazakhstan while waiting for her employment in Paris to be legally documented. She then moved to Malaysia to commence work and stayed in her position in Malaysia until 2001.

24 The appellant told the RRT of her return visits to Kazakhstan during the period that she was employed in Malaysia and what had occurred. This included an account of the killing of her dog. She told the RRT that the dog had been hit on the head. It had a hole in its head. After the incident with the dog and the attempt to run her down by a motor vehicle, she went to Almaty. She was asked whether she believed that she could live safely in Almaty. She told the RRT that she could not because the office of the General Prosecutor was in Almaty and all the paperwork relating to her complaint went through that office. She was asked by the RRT what connection she thought existed between the General Prosecutor and whoever was seeking to harm her. She said the connection was that nothing had changed since when she was last in Kazakhstan and the time of the hearing. She said rights were violated before and rights continued to be violated by state structures. There was censorship. The police force focused on people who spoke openly about their opinions. They would prosecute journalists who spoke openly.

25 The appellant discussed with the RRT the possibility of moving to the north of Kazakhstan where she acknowledged the proportion of Russian speakers to Kazakh speakers is 70:30. However she said, ‘what’s the point in changing one street to another – it’s still an oppressive regime’. She said that if she returned to Kazakhstan she would be concerned about the threat of serious physical harm from the government and the authorities. She believed she was likely to be attacked in the future because Kazakhstan has the same political regime and the same state-sponsored discrimination as existed before. There is religious persecution and no freedom of religion. The churches themselves are not persecuted, but the people who go to church are.

26 The RRT then referred to independent country information about Kazakhstan. The United States Department of State Country Reports on Human Rights Practices – Kazakhstan 2003 observed that there was discrimination against women, persons with disabilities and ethnic minorities. The government discriminated in favour of ethnic Kazakhs. This was notwithstanding the inclusion in the Constitution of a Prohibition against Discrimination on Account of Race, Nationality and Language, inter alia. The Constitution provided for freedom of religion. Various religious communities worship largely without government interference but local officials attempt, on occasions, to limit the practice of religion by some non-traditional groups. The intervention of higher-level officials or courts often correct such attempts.

27 A report from the Immigration and Refugee Board of Canada was also referred to by the RRT. That report mentioned a round table session held by Russian associations in Almaty on 20 January 2002 to discuss the status and future of Russians in Kazakhstan. There was reference to concern about the declining representation of ethnic Russians in government as well as in the economic and cultural spheres.

28 Based upon the country information the RRT accepted that there was some measure of government sponsored discrimination in favour of ethnic Kazakhs notwithstanding constitutional guarantees against discrimination by reason of race, nationality, language or conviction. The RRT accepted that ‘extremist’ Russian groups had been ‘crushed’ by the Kazakh government but that Miloserdie was not an organisation of that character. Poll results rendered doubtful the proposition that there was increased oppression of the Russian speaking population of Kazakhstan. Nevertheless there had been an increase in Russian immigration because of economic circumstances and perceived anti-Russian discrimination. The Kazakh Constitution guarantees freedom of religion. While there is evidence of suppression of particular religious groups at a local level the RRT noted that corrective action had been available through the courts and higher level officials.

29 The RRT accepted that the appellant is an ethnic Russian and a Christian and that she had been a volunteer with the Miloserdie. It also accepted that because of her work with Miloserdie she would have been known to the clients of that charity and to their families. Those clients included persons other than ethnic Russians who were Christians. They also included non-Russians and non-Christians. The RRT did not accept that the appellant’s involvement in Miloserdie would have exposed her to adverse attention from Kazakhs whether Kazakh nationalists or not as those groups benefited from the services provided by the organisation which provided assistance without regard to ethnicity or religion.

30 The RRT referred to the appellant’s assertions at various times during the hearing that she was a significant or high profile member of Miloserdie and of her community, a status attracted by virtue of her being an ambulance doctor and the level of her involvement. The RRT referred, somewhat curiously, to the appellant’s ‘constant assertiveness at the hearing and her insistence about her status and importance in Miloserdie and her community’ and found it somewhat tendentious. The RRT formed the opinion that the appellant was exaggerating her significance in the organisation and the community as a whole. The RRT appears nevertheless to have accepted a ‘basal level of harassment’ of ethnic Russians such as the sending of anonymous papers or letters and making telephone calls. However in respect of the specific incidents of attacks upon the appellant its findings were generally adverse to her.

