NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 32 (6 March 2003)

Last Updated: 6 March 2003

FEDERAL COURT OF AUSTRALIA

NAMM of 2002 v Minister for Immigration & Multicultural

& Indigenous Affairs [2003] FCAFC 32

MIGRATION - judicial review - protection visa - Refugee Review Tribunal - findings of fact - whether supported by probative material - whether illogical - whether jurisdictional error grounding review - failure to take into account relevant considerations - want of bona fides - alleged "intellectual dishonesty" - failure to attain or exercise jurisdiction - reasonable relocation - no ground of judicial review made out - appeal dismissed

Migration Act 1958 (Cth) s 36

Judiciary Act 1903 (Cth) s 39B

Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 cited

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449 cited

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 cited

NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805 cited

BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669; (2001) 67 ALD 60 cited

Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424 cited

Re Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 cited

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361

Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16 cited

NAMM OF 2002 AND NAMN OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1031 OF 2002

FRENCH, LINDGREN AND FINKELSTEIN JJ

6 MARCH 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA	GENERAL DISTRIBUTION
NEW SOUTH WALES DISTRICT REGISTRY	N 1031 OF 2002

BETWEEN:	NAMM OF 2002 AND NAMN OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH, LINDGREN AND FINKELSTEIN JJ
DATE OF ORDER:	27 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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 1031 OF 2002

BETWEEN:	NAMM OF 2002 AND NAMN OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH, LINDGREN AND FINKELSTEIN JJ
DATE OF ORDER:	6 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appellants are 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1031 OF 2003

BETWEEN:	NAMM OF 2002 AND NAMN OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH, LINDGREN AND FINKELSTEIN JJ
DATE:	27 FEBRUARY, 6 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 The appellants, who are husband and wife, are citizens of the Russian Federation. They arrived in Australia at Brisbane Airport on 27 August 1999 and entered under visitor visas. The wife lodged an application for a protection visa on 15 September 1999. At the same time, the husband made an application for a protection visa as a member of the wife's family unit. On 25 February 2000, the husband lodged with the Department of Immigration and Multicultural Affairs, as it was then known ("the Department"), his own application for a protection visa on the basis of his own claims to be a refugee. However, questions 36 to 40 on his application form, dealing with his reasons for leaving the Russian Federation, and his fears of what might happen if he were to return, were left unanswered. On 27 March 2000, both husband and wife were refused protection visas. The decisions were made by the same delegate, but were made as decisions on separate applications.

2 On 4 April 2000, the appellants lodged applications for review of those decisions with the Refugee Review Tribunal ("the Tribunal"). Although the appellants did not mention each other in their respective applications for review, the Tribunal decided to hear evidence from both at a single hearing. No objection was taken to this course of action. For reasons which do not appear from the record, the Tribunal hearing in relation to the appellants' applications did not take place until 19 November 2001. On 2 May 2002, the Tribunal made a decision in the following terms:

"The Tribunal affirms the decision not to grant protection visas."

The formal order of the Tribunal refers to the affirmation of "the decision not to grant protection visas". However it is apparent from the last line of its reasons for decision that it was affirming both decisions of 27 March 2000. On 26 June 2002 the appellants filed an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of the decisions of the Tribunal. The application was heard by Hely J on 27 August 2002 and on 10 September 2002 his Honour dismissed the application.

3 On 1 October 2002, the appellants filed a notice of appeal against his Honour's decision.

The Appellants' Claims

4 The appellants were married in 1993. They lived in Sochi, a city in the Russian Federation on the coast of the Black Sea. The appellant husband owned a successful car yard on the outskirts of the city. The appellants were able to buy a house and a good apartment in the city.

5 According to the appellants, on 10 July 1999 the husband was visited at his premises by three persons from the province of Chechnya. They had a business proposition. They would supply the business with cars which he would sell for them. The cars would not have any documentation with them. The husband, inferring that the Chechens were proposing that he sell stolen vehicles on their behalf, refused to do so. They insisted that he comply with their request and threatened him. The husband stood firm and refused to co-operate. He went to the police on the same day and made a statement. The following day, before close of business, a group of Chechens came into the office. According to the appellants, the Chechens severely beat up the husband, and destroyed furniture, a phone and a fax machine. They warned the husband against reporting the matter to the police, and threatened to kill him and his wife. They said that the appellants would pay them with money or with their lives.

6 The appellants discussed the situation overnight. The husband wanted to report the matter to an official called the Prosecutor. The wife was apprehensive and objected. Notwithstanding her objections the husband went to the Prosecutor's House in the Central District and gave a statement about what had occurred to a senior official there.

7 On 12 July 1999, the wife was walking home when a car pulled up, one of its doors opened and she was dragged inside it onto the laps of two men. Her mouth was covered with sticky tape and a bag put over her head. She was driven around for a long time. It was dark when the car stopped. She was taken out, pushed into a shed and thrown on the ground. She heard male and female voices from outside the shed. They were not speaking Russian. She started shouting and banging on the door. Somebody came in and tied her up. She was kept in her prison for eleven days and nights. She said:

"Four men repeatedly raped me. They used to beat me. They treated me worse than a dog. Every morning they threw a couple of hard flat cakes on the ground before me. That was my meal all those days."

8 About the time his wife was abducted, the husband received a telephone call and a demand that he pay a ransom of $US200,000 if he wanted to see her alive again. He reported what had happened to the Prosecutor's House where he was interviewed and shown photos of offenders known to the police. He could not identify anybody. He started raising money. By 22 July, which was the kidnappers' deadline, he had collected $US107,000.

9 On 22 July, the kidnappers contacted the husband by phone. He told them he would hand the money over but only to their leader. He was collected by a car, blindfolded and driven to a village in the mountains. There were men there armed with submachine guns. A bearded man demanded money. When he heard that the amount was only $US107,000 he became furious. Eventually they agreed that the terrorists would give the husband more time to sell his property and raise the whole sum. When they parted the terrorists told the husband that they were warriors of Islam, that the Russians had destroyed their villages and killed their people, and that they were going to take revenge on him personally and on thousands of "Russian pigs" like him.

10 On 23 July, the wife was driven to the outskirts of the city and set free. She went to the nearest house and the owner called the police. She was taken to a police station, interviewed, and sent for a medical examination and treatment. Some time later her husband came and brought her home.

11 Subsequently the appellants received several notices from the Prosecutor's House. The husband was afraid to go there. Ultimately the appellants sold their property without raising enough money to pay the balance of the ransom. The husband paid off debts to his friends and creditors. They used the remaining money to pay for their travel to Australia.

12 In addition to the appellants' claims, which were set out in the wife's application, the Department received a submission from a solicitor employed by the New South Wales Legal Aid Commission. In that submission the solicitor informed the Department that Sochi is located about twenty five kilometres from the border with Abkhazia and that the population is ethnically diverse, including people from Azerbaijan, Armenia, Georgia, Abkhazia, and Chechnya, as well as ethnic Russians. She also told the Department that the husband had heard of Chechen terrorists contacting business people and making various demands of them as early as 1991. Mainly ethnic Russian and non-Muslim business people were targeted. The husband had heard stories of Russian business people who had refused the demands of the Chechens disappearing, or having their children kidnapped for ransom. This practice had been increasing since that time. According to the Legal Aid solicitor, the husband said that part of the program of the Chechen terrorists was to use Russian businesses as fronts for earning money to finance their fighting. The aim was that Chechens would control businesses which had the appearance of being run by Russians.

13 When the husband was beaten by the Chechens they said words to him to the effect of "you Russian pigs will be our slaves". In follow up phone calls from his wife's kidnappers the husband was told that as a "Russian swine" he would be working for them.

14 The husband relied upon his wife's statement and the submission from the Legal Aid solicitor in support of his review application. In his oral evidence to the Tribunal he was asked whether he had a medical report on the injuries which he sustained when the Chechens assaulted him after he refused to do business with them. He told the Tribunal he had no report because he did not go to the doctor as he only suffered kicks around his stomach region.

15 It appears from the Tribunal's reasons that the husband has two adult children. A son, who is a doctor, lives in Tver, and a daughter, who is married and is an economist, lives in Sochi. These are presumably the children of an earlier marriage. He and the appellant wife have a daughter who was born in 1995 and who lives in Ivanovo with his mother. At the time of the Tribunal hearing, the appellants' daughter had been there for two years without any problems.

16 Among the materials provided to the Tribunal were two reports dated 21 February 2000 and 6 March 2000 from a psychotherapist practising in New South Wales. The first report, of 21 February 2000, concerned the wife. It described her as presenting with numerous signs and symptoms, including feelings of fear, helplessness and horror, humiliation, delusions of persecution, apathy, restlessness, irritability, difficulty in concentrating, suicidal thoughts, and recurrent nightmares and recollections of the traumatic events to which she said she had been subjected. This report, under the heading "History of Presenting Symptoms", stated:

"Symptoms were triggered by [the wife] being brutally kidnapped near her house by few Chechnian [sic] men and severely deteriorated after being kept and tortured as Russian prisoner in their hands."