31 In relation to the assault near the appellant’s home the RRT referred to inconsistencies in her evidence. At first she had said that nothing at all had been said to her by her assailants. However in the course of the hearing she claimed that somebody had said to her that she should ‘get out with her charity’ and that ‘otherwise you will die’. Nothing in the protection visa application had suggested that membership of the charity was a consideration giving rise to the persecution or that it was mentioned at the time of the assault. There was no suggestion that any other member in, or volunteer with, Miloserdie had been subject to actual or threatened harm by reason of their participation in the organisation. Nor was there any suggestion in the evidence that the organisation was itself regarded as obnoxious to nationalists or to any other group in Talgar or Kazakhstan. No member of the organisation had been physically harmed. The appellant did not claim that there had been any previous or concomitant warning to her in her capacity as a volunteer with Miloserdie that she might be a target because of her involvement with that organisation. Her evidence was that she worked freely about Talgar where she was well known and respected and was frequently approached and asked to provide medical assistance. The RRT said:

32 Turning to the abduction and assault incident the RRT was not satisfied that what was said to the appellant in the car or at the time of the assault indicated that the attack made upon her was done due to her Russian ethnicity or Christian religion. The initial approach by the person who spoke to her on the footpath before she was forced into the car was about her role as an ambulance doctor in relation to a patient she had treated. No other connection was mentioned. The RRT appears to have accepted that while she was assaulted she was referred to as a ‘Russian bitch’ when asked to be silent and was spoken to in Russian rather than Kazakh. But the fact she was abducted by Kazakh men and that her ethnicity was used as a term of abuse did not persuade the RRT that the reason for the abduction and assault had to do with her Russian ethnicity, her Christianity or her involvement in Miloserdie.

33 The RRT did not accept that the appellant was told by her assailants to sell her house and leave. Nor did it accept that after the assault she was told to ‘get out of here with your charity’ or that her life was threatened. The RRT could see no reason on the evidence for any antagonism on the part of Kazakhs to Miloserdie. Even if there were, it did not accept that it was likely that antipathy to a charitable organisation would be such that its opponents would want to kill one of the volunteers, even one with the profile that the appellant claimed. The RRT was therefore unable to conclude that the harm caused to the appellant on either occasion was by reason of her ethnicity or religion or her involvement in Miloserdie. The RRT was fortified in its view because of her absence from Kazakhstan for a considerable period of time while working in Malaysia. She claimed that her parents received letters and telephone calls but there was no suggestion that they were directed at the appellant or were of a particularly sinister kind.

34 The appellant had claimed that in July 2001 while in Kazakhstan she received a threatening telephone call and that the next day her dog was killed. She also claimed to have been the victim of an attempt to run her down in the street. The RRT accepted that her dog was found dead but that absent evidence of causation it could not find the dog was killed in the manner suggested by the appellant. The RRT found that the appellant had to take action to avoid a possible impact with a motor vehicle. However her evidence was as consistent with a chance or accidental occurrence as it was with deliberate behaviour or indeed with carelessness on the part of the appellant.

35 The RRT also noted that these later claims were made with respect to conduct alleged to have occurred even though she was visiting Talgar after a substantial absence. She had not sought to re-establish herself in the town and had not claimed that she was again involved with Miloserdie. The Tribunal could not accept that there was any reason on the evidence why the appellant would, after the passage of two years away, have remained a target. Nothing she had said or done in her period in Kazakhstan supported the inference that she would be of interest to anybody, whether individual or a group, because of her ethnicity, her religion or her association with Miloserdie. The Tribunal was therefore not satisfied that either of the incidents described by the appellant evidenced any attempt to threaten or cause her harm for any Convention reason.

36 Nor did the evidence support the contention that her complaints to the police about the assaults on her were not proceeded with or that she was discouraged from making or continuing with those complaints. The RRT accepted that she made the complaints and that no-one was brought to justice. This outcome, however, was understandable having regard to the limited information which the police had to go on. She was able to offer no evidence of identity to the police of the persons who attacked her near her home. Neither did the person or persons that she said had witnessed the assault. She did not identify any of the people who abducted her in the motor vehicle and then assaulted her. The RRT found that in the circumstances it was not surprising that the offenders were not apprehended.

37 In regard to her assertion that she complained to the General Prosecutor about the handling of her complaints, the RRT did not accept that the evidence permitted an inference of collusion between the General Prosecutor and the police or that the former failed to pursue her complaint for any Convention reason. Nor did the RRT accept that her complaint to the General Prosecutor and her threats that she might now take the complaint to international human rights bodies, mean that she was somehow marked for further attention by the office of the General Prosecutor.