A past medical history was set out in the following brief terms:

"Gynaecological problems (treated currently)."

A personal history was then set out. Under the heading "Diagnosis/Impression" the following comments were included:

"Post Traumatic Stress Disorder" and "Gynaecological trauma".

The wife was described as "not coping". A recommendation was contained in the report for long term psychotherapy by a therapist specialising in post traumatic stress disorder, and for review by a psychiatrist. A recommendation was also made that the wife and her family be allowed permanent residency in Australia. It was said:

"[The wife] is a classic example of victim of torture and trauma. She presents with almost all symptoms of classical Post Traumatic Stress Disorder. She was victimised, traumatised, abused - physically, sexually, verbally and emotionally."

Both appellants were said to support their story not only by their words but also by their behaviour. The husband was described as crying. The wife was said to retain a blunt, detached, disconnected affect.

17 In a report on the husband, dated 6 March 2000, the psychotherapist again set out a lengthy list of presenting signs and symptoms, including feelings of hopelessness, helplessness, humiliation, lack of energy, irritability and restlessness, suicidal thoughts and recurrent distressing dreams. The history of the presenting symptoms was described thus:

"Symptoms were triggered by [the husband] being brutally beaten and his life threatened by a few Chechnian [sic] men, but severely deteriorated when his wife... was kidnapped and held captive for eleven days by Chechnian men."

Again, the diagnosis was depression and post traumatic stress disorder. The report recommended supportive psychotherapy to treat "Major Depression" and "Post Traumatic Stress Disorder". The report also recommended anti-depressants and that the husband and his wife be allowed to reside in Australia and be reunited with their five year old daughter.

18 Also before the Tribunal was an English translation of a document described as a "Medico-Legal Examination Report". This was a report of a medical examination by the Deputy Head of the Sochi Medico-Legal Bureau of the appellant wife conducted on 23 July 1999. The report contained the following observations:

"The lower back has a bruise of 4.5 x 5.0 cm in size, its borders are not well-defined. The top lip has an avulsive wound of 0.8 cm in size, its edges are swollen and have hyperemia. The top eyelid and temple area have a bruise of 2.5 x 3.0 cm in size, its borders are not well-defined."

The Tribunal's Findings

19 The Tribunal was satisfied that the appellants are Russian nationals. It observed that their respective claims are identical in almost every respect, and that there were no contradictions or inconsistencies between them. The Tribunal accepted that the appellants came from Sochi and that the husband had a car yard there. It was prepared to give the appellants "the benefit of the doubt" and accepted their claim that the husband was approached by a group of Chechens, that he was asked to collaborate in receiving and selling stolen cars which would be supplied by them and that he refused. The Tribunal, however, regarded several of the subsequent key claims as "implausible" and was "unable to accept them".

20 The first claim not accepted by the Tribunal was the husband's claim to have been severely beaten up. The Tribunal said:

"They claim that some Chechens returned to the applicants' place of business and, according to the applicant wife's written statement, `severely' beat up the applicant husband. Yet at the hearing he stated that he had no evidence of this beating because he did not go to a doctor, as he only suffered kicks around the stomach area. Aside from his apparent contradiction of the written claim that he was `severely' beaten, I find it implausible that kicks to an area as sensitive as the stomach would not be serious enough to warrant a visit to a doctor for examination."

21 Secondly, the Tribunal member said:

"I further find it implausible that if the applicant wife was repeatedly gang-raped over a period of 11 days, the medical certificate would make no reference to this in any way, even if only to state that there was no evidence of external or internal injury in the vaginal region (albeit, the absence of any injury whatsoever after such an ordeal would itself be surprising). Hence I am unable to be satisfied that the rapes occurred."

22 The Tribunal regarded as implausible the claim that the Chechens released the wife even though they had received only a little over half of the ransom demanded from her husband and notwithstanding that they demanded he pay them the remainder. The Tribunal regarded it as "highly unlikely" that the Chechens would not have kept the wife in custody while her husband obtained the rest of the money. The appellants' adviser had submitted at the hearing that if the appellants had wished to embellish or invent the ransom claim they could have claimed that the ransom was equivalent to the amount purportedly paid. The Tribunal said it did not accept this "speculation" and said:

"If this were the case, the Chechens would have had no reason to persecute them any further, having obtained what they wanted in its entirety."