38 The appellant’s adviser submitted that her political opinion was seen to be derived from an accumulation of a number of factors, namely her community work, her Russian ethnicity, her imputed religion, her gender and her high level of education. The RRT was not satisfied that this accumulation of factors comprised a ‘political opinion’ of the appellant.

39 The RRT added that even if it were to accept that all the incidents occurred and that they occurred for any one or more of the Convention reasons identified, the appellant would be able to relocate within Kazakhstan without fear of serious harm in the way of persecution for a Convention reason. The appellant had already spent time in Almaty. She had gone there to avoid the kind of harm that she claimed had occurred or was likely to occur to her in her hometown. Her reason for not feeling secure in Almaty was the location of the office of the General Prosecutor there. The RRT however did not accept that the appellant had any subjective fear of harm should she move to Almaty. And if she had such a fear it found the fear was not well founded. The Tribunal did not accept that the fact of a complaint to the General Prosecutor of the kind made by the appellant would have produced a result that she was thereafter to be exposed to officially sanctioned harm or that she could no longer seek to rely upon the protection of the authorities. The RRT was not satisfied that should the appellant return to Kazakhstan in the reasonably foreseeable future she would be subjected to any serious harm in the nature of persecution for any Convention reason.

40 The appellant’s application for judicial review of the RRT’s decision set out five grounds as follows:

41 The decision of the Federal Magistrates Court on the application for review was given ex tempore.

42 In addition to the grounds set out in her application the appellant sought to rely, before the Federal Magistrates Court, on contentions that the RRT had not complied with s 424A of the Act. This non-compliance was said to have arisen from the failure of the RRT to give to the appellant for her comment certain information that it subsequently relied upon when affirming the decision of the delegate. The core of this argument was set out in the outline of submissions lodged on behalf of the appellant by her migration agent. The terms of the paragraph were set out in the learned magistrate’s decision:

43 The learned magistrate refused leave to rely upon this aspect of the argument although he did so on the basis that there was no merit in the argument. He identified three matters of information which the appellant contended that the RRT had failed to put to her for her consideration and comment. They were:

44 In relation to the first matter, the RRT held that it fell within the category of information given by the appellant for the purposes of the application. It was not information to which the general obligation imposed by s 424A(1) of the Act applied. In relation to the second category, the learned magistrate adopted the approach taken by Sackville J in Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 where his Honour observed that a subjective determination by the RRT that an applicant’s account is or may not be credible does not enliven the obligation imposed by s 424A(1). The learned magistrate observed that even though the comments of Sackville J were dealing with issues of credibility they had equal application to the existence by the RRT of a view about the lack of Convention nexus in the appellant’s complaint. As to the third question, that is the RRT’s view about relocation, the learned magistrate noted that the RRT had plainly adopted its view about relocation as an alternative or fallback position. It had previously expressly rejected the contention that the appellant had a well-founded fear of persecution for a Convention reason. Moreover s 424A being inapplicable to the RRT’s process of reasoning, it was not required to signal its view to the appellant.

45 Having dealt with the contentions about s 424A on their merits, the learned magistrate found that there had been no denial of procedural fairness or natural justice to the appellant. As to the other grounds relied upon by the appellant in her application the learned magistrate expressed the ‘firm view’ that none of them demonstrated a proper basis for interfering with the decision under review. The RRT had addressed the relevant issue, namely whether the appellant had a genuine fear of persecution for a Convention reason. It had decided that issue against her. There was no error demonstrated in its approach.

46 The appellant’s notice of appeal set out the following grounds, which were really argumentative statements, as follows:

47 The notice of appeal then set out the text of the appellant’s outline of submissions before the Federal Magistrates Court which, it was said, had been faxed to the respondent on 22 October 2004.

Whether the RRT failed to address the question of the appellant’s political opinion

48 The appellant contended in her written submissions that the RRT had failed to address the question whether she had a well-founded fear of persecution on account of her political opinions. Its findings, she argued, were related to ‘the absence of independent country information consistent with the discrimination and persecution of ethnic Russians’. But, according to the appellant, she had reiterated in the course of the hearing the contention that she was viewed as an enemy of the State because of her active involvement in a Christian-oriented; semi-political organisation and her subsequent actions aimed at attracting the attention of the authorities to the fact of human rights abuses. On this basis she argued that the RRT had ignored relevant material and relied upon irrelevant material.