23 The Tribunal noted that the husband's adult daughter continues to live in Sochi without problems. If the appellants had a subjective fear of persecution by Chechens in Sochi they would also fear for family members. They both stated at the hearing that they feared that Chechens could trace them anywhere in Russia, but neither expressed any concern about the possibility that the Chechens might trace their family members in Sochi as well. The Tribunal said:

"Hence I am unable to be satisfied that the harm which they claim they suffered at the Chechens' hands actually occurred. That is, I am unable to be satisfied that they suffered the claimed persecution for reasons of their race, imputed political opinion or religion."

24 Importantly, the Tribunal went on to find that even if it were to accept the appellants' claims of persecution it was satisfied that they could reasonably relocate to another part of Russia. It did not accept their claims that in order to relocate they would have to reveal their new destination to authorities in Sochi and that the Chechens would find out where they had gone. A particular choice for relocation would be Ivanovo. The wife comes from that city. It is 1500 kilometres from Sochi and both appellants have friends and family there including their young daughter and the husband's mother. The Tribunal found nothing in the information available to it to substantiate the claim that there are large Chechen communities in Ivanovo. The Tribunal said:

"But even if there are, I have likewise found nothing in the available information to suggest that Chechen gangs in Russia have a joint information network which would allow them to trace people they were after anywhere in the country."

25 In relation to the psychotherapist's reports, the Tribunal observed that the diagnoses were based largely on experiences and symptoms recounted to the psychotherapist by the appellants. It did not seek to comment on the opinion that both were suffering post traumatic stress disorder. The Member said:

"But in any case, as noted above, although I do not accept their claims of persecution, I find that if they did not wish to remain in Sochi, they could reasonably relocate."

The psychotherapist's reference to the wife having suffered gynaecological problems was not "specifically explained". The Tribunal was unable to be satisfied that it was evidence of the claimed sexual assault.

The Reasons of the Learned Primary Judge

26 The learned primary judge set out the appellants' claims and the findings of the Tribunal in relation to them. He expressed concern about certain aspects of the logic which informed the Tribunal's fact finding. It is not necessary to canvass those observations for present purposes.

27 Before his Honour, it was contended that the Tribunal's decision had involved "a jurisdictional error, constituted by jurisdictional unreasonableness". The steps in the argument which his Honour set out in his reasons began with the proposition that ministerial or tribunal satisfaction that an applicant is a person to whom Australia has protection obligations is, by virtue of s 36 and s 65 of the Migration Act 1958 (Cth) ("the Act"), a jurisdictional fact. That is to say, the relevant satisfaction is a precondition to the exercise of the statutory jurisdiction to grant a visa.

28 In cases in which the decision-maker must be "satisfied" of a matter, the courts, it was said, will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could have arrived at it. In this respect reliance was placed upon Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 653--654. Within the framework of that principle, it was submitted, review is permitted in cases where the satisfaction of the decision-maker was based on findings or inferences of fact not supported by some probative material or logical grounds. It was also said that review may be permitted if the evidence which establishes or denies or, with other matters goes to establish or deny, that the necessary criterion has been met, was all one way - thereby demonstrating that no reasonable decision-maker could have arrived at the decision in question.

29 The Tribunal was said to have committed a jurisdictional error because its conclusion that it was not satisfied that the appellants were persons to whom Australia had protection obligations under the Convention was unreasonable in two respects:

1. The evidence going to establish that the appellants had a well-founded fear of persecution for race was all one way; and

2. The decision was based on findings or inferences of fact that were not supported by probative material or logical grounds.

30 The appellants contended before his Honour that there was no logic in any of the Tribunal's findings which he had summarised. It was said that there was no logic in the conclusion that the wife's account of being raped was implausible upon the basis of what was or was not contained in the medical certificate. This argument, as his Honour found, did not rise above a contention that the Tribunal wrongly found the facts and that the reasons given by the Tribunal for finding the facts in the way which it did were unconvincing. His Honour said:

"That falls short of establishing that the decisions which the RRT made are not ones that could be arrived at by any reasonable decision-making process."[26]

31 His Honour also rejected the contention that there was jurisdictional error in the Tribunal's failure to take into account relevant considerations constituted by its alleged failure to consider the import of the psychotherapist's reports. It was contended that the Tribunal had simply declined to consider the psychotherapist's opinion. However it was patent on the face of the Tribunal's decision that it did have regard to the psychotherapist's reports but was not persuaded by the opinions expressed in them because they were based upon a history recounted by the appellants, which history the Tribunal did not accept.