49 In my opinion the ground has no merit. The RRT’s findings of fact about the connection between the attacks on the appellant and her membership of Miloserdie are adverse to her claim of Convention persecution on grounds of both ethnicity and political opinion.

50 The RRT specifically relied upon the all embracing charitable nature of the organisation to which the appellant belonged in rejecting her argument that her membership would have exposed her to adverse attention from Kazakh nationalists. It found there was no evidence of the persecution of any other member of Miloserdie on account of that membership. This finding it expressly observed was of relevance ‘... because of the way in which the applicant puts her case, insofar as Miloserdie she claims is subversive to the "nationalist" ideology.’ The street assault against her was not accepted as having any connection with her participation in Miloserdie. The RRT was not persuaded that her abduction by motor vehicle and her assault on that occasion was connected with her involvement in Miloserdie. Having rejected the alleged connection between these assaults and the appellant’s membership of Miloserdie the RRT had plainly addressed the question of actual imputed political opinion to the extent to which she had raised it in connection with that membership. As to her assertiveness to the police and the General Prosecutor’s office about human rights issues relevant to the processing of her complaints, the RRT also made findings adverse to her contention that she was at risk of persecution. It rejected also the ‘cumulative’ political opinion argument advanced by her adviser.

51 In my opinion the RRT considered the question it had to consider and found against the appellant’s contention that she had a well-founded fear of persecution on account of her political opinion. The first ground therefore fails.

52 Section 424A of the Act is found in Div 4 of Pt 7. That Division is entitled ‘Conduct of review’. Section 424A provides, in the relevant parts:

53 Although the learned magistrate, in form, declined to grant the appellant leave to rely upon the ground of non-compliance with s 424A which did not appear in her application for review, he nevertheless dealt with it on its merits. In my opinion, I should do the same.

54 The appellant contended that the RRT’s decision was partly based upon its finding that other members or volunteers of Miloserdie had not been subjected to actual or threatened harm. Having so found, the RRT concluded that the appellant had not been as significant a participant in the organisation as she claimed and did not accept that the assault on her had any connection with her participation in Miloserdie or with her Russian ethnicity or Christianity. It also found that her attempts to bring questions of human rights violations to the attention of the authorities did not give rise to a Convention related fear of persecution. Finally she referred to the RRT’s finding about her ability to relocate in Kazakhstan. She submitted that contrary to s 424A(1) the Tribunal did not ‘address the following’:

2. The alleged lack of Convention nexus in the appellant’s complaints.
3. Whether the appellant was able to relocate within Kazakhstan.’

All the above information was said to have been relevant, significant to the decision to be made and specifically about the appellant. The RRT should have given her an opportunity to comment on these issues. In my opinion, and substantially for the reasons set out by the learned magistrate, this ground is also unsustainable.

55 On the first point the RRT’s finding was that there had been no suggestion that any other member in or volunteer with Miloserdie had been subjected to actual or threatened harm by reason of participation in the organisation. Nor was there any suggestion that the organisation was itself regarded as obnoxious to ‘nationalists’ or any other group in Talgar or Kazakhstan. This was a conclusion that the RRT was entitled to draw from the evidence put before it by the appellant. It was not as though she had pointed to other members of Miloserdie being subjected to actual or threatened harm because of their participation in the organisation. Nor was there any suggestion in the country information of such adverse consequences attaching to involvement in that organisation. This was not an observation that the RRT pulled out of the air. It came out of the appellant’s own evidence. The RRT was entitled to make that observation and to take it into account in its conclusions. To have required it to provide advance notice of that observation to the appellant would have amounted to requiring it to expose its reasoning process which is not a requirement under s 424A.

56 The same is true of the second question, that is that the RRT’s finding that there was no nexus between the incidents of which the appellant complained and any of the Convention grounds.

57 On the question of relocation, this had been raised with the appellant in the course of her submissions. The RRT discussed her responses to its questions about relocation in pars 47 and 48 of its reasons. There can be no complaint of non-compliance with s 424A on this Ground. In my opinion therefore the second ground also fails.

58 For the preceding reasons, the appeal will be dismissed. The appellant will have to pay the respondent’s costs of the appeal.

I certify that the preceding fifty eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

	The appellant appeared in person

Counsel for the Respondent:	Mr S McLeod

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	20 and 21 June 2005

Date of Judgment:	29 June 2005

Federal Court of Australia

BZAB of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 879 (29 June 2005)