32 His Honour considered the application of the privative clause, s 474 of the Migration Act 1958 (Cth) ("the Act"), and on the strength of the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449 ("NAAV") held he was precluded from accepting a submission that jurisdictional error was not protected by the privative clause. This, of course, has been overtaken by the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 ("S157"). Although it was formally submitted that s 474 of the Act was invalid, his Honour was bound by the decision of the Full Court in NAAV to reject this submission. That of course remains the position after the decision of the High Court in S157.

33 The learned primary judge rejected a contention of want of bona fides on the part of the Tribunal. The argument before him was based upon a contention that the unreasonableness of the Tribunal's findings in rejecting the appellants' claims indicated a "lack of intellectual honesty". His Honour held that a failure to act in good faith involves a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the decision-maker. In this connection he relied upon his earlier decision in NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805.

The Grounds of Appeal

34 The grounds of appeal as set out in the amended notice of appeal may be paraphrased thus:

1. The learned primary judge erred in failing to hold that the impugned findings of the Tribunal were unreasonable on the bases that:

(a) the evidence going to establish that the appellants had a well-founded fear of persecution was all one way; and/or

(b) the decision was based on findings or inferences of fact that were not supported by probative material or logical grounds.

2. The learned primary judge erred in failing to find that the Tribunal failed to take into account the import of a psychotherapist's reports into the appellants' respective psychological conditions.

3. The learned primary judge erred in holding that the appellants did not establish a lack of bona fides on the part of the Tribunal.

4. The learned primary judge erred in failing to find that the Tribunal's decision constituted failure or constructive failure to attain or to exercise jurisdiction.

Statutory Framework - Criteria for Grant of a Protection Visa

35 The Act authorises the Minister to grant to a non-citizen permission (to be known as a visa) to travel to and enter Australia and/or remain in Australia (s 29). There are prescribed classes of visas (s 31). One of those prescribed classes is the protection visa (s 36).

36 Subsections (1) and (2) of s 36 as it stood when the appellant wife lodged her application for a protection visa read as follows:

"36(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

Subsections (3) to (7) inclusive were introduced into s 36 by the Border Protection Legislation Amendment Act 1999 (Cth) (No 160 of 1999) which was assented to on 8 December 1999 and the relevant parts of which came into operation on 16 December 1999. They exclude from the scope of Australia's protection obligations persons who have rights to enter and reside in what may broadly be described as "safe third countries". Their provisions are not relevant for present purposes.

37 The criterion in s 36(2) was amended by two Acts which came into effect on successive days, 1 and 2 October 2001. The Migration Legislation Amendment Act (No 6) 2001 (No 131 of 2001) repealed the subsection and substituted the following:

"(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa."

The Migration Legislation Amendment (Judicial Review) Act 2001 (No 134 of 2001) made a further amendment inserting the words "the Minister is satisfied" after the word "whom" in the subsection. So subs 36(2) now reads:

"(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa."

The first mentioned amending Act, No 131 of 2001, came into effect on 1 October 2001. The second amending Act, No 134 of 2001, came into effect on 2 October 2001.

38 Schedule 2 of the Migration Regulations 1994 (Cth) set out criteria for the grant of various classes of visa pursuant to reg 2.03. Item 785 of Schedule 2 dealt with temporary protection visas and Item 866 with protection visas. Both included as a criterion that:

"... the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."

39 Article 33 of the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 ("the Convention") gives rise to a primary obligation upon States that qualifies as a protection obligation for the purposes of s 36(2) of the Act. The Contracting States, by that Article, undertake not to expel or return a refugee to the frontiers of territories in which his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group, or political opinion. The obligation otherwise known as the "prohibition against refoulement" has two important elements:

1. It operates in respect of refugees.

2. It prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason.

A refugee is defined in Article 1A(2) of the Convention as any 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

Statutory Framework - The Function of the Tribunal

40 The Tribunal is established by s 457 of the Act. Its functions include the review of decisions refusing the grant of protection visas. In reviewing such decisions the Tribunal may exercise all the powers and discretions conferred by the Act on the person who made the decision (s 415). It may affirm or vary the decision, remit the matter for reconsideration or set the decision aside and substitute a new one (s 415). In carrying out its functions under the Act, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420). It is not bound by technicalities, legal forms or rules of evidence, and must act according to substantial justice and the merits of the case (s 420).

Statutory Framework - The Jurisdiction of the Court

41 The jurisdiction of the Federal Court in relation to decisions under the Act derives primarily from s 39B of the Judiciary Act 1903 (Cth). This provides, in the relevant parts:

"39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration; or

(b) arising under the Constitution, or involving its interpretation; or

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter."

The Migration Legislation (Judicial Review) Amendment Act 2001 (Cth) created a class of decision called a "privative clause decision". Such decisions are defined in s 474(2) of the Act thus:

"474(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)."

Section 474(3) defines "decision" in broad terms which it is not necessary to enter into at present. It is not in dispute that the decision of the Tribunal, the subject of review in this case, is a "privative clause decision" within the meaning of s 474(2).

42 Section 474(1) provides:

"474(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."

43 This provision has been held by the High Court in S157 to be constitutionally valid on the basis that it does not, properly construed, preclude judicial review on the basis of jurisdictional error which would support the grant of prerogative relief or the issue of constitutional writs under s 75(v) of the Constitution.

Ground 1 - Unreasonableness

44 By the first ground of appeal, the appellants contended that various findings of the Tribunal, set out in their amended application, were so unreasonable as to constitute error falling into the category of what was described as "jurisdictional unreasonableness". This term was derived from BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; (2001) 67 ALD 60. Counsel for the appellants acknowledged that in Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424, the Full Court, by majority, found such a ground of review not to be available. That decision was the subject of a grant of special leave to appeal to the High Court, and that appeal was heard in October 2002. Judgment is reserved. It is not necessary for present purposes to explore the scope of judicial review, if it be available, for unreasonableness or when, if at all, unreasonableness in fact finding may support a conclusion of jurisdictional error grounding review.

45 The Tribunal's findings which were said to establish unreasonableness for the purposes of this ground of appeal were identified in counsel's submissions as the following:

1. The finding that it was implausible that the Chechens had severely beaten up the appellant husband.

2. The finding that it was implausible that the appellant wife was repeatedly raped by a number of men.

3. The finding that it was implausible that the Chechens had released the appellant wife even though they had received only about half the ransom demanded.

4. The rejection of the argument that the appellants' non-embellishment of their claim by claiming that they had paid $US107,000 rather than $US200,000 supported their overall claim.

5. The finding that because the appellants did not fear for their family members it was implausible that they had a subjective fear for themselves.

6. The conclusion of the Tribunal that it was unable to be satisfied that the harm which the appellants claim to have suffered actually occurred.

7. The Tribunal's failure to accept the appellants' claims that in order to relocate they would have to reveal their new destination to authorities in Sochi and that the Chechens would find out where they had gone.

8. The finding that the appellants could safely relocate, including relocation to Ivanovo.

In respect of each of these findings it was submitted that there was no logic or probative material supporting them.

46 The Tribunal's reasoning in support of its conclusions on the factual aspects of this case is undoubtedly open to criticism in certain respects and his Honour made a number of observations in that regard. However, as things presently stand, faulty logic in fact finding does not constitute jurisdictional error. In relation to this aspect of the appellants' contentions, the learned primary judge said at [26]:

"The RRT did not have any material before it which `proved' that the applicants' claims were untrue. Nonetheless, it was obliged to make its own assessment as to whether it accepted the applicants' account of the relevant events. The applicants contend that `there is no logic' in any of the RRT's findings which I have summarised above. For example, it is said that there is no logic in finding that the wife's account of being raped was implausible upon the basis of what was, or was not, contained in the medical certificate as there may be explanations as to why the certificate took the form which it did such that there is no inconsistency between the terms of the certificate and the wife's claims. But this assertion of `no logic' does not rise above a contention that the RRT wrongly found the facts, and that the reasons given by the RRT for finding the facts in the way which it did are unconvincing. That falls short of establishing that the decisions which the RRT made are not ones that could be arrived at by any reasonable decision-making process. Unless that is established, the argument based on the reasoning of Gummow J in Eshetu, even if otherwise correct, does not get off the ground."

We respectfully agree. None of the aspects of the argument advanced by counsel for the appellants in relation to this ground were able to rise above criticisms of the Tribunal's fact finding and the logic which underlay it. The first ground of appeal fails.

Ground 2 - Failure to Take into Account the Psychotherapist's Report

47 Counsel for the appellants referred to the Tribunal's consideration of the psychotherapist's reports and its failure to comment on the opinion that both were suffering post-traumatic stress disorder. The psychotherapist's conclusions were said to be critical to the appellants' claims that they have a subjective fear. It was said that the Tribunal's failure to take into account relevant considerations constituted by failure to consider the import of the psychotherapist's reports amounted to jurisdictional error. The learned primary judge observed at [28]:

"... this argument does not get off the ground because it is patent on the face of the RRT's decision that it had regard to the psychotherapist's report[s], but was not persuaded by the opinions expressed in that report [sic - those reports] because they were based upon a `history' recounted to the psychotherapist by the applicants, which `history' the RRT did not accept."

It is apparent that the psychotherapist's reports were critically dependent upon the accounts of events presented by the appellants and set out in some detail in those reports. The presenting symptoms grounding the diagnoses were of a kind which were derived from the appellants' accounts of their own feelings and states of mind.

48 His Honour was correct in the conclusion he came to. This was a matter of fact in which the Tribunal was entitled, having found adversely to the appellants on their factual claims, to put the psychotherapist's conclusions to one side. Ground two therefore fails.

Ground 3 - Lack of Bona Fides

49 The trial judge, it was said, erred in failing to find that the Tribunal had acted with a lack of bona fides. In the appellants' submissions the unreasonableness of the Tribunal's findings referred to in ground 1 indicated a lack of intellectual honesty in approaching the issues before the Tribunal. The Tribunal's decision, it was said, bore the hallmarks of at least a finding against the appellants on one point of their claims with subsequent findings predicated upon that initial finding. That is to say, having concluded against the appellants on one point the Tribunal had proceeded to make findings consistent with the initial finding.

50 It may be said that the making of findings which are logically dependent upon a critical initial finding is hardly of itself indicative of want of good faith. The content of the ground of want of good faith as a ground of review deriving from the judgment of Dixon J in Re Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 has been considered recently in a number of decisions in this Court - see especially the decision of the Full Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361. See also the discussion by French J in Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16. On any view of the content of want of good faith or bad faith, and whether want of good faith is a concept that is wider than bad faith in this context, no lack of bona fides on the part of the Tribunal has been disclosed. As French J said in WAFV of 2002:

"Neither unreasonableness nor irrationality nor error of law or fact nor failure of procedural fairness is sufficient of itself to establish want of good faith. But a substantial departure from minimal standards of decision-making may be such as to indicate that a decision-maker has failed to adopt a conscientious approach to the task before it. It may be indicative of dishonesty or malice or actual bias or recklessness or capriciousness in the exercise of the power. The concept of `good faith' is evaluative. The threshold for finding its absence is high. It may in practice vary according to the nature and subject matter of the power being exercised as well as according to the circumstances of the particular case. In this sense it may be analogous to the variable standard imposed by the requirements of procedural fairness."

Ground 3 fails.

Ground 4 - Failure to Attain or Exercise Jurisdiction

51 This ground is subsumed in the earlier ground relating to alleged "jurisdictional unreasonableness". Ground 4 fails.

Relocation

52 Even if it could be demonstrated that the Tribunal should have concluded that the appellants had a well-founded fear of persecution on the part of Chechen terrorists by reason of their Russian nationality from which the authorities of the Russian Federation in Sochi could not protect them, they would still not have been entitled to a protection visa. For even assuming such a finding in their favour, the Tribunal's finding as to the availability of reasonable relocation has not been shown to be the subject of any error of law or fact on the part of the Tribunal.

Conclusion

53 For the preceding reasons the appeal must be dismissed.

Costs

54 An order of dismissal was made on 27 February 2003. The parties were then informed that the Court's reasons for decision were in the process of being checked and would be provided soon. Counsel for the appellants submitted that if the appeal failed only on the relocation issue, the appellants should not be ordered to pay the whole of the Minister's costs, but that a special order for costs should be made. In fact the appellants have failed on all grounds. The usual order for costs should be made.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 6 March 2003

Counsel for the Appellants:	Mr R Killalea
Solicitor for the Appellants:	Diamond Peisah
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Goverment Solicitor
Date of Hearing:	26 February 2003
Date of Judgment:	27 February 2003, 6 March 2003